S.B. 179 Enrolled
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PROTECTION OF GOVERNMENT RECORDS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Gregory S. Bell
House Sponsor: Fred R. Hunsaker
LONG TITLE
General Description:
This bill addresses the treatment of records including those related to institutions within
the state system of higher education.
Highlighted Provisions:
This bill:
. defines terms;
. addresses what information must be disclosed upon receipt of a written request for a
reasonably identifiable record;
. addresses protected records related to an institution within the state system of higher
education;
. provides a process for a sponsor of research at an institution within the state system
of higher education to file a written claim of business confidentiality including
providing certain notice requirements;
. addresses how business confidentiality claims are treated; and
. makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
53B-16-301, as enacted by Chapter 280, Laws of Utah 1992
53B-16-302, as enacted by Chapter 280, Laws of Utah 1992
53B-16-304, as enacted by Chapter 280, Laws of Utah 1992
63-2-103, as last amended by Chapter 78, Laws of Utah 2002
63-2-202, as last amended by Chapter 298, Laws of Utah 2003
63-2-304, as last amended by Chapters 223, 299 and 358, Laws of Utah 2004
63-2-308, as last amended by Chapter 280, Laws of Utah 1992
63-2-403, as last amended by Chapter 245, Laws of Utah 1999
Be it enacted by the Legislature of the state of Utah:
Section 1.
Section
53B-16-301
is amended to read:
53B-16-301. Definitions.
As used in this part:
(1) “Person” means:
(a) a federal, state, or local governmental entity:
(i) that sponsors sponsored research; or
(ii) participates in a technology transfer;
(b) an individual;
(c) a nonprofit or profit corporation;
(d) a partnership;
(e) a sole proprietorship; or
(f) other type of business organization.
(2) “Public institution of higher education” means an institution within the state system
of higher education defined in Section
53B-1-102
.
[(1)] (3) “Restricted record” means a record that is restricted as provided by Section
53B-16-303
.
[(2)] (4) “Sponsored research” refers to [basic or applied] research, training, and other
sponsored activities as defined by the federal Executive Office of the President, Office of
Management and Budget:
(a) conducted by a public institution of higher education through an office responsible for
sponsored projects or programs; and
(b) funded or otherwise supported by an external [persons or entities] person that is not
created or controlled by the public institution of higher education.
[(3)] (5) “Technology transfer” refers to transferring information, commercializing
research, or providing technical assistance between a public institution of higher education and
external persons [or entities] for the purpose of economic development.
Section 2.
Section
53B-16-302
is amended to read:
53B-16-302. Records that may be classified as restricted.
A public institution of higher education may classify only the following records as
restricted:
(1) that portion of a technology transfer record or sponsored research record to which
access must be restricted for the purpose of securing and maintaining proprietary protection of
intellectual property rights, including but not limited to patents, copyrights, trademarks, and trade
secrets; or
(2) that portion of a technology transfer record or sponsored research record to which
access is restricted for competitive or proprietary purposes, as a condition of actual or potential
participation in a sponsored research or technology transfer agreement; provided, however, that
upon receipt of a written request for a reasonably identifiable record, the public institution of
higher education shall disclose:
(a) prior to a memorandum of intent to contract or an agreement in principle between the
parties:
(i) the names of the parties, or, if the disclosure of names would cause competitive harm,
a general description of the type of parties negotiating the technology transfer or sponsored
research agreement; and
(ii) a general description of the nature of the technology transfer or sponsored research
under consideration, excluding proprietary or competitive information; or
(b) after a memorandum of intent to contract or an agreement in principle between the
parties:
(i) the names of the parties involved in the technology transfer or sponsored research;
[and]
(ii) a general description of the nature of the technology transfer or sponsored research to
be conducted, excluding proprietary or competitive information; and
[(ii)] (iii) records of the technology transfer or sponsored research to be conducted,
excluding those portions of records to which access is limited under this part or Title 63, Chapter
2, Government Records Access and Management Act.
Section 3.
Section
53B-16-304
is amended to read:
53B-16-304. Business confidentiality claims.
(1) (a) Any person who provides to [an] a public institution of higher education a record
that [he] the person believes should be protected under [Subsections
63-2-304
(1) or (2) or] a
provision listed in Subsection
63-2-308
(1)(b)(i), restricted under Section
53B-16-302
, or both
protected under a provision listed in Subsection
63-2-308
(1)(b)(i) and restricted under Section
53B-16-302
, shall provide [with the record] the public institution of higher education:
(i) a written claim of business confidentiality; and
(ii) a concise statement of reasons supporting the claim[, provided that] of business
confidentiality.
