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H.B. 426
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GOVERNMENT PROCUREMENT - PRIVATE
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PROPOSALS
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2008 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Kevin S. Garn
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Senate Sponsor:
____________
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LONG TITLE
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General Description:
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This bill creates a program allowing a private entity to submit proposals to provide
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certain products or services to the Department of Technology Services or the State
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School Board.
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Highlighted Provisions:
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This bill:
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. makes legislative findings;
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. creates a program allowing the submission of a proposal to provide a product or
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service to the Department of Technology Services or the State School Board;
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. requires the Board of Business and Economic Development to appoint a committee
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to evaluate a proposal under the program;
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. defines terms;
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. addresses the requirements of an initial proposal submitted to the committee;
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. provides for review of an initial proposal by the committee and the affected
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department;
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. addresses the issuance of an invitation for detailed proposals if the initial proposal is
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accepted by the committee;
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. provides requirements for a detailed proposal;
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. makes an initial proposal a protected record under Title 63, Chapter 2, Government
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Records Access and Management Act;
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. allows the committee, by rule, to maintain certain portions of an initial proposal as a
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protected record;
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. addresses cooperation between a private entity submitting a detailed proposal and
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the affected department;
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. requires the Governor's Office of Planning and Budget to prepare an economic
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feasibility report concerning a detailed proposal;
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. provides for the acceptance of a detailed proposal and the preparation and execution
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of a project agreement;
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. creates a restricted account, comprised of monies collected from fees for submitting
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a proposal;
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. establishes uses for which monies may be expended from the restricted account;
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. requires the establishment of fees for proposals and project agreements;
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. allows for the appointment of an advisory committee to assist the committee in
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evaluating proposals and preparing project agreements; and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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53A-20-101, as last amended by Laws of Utah 2005, Chapter 25
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63-2-304, as last amended by Laws of Utah 2008, Chapter 3
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63-38f-203, as renumbered and amended by Laws of Utah 2005, Chapter 148
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63-56-102, as last amended by Laws of Utah 2007, Chapter 329
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63F-1-205, as last amended by Laws of Utah 2007, Chapter 306
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ENACTS:
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63G-6-408.5, Utah Code Annotated 1953
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63M-1-2401, Utah Code Annotated 1953
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63M-1-2402, Utah Code Annotated 1953
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63M-1-2403, Utah Code Annotated 1953
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63M-1-2404, Utah Code Annotated 1953
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63M-1-2405, Utah Code Annotated 1953
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63M-1-2406, Utah Code Annotated 1953
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63M-1-2407, Utah Code Annotated 1953
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63M-1-2408, Utah Code Annotated 1953
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63M-1-2409, Utah Code Annotated 1953
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63M-1-2410, Utah Code Annotated 1953
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63M-1-2411, Utah Code Annotated 1953
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63M-1-2412, Utah Code Annotated 1953
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63M-1-2413, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
53A-20-101
is amended to read:
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53A-20-101. Construction and alteration of schools and plants -- Advertising for
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bids -- Payment and performance bonds -- Contracts -- Bidding limitations on local
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school boards -- Interest of local school board members.
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(1) As used in this section, the word "sealed" does not preclude acceptance of
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electronically sealed and submitted bids or proposals in addition to bids or proposals manually
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sealed and submitted.
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(2) (a) [Prior to] Except as provided in Title 63M, Chapter 1, Part 24, Government
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Procurement Private Proposal Program, before the construction of any school or the alteration
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of any existing school plant, if the total estimated accumulative building project cost exceeds
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$80,000, a local school board shall advertise for bids on the project at least ten days before the
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bid due date.
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(b) The board shall have the advertisement published in a newspaper having general
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circulation throughout the state and in appropriate construction trade publications that offer
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free listings.
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(c) A similar advertisement is required in a newspaper published or having general
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circulation in any city or county that would be affected by the proposed project.
