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First Substitute S.B. 17
This document includes House Committee Amendments incorporated into the bill on Fri,
Feb 15, 2008 at 2:49 PM by jeyring. -->
Representative David Litvack proposes the following substitute bill:
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CHILD ABUSE AND NEGLECT REGISTRY -
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MANAGEMENT AND LICENSING
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INFORMATION SYSTEMS AMENDMENTS
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2008 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Gene Davis
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House Sponsor:
Wayne A. Harper
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LONG TITLE
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General Description:
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This bill amends provisions of the Utah Human Services Code and the Government
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Records Access and Management Act relating to the Management Information System
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maintained by the Department of Human Services.
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Highlighted Provisions:
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This bill:
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. modifies provisions related to access to records in the Management Information
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System;
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. establishes a procedure for providing an alleged perpetrator of child abuse, neglect,
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or dependancy with notice and an opportunity to challenge:
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. a finding of unsupported or without merit by the division; and
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. the listing of the finding in the Management Information System;
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. provides that proceedings for judicial review of a final agency action relating to a
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report on the Management Information System are closed to the public;
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. grants rulemaking authority to the Judicial Council to ensure the confidentiality of
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the proceedings described above; 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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62A-4a-412, as last amended by Laws of Utah 2006, Chapters 77 and 281
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62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
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63-2-202, as last amended by Laws of Utah 2005, Chapter 201
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63-2-304, as last amended by Laws of Utah 2008, Chapter 3
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78A-6-317, as renumbered and amended by Laws of Utah 2008, Chapter 3
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-412
is amended to read:
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62A-4a-412. Reports and information confidential.
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(1) Except as otherwise provided in this chapter, reports made pursuant to this part, as
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well as any other information in the possession of the division obtained as the result of a report
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are private, protected, or controlled records under Title 63, Chapter 2, Government Records
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Access and Management Act, and may only be made available to:
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(a) a police or law enforcement agency investigating a report of known or suspected
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child abuse or neglect;
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(b) a physician who reasonably believes that a child may be the subject of abuse or
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neglect;
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(c) an agency that has responsibility or authority to care for, treat, or supervise a minor
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who is the subject of a report;
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(d) a contract provider that has a written contract with the division to render services to
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a minor who is the subject of a report;
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(e) [any] except as provided in Subsection
63-2-202
(10), a subject of the report, the
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natural parents of the child, and the guardian ad litem;
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(f) a court, upon a finding that access to the records may be necessary for the
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determination of an issue before the court, provided that in a divorce, custody, or related
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proceeding between private parties, the record alone is:
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(i) limited to objective or undisputed facts that were verified at the time of the
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investigation; and
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(ii) devoid of conclusions drawn by the division or any of the division's workers on the
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ultimate issue of whether or not a person's acts or omissions constituted any level of abuse or
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neglect of another person;
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(g) an office of the public prosecutor or its deputies in performing an official duty;
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(h) a person authorized by a Children's Justice Center, for the purposes described in
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Section
67-5b-102
;
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(i) a person engaged in bona fide research, when approved by the director of the
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division, if the information does not include names and addresses;
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(j) the State Office of Education, acting on behalf of itself or on behalf of a school
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district, for the purpose of evaluating whether an individual should be permitted to obtain or
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retain a license as an educator or serve as an employee or volunteer in a school, limited to
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information with substantiated findings involving an alleged sexual offense, an alleged felony
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or class A misdemeanor drug offense, or any alleged offense against the person under Title 76,
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Chapter 5, Offenses Against the Person, and with the understanding that the office must
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provide the subject of a report received under Subsection (1)(k) with an opportunity to respond
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to the report before making a decision concerning licensure or employment;
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(k) any person identified in the report as a perpetrator or possible perpetrator of child
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abuse or neglect, after being advised of the screening prohibition in Subsection (2);
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(l) except as provided in Subsection
63-2-202
(10), a person filing a petition for a child
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protective order on behalf of a child who is the subject of the report; and
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(m) a licensed child-placing agency or person who is performing a preplacement
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adoptive evaluation in accordance with the requirements of Section
78-30-3.5
.
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(2) (a) A person, unless listed in Subsection (1), may not request another person to
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obtain or release a report or any other information in the possession of the division obtained as
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a result of the report that is available under Subsection (1)(k) to screen for potential
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perpetrators of child abuse or neglect.
