S.B. 212 Enrolled

CHILD CARE INVESTIGATIONS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Parley G. Hellewell
House Sponsor: Michael T. Morley

LONG TITLE
General Description:
This bill amends the Utah Child Care Licensing Act and the Government Records
Access and Management Act.
Highlighted Provisions:
This bill:
. provides definitions;
. creates a process for the Department of Health to follow when responding to a
complaint about child care;
. limits disclosure of the name of a confidential complainant;
. limits the disclosure of identifying information related to a child care complaint that
the department is unable to substantiate;
. specifies the classification of child care investigation records under the Government
Records Access and Management Act in the case where the department is unable to
substantiate a complaint, and limits the manner in which those records may be
disclosed;
. specifies that any record related to a complaint by an anonymous complainant is a
protected record and limits the manner in which it may be disclosed; and
. amends the list of items in the Government Records Access and Management Act
designated as protected records.
Monies Appropriated in this Bill:
None
Other Special Clauses:

None
Utah Code Sections Affected:
AMENDS:
26-39-109, as enacted by Chapter 196, Laws of Utah 1997
63-2-304, as last amended by Chapters 223, 299 and 358, Laws of Utah 2004

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 26-39-109 is amended to read:
26-39-109. Investigations -- Records.
(1) The department may conduct investigations necessary to enforce the provisions of
this chapter.
(2) For purposes of this section:
(a) "anonymous complainant" means a complainant for whom the department does not
have the minimum personal identifying information necessary, including the complainant's full
name, to attempt to communicate with the complainant after a complaint has been made;
(b) "confidential complainant" means a complainant for whom the department has the
minimum personal identifying information necessary, including the complainant's full name, to
attempt to communicate with the complainant after a complaint has been made, but who elects
under Subsection (3)(c) not to be identified to the subject of the complaint; and
(c) "subject of the complaint" means the licensee or certificate holder about whom the
complainant is informing the department.
(3) (a) If the department receives a complaint about a child care program or residential
child care, the department shall:
(i) solicit information from the complainant to determine whether the complaint suggests
actions or conditions which could pose a serious risk to the safety or well-being of a child;
(ii) as necessary:
(A) encourage the complainant to disclose the minimum personal identifying information
necessary, including the complainant's full name, for the department to attempt to subsequently

communicate with the complainant;
(B) inform the complainant that the department may not investigate an anonymous
complaint;
(C) inform the complainant that the identity of a confidential complainant may be
withheld from the subject of a complaint only as provided in Subsection (3)(c)(ii); and
(D) inform the complainant that the department may be limited in its use of information
provided by a confidential complainant, as provided in Subsection (3)(c)(ii)(B); and
(iii) inform the complainant that a person is guilty of a class B misdemeanor under
Section 76-8-506 if the person gives false information to the department with a purpose of
inducing a change in that person's or another person's licensing or certification status.
(b) If the complainant elects to be an anonymous complainant, the department:
(i) shall refer the information in the complaint to the Division of Child and Family
Services within the Department of Human Services, law enforcement, or any other appropriate
agency, if the complaint suggests actions or conditions which could pose a serious risk to the
safety or well-being of a child;
(ii) may not investigate or substantiate the complaint; and
(iii) may, during a regularly scheduled annual survey, inform the licensee or certificate
holder who is the subject of the complaint of allegations or concerns raised by the anonymous
complainant.
(c) (i) If the complainant elects to be a confidential complainant, the department shall
determine whether the complainant wishes to remain confidential:
(A) only until the investigation of the complaint has been completed; or
(B) indefinitely.
(ii) (A) If the complainant elects to remain confidential only until the investigation of the
complaint has been completed, the department shall disclose the name of the complainant to the
subject of the complaint at the completion of the investigation, but no sooner.
(B) If the complainant elects to remain confidential indefinitely, the department:
(I) notwithstanding Subsection 63-2-201 (5)(b), may not disclose the name of the