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(d) The advertisement shall:
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(i) require sealed proposals for the building project in accordance with plans and
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specifications furnished by the local school board;
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(ii) state where and when the proposals will be opened and shall reserve the right of the
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board to reject any and all proposals; and
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(iii) require a certified check or bid bond of not less than 5% of the bid to accompany
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the bid.
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(3) (a) The board shall meet at the time and place specified in the advertisement and
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publicly open and read all received proposals.
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(b) If satisfactory bids are received, the board shall award the contract to the lowest
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responsible bidder.
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(c) If none of the proposals are satisfactory, all shall be rejected.
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(d) The board shall again advertise in the manner provided in this section.
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(e) If, after advertising a second time no satisfactory bid is received, the board may
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proceed under its own direction with the required project.
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(4) (a) The check or bond required under Subsection (2)(d) shall be drawn in favor of
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the local school board.
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(b) If the successful bidder fails or refuses to enter into the contract and furnish the
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additional bonds required under this section, then the bidder's check or bond is forfeited to the
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district.
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(5) A local school board shall require payment and performance bonds of the
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successful bidder as required in Section
63-56-504
.
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(6) (a) A local school board may require in the proposed contract that at least 10% of
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the contract price be withheld until the project is completed and accepted by the board.
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(b) If money is withheld, the board shall place it in an interest bearing account, and the
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interest accrues for the benefit of the contractor and subcontractors.
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(c) This money shall be paid upon completion of the project and acceptance by the
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board.
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(7) (a) A local school board may not bid on projects within the district if the total
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accumulative estimated cost exceeds $80,000.
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(b) The board may use its resources if no satisfactory bids are received under this
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section.
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(8) If the local school board determines in accordance with Section
63-56-501
to use a
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construction manager/general contractor as its method of construction contracting management
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on projects where the total estimated accumulative cost exceeds $80,000, it shall select the
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construction manager/general contractor using one of the source selection methods provided
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for in Sections
63-56-401
through
63-56-501
.
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(9) A local school board member may not have a direct or indirect financial interest in
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the construction project contract.
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Section 2.
Section
63-2-304
is amended to read:
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63-2-304. Protected records.
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The following records are protected if properly classified by a governmental entity:
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(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret
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has provided the governmental entity with the information specified in Section
63-2-308
;
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(2) commercial information or nonindividual financial information obtained from a
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person if:
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(a) disclosure of the information could reasonably be expected to result in unfair
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competitive injury to the person submitting the information or would impair the ability of the
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governmental entity to obtain necessary information in the future;
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(b) the person submitting the information has a greater interest in prohibiting access
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than the public in obtaining access; and
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(c) the person submitting the information has provided the governmental entity with
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the information specified in Section
63-2-308
;
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(3) commercial or financial information acquired or prepared by a governmental entity
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to the extent that disclosure would lead to financial speculations in currencies, securities, or
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commodities that will interfere with a planned transaction by the governmental entity or cause
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substantial financial injury to the governmental entity or state economy;
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(4) records the disclosure of which could cause commercial injury to, or confer a
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competitive advantage upon a potential or actual competitor of, a commercial project entity as
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defined in Subsection
11-13-103
(4);
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(5) test questions and answers to be used in future license, certification, registration,
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employment, or academic examinations;
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(6) records the disclosure of which would impair governmental procurement
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proceedings or give an unfair advantage to any person proposing to enter into a contract or
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agreement with a governmental entity, except that this Subsection (6) does not restrict the right
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of a person to see bids submitted to or by a governmental entity after bidding has closed;
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(7) records that would identify real property or the appraisal or estimated value of real
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or personal property, including intellectual property, under consideration for public acquisition
