First Substitute H.B. 266

Representative Kraig Powell proposes the following substitute bill:

1 GOVERNMENT RECORDS ACCESS AND
2 MANAGEMENT ACT REVISIONS
3 2010 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Kraig Powell
6 Senate Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill modifies provisions of the Government Records Access and Management Act
11 that relate to disclosure of gross compensation.
12 Highlighted Provisions:
13 This bill:
14 . requires a governmental entity to provide gross compensation information for all
15 elected or appointed employees by name;
16 . requires a governmental entity to provide gross compensation information for all
17 other employees, provided that the disclosure identifies each employee by job title,
18 rather than by name; and
19 . provides that an employee's name, excepting elected or appointed employees, is
20 presumed to have a classification of "protected" if it is sought to be disclosed in
21 correlation with the employee's gross compensation.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None

26 Utah Code Sections Affected:
27 AMENDS:
28 63G-2-301, as last amended by Laws of Utah 2009, Chapter 344
29 63G-2-305, as last amended by Laws of Utah 2009, Chapters 64 and 121
30
31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 63G-2-301 is amended to read:
33 63G-2-301. Records that must be disclosed.
34 (1) As used in this section:
35 (a) "Business address" means a single address of a governmental agency designated for
36 the public to contact an employee or officer of the governmental agency.
37 (b) "Business email address" means a single email address of a governmental agency
38 designated for the public to contact an employee or officer of the governmental agency.
39 (c) "Business telephone number" means a single telephone number of a governmental
40 agency designated for the public to contact an employee or officer of the governmental agency.
41 (2) The following records are public except to the extent they contain information
42 expressly permitted to be treated confidentially under the provisions of Subsections
43 63G-2-201 (3)(b) and (6)(a):
44 (a) laws;
45 (b) the name, gender, [gross compensation,] job title, job description, business address,
46 business email address, business telephone number, number of hours worked per pay period,
47 dates of employment, and relevant education, previous employment, and similar job
48 qualifications of a current or former employee or officer of the governmental entity, excluding:
49 (i) undercover law enforcement personnel; and
50 (ii) investigative personnel if disclosure could reasonably be expected to impair the
51 effectiveness of investigations or endanger any individual's safety;
52 (c) the gross compensation of:
53 (i) an employee or officer that is elected or appointed; and
54 (ii) employees that are not elected or appointed, provided that the disclosure is
55 provided in a manner that identifies an employee by job title and does not identify, or associate
56 the gross compensation with, an individual employee by name.

57 [(c)] (d) final opinions, including concurring and dissenting opinions, and orders that
58 are made by a governmental entity in an administrative, adjudicative, or judicial proceeding
59 except that if the proceedings were properly closed to the public, the opinion and order may be
60 withheld to the extent that they contain information that is private, controlled, or protected;
61 [(d)] (e) final interpretations of statutes or rules by a governmental entity unless
62 classified as protected as provided in Subsections 63G-2-305 (16), (17), and (18);
63 [(e)] (f) information contained in or compiled from a transcript, minutes, or report of
64 the open portions of a meeting of a governmental entity as provided by Title 52, Chapter 4,
65 Open and Public Meetings Act, including the records of all votes of each member of the
66 governmental entity;
67 [(f)] (g) judicial records unless a court orders the records to be restricted under the
68 rules of civil or criminal procedure or unless the records are private under this chapter;
69 [(g)] (h) unless otherwise classified as private under Section 63G-2-303 , records or
70 parts of records filed with or maintained by county recorders, clerks, treasurers, surveyors,
71 zoning commissions, the Division of Forestry, Fire, and State Lands, the School and
72 Institutional Trust Lands Administration, the Division of Oil, Gas, and Mining, the Division of
73 Water Rights, or other governmental entities that give public notice of:
74 (i) titles or encumbrances to real property;
75 (ii) restrictions on the use of real property;
76 (iii) the capacity of persons to take or convey title to real property; or
77 (iv) tax status for real and personal property;
78 [(h)] (i) records of the Department of Commerce that evidence incorporations, mergers,
79 name changes, and uniform commercial code filings;
80 [(i)] (j) data on individuals that would otherwise be private under this chapter if the
81 individual who is the subject of the record has given the governmental entity written
82 permission to make the records available to the public;
83 [(j)] (k) documentation of the compensation that a governmental entity pays to a
84 contractor or private provider;
85 [(k)] (l) summary data; and
86 [(l)] (m) voter registration records, including an individual's voting history, except for
87 those parts of the record that are classified as private in Subsection 63G-2-302 (1)(i).

