KUTV, Inc. v. Utah State Bd. of Educ.

• Decision Date: 12 October 1984
• Docket Number: No. 18799,18799
• Citation: 689 P.2d 1357
• Parties: 21 Ed. Law Rep. 365 KUTV, INC., a Nevada corporation, and Karl Idsvoog, Plaintiffs and Appellants, v. UTAH STATE BOARD OF EDUCATION, an agency of the State of Utah; Dr. Walter Talbot, Utah State Superintendent of Public Instruction; Board of Education of the Box Elder School District, a body corporate of the State of Utah; Morgan Hawkes, Superintendent of the Box Elder School District, Defendants and Respondents.
• Court: Utah Supreme Court

Page 1357

689 P.2d 1357

21 Ed. Law Rep. 365

KUTV, INC., a Nevada corporation, and Karl Idsvoog Plaintiffs and Appellants, v. UTAH STATE BOARD OF EDUCATION, an agency of the State of Utah; Dr. Walter Talbot, Utah State Superintendent of Public Instruction; Board of Education of the Box Elder School District, a body corporate of the State of Utah Morgan Hawkes, Superintendent of the Box Elder School District, Defendants and Respondents.

No. 18799.

Supreme Court of Utah.

Oct. 12, 1984.

Alan L. Sullivan, Patrick A. Shea, Kate Lahey, Salt Lake City, for plaintiffs and appellants.

David L. Wilkinson, Atty. Gen., William T. Evans, Mark C. Moench, John McAllister, Salt Lake City, Walter G. Mann, Box Elder & Hawkes, Brigham City, for defendants and respondents.

HALL, Chief Justice:

In response to allegations of religious and racial discrimination in the Box Elder School District, employees of the Utah State Board of Education, after consultation with the superintendent of the Board of Education of the Box Elder School District, developed and prepared a survey form designed to elicit responses concerning discrimination at Box Elder High School.

The survey form contained eleven questions, eight of which had fixed-choice responses and three of which required written responses. The first four questions elicited information from the respondent as to his or her grade in school or educator status, sex, religion and the number of years the person's family had lived in the Box Elder area. Questions five through seven required the respondent to answer "Often," "Sometimes," "Rarely," or "Never," to questions asking whether respondent felt that "students of different racial backgrounds," non-LDS students or "newcomers" experienced discrimination at Box Elder High School. Question eight asked whether the respondent felt that some students received preferential treatment at the high school and, if "yes," what kind of students. In question nine the respondent was asked to indicate whether he or she had personally witnessed an instance of religious or racial discrimination. Question ten asked respondent to describe any instance of discrimination personally observed, but cautioned the respondent not to name names. Finally, question eleven asked respondent to give his or her opinion as to what could be done at the high school to "promote fair, impartial treatment of all students."

At the top of each survey form, the following instructions were printed:

We ask for your honest and straight foward [sic] response. The questionaires [sic] are completely anonymous, so do not write your name or other information which would identify you. The information we receive from the questionnaire will be handled confidentially. While we would encourage you to answer the questions fully, if for some reason you have concern about one or more questions, you have the right not to answer those questions.

The survey forms were distributed to Box Elder High School students and their teachers in May, 1981. While not all students completed the forms, 963 completed forms were returned to the State Board of Education. Employees of the State Board of Education analyzed the data resulting from the survey and released a statistical analysis of the responses to the eight fixed-choice questions to the public.

The summary disclosed that many of the students thought that both racial and religious discrimination existed at Box Elder High School. For example, 53% of the respondents answered that students of different racial backgrounds experienced discrimination often or sometimes and 75% of non-LDS students responded that non-LDS students experienced discrimination sometimes or often.

KUTV, Inc. and Carl Idsvoog, a reporter, asked the Board of Education to either allow them to inspect the actual completed questionnaires or edited questionnaires from which any names or information that could uniquely identify an individual had been deleted. Both requests were refused. Appellants thereupon filed an action in district court to obtain access to edited or unedited survey responses. The district court, in its summary judgment against appellants, held that the survey responses were not public records within the meaning of either the Archives and Records Service and Information Practices Act, U.C.A., 1953, § 63-2-59, et seq., or the Public and Private Writings Act, U.C.A., 1953, § 78-26-1, et seq., and were not required to be disclosed to the public. KUTV appeals that decision.