(b) The person described in Subsection (1)(a) shall make the filing at the commencement
of:
(i) the sponsored research project; or
(ii) the technology transfer process.
(c) A claim of business confidentiality submitted under this Subsection (1) shall cover all
protected and restricted records exchanged during the:
(i) sponsored research project; or
(ii) technology transfer process.
(2) The inadvertent failure to make a legally adequate claim of business confidentiality at
the time [the record is provided to the institution shall] required by Subsection (1) does not
prejudice the claimant’s right to make a legally adequate claim at a [later] different time before
disclosure of the record.
Section 4.
Section
63-2-103
is amended to read:
63-2-103. Definitions.
As used in this chapter:
(1) “Audit” means:
(a) a systematic examination of financial, management, program, and related records for
the purpose of determining the fair presentation of financial statements, adequacy of internal
controls, or compliance with laws and regulations; or
(b) a systematic examination of program procedures and operations for the purpose of
determining their effectiveness, economy, efficiency, and compliance with statutes and
regulations.
(2) “Chronological logs” mean the regular and customary summary records of law
enforcement agencies and other public safety agencies that show:
(a) the time and general nature of police, fire, and paramedic calls made to the agency;
and
(b) any arrests or jail bookings made by the agency.
(3) “Classification,” “classify,” and their derivative forms mean determining whether a
record series, record, or information within a record is public, private, controlled, protected, or
exempt from disclosure under Subsection
63-2-201
(3)(b).
(4) (a) “Computer program” means:
(i) a series of instructions or statements that permit the functioning of a computer system
in a manner designed to provide storage, retrieval, and manipulation of data from the computer
system[,]; and
(ii) any associated documentation and source material that explain how to operate the
computer program.
(b) “Computer program” does not mean:
(i) the original data, including numbers, text, voice, graphics, and images;
(ii) analysis, compilation, and other manipulated forms of the original data produced by
use of the program; or
(iii) the mathematical or statistical formulas, [(]excluding the underlying mathematical
algorithms contained in the program[)], that would be used if the manipulated forms of the
original data were to be produced manually.
(5) (a) “Contractor” means:
(i) any person who contracts with a governmental entity to provide goods or services
directly to a governmental entity; or
(ii) any private, nonprofit organization that receives funds from a governmental entity.
(b) “Contractor” does not mean a private provider.
(6) “Controlled record” means a record containing data on individuals that is controlled
as provided by Section
63-2-303
.
(7) “Designation,” “designate,” and their derivative forms mean indicating, based on a
governmental entity’s familiarity with a record series or based on a governmental entity’s review
of a reasonable sample of a record series, the primary classification that a majority of records in a
record series would be given if classified and the classification that other records typically
present in the record series would be given if classified.
(8) “Explosive” means a chemical compound, device, or mixture:
(a) commonly used or intended for the purpose of producing an explosion; and
(b) that contains oxidizing or combustive units or other ingredients in proportions,
quantities, or packing so that:
(i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the
compound or mixture may cause a sudden generation of highly heated gases; and
(ii) the resultant gaseous pressures are capable of:
(A) producing destructive effects on contiguous objects; or
(B) causing death or serious bodily injury.
(9) “Government audit agency” means any governmental entity that conducts audits.
(10) (a) “Governmental entity” means:
(i) executive department agencies of the state, the offices of the governor, lieutenant
governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole, the
Board of Examiners, the National Guard, the Career Service Review Board, the State Board of
Education, the State Board of Regents, and the State Archives;
(ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal
Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative
committees, except any political party, group, caucus, or rules or sifting committee of the
Legislature;
(iii) courts, the Judicial Council, the Office of the Court Administrator, and similar
administrative units in the judicial branch;
(iv) any state-funded institution of higher education or public education; or
(v) any political subdivision of the state, but, if a political subdivision has adopted an
ordinance or a policy relating to information practices pursuant to Section
63-2-701
, this chapter
shall apply to the political subdivision to the extent specified in Section
63-2-701
or as specified
in any other section of this chapter that specifically refers to political subdivisions.
(b) “Governmental entity” also means every office, agency, board, bureau, committee,
department, advisory board, or commission of the entities listed in Subsection (10)(a) that is
funded or established by the government to carry out the public’s business.
(11) “Gross compensation” means every form of remuneration payable for a given period
to an individual for services provided including salaries, commissions, vacation pay, severance
pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any similar benefit
received from the individual’s employer.