88 (3) The following records are normally public, but to the extent that a record is
89 expressly exempt from disclosure, access may be restricted under Subsection 63G-2-201 (3)(b),
90 Section 63G-2-302 , 63G-2-304 , or 63G-2-305 :
91 (a) administrative staff manuals, instructions to staff, and statements of policy;
92 (b) records documenting a contractor's or private provider's compliance with the terms
93 of a contract with a governmental entity;
94 (c) records documenting the services provided by a contractor or a private provider to
95 the extent the records would be public if prepared by the governmental entity;
96 (d) contracts entered into by a governmental entity;
97 (e) any account, voucher, or contract that deals with the receipt or expenditure of funds
98 by a governmental entity;
99 (f) records relating to government assistance or incentives publicly disclosed,
100 contracted for, or given by a governmental entity, encouraging a person to expand or relocate a
101 business in Utah, except as provided in Subsection 63G-2-305 (35);
102 (g) chronological logs and initial contact reports;
103 (h) correspondence by and with a governmental entity in which the governmental entity
104 determines or states an opinion upon the rights of the state, a political subdivision, the public,
105 or any person;
106 (i) empirical data contained in drafts if:
107 (i) the empirical data is not reasonably available to the requester elsewhere in similar
108 form; and
109 (ii) the governmental entity is given a reasonable opportunity to correct any errors or
110 make nonsubstantive changes before release;
111 (j) drafts that are circulated to anyone other than:
112 (i) a governmental entity;
113 (ii) a political subdivision;
114 (iii) a federal agency if the governmental entity and the federal agency are jointly
115 responsible for implementation of a program or project that has been legislatively approved;
116 (iv) a government-managed corporation; or
117 (v) a contractor or private provider;
118 (k) drafts that have never been finalized but were relied upon by the governmental

119 entity in carrying out action or policy;
120 (l) original data in a computer program if the governmental entity chooses not to
121 disclose the program;
122 (m) arrest warrants after issuance, except that, for good cause, a court may order
123 restricted access to arrest warrants prior to service;
124 (n) search warrants after execution and filing of the return, except that a court, for good
125 cause, may order restricted access to search warrants prior to trial;
126 (o) records that would disclose information relating to formal charges or disciplinary
127 actions against a past or present governmental entity employee if:
128 (i) the disciplinary action has been completed and all time periods for administrative
129 appeal have expired; and
130 (ii) the charges on which the disciplinary action was based were sustained;
131 (p) records maintained by the Division of Forestry, Fire, and State Lands, the School
132 and Institutional Trust Lands Administration, or the Division of Oil, Gas, and Mining that
133 evidence mineral production on government lands;
134 (q) final audit reports;
135 (r) occupational and professional licenses;
136 (s) business licenses; and
137 (t) a notice of violation, a notice of agency action under Section 63G-4-201 , or similar
138 records used to initiate proceedings for discipline or sanctions against persons regulated by a
139 governmental entity, but not including records that initiate employee discipline.
140 (4) The list of public records in this section is not exhaustive and should not be used to
141 limit access to records.
142 Section 2. Section 63G-2-305 is amended to read:
143 63G-2-305. Protected records.
144 The following records are protected if properly classified by a governmental entity:
145 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
146 has provided the governmental entity with the information specified in Section 63G-2-309 ;
147 (2) commercial information or nonindividual financial information obtained from a
148 person if:
149 (a) disclosure of the information could reasonably be expected to result in unfair

