State Records Committee Appeal Decision 24-73

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ADAM HERBETS (Fox 13), Petitioner, v.

VANGUARD ACADEMY, Respondent,

DECISION AND ORDER

Case No. 24-73

By this appeal, Adam Herbets (“Petitioner”), requests records allegedly held by Vanguard Academy (“Respondent”).[1]  

BACKGROUND

To better understand the parties’ arguments and our analysis, it’s helpful to outline the events that led to this appeal. We begin with a short summary of those events.

In May 2023, we ruled on a public record request involving the daily calendar of Attorney General Sean Reyes. In that decision, we had to examine Utah Code § 63G-2-103(25)(b)(ix), which sets forth a list of items that the legislature expressly stated were not records subject to the Government Records Access and Management Act (“GRAMA”). However, in examining Subsection 103(25)(b)(ix), we found that only personal calendars were not subject to GRAMA, and that the Attorney General’s official work-related calendar was, in fact, a public record. Knox v. Attorney General’s Office, Decision and Case no. 23-22, Utah State Records Committee (entered May 26, 2023). The Attorney General’s Office appealed our decision to district court. 

On February 27, 2024, District Court Judge Patrick Corum made an oral ruling in the matter of Utah Attorney General’s Office v. Knox, case no. 230904641 (3rd Dist. Ct.), that essentially agreed with our decision. Judge Corum relied upon principles of statutory interpretation and grammatical composition to hold that: (1) when read in context, the ‘personal use’ qualifier in Utah Code § 63G-2-103(25)(b)(ix) applies to a daily calendar; and (2) the calendar is not for the attorney general’s ‘personal use.’” Utah Attorney General’s Office v. Knox, case no. 230904641, Order Granting Motion for Summary Judgment (3rd Dist. Ct.). 

The next day, February 28th, and likely in response to ours and Judge Corum’s decisions, the Utah Legislature passed Senate Bill 240 (“SB 240”), which modified the definition section of Utah Code Ann § 63G-2-103(25)(b)(ix). The modification was the insertion of a semicolon after the term “daily calendar” to make that term its own line item. Thus, SB 240 expressly made clear that any type of daily calendar—personal or work-related—was excluded from the definition of “record” under GRAMA. SB 240 included language that it would take effect upon the governor’s signature if it was approved by two-thirds of the members of each house of the legislature, which it was. At roughly 8:00 pm that evening, the Governor signed SB 240 into law with immediate effect.[2]  Afterward, the Attorney General’s Office filed a timely appeal of Judge Corum’s decision. That appeal is still pending. 

FACTS

At 1:26 am on February 28, 2024, (almost 19 hours prior to SB 240 was signed into law) Petitioner submitted a request to the Respondent for certain records pursuant to the Government Records Access and Management Act (“GRAMA”). Specifically, Petitioner requested copies of “all records (electronic or otherwise) reflecting calendars and/or appointments for the following from January 1, 2019, through March 1, 2025.” The request then named 17 individuals.

In a response dated March 6, 2024, the Respondent denied access to the records on the grounds that SB 240 clarified that daily calendars are not records under GRAMA. Petitioner filed an appeal of the denial to the Respondent’s chief administrative officer (“CAO”). 

In response, the CAO denied Petitioner’s appeal. The CAO stated: “While you may have served your GRAMA request hours before Governor Cox signed SB 240, that does not insulate your request from the law. To the contrary, when Vanguard’s response was due, the law was clear that daily calendars were not subject to GRAMA. Thus, Vanguard denied the request based on the law that existed at that time.”

The CAO went on to say that if the Respondent were required to produce the daily calendars, the costs would be significant because the request seeks more than six years of daily calendars for seventeen (17) individuals. According to the CAO, those calendars would likely have information protected from disclosure by the Family Education Rights and Privacy Act and personal information, which Judge Corum found could be redacted. The cost of retrieving, formatting, and redacting protected information from those calendars for production would be significant. Vanguard would not be willing or able to waive those costs.