(12) “Individual” means a human being.
(13) (a) “Initial contact report” means an initial written or recorded report, however
titled, prepared by peace officers engaged in public patrol or response duties describing official
actions initially taken in response to either a public complaint about or the discovery of an
apparent violation of law, which report may describe:
(i) the date, time, location, and nature of the complaint, the incident, or offense;
(ii) names of victims;
(iii) the nature or general scope of the agency’s initial actions taken in response to the
incident;
(iv) the general nature of any injuries or estimate of damages sustained in the incident;
(v) the name, address, and other identifying information about any person arrested or
charged in connection with the incident; or
(vi) the identity of the public safety personnel, except undercover personnel, or
prosecuting attorney involved in responding to the initial incident.
(b) Initial contact reports do not include follow-up or investigative reports prepared after
the initial contact report. However, if the information specified in Subsection (13)(a) appears in
follow-up or investigative reports, it may only be treated confidentially if it is private, controlled,
protected, or exempt from disclosure under Subsection
63-2-201
(3)(b).
(14) “Person” means [any]:
(a) an individual[,];
(b) a nonprofit or profit corporation[,];
(c) a partnership[,];
(d) a sole proprietorship[,]; or
(e) other type of business organization.
(15) “Private provider” means any person who contracts with a governmental entity to
provide services directly to the public.
(16) “Private record” means a record containing data on individuals that is private as
provided by Section
63-2-302
.
(17) “Protected record” means a record that is classified protected as provided by Section
63-2-304
.
(18) “Public record” means a record that is not private, controlled, or protected and that
is not exempt from disclosure as provided in Subsection
63-2-201
(3)(b).
(19) (a) “Record” means all books, letters, documents, papers, maps, plans, photographs,
films, cards, tapes, recordings, electronic data, or other documentary materials regardless of
physical form or characteristics:
(i) which are prepared, owned, received, or retained by a governmental entity or political
subdivision; and
(ii) where all of the information in the original is reproducible by photocopy or other
mechanical or electronic means.
(b) “Record” does not mean:
(i) temporary drafts or similar materials prepared for the originator’s personal use or
prepared by the originator for the personal use of an individual for whom [he] the originator is
working;
(ii) materials that are legally owned by an individual in [his] the individual’s private
capacity;
(iii) materials to which access is limited by the laws of copyright or patent unless the
copyright or patent is owned by a governmental entity or political subdivision;
(iv) proprietary software;
(v) junk mail or commercial publications received by a governmental entity or an official
or employee of a governmental entity;
(vi) books and other materials that are cataloged, indexed, or inventoried and contained
in the collections of libraries open to the public, regardless of physical form or characteristics of
the material;
(vii) daily calendars and other personal notes prepared by the originator for the
originator’s personal use or for the personal use of an individual for whom [he] the originator is
working;
(viii) computer programs as defined in Subsection (4) that are developed or purchased by
or for any governmental entity for its own use; or
(ix) notes or internal memoranda prepared as part of the deliberative process by a
member of the judiciary, an administrative law judge, a member of the Board of Pardons and
Parole, or a member of any other body charged by law with performing a quasi-judicial function.
(20) “Record series” means a group of records that may be treated as a unit for purposes
of designation, description, management, or disposition.
(21) “Records committee” means the State Records Committee created in Section
63-2-501
.
(22) “Records officer” means the individual appointed by the chief administrative officer
of each governmental entity, or the political subdivision to work with state archives in the care,
maintenance, scheduling, designation, classification, disposal, and preservation of records.
(23) “Schedule,” “scheduling,” and their derivative forms mean the process of specifying
the length of time each record series should be retained by a governmental entity for
administrative, legal, fiscal, or historical purposes and when each record series should be
transferred to the state archives or destroyed.
(24) “Sponsored research” means research, training, and other sponsored activities as
defined by the federal Executive Office of the President, Office of Management and Budget:
(a) conducted:
(i) by an institution within the state system of higher education defined in Section
53B-1-102
; and
(ii) through an office responsible for sponsored projects or programs; and
(b) funded or otherwise supported by an external:
(i) person that is not created or controlled by the institution within the state system of
higher education; or
(ii) federal, state, or local governmental entity.
[(24)] (25) “State archives” means the Division of Archives and Records Service created
in Section
63-2-901
.
[(25)] (26) “State archivist” means the director of the state archives.
[(26)] (27) “Summary data” means statistical records and compilations that contain data
derived from private, controlled, or protected information but that do not disclose private,
controlled, or protected information.