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before any rights to the property are acquired unless:
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(a) public interest in obtaining access to the information outweighs the governmental
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entity's need to acquire the property on the best terms possible;
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(b) the information has already been disclosed to persons not employed by or under a
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duty of confidentiality to the entity;
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(c) in the case of records that would identify property, potential sellers of the described
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property have already learned of the governmental entity's plans to acquire the property;
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(d) in the case of records that would identify the appraisal or estimated value of
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property, the potential sellers have already learned of the governmental entity's estimated value
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of the property; or
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(e) the property under consideration for public acquisition is a single family residence
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and the governmental entity seeking to acquire the property has initiated negotiations to acquire
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the property as required under Section
78B-6-505
;
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(8) records prepared in contemplation of sale, exchange, lease, rental, or other
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compensated transaction of real or personal property including intellectual property, which, if
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disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
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of the subject property, unless:
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(a) the public interest in access outweighs the interests in restricting access, including
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the governmental entity's interest in maximizing the financial benefit of the transaction; or
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(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
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the value of the subject property have already been disclosed to persons not employed by or
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under a duty of confidentiality to the entity;
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(9) records created or maintained for civil, criminal, or administrative enforcement
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purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
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release of the records:
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(a) reasonably could be expected to interfere with investigations undertaken for
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enforcement, discipline, licensing, certification, or registration purposes;
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(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
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proceedings;
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(c) would create a danger of depriving a person of a right to a fair trial or impartial
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hearing;
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(d) reasonably could be expected to disclose the identity of a source who is not
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generally known outside of government and, in the case of a record compiled in the course of
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an investigation, disclose information furnished by a source not generally known outside of
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government if disclosure would compromise the source; or
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(e) reasonably could be expected to disclose investigative or audit techniques,
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procedures, policies, or orders not generally known outside of government if disclosure would
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interfere with enforcement or audit efforts;
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(10) records the disclosure of which would jeopardize the life or safety of an
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individual;
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(11) records the disclosure of which would jeopardize the security of governmental
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property, governmental programs, or governmental recordkeeping systems from damage, theft,
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or other appropriation or use contrary to law or public policy;
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(12) records that, if disclosed, would jeopardize the security or safety of a correctional
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facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
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with the control and supervision of an offender's incarceration, treatment, probation, or parole;
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(13) records that, if disclosed, would reveal recommendations made to the Board of
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Pardons and Parole by an employee of or contractor for the Department of Corrections, the
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Board of Pardons and Parole, or the Department of Human Services that are based on the
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employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
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jurisdiction;
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(14) records and audit workpapers that identify audit, collection, and operational
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procedures and methods used by the State Tax Commission, if disclosure would interfere with
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audits or collections;
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(15) records of a governmental audit agency relating to an ongoing or planned audit
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until the final audit is released;
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(16) records prepared by or on behalf of a governmental entity solely in anticipation of
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litigation that are not available under the rules of discovery;
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(17) records disclosing an attorney's work product, including the mental impressions or
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legal theories of an attorney or other representative of a governmental entity concerning
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litigation;
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(18) records of communications between a governmental entity and an attorney
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representing, retained, or employed by the governmental entity if the communications would be
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privileged as provided in Section
78B-1-137
;
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(19) (a) (i) personal files of a state legislator, including personal correspondence to or
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from a member of the Legislature; and
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(ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
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legislative action or policy may not be classified as protected under this section; and
