S.B. 114

1 h [ INTERLOCAL COOPERATION ACT AMENDMENTS ]
1a COMMERCIAL PROJECT ENTITIES h
2

1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Leonard M. Blackham
5 AN ACT RELATING TO CITIES, COUNTIES, AND LOCAL TAXING UNITS; MODIFYING
6 DEFINITIONS; MODIFYING THE ENERGY OUTPUT REQUIREMENT IN AN OFFER
7 FOR A POWER SALES CONTRACT; MODIFYING THE REQUIREMENT FOR ENERGY
8 OUTPUT AVAILABLE FOR USE WITHIN THE STATE; h [ EXEMPTING ] PROTECTING CERTAIN
8a RECORDS RELATING TO h COMMERCIAL
9 PROJECT ENTITIES h [ FROM PARTS OF] UNDER h THE GOVERNMENT RECORDS ACCESS
9a AND
10 MANAGEMENT ACT; AND MAKING TECHNICAL CORRECTIONS.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 11-13-3, as last amended by Chapters 88 and 305, Laws of Utah 1995
14 11-13-5.5, as last amended by Chapter 207, Laws of Utah 1996
14a h 63-2-206, as last amended by Chapter 280, Laws of Utah 1992
14b 63-2-304, as last amended by Chapter 79, Laws of Utah 1996 h
15 Be it enacted by the Legislature of the state of Utah:
16 Section 1. Section 11-13-3 is amended to read:
17 11-13-3. Definitions.
18 As used in this chapter:
19 (1) "Board" means the Permanent Community Impact Fund Board created by Section
20 9-4-304, and its successors.
21 (2) "Candidate" means the state of Utah and any county, municipality, school district,

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22 prosecution district, special district, or any other political subdivision of the state of Utah or its
23 authorized agent or any one or more of them.
24 (3) "Commercial project entity" means a project entity, defined in Subsection (7), that:
25 (a) has no taxing authority; and
26 (b) is not supported in whole or in part by and does not expend or disburse tax revenues.
27 [(3)] (4) "Direct impacts" means an increase in the need for any public facilities or services





















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1 that is attributable to the project, except impacts resulting from the construction or operation of
2 any facility owned by others that is used to furnish fuel, construction, or operation materials for
3 use in the project.
4 [(4)] (5) (a) "Facilities," "services," or "improvements" mean facilities, services, or
5 improvements of any kind or character provided by a candidate with respect to any one or more
6 of the following:
7 (i) flood control;
8 (ii) storm drainage;
9 (iii) government administration;
10 (iv) planning and zoning;
11 (v) buildings and grounds;
12 (vi) education;
13 (vii) health care;
14 (viii) parks and recreation;
15 (ix) police and fire protection;
16 (x) prosecution of violations of state criminal statutes;
17 (xi) defense of individuals prosecuted for violations of state criminal statutes;
18 (xii) transportation;
19 (xiii) streets and roads;
20 (xiv) utilities;
21 (xv) culinary water;
22 (xvi) sewage disposal;
23 (xvii) social services;
24 (xviii) solid waste disposal;
25 (xix) economic development or new venture investment fund; and
26 (xx) library.
27 (b) "Facilities" and "improvements" includes entire facilities and improvements or
28 interests in facilities or improvements.
29 [(5)] (6) "Project" means an electric generating and transmission project owned by a legal
30 or administrative entity created under this chapter and shall include any electric generating
31 facilities, transmission facilities, fuel or fuel transportation facilities, or water facilities owned by

