H.B. 287

1

GOVERNMENT RECORDS ACCESS AND
2 MANAGEMENT ACT REVISIONS
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Douglas C. Aagard
6
7 LONG TITLE
8 General Description:
9 This bill modifies the Government Records Access and Management Act to address
10 issues related to access to and classification of records.
11 Highlighted Provisions:
12 This bill:
13 . provides that a governmental entity is not required to manipulate electronic data to
14 provide compilations, summaries, or other records not maintained by the
15 governmental entity;
16 . requires governmental entities to charge fair market value for records under certain
17 circumstances;
18 . allows for the sharing of private records with a private entity under a contract
19 between the governmental entity and the private entity;
20 . provides for certain information to be a private record; and
21 . makes technical changes.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:

28 63-2-201, as last amended by Chapter 191, Laws of Utah 2002
29 63-2-203, as last amended by Chapter 48, Laws of Utah 1999
30 63-2-206, as last amended by Chapters 63 and 63, Laws of Utah 2002
31 63-2-302, as last amended by Chapters 39, 252 and 298, Laws of Utah 2003
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 63-2-201 is amended to read:
35 63-2-201. Right to inspect records and receive copies of records.
36 (1) Every person has the right to inspect a public record free of charge, and the right to
37 take a copy of a public record during normal working hours, subject to Sections 63-2-203 and
38 63-2-204 .
39 (2) All records are public unless otherwise expressly provided by statute.
40 (3) The following records are not public:
41 (a) records that are private, controlled, or protected under Sections 63-2-302 ,
42 63-2-302.5 , 63-2-303 , and 63-2-304 ; and
43 (b) records to which access is restricted pursuant to court rule, another state statute,
44 federal statute, or federal regulation, including records for which access is governed or
45 restricted as a condition of participation in a state or federal program or for receiving state or
46 federal funds.
47 (4) Only those records specified in Section 63-2-302 , 63-2-302.5 , 63-2-303 , or
48 63-2-304 may be classified private, controlled, or protected.
49 (5) (a) A governmental entity may not disclose a record that is private, controlled, or
50 protected to any person except as provided in Subsection (5)(b), Section 63-2-202 , 63-2-206, or
51 63-2-302.5 .
52 (b) A governmental entity may disclose records that are private under Subsection
53 63-2-302 (2) or protected under Section 63-2-304 to persons other than those specified in
54 Section 63-2-202 or 63-2-206 if the head of a governmental entity, or a designee, determines
55 that there is no interest in restricting access to the record, or that the interests favoring access
56 outweighs the interest favoring restriction of access.
57 (6) (a) The disclosure of records to which access is governed or limited pursuant to
58 court rule, another state statute, federal statute, or federal regulation, including records for

59 which access is governed or limited as a condition of participation in a state or federal program
60 or for receiving state or federal funds, is governed by the specific provisions of that statute,
61 rule, or regulation.
62 (b) This chapter applies to records described in Subsection (6)(a) insofar as this chapter
63 is not inconsistent with the statute, rule, or regulation.
64 (7) A governmental entity shall provide a person with a certified copy of a record if:
65 (a) the person requesting the record has a right to inspect [it] the record;
66 (b) the person identifies the record with reasonable specificity; and
67 (c) the person pays the lawful fees.
68 (8) (a) A governmental entity is not required to create a record in response to a
69 request[.], including not being required to manipulate records in such a way as to create a
70 record that the governmental entity does not otherwise maintain, including:
71 (i) a compilation of records; or
72 (ii) a summary of one or more records.
73 (b) Upon request, a governmental entity [shall] may provide [a] an existing record in a
74 particular format if:
75 (i) the governmental entity is able to do so without unreasonably interfering with the
76 governmental entity's duties and responsibilities; and
77 (ii) the requester agrees to pay the governmental entity for [its] the governmental
78 entity's costs incurred in providing the record in the requested format in accordance with
79 Section 63-2-203 .
80 (c) Nothing in this section requires a governmental entity to fulfill a person's records
81 request if the request unreasonably duplicates prior records requests from that person.
82 (9) If a person requests copies of more than 50 pages of records from a governmental
83 entity, and, if the records are contained in files that do not contain records that are exempt from
84 disclosure, the governmental entity may:
85 (a) provide the requester with the facilities for copying the requested records and
86 require that the requester make the copies [himself]; or
87 (b) (i) allow the requester to provide [his] the requester's own copying facilities and
88 personnel to make the copies at the governmental entity's offices; and
89 (ii) waive the fees for copying the records.