Section 5.
Section
63-2-202
is amended to read:
63-2-202. Access to private, controlled, and protected documents.
(1) Upon request, a governmental entity shall disclose a private record to:
(a) the subject of the record;
(b) the parent or legal guardian of an unemancipated minor who is the subject of the
record;
(c) the legal guardian of a legally incapacitated individual who is the subject of the
record;
(d) any other individual who:
(i) has a power of attorney from the subject of the record;
(ii) submits a notarized release from the subject of the record or his legal representative
dated no more than 90 days before the date the request is made; or
(iii) if the record is a medical record described in Subsection
63-2-302
(1)(b), is a health
care provider, as defined in Section
26-33a-102
, if releasing the record or information in the
record is consistent with normal professional practice and medical ethics; or
(e) any person to whom the record must be provided pursuant to:
(i) court order as provided in Subsection (7); or
(ii) a legislative subpoena as provided in Title 36, Chapter 14.
(2) (a) Upon request, a governmental entity shall disclose a controlled record to:
(i) a physician, psychologist, certified social worker, insurance provider or producer, or a
government public health agency upon submission of:
(A) a release from the subject of the record that is dated no more than 90 days prior to the
date the request is made; and
(B) a signed acknowledgment of the terms of disclosure of controlled information as
provided by Subsection (2)(b); and
(ii) any person to whom the record must be disclosed pursuant to:
(A) a court order as provided in Subsection (7); or
(B) a legislative subpoena as provided in Title 36, Chapter 14.
(b) A person who receives a record from a governmental entity in accordance with
Subsection (2)(a)(i) may not disclose controlled information from that record to any person,
including the subject of the record.
(3) If there is more than one subject of a private or controlled record, the portion of the
record that pertains to another subject shall be segregated from the portion that the requester is
entitled to inspect.
(4) Upon request, a governmental entity shall disclose a protected record to:
(a) the person who submitted the record;
(b) any other individual who:
(i) has a power of attorney from all persons, governmental entities, or political
subdivisions whose interests were sought to be protected by the protected classification; or
(ii) submits a notarized release from all persons, governmental entities, or political
subdivisions whose interests were sought to be protected by the protected classification or from
their legal representatives dated no more than 90 days prior to the date the request is made;
(c) any person to whom the record must be provided pursuant to:
(i) a court order as provided in Subsection (7); or
(ii) a legislative subpoena as provided in Title 36, Chapter 14; or
(d) the owner of a mobile home park, subject to the conditions of Subsection
41-1a-116
(5).
(5) A governmental entity may disclose a private, controlled, or protected record to
another governmental entity, political subdivision, another state, the United States, or a foreign
government only as provided by Section
63-2-206
.
(6) Before releasing a private, controlled, or protected record, the governmental entity
shall obtain evidence of the requester’s identity.
(7) A governmental entity shall disclose a record pursuant to the terms of a court order
signed by a judge from a court of competent jurisdiction, provided that:
(a) the record deals with a matter in controversy over which the court has jurisdiction;
(b) the court has considered the merits of the request for access to the record; and
(c) the court has considered and, where appropriate, limited the requester’s use and
further disclosure of the record in order to protect:
(i) privacy interests in the case of private or controlled records[,];
(ii) business confidentiality interests in the case of records protected under [Subsections]
Subsection
63-2-304
(1) [and], (2), (40)(a)(ii), or (40)(a)(vi); and
(iii) privacy interests or the public interest in the case of other protected records;
(d) to the extent the record is properly classified private, controlled, or protected, the
interests favoring access, considering limitations thereon, outweigh the interests favoring
restriction of access; and
(e) where access is restricted by a rule, statute, or regulation referred to in Subsection
63-2-201
(3)(b), the court has authority independent of this chapter to order disclosure.
(8) (a) A governmental entity may disclose or authorize disclosure of private or
controlled records for research purposes if the governmental entity:
(i) determines that the research purpose cannot reasonably be accomplished without use
or disclosure of the information to the researcher in individually identifiable form;
(ii) determines that:
(A) the proposed research is bona fide[,]; and [that]
(B) the value of the research outweighs the infringement upon personal privacy;
(iii) (A) requires the researcher to assure the integrity, confidentiality, and security of the
records; and
(B) requires the removal or destruction of the individual identifiers associated with the
records as soon as the purpose of the research project has been accomplished;
(iv) prohibits the researcher from:
(A) disclosing the record in individually identifiable form, except as provided in
Subsection (8)(b)[,]; or [from]
(B) using the record for purposes other than the research approved by the governmental
entity; and
(v) secures from the researcher a written statement of [his] the researcher’s understanding
of and agreement to the conditions of this Subsection (8) and [his] the researcher’s understanding
that violation of the terms of this Subsection (8) may subject [him] the researcher to criminal
prosecution under Section
63-2-801
.