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1 that entity and required for that project.
2 [(6)] (7) "Project entity" means a legal or administrative entity created under this chapter
3 which owns a project and which sells the capacity, services, or other benefits from it.
4 [(7)] (8) "Public agency" means:
5 (a) any political subdivision of this state including, but not limited to, cities, towns,
6 counties, school districts, and special districts of various kinds;
7 (b) the state of Utah or any department, division, or agency of the state of Utah;
8 (c) any agency of the United States;
9 (d) any political subdivision or agency of another state including any interlocal
10 cooperation or joint powers agency formed under the authority of the law of another state; and
11 (e) any Indian tribe, band, nation, or other organized group or community which is
12 recognized as eligible for the special programs and services provided by the United States to
13 Indians because of their status as Indians.
14 [(8)] (9) "State" means a state of the United States and the District of Columbia.
15 Section 2. Section 11-13-5.5 is amended to read:
16 11-13-5.5. Contract by public agencies to create new entities to provide services --
17 Powers and duties of new entities -- Generation of electricity.
18 (1) Any two or more public agencies of Utah may agree to create a separate legal or
19 administrative entity to accomplish the purpose of their joint or cooperative action, including the
20 undertaking and financing of a facility or improvement to provide the service contemplated by that
21 agreement.
22 (2) (a) The separate legal or administrative entity created under the authority of this section
23 is a political subdivision of Utah and may:
24 (i) own, acquire, construct, operate, maintain, and repair or cause to be constructed,
25 operated, maintained, and repaired any facility or improvement set forth in the agreement;
26 (ii) borrow money, incur indebtedness, and issue revenue bonds or notes for the purposes
27 for which it was created;
28 (iii) offer, issue, and sell warrants, options, or other rights related to:
29 (A) the bonds or notes issued by the entity; and
30 (B) any rights or interests pertaining to the bonds or notes;
31 (iv) assign, pledge, or otherwise convey as security for the payment of any bonded

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1 indebtedness, the revenues, and receipts from the facility, improvement, or service; or
2 (v) sell or contract for the sale of the product of the service or other benefits from the
3 facility or improvement to public agencies within or without the state on whatever terms that it
4 considers to be in the best interest of its participants.
5 (b) The assignment, pledge, or other conveyance specified in Subsection (2)(a)(iii) may
6 rank prior in right to any other obligation except taxes or payments in lieu of taxes payable to the
7 state or its political subdivisions.
8 (3) (a) Any entity formed to construct any electrical generation facility shall, at least 150
9 days before adoption of the bond resolution for financing the project, offer to enter into firm or
10 withdrawable power sales contracts to suppliers of electric energy within Utah who are existing
11 and furnishing services in this state at the time that the offer is made.
12 (b) That offer must be:
13 (i) accepted within 120 days from the date offered or it will be considered rejected; and
14 (ii) for not less than 50% of its energy output.
15 [(c) For any electrical generation facility for which construction begins after April 21,
16 1987, that offer shall be for not less than 25% of its energy output.]
17 [(d)] (c) The demand by those electric energy suppliers or the amounts deliverable to any
18 electric energy supplier or a combination of them may not exceed the amount allowable by the
19 United States Internal Revenue Service in a way that would result in a change in or a loss of the
20 tax exemption from federal income tax for the interest paid, or to be paid, under any bonds or
21 indebtedness created or incurred by any entity formed under this section.
22 [(e) In no event may the energy output available for use within this state be less than 20%
23 of the total output.]
24 [(f)] (d) For any electrical generation facility [for which construction begins after April
25 21, 1987], the amount of energy output available within this state may not be less than 5% of the
26 total output.
27 (4) Subsection (3) applies only to the construction and operation of a facility to generate
28 electricity.
29 (5) Any entity formed to construct and operate facilities for the generation of electricity
30 and any entity formed to facilitate the transmission or supply of electrical power under this section
31 may include within the agreement creating the entity provisions authorizing any public agency