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(b) (i) an internal communication that is part of the deliberative process in connection
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with the preparation of legislation between:
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(A) members of a legislative body;
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(B) a member of a legislative body and a member of the legislative body's staff; or
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(C) members of a legislative body's staff; and
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(ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
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legislative action or policy may not be classified as protected under this section;
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(20) (a) records in the custody or control of the Office of Legislative Research and
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General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
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legislation or contemplated course of action before the legislator has elected to support the
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legislation or course of action, or made the legislation or course of action public; and
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(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
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Office of Legislative Research and General Counsel is a public document unless a legislator
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asks that the records requesting the legislation be maintained as protected records until such
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time as the legislator elects to make the legislation or course of action public;
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(21) research requests from legislators to the Office of Legislative Research and
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General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
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in response to these requests;
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(22) drafts, unless otherwise classified as public;
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(23) records concerning a governmental entity's strategy about collective bargaining or
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pending litigation;
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(24) records of investigations of loss occurrences and analyses of loss occurrences that
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may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
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Uninsured Employers' Fund, or similar divisions in other governmental entities;
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(25) records, other than personnel evaluations, that contain a personal recommendation
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concerning an individual if disclosure would constitute a clearly unwarranted invasion of
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personal privacy, or disclosure is not in the public interest;
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(26) records that reveal the location of historic, prehistoric, paleontological, or
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biological resources that if known would jeopardize the security of those resources or of
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valuable historic, scientific, educational, or cultural information;
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(27) records of independent state agencies if the disclosure of the records would
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conflict with the fiduciary obligations of the agency;
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(28) records of an institution within the state system of higher education defined in
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Section
53B-1-102
regarding tenure evaluations, appointments, applications for admissions,
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retention decisions, and promotions, which could be properly discussed in a meeting closed in
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accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
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the final decisions about tenure, appointments, retention, promotions, or those students
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admitted, may not be classified as protected under this section;
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(29) records of the governor's office, including budget recommendations, legislative
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proposals, and policy statements, that if disclosed would reveal the governor's contemplated
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policies or contemplated courses of action before the governor has implemented or rejected
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those policies or courses of action or made them public;
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(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
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revenue estimates, and fiscal notes of proposed legislation before issuance of the final
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recommendations in these areas;
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(31) records provided by the United States or by a government entity outside the state
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that are given to the governmental entity with a requirement that they be managed as protected
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records if the providing entity certifies that the record would not be subject to public disclosure
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if retained by it;
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(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
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except as provided in Section
52-4-206
;
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(33) records that would reveal the contents of settlement negotiations but not including
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final settlements or empirical data to the extent that they are not otherwise exempt from
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disclosure;
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(34) memoranda prepared by staff and used in the decision-making process by an
280
administrative law judge, a member of the Board of Pardons and Parole, or a member of any
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other body charged by law with performing a quasi-judicial function;
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(35) records that would reveal negotiations regarding assistance or incentives offered
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by or requested from a governmental entity for the purpose of encouraging a person to expand
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or locate a business in Utah, but only if disclosure would result in actual economic harm to the
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person or place the governmental entity at a competitive disadvantage, but this section may not
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be used to restrict access to a record evidencing a final contract;
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(36) materials to which access must be limited for purposes of securing or maintaining
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the governmental entity's proprietary protection of intellectual property rights including patents,
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copyrights, and trade secrets;
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(37) the name of a donor or a prospective donor to a governmental entity, including an