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(b) A person who requests information knowing that it is a violation of Subsection
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(2)(a) to do so is subject to the criminal penalty in Subsection (4).
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(3) (a) Except as provided in Section
62A-4a-1007
and Subsection (3)(b), the division
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and law enforcement officials shall ensure the anonymity of the person or persons making the
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initial report and any others involved in its subsequent investigation.
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(b) Notwithstanding any other provision of law, excluding Section
78-3a-314
, but
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including this chapter and Title 63, Chapter 2, Government Records Access and Management
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Act, when the division makes a report or other information in its possession available under
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Subsection (1)(e) to a subject of the report or a parent of a child, the division shall remove from
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the report or other information only the names, addresses, and telephone numbers of
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individuals or specific information that could:
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(i) identify the referent;
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(ii) impede a criminal investigation; or
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(iii) endanger a person's safety.
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(4) Any person who wilfully permits, or aides and abets the release of data or
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information obtained as a result of this part, in the possession of the division or contained on
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any part of the Management Information System, in violation of this part or Sections
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62A-4a-1003
through
62A-4a-1007
, is guilty of a class C misdemeanor.
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(5) The physician-patient privilege is not a ground for excluding evidence regarding a
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child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
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good faith pursuant to this part.
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(6) A child-placing agency or person who receives a report in connection with a
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preplacement adoptive evaluation pursuant to Section
78-30-3.5
:
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(a) may provide this report to the person who is the subject of the report; and
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(b) may provide this report to a person who is performing a preplacement adoptive
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evaluation in accordance with the requirement of Section
78-30-3.5
, or to a licensed
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child-placing agency or to an attorney seeking to facilitate an adoption.
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Section 2.
Section
62A-4a-1009
is amended to read:
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62A-4a-1009. Notice and opportunity to challenge finding of supported,
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unsupported, or without merit in Management Information System -- Right of judicial
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review.
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(1) (a) Except as provided in Subsection (2), the division shall send a notice of agency
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action to a person with respect to whom the division makes a [supported] finding of supported,
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unsupported, or without merit. In addition, if the alleged perpetrator is under the age of 18, the
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division shall:
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(i) make reasonable efforts to identify the alleged perpetrator's parent or guardian; and
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(ii) send a notice to each parent or guardian identified under Subsection (1)(a)(i) that
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lives at a different address, unless there is good cause, as defined by rule, for not sending a
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notice to a parent or guardian.
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(b) Nothing in this section may be construed as affecting:
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(i) the manner in which the division conducts an investigation; or
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(ii) the use or effect, in any other setting, of a supported finding by the division at the
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completion of an investigation for any purpose other than for notification under Subsection (1)
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(a).
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(2) Subsection (1) does not apply to a person who has been served with notice under
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Subsection
62A-4a-1005
(1)(a).
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(3) The notice described in Subsection (1), relating to a supported finding, shall state:
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(a) that the division has conducted an investigation regarding alleged child abuse,
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neglect, or dependency;
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(b) that the division has made a supported finding of abuse, neglect, or dependency;
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(c) that facts gathered by the division support the supported finding;
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(d) that the person has the right to request:
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(i) a copy of the report; and
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(ii) an opportunity to challenge the supported finding by the division; and
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(e) that failure to request an opportunity to challenge the supported finding within 30
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days of receiving the notice will result in an unappealable supported finding of child abuse,
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neglect, or dependency unless the person can show good cause for why compliance within the
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30-day requirement was virtually impossible or unreasonably burdensome.
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(4) (a) A person may make a request to challenge a supported finding within 30 days of
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a notice being received under this section.
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(b) Upon receipt of a request under Subsection (4)(a), the Office of Administrative
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Hearings shall hold an adjudicative proceeding pursuant to Title 63, Chapter 46b,
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Administrative Procedures Act.
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House Committee Amendments 2-15-2008 je/trv
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(5) (a) In an adjudicative proceeding held pursuant to this section, based on a challenge
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to a supported finding, the division shall have the burden of proving, by a preponderance of the
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evidence, that child abuse, neglect, or dependency occurred and that the alleged perpetrator was
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substantially responsible for the abuse or neglect that occurred.