Petitioner appealed the CAO’s decision to the State Records Committee (“Committee”). On September 19, 2024, the Committee held a hearing during which the parties were allowed to participate.  At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties.  After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

    The Committee is asked to determine whether the records were properly withheld.

STATEMENT OF REASONS FOR DECISION

    The Respondent raises several legal arguments for us to examine. We address each in turn.

1.    Time Computation Under Utah Code
The Respondent's first argument is that the 2024 version of GRAMA is controlling because, under Section 68-3-7, GRAMA became operative the day after Petitioner submitted his request.

Section 68-3-7 provides that when an act is performed, time is computed by excluding the first day. Utah Code § 68-3-7(1)(a). Under GRAMA, when a record request is received, the governmental entity customarily has 10 business days to respond to the request. Utah Code § 63G-2-204(4)(b). Thus, according to the Respondent, because of Section 68-3-7, the 10-day clock to respond to a GRAMA request begins one day after the request is submitted. Consequently, the version of GRAMA that is in effect on day one of the 10-day response period is the one that governs the request. Regarding the request at issue, the argument is that although Petitioner submitted his request on the same day but prior to the Governor signing SB 240, the response time began running on the day after the request was submitted and when SB 240 went into law.

The time computation statute governs when a statutorily prescribed act is to be performed. This is made clear by the Subsection (1): “A person shall compute the period of time provided by law to perform an act . . .” Utah Code § 68-3-7(1) (emphasis added). Then, GRAMA states that the entity has 10 business days “after receiving a written request” to issue a formal response to the requester. Utah Code § 63G-2-204(4)(b). Read together, we agree that these statutes mean that the day the request is submitted is excluded from any statutory time periods and the clock begins on the following day. However, day 1 of the response period is not the point in time where we look to see which version of GRAMA is operative.

In looking at numerous GRAMA appeals before appellate courts, we see that the version of GRAMA analyzed was the version in effect at the time the record request was submitted. For example, in Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶9 n.1, the Utah Supreme Court made it a point to note “ . . . we cite to the 2011 version of the Utah Code throughout this opinion, which was the version in effect at the time of Mr. Schroeder’s public record request.” (Emphasis added.) That note was leaned on and cited later in Salt Lake Tribute v. State Records Committee, 2019 UT 68, ¶1 n.1 where the court stated: “We cite to the 2016 version of GRAMA because it was the law in effect at the time of the Salt Lake Tribune’s initial request.” (Emphasis added; citing Schroeder.) Two other cases also made it clear that GRAMA is applied when the request is made: Salt Lake City Corp. v. Jordan River Restoration Network,2018 UT 62, ¶5 n.1 (referencing and analyzing the 2010 version of GRAMA because the record request was filed on March 10, 2010) and Salt Lake City Corp. v. Haik, 2014 UT App 193, ¶1 n.2 (citing GRAMA provisions that were in effect at the time the record request was filed.) Importantly, we acknowledge that these are footnotes in the cases and not direct holdings. However, the number of cases that contain footnotes is indicative that we should follow suit in determining which version of GRAMA should be analyzed. 

    The Respondent goes on to argue that Section 63G-2-307 supports the idea that the 2024 version of GRAMA should apply because SB 240 was in effect when it classified the record. We disagree.

    Section 307 provides that “[a] governmental entity may classify a particular record . . . at any time, but is not required to classify a particular record . . . until access to the record is requested.” Utah Code § 63G-2-307(2) (emphasis added). Additionally, “[a] governmental entity may redesignate . . . or reclassify a record . . . at any time.” Utah Code § 63G-2-307(3). The Respondent argues that because Subsection 307(2) allows it to classify the record “at any time,” GRAMA becomes operational when that classification is made. Thus, because it classified the calendars after SB 240 went into effect, the 2024 version of GRAMA controls, and the calendars aren’t records.