(b) A researcher may disclose a record in individually identifiable form if the record is
disclosed for the purpose of auditing or evaluating the research program and no subsequent use
or disclosure of the record in individually identifiable form will be made by the auditor or
evaluator except as provided by this section.
(c) A governmental entity may require indemnification as a condition of permitting
research under this Subsection (8).
(9) (a) Under Subsections
63-2-201
(5)(b) and
63-2-401
(6), a governmental entity may
disclose to persons other than those specified in this section records that are:
(i) private under Section
63-2-302
[,]; or
(ii) protected under Section
63-2-304
[to persons other than those specified in this
section] subject to Section
63-2-308
if a claim for business confidentiality has been made under
Section
63-2-308
.
(b) Under Subsection
63-2-403
(11)(b), the [Records Committee] records committee may
require the disclosure to persons other than those specified in this section of records that are:
(i) private under Section
63-2-302
[,];
(ii) controlled under Section
63-2-303
[,]; or
(iii) protected under Section
63-2-304
[to persons other than those specified in this
section] subject to Section
63-2-308
if a claim for business confidentiality has been made under
Section
63-2-308
.
(c) Under Subsection
63-2-404
(8), the court may require the disclosure of records that
are private under Section
63-2-302
, controlled under Section
63-2-303
, or protected under
Section
63-2-304
to persons other than those specified in this section.
Section 6.
Section
63-2-304
is amended to read:
63-2-304. Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret
has provided the governmental entity with the information specified in Section
63-2-308
;
(2) commercial information or nonindividual financial information obtained from a
person if:
(a) disclosure of the information could reasonably be expected to result in unfair
competitive injury to the person submitting the information or would impair the ability of the
governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than
the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the
information specified in Section
63-2-308
;
(3) commercial or financial information acquired or prepared by a governmental entity to
the extent that disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the governmental entity or cause
substantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, a commercial project entity as
defined in Subsection
11-13-103
(4);
(5) test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;
(6) records the disclosure of which would impair governmental procurement proceedings
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
governmental entity, except that this Subsection (6) does not restrict the right of a person to see
bids submitted to or by a governmental entity after bidding has closed;
(7) records that would identify real property or the appraisal or estimated value of real or
personal property, including intellectual property, under consideration for public acquisition
before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmental
entity’s need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described
property have already learned of the governmental entity’s plans to acquire the property;
(d) in the case of records that would identify the appraisal or estimated value of property,
the potential sellers have already learned of the governmental entity’s estimated value of the
property; or
(e) the property under consideration for public acquisition is a single family residence
and the governmental entity seeking to acquire the property has initiated negotiations to acquire
the property as required under Section
78-34-4.5
;
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
compensated transaction of real or personal property including intellectual property, which, if
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of
the subject property, unless:
(a) the public interest in access outweighs the interests in restricting access, including the
governmental entity’s interest in maximizing the financial benefit of the transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
value of the subject property have already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(9) records created or maintained for civil, criminal, or administrative enforcement
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for
enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial
hearing;
(d) reasonably could 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; or
(e) reasonably could be expected to disclose investigative or audit techniques,
procedures, policies, or orders not generally known outside of government if disclosure would
interfere with enforcement or audit efforts;
(10) records the disclosure of which would jeopardize the life or safety of an individual;
(11) records the disclosure of which would jeopardize the security of governmental
property, governmental programs, or governmental recordkeeping systems from damage, theft, or
other appropriation or use contrary to law or public policy;
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
with the control and supervision of an offender’s incarceration, treatment, probation, or parole;
(13) records that, if disclosed, would reveal recommendations made to the Board of
Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board
of Pardons and Parole, or the Department of Human Services that are based on the employee’s or
contractor’s supervision, diagnosis, or treatment of any person within the board’s jurisdiction;
(14) records and audit workpapers that identify audit, collection, and operational
procedures and methods used by the State Tax Commission, if disclosure would interfere with
audits or collections;
(15) records of a governmental audit agency relating to an ongoing or planned audit until
the final audit is released;
(16) records prepared by or on behalf of a governmental entity solely in anticipation of
litigation that are not available under the rules of discovery;
(17) records disclosing an attorney’s work product, including the mental impressions or
legal theories of an attorney or other representative of a governmental entity concerning
litigation;
(18) records of communications between a governmental entity and an attorney
representing, retained, or employed by the governmental entity if the communications would be
privileged as provided in Section
78-24-8
;
(19) personal files of a legislator, including personal correspondence to or from a
member of the Legislature, provided that correspondence that gives notice of legislative action or
policy may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research and