90 (10) (a) A governmental entity that owns an intellectual property right and that offers
91 the intellectual property right for sale or license may control by ordinance or policy the
92 duplication and distribution of the material based on terms the governmental entity considers to
93 be in the public interest.
94 (b) Nothing in this chapter shall be construed to limit or impair the rights or protections
95 granted to the governmental entity under federal copyright or patent law as a result of its
96 ownership of the intellectual property right.
97 (11) A governmental entity may not use the physical form, electronic or otherwise, in
98 which a record is stored to deny, or unreasonably hinder the rights of persons to inspect and
99 receive copies of a record under this chapter.
100 Section 2. Section 63-2-203 is amended to read:
101 63-2-203. Fees.
102 (1) (a) [A] Except as provided in Subsection (1)(b), a governmental entity may charge
103 a reasonable fee to cover the governmental entity's actual cost of duplicating a record. [This]
104 (b) Notwithstanding the other provisions in this section except when Subsection (4)
105 applies, if a governmental entity determines that a requested compilation of records has a
106 commercial value as compared to similar documents available in the market place, the
107 governmental entity shall charge fair commercial value for providing the compilation of
108 records to the person requesting the compilation of records.
109 (c) A fee charged under this section shall be approved by the governmental entity's
110 executive officer.
111 (2) (a) [When] Subject to Subsections (2)(b) and (c), when a governmental entity
112 [compiles] provides a record in a form other than that normally maintained by the
113 governmental entity, the actual costs under this section may include the following:
114 [(a)] (i) the cost of staff time for summarizing, compiling, or tailoring the record either
115 into an organization or media to meet the person's request;
116 [(b)] (ii) the cost of staff time for search, retrieval, and other direct administrative costs
117 for complying with a request[. The hourly charge may not exceed the salary of the lowest paid
118 employee who, in the discretion of the custodian of records, has the necessary skill and training
119 to perform the request; provided, however, that no charge may be made for the first quarter
120 hour of staff time]; and

121 [(c)] (iii) in the case of fees for a record that is the result of computer output other than
122 word processing, the actual incremental cost of providing the electronic services and products
123 together with a reasonable portion of the costs associated with formatting or interfacing the
124 information for particular users, and the administrative costs as set forth in Subsections
125 (2)(a)(i) and [(b)] (ii).
126 (b) (i) An hourly charge for the cost of staff time may not exceed the salary of the
127 lowest paid employee who, in the discretion of the custodian of the record, has the necessary
128 skill and training to perform the request.
129 (ii) A charge may not be made for the first quarter hour of staff time.
130 (c) Subsection (1) and this Subsection (2) may not be interpreted as requiring a
131 governmental entity to manipulate records in such a way as to create a record that the
132 governmental entity does not otherwise maintain including:
133 (i) a compilation of records; or
134 (ii) a summary of one or more records.
135 (3) Fees shall be established as [follows:] provided in this Subsection (3).
136 (a) Governmental entities with fees established by the Legislature shall establish the
137 fees defined in Subsection (2), or other actual costs associated with this section through the
138 budget process. Governmental entities with fees established by the Legislature that are set on
139 the basis of cost may use the procedures of Section 63-38-3.2 to set fees until the Legislature
140 establishes fees through the budget process. A fee set by a governmental entity in accordance
141 with Section 63-38-3.2 expires on May 1, 1995.
142 (b) Political subdivisions shall establish fees by ordinance or written formal policy
143 adopted by the governing body.
144 (c) The judiciary shall establish fees by rules of the judicial council.
145 (4) A governmental entity may fulfill a record request without charge and is
146 encouraged to do so when [it] the governmental entity determines that:
147 (a) releasing the record primarily benefits the public rather than a person;
148 (b) the individual requesting the record is:
149 (i) the subject of the record[,]; or
150 (ii) an individual specified in Subsection 63-2-202 (1) or (2); or
151 (c) (i) the requester's legal rights are directly implicated by the information in the