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1 located within a contiguous state to:
2 (a) participate as a member of the project entity if it enters into an agreement in accordance
3 with Section 11-13-11; and
4 (b) vote on any issues affecting that public agency's interests, if the public agency enters
5 into the agreement required by Subsection (5)(a).
6 h [ (6) A commercial project entity is not subject to Title 63, Chapter 2, Parts 2 and 3,
7 Government Records Access and Management Act. ]
7a Section 3. Section 63-2-206 is amended to read:
7b 63-2-206. Sharing records.
7c (1) A governmental entity may provide a record that is private, controlled, or protected to
7d another governmental entity, a government-managed corporation, a political subdivision, the federal
7e government, or another state if the requesting entity:
7f (a) serves as a repository or archives for purposes of historical preservation, administrative
7g maintenance, or destruction;
7h (b) enforces, litigates, or investigates civil, criminal, or administrative law, and the record is
7i necessary to a proceeding or investigation;
7j (c) is authorized by state statute to conduct an audit and the record is needed for that purpose;
7k or
7l (d) is one that collects information for presentence, probationary, or parole purposes.
7m (2) A governmental entity may provide a private or controlled record or record series to another
7n governmental entity, a political subdivision, a government-managed corporation, the federal
7o government, or another state if the requesting entity provides written assurance:
7p (a) that the record or record series is necessary to the performance of the governmental entity's
7q duties and functions;
7r (b) that the record or record series will be used for a purpose similar to the purpose for which
7s the information in the record or record series was collected or obtained; and
7t (c) that the use of the record or record series produces a public benefit that outweighs the
7u individual privacy right that protects the record or record series.
7v (3) A governmental entity may provide a record or record series that is protected under
7w Subsection 63-2-304 (1) or (2) to another governmental entity, a political subdivision, a
7x government-managed corporation, the federal government, or another state if: h
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7y h (a) the record is necessary to the performance of the requesting entity's duties and functions;
7z or
7aa (b) the record will be used for a purpose similar to the purpose for which the information in the
7ab record or record series was collected or obtained.
7ac (4) (a) A governmental entity shall provide a private, controlled, or protected record to another
7ad governmental entity, a political subdivision, a government-managed corporation, the federal
7ae government, or another state if the requesting entity:
7af [(a)] (i) is entitled by law to inspect the record; [or]
7ag [(b)] (ii) is required to inspect the record as a condition of participating in a state or federal
7ah program or for receiving state or federal funds[.]; OR
7ai (iii) IS AN ENTITY DESCRIBED IN SUBSECTION 63-2-206(1)(a), (b), (c), OR (d).
7aj (b) SUBSECTION (4)(a)(iii) APPLIES ONLY IF THE RECORD IS A RECORD DESCRIBED IN
7ak SUBSECTION 63-2-304(4).
7al (5) Before disclosing a record or record series under this section to another governmental
7am entity, another state, the United States, or a foreign government, the originating governmental entity
7an shall:
7ao (a) inform the recipient of the record's classification and the accompanying restrictions on
7ap access; and
7aq (b) if the recipient is not a governmental entity to which this chapter applies, obtain the
7ar recipient's written agreement which may be by mechanical or electronic transmission that it will abide
7as by those restrictions on access unless a statute, federal regulation, or interstate agreement otherwise
7at governs the sharing of the record or record series.
7au (6) A governmental entity may disclose a record to another state, the United States, or a foreign
7av government for the reasons listed in Subsections (1), (2), and (3) without complying with the procedures
7aw of Subsection (2) or (5) if disclosure is authorized by executive agreement, treaty, federal statute,
7ax compact, federal regulation, or state statute.
7ay (7) A governmental entity receiving a record under this section is subject to the same
7az restrictions on disclosure of the material as the originating entity.
7ba (8) Notwithstanding any other provision of this section, if a more specific court rule or order,
7bb state statute, federal statute, or federal regulation prohibits or requires sharing information, that rule,
7bc order, statute, or federal regulation controls. h
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7bd h (9) The following records may not be shared under this section:
7be (a) records held by the State Tax Commission that pertain to any person and that are gathered
7bf under authority of Title 59, Revenue and Taxation;
7bg (b) records held by the Division of Oil, Gas and Mining that pertain to any person and that
7bh are gathered under authority of Title 40, Chapter 6, Board and Division of Oil, Gas and Mining; and
7bi (c) records of publicly funded libraries as described in Subsection 63-2-302 (1)(c).
7bj (10) Records that may evidence or relate to a violation of law may be disclosed to a government
7bk prosecutor, peace officer, or auditor.
7bl Section 4. Section 63-2-304 is amended to read:
7bm 63-2-304. Protected records.
7bn The following records are protected if properly classified by a governmental entity:
7bo (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret has
7bp provided the governmental entity with the information specified in Section 63-2-308;
7bq (2) commercial information or nonindividual financial information obtained from a person if:
7br (a) disclosure of the information could reasonably be expected to result in unfair competitive
7bs injury to the person submitting the information or would impair the ability of the governmental entity to
7bt obtain necessary information in the future;
7bu (b) the person submitting the information has a greater interest in prohibiting access than the
7bv public in obtaining access; and
7bw (c) the person submitting the information has provided the governmental entity with the
7bx information specified in Section 63-2-308;
7by (3) commercial or financial information acquired or prepared by a governmental entity to the
7bz extent that disclosure would lead to financial speculations in currencies, securities, or commodities that
7ca will interfere with a planned transaction by the governmental entity or cause substantial financial injury
7cb to the governmental entity or state economy;
7cc (4) RECORDS THE DISCLOSURE OF WHICH COULD CAUSE COMMERCIAL INJURY TO, OR
7cd CONFER A COMPETITIVE ADVANTAGE UPON A POTENTIAL OR ACTUAL COMPETITOR OF, A
7ce COMMERCIAL PROJECT ENTITY AS DEFINED IN SUBSECTION 11-13-3(3);
7cf [(4)] (5) test questions and answers to be used in future license, certification, registration,
7cg employment, or academic examinations; h