    We note that Section 307 deals with the classification of “records”—a defined term under GRAMA. Whether the requested calendars are “records” subject to GRAMA is the core issue of this appeal. However, even assuming that Section 307 could apply to the requested calendars, the problem with this argument is that Subsection 307(2) actually supports Petitioner’s position. 

While it’s true that 307(2) allows the Respondent to classify a record at any time, it also states that there is no duty to do so “until access to the record is requested.” Utah Code § 63G-2-307(2). In other words, the minimum requirement for the governmental entity is to classify the record when it is requested. That would require classification under the 2023 version of GRAMA when Petitioner made his request. Subsection 307(3) then permits a reclassification at any time after the record has been classified. Consequently, even if Section 307 is applied here, it is unhelpful to the Respondent since the record cannot be reclassified without first being initially classified when the request is made.

    Finally, the Respondent argues that the 2024 version of GRAMA controls because it was under this version when Petitioner’s “cause of action” arose. The Respondent argues that Petitioner has no “cause of action” until his record request is denied and that under Gressman v. State of Utah¸ 2013 UT 63, it’s the cause of action that triggers GRAMA into effect, which, in this case, was after SB 240 was signed. 

    In Gressman, the Court analyzed the difference in retroactivity between procedural and substantive statutory amendments. The Court determined that the statutory amendments at issue were substantive and, therefore, could not be retroactive. This meant that the version of the law in place when the plaintiff’s claim arose was the controlling law. We view this as an oversimplification of Gressman. 

    It is true that the statute in Gressman was examined in the context of “when Mr. Gressman’s claim arose.” Gressman, ¶20. However, basing statutory effect solely on a “cause of action” is an imprecise formulation: 

Instead, our cases stand for the simpler proposition that we apply the law as it exists at the time of the event regulated by the law in question. Thus, if a law regulates a breach of contract or tort, we apply the law as it exists when the alleged breach or tort occurs—i.e., the law that exists at the time of the event giving rise to a cause of action . . . Similarly,, if the law regulates a motion to intervene, we apply the law as it exists at the time the motion is filed.

State v. Clark, 2011 UT 23, ¶13 (emphasis added). From this instruction, it’s not a cause of action per se, but the event is being regulated. Since GRAMA is a unique statute that “does not contemplate adversarial combat over record requests,” we don’t believe that a cause of action must arise before the requester can gain certainty about which law will govern their request. Deseret News Pub. Co. v. Salt Lake County, 2008 UT 26, ¶25. 

As discussed in greater detail below, SB 240 amended a statutory definition. The amendment substantively affected which records could be requested under GRAMA. As a result, the event that SB 240 regulates is not that which gives rise to a cause of action (the denial of the request) but the request itself. Therefore, we find the “cause of action” argument is unpersuasive. 

Ultimately, we find that the case law cited above and the plain language of Section 307 shows that the requester has the right to rely on the version of GRAMA in effect when the record request was submitted, which, in this case, was the 2023 version of GRAMA.

2.    The Retroactive Effect of SB 240

The Respondent argues that even if GRAMA was triggered into effect when Petitioner’s request was made, the request was still correctly denied because SB 240 applied to his request retroactively. 

As an initial matter, newly codified laws do not apply retroactively unless an express provision in the bill declares it so. Utah Code § 68-3-3. However, courts have recognized “a narrow, judge-made exception to the retroactivity ban, allowing that when the purpose of an amendment is to clarify the meaning of an earlier enactment, the amendment may be applied retroactively in pending actions.” State v. Clark, ¶11. “This [ ] exception applies to those narrow circumstances in which the state legislature disagrees with this court’s interpretation of a law and attempts to clarify that law’s meaning through the amendment process.” Clark, ¶11 n.6. The Respondent argues that is exactly what happened here, and, as a result, the law applies retroactively.