150 competitive injury to the person submitting the information or would impair the ability of the
151 governmental entity to obtain necessary information in the future;
152 (b) the person submitting the information has a greater interest in prohibiting access
153 than the public in obtaining access; and
154 (c) the person submitting the information has provided the governmental entity with
155 the information specified in Section 63G-2-309 ;
156 (3) commercial or financial information acquired or prepared by a governmental entity
157 to the extent that disclosure would lead to financial speculations in currencies, securities, or
158 commodities that will interfere with a planned transaction by the governmental entity or cause
159 substantial financial injury to the governmental entity or state economy;
160 (4) records the disclosure of which could cause commercial injury to, or confer a
161 competitive advantage upon a potential or actual competitor of, a commercial project entity as
162 defined in Subsection 11-13-103 (4);
163 (5) test questions and answers to be used in future license, certification, registration,
164 employment, or academic examinations;
165 (6) records the disclosure of which would impair governmental procurement
166 proceedings or give an unfair advantage to any person proposing to enter into a contract or
167 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
168 Subsection (6) does not restrict the right of a person to have access to, once the contract or
169 grant has been awarded, a bid, proposal, or application submitted to or by a governmental
170 entity in response to:
171 (a) a request for bids;
172 (b) a request for proposals;
173 (c) a grant; or
174 (d) other similar document;
175 (7) records that would identify real property or the appraisal or estimated value of real
176 or personal property, including intellectual property, under consideration for public acquisition
177 before any rights to the property are acquired unless:
178 (a) public interest in obtaining access to the information outweighs the governmental
179 entity's need to acquire the property on the best terms possible;
180 (b) the information has already been disclosed to persons not employed by or under a

181 duty of confidentiality to the entity;
182 (c) in the case of records that would identify property, potential sellers of the described
183 property have already learned of the governmental entity's plans to acquire the property;
184 (d) in the case of records that would identify the appraisal or estimated value of
185 property, the potential sellers have already learned of the governmental entity's estimated value
186 of the property; or
187 (e) the property under consideration for public acquisition is a single family residence
188 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
189 the property as required under Section 78B-6-505 ;
190 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
191 compensated transaction of real or personal property including intellectual property, which, if
192 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
193 of the subject property, unless:
194 (a) the public interest in access outweighs the interests in restricting access, including
195 the governmental entity's interest in maximizing the financial benefit of the transaction; or
196 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
197 the value of the subject property have already been disclosed to persons not employed by or
198 under a duty of confidentiality to the entity;
199 (9) records created or maintained for civil, criminal, or administrative enforcement
200 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
201 release of the records:
202 (a) reasonably could be expected to interfere with investigations undertaken for
203 enforcement, discipline, licensing, certification, or registration purposes;
204 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
205 proceedings;
206 (c) would create a danger of depriving a person of a right to a fair trial or impartial
207 hearing;
208 (d) reasonably could be expected to disclose the identity of a source who is not
209 generally known outside of government and, in the case of a record compiled in the course of
210 an investigation, disclose information furnished by a source not generally known outside of
211 government if disclosure would compromise the source; or

212 (e) reasonably could be expected to disclose investigative or audit techniques,
213 procedures, policies, or orders not generally known outside of government if disclosure would
214 interfere with enforcement or audit efforts;
215 (10) records the disclosure of which would jeopardize the life or safety of an
216 individual;
217 (11) records the disclosure of which would jeopardize the security of governmental
218 property, governmental programs, or governmental recordkeeping systems from damage, theft,
219 or other appropriation or use contrary to law or public policy;
220 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
221 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
222 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
223 (13) records that, if disclosed, would reveal recommendations made to the Board of
224 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
225 Board of Pardons and Parole, or the Department of Human Services that are based on the
226 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
227 jurisdiction;
228 (14) records and audit workpapers that identify audit, collection, and operational
229 procedures and methods used by the State Tax Commission, if disclosure would interfere with
230 audits or collections;
231 (15) records of a governmental audit agency relating to an ongoing or planned audit
232 until the final audit is released;
233 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
234 litigation that are not available under the rules of discovery;
235 (17) records disclosing an attorney's work product, including the mental impressions or
236 legal theories of an attorney or other representative of a governmental entity concerning
237 litigation;
238 (18) records of communications between a governmental entity and an attorney
239 representing, retained, or employed by the governmental entity if the communications would be
240 privileged as provided in Section 78B-1-137 ;
241 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
242 from a member of the Legislature; and