complainant, including to the subject of the complaint; and
(II) may not use information provided by the complainant to substantiate an alleged
violation of state law or department rule unless the department independently corroborates the
information.
(4) (a) Prior to conducting an investigation of a child care program or residential child
care in response to a complaint, a department investigator shall review the complaint with the
investigator's supervisor.
(b) The investigator may proceed with the investigation only if:
(i) the supervisor determines the complaint is credible;
(ii) the complaint is not from an anonymous complainant; and
(iii) prior to the investigation, the investigator informs the subject of the complaint of:
(A) except as provided in Subsection (3)(c), the name of the complainant; and
(B) except as provided in Subsection (4)(c), the substance of the complaint.
(c) An investigator is not required to inform the subject of a complaint of the substance
of the complaint prior to an investigation if doing so would jeopardize the investigation.
However, the investigator shall inform the subject of the complaint of the substance of the
complaint as soon as doing so will no longer jeopardize the investigation.
(5) If the department is unable to substantiate a complaint, any record related to the
complaint or the investigation of the complaint:
(a) shall be classified under Title 63, Chapter 2, Government Records Access and
Management Act, as:
(i) a private or controlled record if appropriate under Section 63-2-302 or 63-2-303 ; or
(ii) a protected record under Section 63-2-304 ; and
(b) if disclosed in accordance with Subsection 63-2-201 (5)(b), may not identify an
individual child care program, licensee, certificate holder, or complainant.
(6) Any record of the department related to a complaint by an anonymous complainant is
a protected record under Title 63, Chapter 2, Government Records Access and Management Act,
and, notwithstanding Subsection 63-2-201 (5)(b), may not be disclosed in a manner that identifies

an individual child care program, licensee, certificate holder, or complainant.
Section 2. Section 63-2-304 is amended to read:
63-2-304. Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
has provided the governmental entity with the information specified in Section 63-2-308 ;
(2) commercial information or nonindividual financial information obtained from a
person if:
(a) disclosure of the information could reasonably be expected to result in unfair
competitive injury to the person submitting the information or would impair the ability of the
governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than
the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the
information specified in Section 63-2-308 ;
(3) commercial or financial information acquired or prepared by a governmental entity to
the extent that disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the governmental entity or cause
substantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, a commercial project entity as
defined in Subsection 11-13-103 (4);
(5) test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;
(6) records the disclosure of which would impair governmental procurement proceedings
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
governmental entity, except that this Subsection (6) does not restrict the right of a person to see
bids submitted to or by a governmental entity after bidding has closed;

(7) records that would identify real property or the appraisal or estimated value of real or
personal property, including intellectual property, under consideration for public acquisition
before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmental
entity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described
property have already learned of the governmental entity's plans to acquire the property;
(d) in the case of records that would identify the appraisal or estimated value of property,
the potential sellers have already learned of the governmental entity's estimated value of the
property; or
(e) the property under consideration for public acquisition is a single family residence
and the governmental entity seeking to acquire the property has initiated negotiations to acquire
the property as required under Section 78-34-4.5 ;
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
compensated transaction of real or personal property including intellectual property, which, if
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of
the subject property, unless:
(a) the public interest in access outweighs the interests in restricting access, including the
governmental entity's interest in maximizing the financial benefit of the transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
value of the subject property have already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(9) records created or maintained for civil, criminal, or administrative enforcement
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for

enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial
hearing;
(d) reasonably could be expected to disclose the identity of a source who is not generally
known outside of government and, in the case of a record compiled in the course of an
investigation, disclose information furnished by a source not generally known outside of
government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques,
procedures, policies, or orders not generally known outside of government if disclosure would
interfere with enforcement or audit efforts;
(10) records the disclosure of which would jeopardize the life or safety of an individual;
(11) records the disclosure of which would jeopardize the security of governmental
property, governmental programs, or governmental recordkeeping systems from damage, theft, or
other appropriation or use contrary to law or public policy;
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
(13) records that, if disclosed, would reveal recommendations made to the Board of
Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board
of Pardons and Parole, or the Department of Human Services that are based on the employee's or
contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
(14) records and audit workpapers that identify audit, collection, and operational
procedures and methods used by the State Tax Commission, if disclosure would interfere with
audits or collections;
(15) records of a governmental audit agency relating to an ongoing or planned audit until
the final audit is released;