General Counsel, that, if disclosed, would reveal a particular legislator’s contemplated legislation
or contemplated course of action before the legislator has elected to support the legislation or
course of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
Office of Legislative Research and General Counsel is a public document unless a legislator asks
that the records requesting the legislation be maintained as protected records until such time as
the legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and General
Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in
response to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity’s strategy about collective bargaining or
pending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences that
may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured
Employers’ Fund, or similar divisions in other governmental entities;
(25) records, other than personnel evaluations, that contain a personal recommendation
concerning an individual if disclosure would constitute a clearly unwarranted invasion of
personal privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or biological
resources that if known would jeopardize the security of those resources or of valuable historic,
scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would conflict
with the fiduciary obligations of the agency;
(28) records of [a public institution of higher education] an institution within the state
system of higher education defined in Section
53B-1-102
regarding tenure evaluations,
appointments, applications for admissions, retention decisions, and promotions, which could be
properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
Meetings, provided that records of the final decisions about tenure, appointments, retention,
promotions, or those students admitted, may not be classified as protected under this section;
(29) records of the governor’s office, including budget recommendations, legislative
proposals, and policy statements, that if disclosed would reveal the governor’s contemplated
policies or contemplated courses of action before the governor has implemented or rejected those
policies or courses of action or made them public;
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
recommendations in these areas;
(31) records provided by the United States or by a government entity outside the state
that are given to the governmental entity with a requirement that they be managed as protected
records if the providing entity certifies that the record would not be subject to public disclosure if
retained by it;
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
except as provided in Section
52-4-7
;
(33) records that would reveal the contents of settlement negotiations but not including
final settlements or empirical data to the extent that they are not otherwise exempt from
disclosure;
(34) memoranda prepared by staff and used in the decision-making process by an
administrative law judge, a member of the Board of Pardons and Parole, or a member of any
other body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered by
or requested from a governmental entity for the purpose of encouraging a person to expand or
locate a business in Utah, but only if disclosure would result in actual economic harm to the
person or place the governmental entity at a competitive disadvantage, but this section may not
be used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintaining
the governmental entity’s proprietary protection of intellectual property rights including patents,
copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including [a
public institution of higher education] an institution within the state system of higher education
defined in Section
53B-1-102
, and other information concerning the donation that could
reasonably be expected to reveal the identity of the donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
classified protected by the governmental entity under this Subsection (37); and
(c) except for [public institutions of higher education] an institution within the state
system of higher education defined in Section
53B-1-102
, the governmental unit to which the
donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
regulatory or legislative authority over the donor, a member of [his] the donor’s immediate
family, or any entity owned or controlled by the donor or [his] the donor’s immediate family;
(38) accident reports, except as provided in Sections
41-6-40
,
41-12a-202
, and
73-18-13
;
(39) a notification of workers’ compensation insurance coverage described in Section
34A-2-205
;
(40) (a) the following records of [a public institution of education] an institution within
the state system of higher education defined in Section
53B-1-102
, which have been developed,
discovered, disclosed to, or received by or on behalf of faculty, staff, employees, or students of
the institution:
(i) unpublished lecture notes;
(ii) unpublished [research] notes [and], data, and information:
(A) relating to research; and
(B) of:
(I) the institution within the state system of higher education defined in Section
53B-1-102
; or
(II) a sponsor of sponsored research;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals;
(b) Subsection (40)(a) may not be construed to prohibit disclosure of public information
required pursuant to Subsection
53B-16-302
(2)(a) or (b); and
[(b)] (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor General
that would reveal the name of a particular legislator who requests a legislative audit prior to the
date that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
Office of the Legislative Auditor General is a public document unless the legislator asks that the
records in the custody or control of the Office of Legislative Auditor General that would reveal
the name of a particular legislator who requests a legislative audit be maintained as protected
records until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map or
other document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information contained in the database described in Section
62A-3-311.1
;
(44) information contained in the Management Information System and Licensing
Information System described in Title 62A, Chapter 4a, Child and Family Services;
(45) information regarding National Guard operations or activities in support of the
National Guard’s federal mission;
(46) records provided by any pawnbroker or pawnshop to a law enforcement agency in
compliance with Title 13, Chapter 32a, Pawnshop Transaction Information Act; and
(47) information regarding food security, risk, and vulnerability assessments performed
by the Department of Agriculture and Food.