243 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
244 legislative action or policy may not be classified as protected under this section; and
245 (b) (i) an internal communication that is part of the deliberative process in connection
246 with the preparation of legislation between:
247 (A) members of a legislative body;
248 (B) a member of a legislative body and a member of the legislative body's staff; or
249 (C) members of a legislative body's staff; and
250 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
251 legislative action or policy may not be classified as protected under this section;
252 (20) (a) records in the custody or control of the Office of Legislative Research and
253 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
254 legislation or contemplated course of action before the legislator has elected to support the
255 legislation or course of action, or made the legislation or course of action public; and
256 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
257 Office of Legislative Research and General Counsel is a public document unless a legislator
258 asks that the records requesting the legislation be maintained as protected records until such
259 time as the legislator elects to make the legislation or course of action public;
260 (21) research requests from legislators to the Office of Legislative Research and
261 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
262 in response to these requests;
263 (22) drafts, unless otherwise classified as public;
264 (23) records concerning a governmental entity's strategy about collective bargaining or
265 pending litigation;
266 (24) records of investigations of loss occurrences and analyses of loss occurrences that
267 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
268 Uninsured Employers' Fund, or similar divisions in other governmental entities;
269 (25) records, other than personnel evaluations, that contain a personal recommendation
270 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
271 personal privacy, or disclosure is not in the public interest;
272 (26) records that reveal the location of historic, prehistoric, paleontological, or
273 biological resources that if known would jeopardize the security of those resources or of

274 valuable historic, scientific, educational, or cultural information;
275 (27) records of independent state agencies if the disclosure of the records would
276 conflict with the fiduciary obligations of the agency;
277 (28) records of an institution within the state system of higher education defined in
278 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
279 retention decisions, and promotions, which could be properly discussed in a meeting closed in
280 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
281 the final decisions about tenure, appointments, retention, promotions, or those students
282 admitted, may not be classified as protected under this section;
283 (29) records of the governor's office, including budget recommendations, legislative
284 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
285 policies or contemplated courses of action before the governor has implemented or rejected
286 those policies or courses of action or made them public;
287 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
288 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
289 recommendations in these areas;
290 (31) records provided by the United States or by a government entity outside the state
291 that are given to the governmental entity with a requirement that they be managed as protected
292 records if the providing entity certifies that the record would not be subject to public disclosure
293 if retained by it;
294 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
295 except as provided in Section 52-4-206 ;
296 (33) records that would reveal the contents of settlement negotiations but not including
297 final settlements or empirical data to the extent that they are not otherwise exempt from
298 disclosure;
299 (34) memoranda prepared by staff and used in the decision-making process by an
300 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
301 other body charged by law with performing a quasi-judicial function;
302 (35) records that would reveal negotiations regarding assistance or incentives offered
303 by or requested from a governmental entity for the purpose of encouraging a person to expand
304 or locate a business in Utah, but only if disclosure would result in actual economic harm to the

305 person or place the governmental entity at a competitive disadvantage, but this section may not
306 be used to restrict access to a record evidencing a final contract;
307 (36) materials to which access must be limited for purposes of securing or maintaining
308 the governmental entity's proprietary protection of intellectual property rights including patents,
309 copyrights, and trade secrets;
310 (37) the name of a donor or a prospective donor to a governmental entity, including an
311 institution within the state system of higher education defined in Section 53B-1-102 , and other
312 information concerning the donation that could reasonably be expected to reveal the identity of
313 the donor, provided that:
314 (a) the donor requests anonymity in writing;
315 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
316 classified protected by the governmental entity under this Subsection (37); and
317 (c) except for an institution within the state system of higher education defined in
318 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
319 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
320 over the donor, a member of the donor's immediate family, or any entity owned or controlled
321 by the donor or the donor's immediate family;
322 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
323 73-18-13 ;
324 (39) a notification of workers' compensation insurance coverage described in Section
325 34A-2-205 ;
326 (40) (a) the following records of an institution within the state system of higher
327 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
328 or received by or on behalf of faculty, staff, employees, or students of the institution:
329 (i) unpublished lecture notes;
330 (ii) unpublished notes, data, and information:
331 (A) relating to research; and
332 (B) of:
333 (I) the institution within the state system of higher education defined in Section
334 53B-1-102 ; or
335 (II) a sponsor of sponsored research;