The Archives and Records Service and Information Practices Act has as its intent, among other things: "[T]o establish fair information practices to ensure that the rights of persons are protected and that proper remedies are established to prevent abuse of personal information." ¹ To fulfill this intent, the Legislature provided for the creation of an administrative body, the State Records Committee, ² which has specific duties with regard to "data on individuals" ³ collected and maintained by state government. If an item is determined to be "data on individuals," it comes under the jurisdiction of the State Records Committee, which must then categorize the data as public data, ⁴ confidential data ⁵ or private data. ⁶ KUTV contends that the completed surveys constitute "data on individuals" and should be classified as public data. The Board argues that the survey forms themselves should not be released because they contain information on individuals that may be damaging to those individuals. The Board, however, contends that this information on individuals does not constitute "data on individuals" as defined by section 63-2-61(9):

"Data on individuals" includes all records, files and processes which contain any data on any individual and which are kept or intended to be kept by state government on a permanent or semi-permanent basis, including, but not limited to, that data by which it is possible to identify with reasonable certainty the person to whom such information pertains.

It clearly appears from the language of the definition, combined with the intent of the Archives Act, that the Act was not intended to cover information such as that contained in the responses to the survey. While it is arguable that the survey forms contain "data on any individual ... by which it is possible to identify with reasonable certainty the person to whom such information pertains," the completed surveys do not constitute data kept by government on individuals primarily because the surveys were not intended to be kept by state government on "a permanent or semi-permanent basis." Affidavits in the record maintain that, according to established practice, the forms were to be destroyed after the information contained in them had been summarized and evaluated. Thus, the forms would be kept only as long as it took to assimilate the data. By no stretch of the imagination could this period of time be construed to be keeping data on a permanent or even a semi-permanent basis.

This Court has had the opportunity to interpret the Archives Act only once, in Redding v. Brady. ⁷ In that case, the State Records Committee had classified salaries paid employees of state agencies and institutions as "public data" and thus available for public inspection. A student newspaper editor, John Redding, had requested the names of Weber State College employees and the gross salaries paid them. The college administration refused, and Redding filed an action to compel the college to release the information. The district court granted the motion, which this Court upheld. The information requested in that case, names and gross salaries of college employees, clearly is the kind of information the Legislature intended the Act to cover. Other examples might be medical records or school records.

KUTV next contends that if the Archives Act does not apply to the survey forms, then the forms are public records under the Public and Private Writings Act and must be made available to the public for inspection. Section 78-26-2 of the Public and Private Writings Act says: "Every citizen has a right to inspect and take a copy of any public writing of this state except as otherwise expressly provided by statute."

Public writings fall into four categories:

(1) Laws.

(2) Judicial records.

(3) Other official documents.

(4) Public records, kept in this state, of private writings, which such records may be made by handwriting, typewriting, or as a photostatic microphotographic, photographic, or similar reproduction of such private writings. ⁸

No definition of public records is given in the Public and Private Writings Act. However, this Court in Brady specifically used the definition of public records given in the Archives Act to define public records for the purposes of interpreting the Public and Private Writings Act. Section 63-2-61(1) defines public records as:

[A]ll written or printed books, papers, letters, documents, maps, plans, photographs, sound recordings, and other records made or received in pursuance of state law or in connection with the transaction of public business by the public offices, agencies, and institutions of the state and its counties, municipalities, and other subdivisions of government.

There is little doubt that these completed survey forms fall within this definition since the forms are written (completed forms) and printed papers (uncompleted forms) made (by employees of the Utah State Board of Education) and received (also by the same employees) in connection with the transaction of public business (monitoring performance of school districts and improving that performance) by an agency of the State (Board of Education) and a subdivision of government (Box Elder Board of Education).

As indicated by section 78-26-2, a citizen of Utah has the right to inspect and take a copy of any public writing "except as otherwise expressly provided for by statute." The Legislature therefore can, and has, provided for...