The legislative record behind SB 240 strongly supports the idea that the bill was intended to clarify Subsection 103(25)(b)(ix). When introducing the bill on the Senate floor, Senator Bramble stated, “So, what this bill does – it clarifies the longstanding definition of what a record does not mean—a daily calendar.” Afterward, Senator Bramble moved to have the following “intent language” entered into the Senate Journal:

S.B. 240, Government Records Access and Management Act Amendments, which passed the legislature, reaffirmed that a “daily calendar” is not included in the definition of a record under [GRAMA]. It is the intent of the Legislature, in enacting S.B. 240, to eliminate any confusion or misunderstanding that may have arisen from the current structure of the statutory language where the term “daily calendar” is found and to reaffirm the intent of the long-standing statutory language.

Representative Brammer made similar remarks when introducing the bill to the House. The Respondent also points out that the General Retention Schedule treats calendars as non-records. According to the Respondent, these two arguments show that calendars were never intended to be records under GRAMA and that SB 240 was purely a clarifying amendment that has retroactive effect.

However, in Gressman v. State of Utah, 2013 UT 63, the Utah Supreme Court examined the judicial exception to the prohibition of statutory retroactivity. In that case, the legislature made amendments to the Post Conviction Remedies Act. The State insisted that the amendments to the statute were clarifications to existing law, and because they were clarifications, the amendments were applied retroactively. The Court expressly repudiated the idea that “clarifying amendments per se” could be retroactively applied. Id., ¶16 (italics original); see also Waddoups v. Noorda. 2013 UT 64, ¶9 (recognizing Gressman’s repudiation). Instead, only clarifications built within “procedural amendments” could reach backward. Id. 13-16. Therefore, we must answer whether SB 240 was a procedural amendment to GRAMA. 

“Laws that enlarge, eliminate, or destroy vested or contractual rights are substantive and barred from retroactive application absent express legislative intent.” Waddoups, ¶8 (internal quotation marks omitted). On the other hand, laws pertaining to and prescribing “the practice and procedure or the legal machinery by which substantive law is determined or made effective are procedural and may be given retrospective effect.” Id. 

Here, under SB 240, the legislature inserted a single semicolon after the words “daily calendar” to create a separate and distinct line item under Subsection 103(25)(b). This new line item clearly excluded daily calendars from the definition of "records." It may be said that the mere insertion of a semicolon constitutes a procedural amendment because it clarifies or changes the formatting of the statutory text. It may also be said that amendments to definitions, in general, are procedural since definitions aren’t the provisions in the statute that create or establish vested rights. While those arguments may be true in some cases, we don’t agree that amendments to definitions are, per se, procedural. We find that the semicolon in SB 240 was much more significant than the mere formatting or clarification of a statute. 

When Judge Corum affirmed our decision in Knox, our precedent was established and supported that the public had the right to request daily calendars from their elected officials.[3]  The legislature’s single keystroke in SB 240 decisively eliminated that right. Where the 2023 version of GRAMA allowed the public to request and receive non-personal calendars, now they don’t. No matter how seemingly incidental the statutory amendment appeared, its percussive effect destroyed a right. That is a substantive amendment. And because it is a substantive amendment, it cannot be retroactively applied to Petitioner’s request. See Waddoups, supra.

The Respondent brings Wasatch County v. Okelberry 2015 UT App 192 to our attention. That decision was rendered two years after Gressman and the Court held that a seemingly purely clarifying amendment retroactively applied. The Respondent argues that, as a more recent case than Gressman, Okelberry supports—and even controls—the proposition that a simple clarifying amendment has a retroactive effect. We are in no position to guess why the Okelberry court ignored the repudiation given in Gressman and reinforced in Waddoups, but regardless, we find that Okelberry is distinguishable in its facts. 