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7ch h [(5)] (6) records the disclosure of which would impair governmental procurement proceedings or
7ci give an unfair advantage to any person proposing to enter into a contract or agreement with a
7cj governmental entity, except that this subsection does not restrict the right of a person to see bids
7ck submitted to or by a governmental entity after bidding has closed;
7cl [(6)] (7) records that would identify real property or the appraisal or estimated value of real or
7cm personal property, including intellectual property, under consideration for public acquisition before any
7cn rights to the property are acquired unless:
7co (a) public interest in obtaining access to the information outweighs the governmental entity's
7cp need to acquire the property on the best terms possible;
7cq (b) the information has already been disclosed to persons not employed by or under a duty of
7cr confidentiality to the entity;
7cs (c) in the case of records that would identify property, potential sellers of the described property
7ct have already learned of the governmental entity's plans to acquire the property; or
7cu (d) in the case of records that would identify the appraisal or estimated value of property, the
7cv potential sellers have already learned of the governmental entity's estimated value of the property;
7cw [(7)] (8) records prepared in contemplation of sale, exchange, lease, rental, or other
7cx compensated transaction of real or personal property including intellectual property, which, if disclosed
7cy prior to completion of the transaction, would reveal the appraisal or estimated value of the subject
7cz property, unless:
7da (a) the public interest in access outweighs the interests in restricting access, including the
7db governmental entity's interest in maximizing the financial benefit of the transaction; or
7dc (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the value
7dd of the subject property have already been disclosed to persons not employed by or under a duty of
7de confidentiality to the entity;
7df [(8)] (9) records created or maintained for civil, criminal, or administrative enforcement purposes
7dg or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the
7dh records:
7di (a) reasonably could be expected to interfere with investigations undertaken for enforcement,
7dj discipline, licensing, certification, or registration purposes;
7dk (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
7dl proceedings; h
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7dm h (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
7dn (d) reasonably could be expected to disclose the identity of a source who is not generally
7do known outside of government and, in the case of a record compiled in the course of an investigation,
7dp disclose information furnished by a source not generally known outside of government if disclosure
7dq would compromise the source; or
7dr (e) reasonably could be expected to disclose investigative or audit techniques, procedures,
7ds policies, or orders not generally known outside of government if disclosure would interfere with
7dt enforcement or audit efforts;
7du [(9)] (10) records the disclosure of which would jeopardize the life or safety of an individual;
7dv [(10)] (11) records the disclosure of which would jeopardize the security of governmental
7dw property, governmental programs, or governmental record-keeping systems from damage, theft, or
7dx other appropriation or use contrary to law or public policy;
7dy [(11)] (12) records that, if disclosed, would jeopardize the security or safety of a correctional
7dz facility, or records relating to incarceration, treatment, probation, or parole, that would interfere with the
7ea control and supervision of an offender's incarceration, treatment, probation, or parole;
7eb [(12)] (13) records that, if disclosed, would reveal recommendations made to the Board of
7ec Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board of
7ed Pardons and Parole, or the Department of Human Services that are based on the employee's or
7ee contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
7ef [(13)] (14) records and audit workpapers that identify audit, collection, and operational
7eg procedures and methods used by the State Tax Commission, if disclosure would interfere with audits or
7eh collections;
7ei [(14)] (15) records of a governmental audit agency relating to an ongoing or planned audit until
7ej the final audit is released;
7ek [(15)] (16) records prepared by or on behalf of a governmental entity solely in anticipation of
7el litigation that are not available under the rules of discovery;
7em [(16)] (17) records disclosing an attorney's work product, including the mental impressions or
7en legal theories of an attorney or other representative of a governmental entity concerning litigation;
7eo [(17)] (18) records of communications between a governmental entity and an attorney
7ep representing, retained, or employed by the governmental entity if the communications would be h
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7eq h privileged as provided in Section 78-24-8;
7er [(18)] (19) personal files of a legislator, including personal correspondence to or from a member
7es of the Legislature, but not correspondence that gives notice of legislative action or policy;
7et [(19)] (20) (a) records in the custody or control of the Office of Legislative Research and General
7eu Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation or
7ev contemplated course of action before the legislator has elected to support the legislation or course of
7ew action, or made the legislation or course of action public; and