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institution within the state system of higher education defined in Section
53B-1-102
, and other
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information concerning the donation that could reasonably be expected to reveal the identity of
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the donor, provided that:
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(a) the donor requests anonymity in writing;
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(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
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classified protected by the governmental entity under this Subsection (37); and
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(c) except for an institution within the state system of higher education defined in
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Section
53B-1-102
, the governmental unit to which the donation is made is primarily engaged
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in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
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over the donor, a member of the donor's immediate family, or any entity owned or controlled
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by the donor or the donor's immediate family;
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(38) accident reports, except as provided in Sections
41-6a-404
,
41-12a-202
, and
303
73-18-13
;
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(39) a notification of workers' compensation insurance coverage described in Section
305
34A-2-205
;
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(40) (a) the following records of an institution within the state system of higher
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education defined in Section
53B-1-102
, which have been developed, discovered, disclosed to,
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or received by or on behalf of faculty, staff, employees, or students of the institution:
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(i) unpublished lecture notes;
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(ii) unpublished notes, data, and information:
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(A) relating to research; and
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(B) of:
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(I) the institution within the state system of higher education defined in Section
314
53B-1-102
; or
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(II) a sponsor of sponsored research;
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(iii) unpublished manuscripts;
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(iv) creative works in process;
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(v) scholarly correspondence; and
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(vi) confidential information contained in research proposals;
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(b) Subsection (40)(a) may not be construed to prohibit disclosure of public
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information required pursuant to Subsection
53B-16-302
(2)(a) or (b); and
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(c) Subsection (40)(a) may not be construed to affect the ownership of a record;
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(41) (a) records in the custody or control of the Office of Legislative Auditor General
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that would reveal the name of a particular legislator who requests a legislative audit prior to the
325
date that audit is completed and made public; and
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(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
327
Office of the Legislative Auditor General is a public document unless the legislator asks that
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the records in the custody or control of the Office of Legislative Auditor General that would
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reveal the name of a particular legislator who requests a legislative audit be maintained as
330
protected records until the audit is completed and made public;
331
(42) records that provide detail as to the location of an explosive, including a map or
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other document that indicates the location of:
333
(a) a production facility; or
334
(b) a magazine;
335
(43) information contained in the database described in Section
62A-3-311.1
;
336
(44) information contained in the Management Information System and Licensing
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Information System described in Title 62A, Chapter 4a, Child and Family Services;
338
(45) information regarding National Guard operations or activities in support of the
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National Guard's federal mission;
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(46) records provided by any pawn or secondhand business to a law enforcement
341
agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
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Secondhand Merchandise Transaction Information Act;
343
(47) information regarding food security, risk, and vulnerability assessments performed
344
by the Department of Agriculture and Food;
345
(48) except to the extent that the record is exempt from this chapter pursuant to Section
346
63-2-106
, records related to an emergency plan or program prepared or maintained by the
347
Division of Homeland Security the disclosure of which would jeopardize:
348
(a) the safety of the general public; or
349
(b) the security of:
350
(i) governmental property;
351
(ii) governmental programs; or
352
(iii) the property of a private person who provides the Division of Homeland Security
353
information;
354
(49) records of the Department of Agriculture and Food relating to the National
355
Animal Identification System or any other program that provides for the identification, tracing,
356
or control of livestock diseases, including any program established under Title 4, Chapter 24,
357
Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
358
Quarantine;
359
(50) as provided in Section
26-39-109
:
360
(a) information or records held by the Department of Health related to a complaint
361
regarding a child care program or residential child care which the department is unable to
362
substantiate; and
363
(b) information or records related to a complaint received by the Department of Health
364
from an anonymous complainant regarding a child care program or residential child care; [and]
365
(51) unless otherwise classified as public under Section
63-2-301
and except as
366
provided under Section
41-1a-116
, an individual's home address, home telephone number, or
367
personal mobile phone number, if:
368
(a) the individual is required to provide the information in order to comply with a law,
369
ordinance, rule, or order of a government entity; and
370
(b) the subject of the record has a reasonable expectation that this information will be
371
kept confidential due to:
372
(i) the nature of the law, ordinance, rule, or order; and
373
(ii) the individual complying with the law, ordinance, rule, or order[.]; and
374
(52) an initial proposal under Title 63M, Chapter 1, Part 24, Government Procurement
375
Private Proposal Program, to the extent not made public by rules made under that chapter.
376
Section 3.
Section
63-38f-203
is amended to read:
377
63-38f-203. Powers and duties of director.
378
(1) The director, with the approval of the governor, may:
379
(a) by following the procedures and requirements of Title 63, Chapter 38e, Federal
380
Funds Procedures, seek federal grants, loans, or participation in federal programs;
381
(b) enter into lawful contracts or agreements with other states, any chamber of
382
commerce organization, [and] any service club[; and], and a private entity pursuant to Section
383
63M-1-2411
; and
384
(c) annually prepare and submit to the governor a budget of the office's financial
385
requirements.
386
(2) If any federal program requires the expenditure of state funds as a condition to