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(b) Any party shall have the right of judicial review of final agency action under this
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section, regardless of whether the finding is supported, unsupported, or without merit, in
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accordance with Title 63, Chapter 46b, Administrative Procedures Act.
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(c) Proceedings for judicial review of a final agency action under this section shall be
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closed to the public.
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(d) The Judicial Council shall make rules H. [
, in accordance with Title 63, Chapter 46a,
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Utah Administrative Rulemaking Act,
] .H that ensure the confidentiality of the proceedings
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described in Subsection (5)(c) and the records related to the proceedings.
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(6) (a) If, after receiving a report of alleged child abuse, neglect, or dependency, the
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division makes a finding that the report is unsupported or without merit, the division shall
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serve notice of the finding, described in Subsection (6)(b), on the alleged perpetrator.
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(b) The notice described in Subsection (6)(a):
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(i) shall state that:
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(A) the division has conducted an investigation regarding a report of alleged child
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abuse, neglect, or dependency;
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(B) the division has made a finding that the report is unsupported or without merit;
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(C) the alleged perpetrator's name, information, and the report have been entered into
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the Management Information System, together with an indication that the report was found to
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be unsupported or without merit;
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(D) the information described in Subsection (6)(b)(i)(C):
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(I) will not be included in the Licensing Information System; and
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(II) may not be accessed and used to disqualify the alleged perpetrator from adopting a
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child or being licensed by:
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(Aa) the department;
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(Bb) a human services licensee;
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(Cc) a child care provider or program; or
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(Dd) a covered health care facility;
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(E) the alleged perpetrator has the rights described in Subsection (7); and
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(F) failure to take the action described in Subsection (7)(a) within two years after
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service of the notice will result in the action described in Subsection (7)(b);
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(ii) shall include a general statement of the nature of the findings; and
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(iii) may not include:
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(A) the name of a victim or witness; or
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(B) any privacy information related to the victim or a witness.
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(7) (a) Upon receipt of the notice described in Subsection (6), the alleged perpetrator
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shall have the right to:
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(i) except as provided in Subsection (7)(c), submit a request for agency review to the
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division, requesting one or both of the following:
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(A) if the finding described in Subsection (6)(a) is a finding of unsupported, that the
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division reduce the finding to a finding of without merit; or
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(B) if the finding described in Subsection (6)(a) is a finding of unsupported or without
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merit, that the division remove the alleged perpetrator's name and information, the finding, and
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the report to which it relates, from the Management Information System; or
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(ii) sign a written consent to:
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(A) the finding made under Subsection (6)(a); and
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(B) entry into the Management Information System of the alleged perpetrator's name
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and information, the finding, and the report.
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(b) The alleged perpetrator's name and information, the finding, and the report shall
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remain in the Management Information System:
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(i) if the alleged perpetrator fails to submit a request for agency review under
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Subsection (7)(a)(i) within two years after service of the notice described in Subsection (6);
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(ii) during the time that the division awaits a request for agency review from the
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alleged perpetrator pursuant to Subsection (7)(a); and
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(iii) unless:
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(A) in response to a request for agency review, the division determines, under
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Subsection (7)(a)(i)(B), to remove the alleged perpetrator's name and information, including
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the finding and the report, from the Management Information System;
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(B) the division refuses to take the action described in Subsection (7)(b)(iii)(A) and the
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division's decision is overturned; or
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(C) a court orders that the perpetrator's name and information, the finding, and the
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report be removed from the Management Information System.
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(c) The alleged perpetrator has no right to submit a request for agency review to the
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division under Subsection (7)(a)(i) if a court previously held a hearing on the same alleged
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incident of abuse, neglect, or dependency, pursuant to the filing of a petition under Section
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78A-6-304
, by some other party.
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(d) Consent under Subsection (7)(a)(ii) by a child shall be given by the child's parent or
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guardian.
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(e) In considering a request described in Subsection (7)(a)(i)(A), the agency shall have
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the burden of proving, by a preponderance of the evidence, that the finding should be
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unsupported, rather than without merit.
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(f) In considering a request described in Subsection (7)(a)(i)(B), the person who
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submitted the request for review shall have the burden of proving, by a preponderance of the
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evidence, that the person's interest in having the report and finding removed from the
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Management Information System outweighs the interest of the division or an alleged victim in
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maintaining the report and finding in the Management Information System.
