Utah Department of Administrative Services

Division of Archives & Records Service

State Records Committee Appeal Decision 2012-21

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

BILL ORAM, REPORTER FOR SALT LAKE TRIBUNE, Petitioner, vs.

GRANITE SCHOOL DISTRICT, Respondent.

DECISION AND ORDER

Case No. 12-21

By this appeal, Petitioner, Bill Oram, Reporter for the Salt Lake Tribune (“Tribune”), seeks to appeal the denial of his request for records regarding Granite School District’s investigation of an alleged inappropriate relationship between a teacher/coach and a female student.

FACTS

On or about May 29, 2012, Mr. Oram on behalf of the Tribune submitted a Utah Government Records Access and Management Act (“GRAMA”) request to Granite School District (“Granite”) seeking:

…witness testimony from the ongoing Granite School District investigation the [sic] offers evidence of an “inappropriate relationship” between Cottonwood High School teacher Joshua Lyman and a female student. This includes text message and emails and/or testimony from people about texts or emails between Lyman and the student.

Granite initially denied the records request citing Utah Code § 63G-2-305(9) indicating that the investigation was ongoing and release of the records would interfere with the investigation. After Granite concluded its investigation, the Tribune renewed its request which through discussions with Granite had been narrowed to two categories: (1) written statements collected during the investigation and; (2) cell phone records provided by the student/victim.

Granite considered the renewed request and again denied access to the records indicating that disclosure was precluded by the Family Education Rights Privacy Act (“FERPA”) 20 U.S.C. §1232g and 34 CFR §99. Granite also denied access based on Utah Code § 63G-2-302(2)(d) indicating that disclosure of the records would be a clearly unwarranted invasion of the students/witnesses privacy.

Petitioner, Bill Oram, Reporter for the Salt Lake Tribune, now appeals Granite’s denial of his GRAMA request to the State Records Committee (“Committee”). The Committee having reviewed the submissions of the parties and having heard oral argument and testimony on October 11, 2012, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code §§ 63G-2-302, -303, -304 and -305.

2. The Family Education Rights Privacy Act prohibits the disclosure of education records defined as any records which identify a student, concern a student, and/or are maintained by a school without the consent of the individual, a parent or guardian. See, 20 U.S.C. §1232g and 34 CFR §99. “Educational records” is defined by FERPA as records containing information directly related to a student and maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. §1232g (a)(4)(A). “Educational records” does not include “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. §1232g (a)(4)(B)(ii).

3. Records the disclosure of which would jeopardize the life or safety of an individual are protected if properly classified. See Utah Code § 63G-2-305(10).

4. Records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes are protected if the records are properly classified and; disclosure could reasonably be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source. See Utah Code § 63G-2-305(9)(d).

5. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity. See Utah Code § 63G-2-302(2)(d).

6. At the hearing, Counsel for Granite argued that the students/witnesses who participated in the investigation regarding the alleged misconduct of the teacher/coach at Cottonwood High School had already been subjected to severe ridicule and abuse as a direct result of public discovery of their participation. Granite further argued that to disclose the records sought by the Tribune would only serve to subject the students to further harassment and ill treatment by the community and thus the records were properly classified as protected pursuant to Utah Code § 63G-2-305(9)(d) & (10) and private pursuant to Utah Code § 63G-2-302(2)(d). Counsel also indicated that even if the names were redacted prior to disclosure, the identity of the students would still be discernible due to the content of the records and that Granite has a strict duty to protect its students and no evidence had been proffered that any public interest in disclosure of the records outweighed such a duty. Finally, Granite claimed that GRAMA was subservient to the federal law which governed access to the records sought by the Tribune, specifically FERPA. Granite asserted that the records sought by the Tribune fell within the definition of “educational records” and that disclosure was prohibited by FERPA and that if Granite did disclose the records the consequence of such disclosure could be a loss of federal funding to the district.

7. Mr. Oram argued that the records the Tribune sought did not fall within the definition of an “educational record” pursuant to FERPA and thus FERPA did not apply to this case, especially if any identification data was redacted. Mr. Oram further argued that the privacy of the witnesses/students could be maintained by redaction of the records omitting any data on individuals, which if disclosed could constitute a clearly unwarranted invasion of their personal privacy.

8. After hearing the arguments of the parties, and having reviewed their submissions, and having reviewed the disputed records in camera, the Committee is not persuaded the records sought by the Tribune fall within the statutory definition of an “education record” pursuant to FERPA and therefore finds GRAMA to be controlling law in this matter. Further, the Committee after having reviewed the records is convinced that the identity of the student/witness(s) contained in the document(s) identified as No. 1 by the Committee could be discerned based upon the content of the record, even if the identifying data were to be redacted from the record. The Committee based upon the arguments and its review finds such a disclosure would be a clearly unwarranted invasion of the privacy of this student and therefore this record should not be disclosed. However, the Committee is also convinced that for the remaining documents, (1) the identities of the student/witness(s) can be protected through redaction of the documents in the remaining cell phone log and witness statements and; (2) the cell phone log and witness statements are public pursuant to Utah Code § 63G-2-202 and should be released after first redacting any identifying data from the records.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, Bill Oram, Reporter for the Salt Lake Tribune, is UPHELD as to the phone log and witness statements with exclusion of the record identified as No. 1 by the Committee. Granite School District shall redact any identifying data from the phone log and witness statements and release them to the Tribune.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity 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 for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.

Entered this 22nd day of October 2012.

BY THE STATE RECORDS COMMITTEE

____________________________________
BETSY ROSS, Chairperson
State Records Committee