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S.B. 114

1a                      COMMERCIAL PROJECT ENTITIES h



Sponsor: Leonard M. Blackham

9a    AND
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).
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;
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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lilac-February 19, 1997

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