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(g) If the division refuses to take the action requested under Subsection (7)(a)(i), the
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person who submitted the request for agency review may challenge the decision pursuant to
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Title 63, Chapter 46b, Administrative Procedures Act.
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[(6)] (8) Except as otherwise provided in this chapter, an alleged perpetrator who, after
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receiving notice, fails to challenge a [supported] finding of supported, unsupported, or without
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merit, in accordance with this section:
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(a) may not further challenge the finding; and
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(b) shall have no right to:
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(i) agency review of the finding;
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(ii) an adjudicative hearing on the finding; or
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(iii) judicial review of the finding.
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[(7)] (9) (a) Except as provided in Subsection [(7)] (9)(b), an alleged perpetrator may
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not make a request under Subsection (4) or (7)(a)(i) to challenge a [supported] finding of
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supported, unsupported, or without merit, if a court of competent jurisdiction entered a finding,
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in a proceeding in which the alleged perpetrator was a party, that:
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(i) the alleged perpetrator is substantially responsible for the abuse, neglect, or
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dependency which was also the subject of the supported finding[.]; or
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(ii) the report was unsubstantiated or without merit.
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(b) Subsection [(7)] (9)(a) does not apply to pleas in abeyance or diversion agreements.
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(c) An adjudicative proceeding under Subsection (5) or (7) may be stayed during the
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time a judicial action on the same matter is pending.
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[(8)] (10) Pursuant to Section
78-3a-320
, an adjudicative proceeding on a supported
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finding of a type of abuse or neglect that does not constitute a severe type of child abuse or
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neglect may be joined in the juvenile court with an adjudicative proceeding on a supported
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finding of a severe type of child abuse or neglect.
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Section 3.
Section
63-2-202
is amended to read:
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63-2-202. Access to private, controlled, and protected documents.
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(1) Upon request, a governmental entity shall disclose a private record to:
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(a) the subject of the record;
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(b) the parent or legal guardian of an unemancipated minor who is the subject of the
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record;
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(c) the legal guardian of a legally incapacitated individual who is the subject of the
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record;
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(d) any other individual who:
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(i) has a power of attorney from the subject of the record;
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(ii) submits a notarized release from the subject of the record or his legal representative
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dated no more than 90 days before the date the request is made; or
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(iii) if the record is a medical record described in Subsection
63-2-302
(1)(b), is a health
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care provider, as defined in Section
26-33a-102
, if releasing the record or information in the
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record is consistent with normal professional practice and medical ethics; or
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(e) any person to whom the record must be provided pursuant to:
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(i) court order as provided in Subsection (7); or
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(ii) a legislative subpoena as provided in Title 36, Chapter 14.
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(2) (a) Upon request, a governmental entity shall disclose a controlled record to:
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(i) a physician, psychologist, certified social worker, insurance provider or producer, or
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a government public health agency upon submission of:
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(A) a release from the subject of the record that is dated no more than 90 days prior to
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the date the request is made; and
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(B) a signed acknowledgment of the terms of disclosure of controlled information as
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provided by Subsection (2)(b); and
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(ii) any person to whom the record must be disclosed pursuant to:
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(A) a court order as provided in Subsection (7); or
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(B) a legislative subpoena as provided in Title 36, Chapter 14.
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(b) A person who receives a record from a governmental entity in accordance with
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Subsection (2)(a)(i) may not disclose controlled information from that record to any person,
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including the subject of the record.
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(3) If there is more than one subject of a private or controlled record, the portion of the
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record that pertains to another subject shall be segregated from the portion that the requester is
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entitled to inspect.
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(4) Upon request, and except as provided in Subsection (10), a governmental entity
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shall disclose a protected record to:
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(a) the person who submitted the record;
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(b) any other individual who:
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(i) has a power of attorney from all persons, governmental entities, or political
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subdivisions whose interests were sought to be protected by the protected classification; or
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(ii) submits a notarized release from all persons, governmental entities, or political
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subdivisions whose interests were sought to be protected by the protected classification or from
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their legal representatives dated no more than 90 days prior to the date the request is made;
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(c) any person to whom the record must be provided pursuant to:
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(i) a court order as provided in Subsection (7); or
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(ii) a legislative subpoena as provided in Title 36, Chapter 14; or
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(d) the owner of a mobile home park, subject to the conditions of Subsection
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41-1a-116
(5).