152 record[,]; and
153 (ii) the requester is impecunious.
154 (5) A governmental entity may not charge a fee for:
155 (a) reviewing a record to determine whether it is subject to disclosure, except as
156 permitted by Subsection (2)[(b)] (a)(i); or
157 (b) inspecting a record.
158 (6) (a) A person who believes that there has been an unreasonable denial of a fee
159 waiver under Subsection (4) may appeal the denial in the same manner as a person appeals
160 when inspection of a public record is denied under Section 63-2-205 .
161 (b) The adjudicative body hearing the appeal has the same authority when a fee waiver
162 or reduction is denied as it has when the inspection of a public record is denied.
163 (7) (a) All fees received under this section by a governmental entity subject to
164 Subsection (3)(a) shall be retained by the governmental entity as a dedicated credit.
165 (b) Those funds shall be used to recover the actual cost and expenses incurred by the
166 governmental entity in providing the requested record or record series.
167 (8) (a) A governmental entity may require payment of past fees and future estimated
168 fees before beginning to process a request if:
169 (i) fees are expected to exceed $50[,]; or [if]
170 (ii) the requester has not paid fees from previous requests.
171 (b) Any prepaid amount in excess of fees due shall be returned to the requester.
172 (9) This section does not alter, repeal, or reduce fees established by other statutes or
173 legislative acts.
174 (10) (a) Notwithstanding Subsection (3)(b), fees for voter registration records shall be
175 set as provided in this Subsection (10).
176 (b) The lieutenant governor shall:
177 (i) after consultation with county clerks, establish uniform fees for voter registration
178 and voter history records that meet the requirements of this section; and
179 (ii) obtain legislative approval of those fees by following the procedures and
180 requirements of Section 63-38-3.2 .
181 Section 3. Section 63-2-206 is amended to read:
182 63-2-206. Sharing records.

183 (1) A governmental entity may provide a record that is private, controlled, or protected
184 to another governmental entity, a government-managed corporation, a political subdivision, the
185 federal government, or another state if the requesting entity:
186 (a) serves as a repository or archives for purposes of historical preservation,
187 administrative maintenance, or destruction;
188 (b) enforces, litigates, or investigates civil, criminal, or administrative law, and the
189 record is necessary to a proceeding or investigation;
190 (c) is authorized by state statute to conduct an audit and the record is needed for that
191 purpose; or
192 (d) is one that collects information for presentence, probationary, or parole purposes.
193 (2) A governmental entity may provide a private or controlled record or record series to
194 another governmental entity, a political subdivision, a government-managed corporation, the
195 federal government, or another state if the requesting entity provides written assurance:
196 (a) that the record or record series is necessary to the performance of the governmental
197 entity's duties and functions;
198 (b) that the record or record series will be used for a purpose similar to the purpose for
199 which the information in the record or record series was collected or obtained; and
200 (c) that the use of the record or record series produces a public benefit that outweighs
201 the individual privacy right that protects the record or record series.
202 (3) A governmental entity may provide a record or record series that is protected under
203 Subsection 63-2-304 (1) or (2) to another governmental entity, a political subdivision, a
204 government-managed corporation, the federal government, or another state if:
205 (a) the record is necessary to the performance of the requesting entity's duties and
206 functions; or
207 (b) the record will be used for a purpose similar to the purpose for which the
208 information in the record or record series was collected or obtained.
209 (4) (a) A governmental entity shall provide a private, controlled, or protected record to
210 another governmental entity, a political subdivision, a government-managed corporation, the
211 federal government, or another state if the requesting entity:
212 (i) is entitled by law to inspect the record;
213 (ii) is required to inspect the record as a condition of participating in a state or federal