(16) records prepared by or on behalf of a governmental entity solely in anticipation of
litigation that are not available under the rules of discovery;
(17) records disclosing an attorney's work product, including the mental impressions or
legal theories of an attorney or other representative of a governmental entity concerning
litigation;
(18) records of communications between a governmental entity and an attorney
representing, retained, or employed by the governmental entity if the communications would be
privileged as provided in Section 78-24-8 ;
(19) personal files of a legislator, including personal correspondence to or from a
member of the Legislature, provided that correspondence that gives notice of legislative action or
policy may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research and
General Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation
or contemplated course of action before the legislator has elected to support the legislation or
course of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
Office of Legislative Research and General Counsel is a public document unless a legislator asks
that the records requesting the legislation be maintained as protected records until such time as
the legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and General
Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in
response to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity's strategy about collective bargaining or
pending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences that
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
Employers' Fund, or similar divisions in other governmental entities;

(25) records, other than personnel evaluations, that contain a personal recommendation
concerning an individual if disclosure would constitute a clearly unwarranted invasion of
personal privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or biological
resources that if known would jeopardize the security of those resources or of valuable historic,
scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would conflict
with the fiduciary obligations of the agency;
(28) records of a public institution of higher education regarding tenure evaluations,
appointments, applications for admissions, retention decisions, and promotions, which could be
properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
Meetings, provided that records of the final decisions about tenure, appointments, retention,
promotions, or those students admitted, may not be classified as protected under this section;
(29) records of the governor's office, including budget recommendations, legislative
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
policies or contemplated courses of action before the governor has implemented or rejected those
policies or courses of action or made them public;
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
recommendations in these areas;
(31) records provided by the United States or by a government entity outside the state
that are given to the governmental entity with a requirement that they be managed as protected
records if the providing entity certifies that the record would not be subject to public disclosure if
retained by it;
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
except as provided in Section 52-4-7 ;
(33) records that would reveal the contents of settlement negotiations but not including
final settlements or empirical data to the extent that they are not otherwise exempt from

disclosure;
(34) memoranda prepared by staff and used in the decision-making process by an
administrative law judge, a member of the Board of Pardons and Parole, or a member of any
other body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered by
or requested from a governmental entity for the purpose of encouraging a person to expand or
locate a business in Utah, but only if disclosure would result in actual economic harm to the
person or place the governmental entity at a competitive disadvantage, but this section may not
be used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintaining
the governmental entity's proprietary protection of intellectual property rights including patents,
copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including a
public institution of higher education, and other information concerning the donation that could
reasonably be expected to reveal the identity of the donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
classified protected by the governmental entity under this Subsection (37); and
(c) except for public institutions of higher education, the governmental unit to which the
donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
regulatory or legislative authority over the donor, a member of his immediate family, or any
entity owned or controlled by the donor or his immediate family;
(38) accident reports, except as provided in Sections 41-6-40 , 41-12a-202 , and 73-18-13 ;
(39) a notification of workers' compensation insurance coverage described in Section
34A-2-205 ;
(40) (a) the following records of a public institution of education, which have been
developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the
institution:

(i) unpublished lecture notes;
(ii) unpublished research notes and data;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals; and
(b) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor General
that would reveal the name of a particular legislator who requests a legislative audit prior to the
date that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
Office of the Legislative Auditor General is a public document unless the legislator asks that the
records in the custody or control of the Office of Legislative Auditor General that would reveal
the name of a particular legislator who requests a legislative audit be maintained as protected
records until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map or
other document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information contained in the database described in Section 62A-3-311.1 ;
(44) information contained in the Management Information System and Licensing
Information System described in Title 62A, Chapter 4a, Child and Family Services;
(45) information regarding National Guard operations or activities in support of the
National Guard's federal mission;
(46) records provided by any pawnbroker or pawnshop to a law enforcement agency in
compliance with Title 13, Chapter 32a, Pawnshop Transaction Information Act; [and]
(47) information regarding food security, risk, and vulnerability assessments performed
by the Department of Agriculture and Food[.]; and

(48) as provided in Section 26-39-109 :
(a) information or records held by the Department of Health related to a complaint
regarding a child care program or residential child care which the department is unable to
substantiate; and
(b) information or records related to a complaint received by the Department of Health
from an anonymous complainant regarding a child care program or residential child care.