Section 7.
Section
63-2-308
is amended to read:
63-2-308. Confidentiality claims.
(1) (a) (i) Any person who provides to a governmental entity a record that [he] the person
believes should be protected under Subsection
63-2-304
(1) or (2) or both Subsections
63-2-304
(1) and (2) shall provide with the record:
(A) a written claim of business confidentiality; and
(B) a concise statement of reasons supporting the claim of business confidentiality.
(ii) Any of the following who provides to an institution within the state system of higher
education defined in Section
53B-1-102
a record that the person or governmental entity believes
should be protected under Subsection
63-2-304
(40)(a)(ii) or (vi) or both Subsections
63-2-304
(40)(a)(ii) and (vi) shall provide the institution within the state system of higher
education a written claim of business confidentiality in accordance with Section
53B-16-304
:
(A) a person;
(B) a federal governmental entity;
(C) a state governmental entity; or
(D) a local governmental entity.
(b) [The claimant] A person or governmental entity who complies with this Subsection
(1) shall be notified by the governmental entity to whom the request for a record is made if:
(i) a record claimed to be protected under [Subsection
63-2-304
(1) or (2)] one of the
following is classified public [or if]:
(A) Subsection
63-2-304
(1);
(B) Subsection
63-2-304
(2);
(C) Subsection
63-2-304
(40)(a)(ii);
(D) Subsection
63-2-304
(40)(a)(vi); or
(E) a combination of the provisions described in Subsections (1)(b)(i)(A) through (D); or
(ii) the governmental entity to whom the request for a record is made determines that the
record claimed to be protected under a provision listed in Subsection (1)(b)(i) should be released
after balancing interests under Subsection
63-2-201
(5)(b) or Subsection
63-2-401
(6).
(2) Except as provided by court order, the governmental entity to whom the request for a
record is made may not disclose [records] a record claimed to be protected under [Subsection
63-2-304
(1) or (2)it] the governmental
entity or records committee determines should be [classified public] disclosed until the period in
which to bring an appeal expires or the end of the appeals process, including judicial appeal.
This Subsection (2) does not apply where the claimant, after notice, has waived the claim by not
appealing or intervening before the records committee.
(3) Disclosure or acquisition of information under this chapter does not constitute
misappropriation under Subsection
13-24-2
(2).
Section 8.
Section
63-2-403
is amended to read:
63-2-403. Appeals to the records committee.
(1) A petitioner, including an aggrieved person who did not participate in the appeal to
the governmental entity’s chief administrative officer, may appeal to the records committee by
filing a notice of appeal with the executive secretary no later than:
(a) 30 days after the chief administrative officer of the governmental entity has granted or
denied the records request in whole or in part, including a denial under Subsection
63-2-204
(7);
(b) 45 days after the original request for records if:
(i) the circumstances described in Subsection
63-2-401
(1)(b) occur; and
(ii) the chief administrative officer failed to make a determination under Section
63-2-401
.
(2) The notice of appeal shall contain the following information:
(a) the petitioner’s name, mailing address, and daytime telephone number;
(b) a copy of any denial of the records request; and
(c) the relief sought.
(3) The petitioner may file a short statement of facts, reasons, and legal authority in
support of the appeal.
(4) (a) Except as provided in Subsection (4)(b), no later than three business days after
receiving a notice of appeal, the executive secretary of the records committee shall:
(i) schedule a hearing for the records committee to discuss the appeal at the next
regularly scheduled committee meeting falling at least 14 days after the date the notice of appeal
is filed but no longer than 45 days after the date the notice of appeal was filed [provided,
however,] except that the records committee may schedule an expedited hearing upon application
of the petitioner and good cause shown;
(ii) send a copy of the notice of hearing to the petitioner; and
(iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing to:
(A) each member of the records committee;
(B) the records officer and the chief administrative officer of the governmental entity
from which the appeal originated;
(C) any person who made a business confidentiality claim under Section
63-2-308
for a
record that is the subject of the appeal; and
(D) all persons who participated in the proceedings before the governmental entity’s chief
administrative officer.