214 program or for receiving state or federal funds; or
215 (iii) is an entity described in Subsection (1)(a), (b), (c), or (d).
216 (b) Subsection (4)(a)(iii) applies only if the record is a record described in Subsection
217 63-2-304 (4).
218 (5) Before disclosing a record or record series under this section to another
219 governmental entity, another state, the United States, or a foreign government, the originating
220 governmental entity shall:
221 (a) inform the recipient of the record's classification and the accompanying restrictions
222 on access; and
223 (b) if the recipient is not a governmental entity to which this chapter applies, obtain the
224 recipient's written agreement which may be by mechanical or electronic transmission that it
225 will abide by those restrictions on access unless a statute, federal regulation, or interstate
226 agreement otherwise governs the sharing of the record or record series.
227 (6) A governmental entity may disclose a record to another state, the United States, or a
228 foreign government for the reasons listed in Subsections (1), (2), and (3) without complying
229 with the procedures of Subsection (2) or (5) if disclosure is authorized by executive agreement,
230 treaty, federal statute, compact, federal regulation, or state statute.
231 (7) (a) Subject to Subsection (7)(b), a governmental entity receiving a record under this
232 section is subject to the same restrictions on disclosure of the record as the originating entity.
233 (b) The classification of a record already held by a governmental entity and the
234 applicable restrictions on disclosure of that record are not affected by the governmental entity's
235 receipt under this section of a record with a different classification that contains information
236 that is also included in the previously held record.
237 (8) Notwithstanding any other provision of this section, if a more specific court rule or
238 order, state statute, federal statute, or federal regulation prohibits or requires sharing
239 information, that rule, order, statute, or federal regulation controls.
240 (9) The following records may not be shared under this section:
241 (a) records held by the Division of Oil, Gas and Mining that pertain to any person and
242 that are gathered under authority of Title 40, Chapter 6, Board and Division of Oil, Gas and
243 Mining; and
244 (b) records of publicly funded libraries as described in Subsection 63-2-302 (1)(c).

245 (10) Records that may evidence or relate to a violation of law may be disclosed to a
246 government prosecutor, peace officer, or auditor.
247 (11) (a) A governmental entity may disclose a private record to a private entity that the
248 governmental entity could not otherwise disclose under this chapter:
249 (i) at the discretion of the chief administrative officer of the governmental entity; and
250 (ii) only if:
251 (A) the chief administrative officer determines that disclosure will provide a significant
252 public benefit to the governmental entity or its citizens;
253 (B) disclosure is pursuant to a contractual arrangement between the governmental
254 entity and the private entity; and
255 (C) the private entity by contract agrees that, except when otherwise provided by the
256 contract, the private entity shall:
257 (I) maintain the privacy of the record; and
258 (II) prevent disclosure of the record.
259 (b) The contract described in Subsection (11)(a) may be exclusive or nonexclusive:
260 (i) depending on the nature of the services provided under the contract; and
261 (ii) at the discretion of the chief administrative officer of the governmental entity.
262 Section 4. Section 63-2-302 is amended to read:
263 63-2-302. Private records.
264 (1) The following records are private:
265 (a) records concerning an individual's eligibility for unemployment insurance benefits,
266 social services, welfare benefits, or the determination of benefit levels;
267 (b) records containing data on individuals describing medical history, diagnosis,
268 condition, treatment, evaluation, or similar medical data;
269 (c) records of publicly funded libraries that when examined alone or with other records
270 identify a patron;
271 (d) records received or generated for a Senate or House Ethics Committee concerning
272 any alleged violation of the rules on legislative ethics, prior to the meeting, and after the
273 meeting, if the ethics committee meeting was closed to the public;
274 (e) records received or generated for a Senate confirmation committee concerning
275 character, professional competence, or physical or mental health of an individual:

276 (i) if prior to the meeting, the chair of the committee determines release of the records:
277 (A) reasonably could be expected to interfere with the investigation undertaken by the
278 committee; or
279 (B) would create a danger of depriving a person of a right to a fair proceeding or
280 impartial hearing; and
281 (ii) after the meeting, if the meeting was closed to the public;
282 (f) employment records concerning a current or former employee of, or applicant for
283 employment with, a governmental entity that would disclose that individual's:
284 (i) home address[,];
285 (ii) home telephone number[,];
286 (iii) Social Security number[,];
287 (iv) birthdate;
288 (v) insurance coverage[,];
289 (vi) marital status[,]; or
290 (vii) payroll deductions;
291 (g) records or parts of records under Section 63-2-302.5 that a current or former
292 employee identifies as private according to the requirements of that section;
293 (h) that part of a record indicating a person's Social Security number or federal
294 employer identification number if provided under Section 31A-23a-104 , 31A-26-202 ,
295 58-1-301 , 61-1-4 , or 61-2-6 ;
296 (i) that part of a voter registration record identifying a voter's driver license or
297 identification card number, Social Security number, or last four digits of the Social Security
298 number;
299 (j) a record that:
300 (i) contains information about an individual;
301 (ii) is voluntarily provided by the individual; and
302 (iii) goes into an electronic database that:
303 (A) is designated by and administered under the authority of the Chief Information
304 Officer; and
305 (B) acts as a repository of information about the individual that can be electronically
306 retrieved and used to facilitate the individual's online interaction with a state agency;

307 (k) information provided to the Commissioner of Insurance under Subsection
308 31A-23a-115 (2)(a); [and]
309 (l) information obtained through a criminal background check under Title 11, Chapter
310 40, Criminal Background Checks by Political Subdivisions Operating Water Systems[.]; and
311 (m) a record concerning any individual that would disclose both:
312 (i) that individual's name; and
313 (ii) that individual's:
314 (A) home address;
315 (B) home telephone number;
316 (C) Social Security number;
317 (D) birthdate; or
318 (E) marital status.
319 (2) The following records are private if properly classified by a governmental entity:
320 (a) records concerning a current or former employee of, or applicant for employment
321 with a governmental entity, including performance evaluations and personal status information
322 such as race, religion, or disabilities, but not including records that are public under Subsection
323 63-2-301 (1)(b) or 63-2-301 (2)(o), or private under Subsection(1)(b);
324 (b) records describing an individual's finances, except that the following are public:
325 (i) records described in Subsection 63-2-301 (1);
326 (ii) information provided to the governmental entity for the purpose of complying with
327 a financial assurance requirement; or
328 (iii) records that must be disclosed in accordance with another statute;
329 (c) records of independent state agencies if the disclosure of those records would
330 conflict with the fiduciary obligations of the agency;
331 (d) other records containing data on individuals the disclosure of which constitutes a
332 clearly unwarranted invasion of personal privacy; [and]
333 (e) records provided by the United States or by a government entity outside the state
334 that are given with the requirement that the records be managed as private records, if the
335 providing entity states in writing that the record would not be subject to public disclosure if
336 retained by it[.]; and
337 (f) records concerning an individual that disclose personal status information such as

338 race, religion, or disability, but not including records that are classified as private under
339 Subsection (1)(b).
340 (3) (a) As used in this Subsection (3), "medical records" means:
341 (i) medical reports[,];
342 (ii) records[,];
343 (iii) statements[,];
344 (iv) history[,];
345 (v) diagnosis[,];
346 (vi) condition[,];
347 (vii) treatment[,]; and
348 (viii) evaluation.
349 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
350 doctors, or affiliated entities are not private records or controlled records under Section
351 63-2-303 when the records are sought:
352 (i) in connection with any legal or administrative proceeding in which the patient's
353 physical, mental, or emotional condition is an element of any claim or defense; or
354 (ii) after a patient's death, in any legal or administrative proceeding in which any party
355 relies upon the condition as an element of the claim or defense.
356 (c) Medical records are subject to production in a legal or administrative proceeding
357 according to state or federal statutes or rules of procedure and evidence as if the medical
358 records were in the possession of a nongovernmental medical care provider.




Legislative Review Note
as of 2-5-04 10:34 AM

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

Office of Legislative Research and General Counsel