336 (iii) unpublished manuscripts;
337 (iv) creative works in process;
338 (v) scholarly correspondence; and
339 (vi) confidential information contained in research proposals;
340 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
341 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
342 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
343 (41) (a) records in the custody or control of the Office of Legislative Auditor General
344 that would reveal the name of a particular legislator who requests a legislative audit prior to the
345 date that audit is completed and made public; and
346 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
347 Office of the Legislative Auditor General is a public document unless the legislator asks that
348 the records in the custody or control of the Office of Legislative Auditor General that would
349 reveal the name of a particular legislator who requests a legislative audit be maintained as
350 protected records until the audit is completed and made public;
351 (42) records that provide detail as to the location of an explosive, including a map or
352 other document that indicates the location of:
353 (a) a production facility; or
354 (b) a magazine;
355 (43) information:
356 (a) contained in the statewide database of the Division of Aging and Adult Services
357 created by Section 62A-3-311.1 ; or
358 (b) received or maintained in relation to the Identity Theft Reporting Information
359 System (IRIS) established under Section 67-5-22 ;
360 (44) information contained in the Management Information System and Licensing
361 Information System described in Title 62A, Chapter 4a, Child and Family Services;
362 (45) information regarding National Guard operations or activities in support of the
363 National Guard's federal mission;
364 (46) records provided by any pawn or secondhand business to a law enforcement
365 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
366 Secondhand Merchandise Transaction Information Act;

367 (47) information regarding food security, risk, and vulnerability assessments performed
368 by the Department of Agriculture and Food;
369 (48) except to the extent that the record is exempt from this chapter pursuant to Section
370 63G-2-106 , records related to an emergency plan or program prepared or maintained by the
371 Division of Homeland Security the disclosure of which would jeopardize:
372 (a) the safety of the general public; or
373 (b) the security of:
374 (i) governmental property;
375 (ii) governmental programs; or
376 (iii) the property of a private person who provides the Division of Homeland Security
377 information;
378 (49) records of the Department of Agriculture and Food relating to the National
379 Animal Identification System or any other program that provides for the identification, tracing,
380 or control of livestock diseases, including any program established under Title 4, Chapter 24,
381 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
382 Quarantine;
383 (50) as provided in Section 26-39-501 :
384 (a) information or records held by the Department of Health related to a complaint
385 regarding a child care program or residential child care which the department is unable to
386 substantiate; and
387 (b) information or records related to a complaint received by the Department of Health
388 from an anonymous complainant regarding a child care program or residential child care;
389 (51) unless otherwise classified as public under Section 63G-2-301 and except as
390 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
391 personal mobile phone number, if:
392 (a) the individual is required to provide the information in order to comply with a law,
393 ordinance, rule, or order of a government entity; and
394 (b) the subject of the record has a reasonable expectation that this information will be
395 kept confidential due to:
396 (i) the nature of the law, ordinance, rule, or order; and
397 (ii) the individual complying with the law, ordinance, rule, or order;

398 (52) the name, home address, work addresses, and telephone numbers of an individual
399 that is engaged in, or that provides goods or services for, medical or scientific research that is:
400 (a) conducted within the state system of higher education, as defined in Section
401 53B-1-102 ; and
402 (b) conducted using animals;
403 (53) an initial proposal under Title 63M, Chapter 1, Part 26, Government Procurement
404 Private Proposal Program, to the extent not made public by rules made under that chapter;
405 (54) information collected and a report prepared by the Judicial Performance
406 Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
407 12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
408 the information or report;
409 (55) (a) records of the Utah Educational Savings Plan Trust created under Section
410 53B-8a-103 if the disclosure of the records would conflict with its fiduciary obligations;
411 (b) proposals submitted to the Utah Educational Savings Plan Trust; and
412 (c) contracts entered into by the Utah Educational Savings Plan Trust and the related
413 payments;
414 (56) records contained in the Management Information System created in Section
415 62A-4a-1003 ;
416 (57) records provided or received by the Public Lands Policy Coordinating Office in
417 furtherance of any contract or other agreement made in accordance with Section 63J-4-603 ;
418 [and]
419 (58) information requested by and provided to the Utah State 911 Committee under
420 Section 53-10-602 [.]; and
421 (59) an employee's name, if disclosure of the name is associated with disclosure of the
422 employee's gross compensation as provided under Subsection 63G-2-301 (2)(c)(ii).