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(5) A governmental entity may disclose a private, controlled, or protected record to
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another governmental entity, political subdivision, another state, the United States, or a foreign
304
government only as provided by Section
63-2-206
.
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(6) Before releasing a private, controlled, or protected record, the governmental entity
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shall obtain evidence of the requester's identity.
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(7) A governmental entity shall disclose a record pursuant to the terms of a court order
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signed by a judge from a court of competent jurisdiction, provided that:
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(a) the record deals with a matter in controversy over which the court has jurisdiction;
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(b) the court has considered the merits of the request for access to the record; and
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(c) the court has considered and, where appropriate, limited the requester's use and
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further disclosure of the record in order to protect:
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(i) privacy interests in the case of private or controlled records;
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(ii) business confidentiality interests in the case of records protected under Subsection
315
63-2-304
(1), (2), (40)(a)(ii), or (40)(a)(vi); and
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(iii) privacy interests or the public interest in the case of other protected records;
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(d) to the extent the record is properly classified private, controlled, or protected, the
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interests favoring access, considering limitations thereon, outweigh the interests favoring
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restriction of access; and
320
(e) where access is restricted by a rule, statute, or regulation referred to in Subsection
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63-2-201
(3)(b), the court has authority independent of this chapter to order disclosure.
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(8) (a) A governmental entity may disclose or authorize disclosure of private or
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controlled records for research purposes if the governmental entity:
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(i) determines that the research purpose cannot reasonably be accomplished without
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use or disclosure of the information to the researcher in individually identifiable form;
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(ii) determines that:
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(A) the proposed research is bona fide; and
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(B) the value of the research outweighs the infringement upon personal privacy;
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(iii) (A) requires the researcher to assure the integrity, confidentiality, and security of
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the records; and
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(B) requires the removal or destruction of the individual identifiers associated with the
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records as soon as the purpose of the research project has been accomplished;
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(iv) prohibits the researcher from:
334
(A) disclosing the record in individually identifiable form, except as provided in
335
Subsection (8)(b); or
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(B) using the record for purposes other than the research approved by the governmental
337
entity; and
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(v) secures from the researcher a written statement of the researcher's understanding of
339
and agreement to the conditions of this Subsection (8) and the researcher's understanding that
340
violation of the terms of this Subsection (8) may subject the researcher to criminal prosecution
341
under Section
63-2-801
.
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(b) A researcher may disclose a record in individually identifiable form if the record is
343
disclosed for the purpose of auditing or evaluating the research program and no subsequent use
344
or disclosure of the record in individually identifiable form will be made by the auditor or
345
evaluator except as provided by this section.
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(c) A governmental entity may require indemnification as a condition of permitting
347
research under this Subsection (8).
348
(9) (a) Under Subsections
63-2-201
(5)(b) and
63-2-401
(6), a governmental entity may
349
disclose to persons other than those specified in this section records that are:
350
(i) private under Section
63-2-302
; or
351
(ii) protected under Section
63-2-304
subject to Section
63-2-308
if a claim for
352
business confidentiality has been made under Section
63-2-308
.
353
(b) Under Subsection
63-2-403
(11)(b), the records committee may require the
354
disclosure to persons other than those specified in this section of records that are:
355
(i) private under Section
63-2-302
;
356
(ii) controlled under Section
63-2-303
; or
357
(iii) protected under Section
63-2-304
subject to Section
63-2-308
if a claim for
358
business confidentiality has been made under Section
63-2-308
.
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(c) Under Subsection
63-2-404
(8), the court may require the disclosure of records that
360
are private under Section
63-2-302
, controlled under Section
63-2-303
, or protected under
361
Section
63-2-304
to persons other than those specified in this section.
362
(10) A record contained in the Management Information System, created in Section
363
62A-4a-1003
, that is found to be unsubstantiated, unsupported, or without merit may not be
364
disclosed to any person except the person who is alleged in the report to be a perpetrator of
365
abuse, neglect, or dependency.
366
Section 4.
Section
63-2-304
is amended to read:
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63-2-304. Protected records.
368
The following records are protected if properly classified by a governmental entity:
369
(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret
370
has provided the governmental entity with the information specified in Section
63-2-308