    In that case, the Supreme Court interpreted the “continuous use” requirement found in Section 72-5-104(1) (2009). The legislature disagreed with the Court’s definition and amended the statute in direct response to the Court’s decision. The amendment clarified the legislative intent behind “continuous use” by essentially defining the term and establishing elements that must be satisfied to trigger the statute’s application. Appeals then ensued over whether the legislative amendment applied retroactively. 

Notably different from our case is that in Okelberry, is that the legislature’s amendment clarified the meaning of the term “continuously used.” Lawmakers established a definition to guide judicial interpretation. In our case, the legislature didn’t clarify the meaning of “daily calendars.” Instead, it made “daily calendars” its own line item in the list of items that don’t constitute a record. Thus, even though the legislature attempted to “clarify” its original intent behind daily calendars and GRAMA, it created an all-new definitional term after Judge Corum determined the statute's plain language was clear. The contrast between Okelberry and our case is clear: the former created a definition; the latter eliminated a right. The cases are not analogous, and Gressman still controls our decisions.

3.    Future Entries on the Requested Calendars

In deciding that SB 240 was not retroactive and the 2023 version of GRAMA governs Petitioner’s record request, we run into the issue of whether he is entitled to the future calendar entries he requested. On this, we conclude that he is not.
The nature of future calendar entries and appointments is uncertain. It’s not uncommon for future meetings and appointments to be canceled; sometimes, this occurs just moments before the meeting is set to begin. Because of the uncertain nature of future calendar events, we find that they constitute draft entries that are subject to eventual finalization.

Drafts are classified as protected. Utah Code § 63G-2-305(22). Although Petitioner is a journalist, he has not presented us with evidence or information that shows the interest in disclosing uncertain future calendar entries is at least equal to the interest in withholding them. As a result, we find that records relating to future calendar entries and appointments may be withheld.

4.    Redactions

Our previous decision in Knox permitted the respondent to make certain redactions prior to disclosure. We do the same here. We find it reasonable to allow the Respondent to redact information that, if disclosed, would constitute an unwarranted invasion of personal privacy. See Utah Code § 63G-2-302(2)(d). 

5.    Fees 

Finally, we are aware that producing the requested record might warrant fees. Therefore, we find that, subject to the requirements of Section 63G-2-203, the Respondent may assess fees for compiling and producing the requested calendar.

ORDER

THEREFORE, in accordance with our Decision, Petitioner’s appeal is hereby GRANTED in part and DENIED in part.
 
The Respondent shall produce and deliver the requested records subject to the following:
1.    The Respondent may withhold records related to those future calendar entries that are dated beyond the date of the request;
2.    The Respondent may redact personal information pursuant to Subsection 63G-2-302(2)(d);
3.    The Respondent may assess a fee for the record production pursuant to Section 63G-2-203.

 
Entered this 4 day of October 2024.

BY THE STATE RECORDS COMMITTEE

Nova Dubovik
Chair Pro tem, Utah State Records Committee

Committee members Dubovik, N., chair pro tem, Buchanan, M., Peterson, L., and Stringham, H. (sitting as designee for State Archivist) voted in favor of and joined in this Decision and Order.

Committee member Biehler, E. voted in opposition.

enclosed: Right to Appeal; Penalty Notice

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect parties’ rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor. Utah Code § 63G-2-403(15)(d)(i)(B). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

1. For purposes of argument and judicial economy at the hearing, this appeal was voluntarily consolidated with eight other appeals that are substantially similar in fact and questions of law. Counsel for Salt Lake City represented the consolidated respondents, including Vanguard Academy. 

2. Throughout this Decision and Order, we refer to Subsection 103(25)(b)(ix) that was in effect prior to SB 240 as the “2023 version of GRAMA.” With respect to Subsection 103(25)(b)(ix) after SB 240 was signed into law, we refer to it as the “2024 version of GRAMA.”

3. We recognize that the right to request and obtain calendars is the subject of the Respondent’s pending appeal with the Court of Appeals. However, until appeals in that case are exhausted, we rely on ours and Judge Corum’s decision concerning the issue.