(b) (i) The executive secretary of the records committee may decline to schedule a
hearing if the record series that is the subject of the appeal has been found by the committee in a
previous hearing involving the same government entity to be appropriately classified as private,
controlled, or protected.
(ii) (A) If the executive secretary of the records committee declines to schedule a
hearing, the executive secretary of the records committee shall send a notice to the petitioner
indicating that the request for hearing has been denied and the reason for the denial.
(B) The committee shall make rules to implement this section as provided by Title 63,
Chapter 46a, Utah Administrative Rulemaking Act.
(5) (a) A written statement of facts, reasons, and legal authority in support of the
governmental entity’s position must be submitted to the executive secretary of the records
committee not later than five business days before the hearing.
(b) The governmental entity shall send a copy of the written statement to the petitioner
by first class mail, postage prepaid. The executive secretary shall forward a copy of the written
statement to each member of the records committee.
(6) (a) No later than ten business days after the notice of appeal is sent by the executive
secretary, a person whose legal interests may be substantially affected by the proceeding may file
a request for intervention before the records committee.
(b) Any written statement of facts, reasons, and legal authority in support of the
intervener’s position shall be filed with the request for intervention.
(c) The person seeking intervention shall provide copies of the statement described in
Subsection (6)(b) to all parties to the proceedings before the records committee.
(7) The records committee shall hold a hearing within the period of time described in
Subsection (4).
(8) At the hearing, the records committee shall allow the parties to testify, present
evidence, and comment on the issues. The records committee may allow other interested persons
to comment on the issues.
(9) (a) The records committee may review the disputed records. However, if the
committee is weighing the various interests under Subsection (11), the committee must review
the disputed records. The review shall be in camera.
(b) Members of the records committee may not disclose any information or record
reviewed by the committee in camera unless the disclosure is otherwise authorized by this
chapter.
(10) (a) Discovery is prohibited, but the records committee may issue subpoenas or other
orders to compel production of necessary evidence.
(b) When the subject of a records committee subpoena disobeys or fails to comply with
the subpoena, the records committee may file a motion for an order to compel obedience to the
subpoena with the district court.
(c) The records committee’s review shall be de novo.
(11) (a) No later than three business days after the hearing, the records committee shall
issue a signed order either granting the petition in whole or in part or upholding the
determination of the governmental entity in whole or in part.
(b) The records committee may, upon consideration and weighing of the various interests
and public policies pertinent to the classification and disclosure or nondisclosure, order the
disclosure of information properly classified as private, controlled, or protected if the public
interest favoring access outweighs the interest favoring restriction of access.
(c) In making a determination under Subsection (11)(b), the records committee shall
consider and, where appropriate, limit the requester’s use and further disclosure of the record in
order to protect:
(i) privacy interests in the case of private or controlled records[,];
(ii) business confidentiality interests in the case of records protected under [Subsections]
Subsection
63-2-304
(1) [and], (2), (40)(a)(ii), or (40)(a)(vi); and
(iii) privacy interests or the public interest in the case of other protected records.
(12) The order of the records committee shall include:
(a) a statement of reasons for the decision, including citations to this chapter, court rule
or order, another state statute, federal statute, or federal regulation that governs disclosure of the
record, provided that the citations do not disclose private, controlled, or protected information;
(b) a description of the record or portions of the record to which access was ordered or
denied, provided that the description does not disclose private, controlled, or protected
information or information exempt from disclosure under Subsection
63-2-201
(3)(b);
(c) a statement that any party to the proceeding before the records committee may appeal
the records committee’s decision to district court; and
(d) a brief summary of the appeals process, the time limits for filing an appeal, and a
notice that in order to protect its rights on appeal, the party may wish to seek advice from an
attorney.
(13) If the records committee fails to issue a decision within 35 days of the filing of the
notice of appeal, that failure shall be considered the equivalent of an order denying the appeal.
The petitioner shall notify the records committee in writing if [he] the petitioner considers the
appeal denied.
(14) (a) Each government entity shall comply with the order of the records committee
and, if records are ordered to be produced, file:
(i) a notice of compliance with the records committee upon production of the records; or
(ii) a notice of intent to appeal.
(b) (i) If the government entity fails to file a notice of compliance or a notice of intent to
appeal, the records committee may do either or both of the following:
(A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or
(B) send written notice of the entity’s noncompliance to:
(I) the governor for executive branch entities[, to];
(II) the Legislative Management Committee for legislative branch entities[,]; and [to]
(III) the Judicial Council for judicial branch agencies entities.
(ii) In imposing a civil penalty, the records 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.