7ex (b) for purposes of this subsection, a "Request For Legislation" submitted to the Office of
7ey Legislative Research and General Counsel is a public document unless a legislator submits the
7ez "Request For Legislation" with a request that it be maintained as a protected record until such time as
7fa the legislator elects to make the legislation or course of action public;
7fb [(20)] (21) research requests from legislators to the Office of Legislative Research and
7fc General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in
7fd response to these requests;
7fe [(21)] (22) drafts, unless otherwise classified as public;
7ff [(22)] (23) records concerning a governmental entity's strategy about collective bargaining or
7fg pending litigation;
7fh [(23)] (24) records of investigations of loss occurrences and analyses of loss occurrences that
7fi may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
7fj Employers' Fund, or similar divisions in other governmental entities;
7fk [(24)] (25) records, other than personnel evaluations, that contain a personal recommendation
7fl concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal
7fm privacy, or disclosure is not in the public interest;
7fn [(25)] (26) records that reveal the location of historic, prehistoric, paleontological, or biological
7fo resources that if known would jeopardize the security of those resources or of valuable historic,
7fp scientific, educational, or cultural information;
7fq [(26)] (27) records of independent state agencies if the disclosure of the records would conflict
7fr with the fiduciary obligations of the agency;
7fs [(27)] (28) records of a public institution of higher education regarding tenure evaluations,
7ft appointments, applications for admissions, retention decisions, and promotions, which could be
7fu properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public h
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7fv h Meetings, provided that records of the final decisions about tenure, appointments, retention,
7fw promotions, or those students admitted, may not be classified as protected under this section;
7fx [(28)] (29) records of the governor's office, including budget recommendations, legislative
7fy proposals, and policy statements, that if disclosed would reveal the governor's contemplated policies or
7fz contemplated courses of action before the governor has implemented or rejected those policies or
7ga courses of action or made them public;
7gb [(29)] (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
7gc revenue estimates, and fiscal notes of proposed legislation before issuance of the final
7gd recommendations in these areas;
7ge [(30)] (31) records provided by the United States or by a government entity outside the state that
7gf are given to the governmental entity with a requirement that they be managed as protected records if the
7gg providing entity certifies that the record would not be subject to public disclosure if retained by it;
7gh [(31)] (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
7gi except as provided in Section 52-4-7, Open and Public Meetings;
7gj [(32)] (33) records that would reveal the contents of settlement negotiations but not including
7gk final settlements or empirical data to the extent that they are not otherwise exempt from disclosure;
7gl [(33)] (34) memoranda prepared by staff and used in the decision-making process by an
7gm administrative law judge, a member of the Board of Pardons and Parole, or a member of any other body
7gn charged by law with performing a quasi-judicial function;
7go [(34)] (35) records that would reveal negotiations regarding assistance or incentives offered by
7gp or requested from a governmental entity for the purpose of encouraging a person to expand or locate a
7gq business in Utah, but only if disclosure would result in actual economic harm to the person or place the
7gr governmental entity at a competitive disadvantage, but this section may not be used to restrict access
7gs to a record evidencing a final contract;
7gt [(35)] (36) materials to which access must be limited for purposes of securing or maintaining the
7gu governmental entity's proprietary protection of intellectual property rights including patents, copyrights,
7gv and trade secrets;
7gw [(36)] (37) the name of a donor or a prospective donor to a governmental entity, including a
7gx public institution of higher education, and other information concerning the donation that could
7gy reasonably be expected to reveal the identity of the donor, provided that:
7gz (a) the donor requests anonymity in writing; h
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7ha h (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
7hb classified protected by the governmental entity under this subsection; and
7hc (c) except for public institutions of higher education, the governmental unit to which the
7hd donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
7he regulatory or legislative authority over the donor, a member of his immediate family, or any entity owned
7hf or controlled by the donor or his immediate family; and
7hg [(37)] (38) the following records of a public institution of education, which have been developed,
7hh discovered, or received by or on behalf of faculty, staff, employees, or students of the institution:
7hi unpublished lecture notes, unpublished research notes and data, unpublished manuscripts, creative
7hj works in process, scholarly correspondence, and confidential information contained in research
7hk proposals. Nothing in this subsection shall be construed to affect the ownership of a record. h




Legislative Review Note
as of 10-11-96 9:18 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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