S.B. 77

1

CLASSIFICATION AND INSPECTION OF
2 RECORDS UNDER GRAMA
3 2006 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Mark B. Madsen
6 House Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Government Records Access and Management Act to amend
11 certain protected records provisions.
12 Highlighted Provisions:
13 This bill:
14 . specifies that creating a danger of depriving a person of due process is a basis for
15 determining whether certain records are protected;
16 . provides that certain records disclosing information relating to a finding of certain
17 inspections are protected records, unless the finding resulted in a fine or other type
18 of sanction or disciplinary action; and
19 . makes technical changes.
20 Monies Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 63-2-304, as last amended by Chapters 2, 131, 201, 214, 256 and 297, Laws of Utah
27 2005

28
29 Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 63-2-304 is amended to read:
31 63-2-304. Protected records.
32 The following records are protected if properly classified by a governmental entity:
33 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
34 has provided the governmental entity with the information specified in Section 63-2-308 ;
35 (2) commercial information or nonindividual financial information obtained from a
36 person if:
37 (a) disclosure of the information could reasonably be expected to result in unfair
38 competitive injury to the person submitting the information or would impair the ability of the
39 governmental entity to obtain necessary information in the future;
40 (b) the person submitting the information has a greater interest in prohibiting access
41 than the public in obtaining access; and
42 (c) the person submitting the information has provided the governmental entity with
43 the information specified in Section 63-2-308 ;
44 (3) commercial or financial information acquired or prepared by a governmental entity
45 to the extent that disclosure would lead to financial speculations in currencies, securities, or
46 commodities that will interfere with a planned transaction by the governmental entity or cause
47 substantial financial injury to the governmental entity or state economy;
48 (4) records the disclosure of which could cause commercial injury to, or confer a
49 competitive advantage upon a potential or actual competitor of, a commercial project entity as
50 defined in Subsection 11-13-103 (4);
51 (5) test questions and answers to be used in future license, certification, registration,
52 employment, or academic examinations;
53 (6) records the disclosure of which would impair governmental procurement
54 proceedings or give an unfair advantage to any person proposing to enter into a contract or
55 agreement with a governmental entity, except that this Subsection (6) does not restrict the right
56 of a person to see bids submitted to or by a governmental entity after bidding has closed;
57 (7) records that would identify real property or the appraisal or estimated value of real
58 or personal property, including intellectual property, under consideration for public acquisition

59 before any rights to the property are acquired unless:
60 (a) public interest in obtaining access to the information outweighs the governmental
61 entity's need to acquire the property on the best terms possible;
62 (b) the information has already been disclosed to persons not employed by or under a
63 duty of confidentiality to the entity;
64 (c) in the case of records that would identify property, potential sellers of the described
65 property have already learned of the governmental entity's plans to acquire the property;
66 (d) in the case of records that would identify the appraisal or estimated value of
67 property, the potential sellers have already learned of the governmental entity's estimated value
68 of the property; or
69 (e) the property under consideration for public acquisition is a single family residence
70 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
71 the property as required under Section 78-34-4.5 ;
72 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
73 compensated transaction of real or personal property including intellectual property, which, if
74 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
75 of the subject property, unless:
76 (a) the public interest in access outweighs the interests in restricting access, including
77 the governmental entity's interest in maximizing the financial benefit of the transaction; or
78 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
79 the value of the subject property have already been disclosed to persons not employed by or
80 under a duty of confidentiality to the entity;
81 (9) records created or maintained for civil, criminal, or administrative enforcement
82 purposes or for audit purposes, or for discipline, licensing, certification, or registration
83 purposes, if release of the records:
84 (a) reasonably could be expected to interfere with investigations undertaken for
85 enforcement, discipline, licensing, certification, or registration purposes;
86 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
87 proceedings;
88 (c) would create a danger of depriving a person of due process or a right to a fair trial
89 or impartial hearing;

90 (d) reasonably could be expected to disclose the identity of a source who is not
91 generally known outside of government and, in the case of a record compiled in the course of
92 an investigation, disclose information furnished by a source not generally known outside of
93 government if disclosure would compromise the source; [or]
94 (e) reasonably could be expected to disclose investigative or audit techniques,
95 procedures, policies, or orders not generally known outside of government if disclosure would
96 interfere with enforcement or audit efforts; or
97 (f) records that would disclose information relating to a finding of an inspection of a
98 business, sole proprietor, or individual, unless the finding resulted in a fine, revocation of a
99 license, suspension of business operation, or other sanction or disciplinary action;
100 (10) records the disclosure of which would jeopardize the life or safety of an
101 individual;
102 (11) records the disclosure of which would jeopardize the security of governmental
103 property, governmental programs, or governmental recordkeeping systems from damage, theft,
104 or other appropriation or use contrary to law or public policy;
105 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
106 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
107 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
108 (13) records that, if disclosed, would reveal recommendations made to the Board of
109 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
110 Board of Pardons and Parole, or the Department of Human Services that are based on the
111 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
112 jurisdiction;
113 (14) records and audit workpapers that identify audit, collection, and operational
114 procedures and methods used by the State Tax Commission, if disclosure would interfere with
115 audits or collections;
116 (15) records of a governmental audit agency relating to an ongoing or planned audit
117 until the final audit is released;
118 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
119 litigation that are not available under the rules of discovery;
120 (17) records disclosing an attorney's work product, including the mental impressions or

121 legal theories of an attorney or other representative of a governmental entity concerning
122 litigation;
123 (18) records of communications between a governmental entity and an attorney
124 representing, retained, or employed by the governmental entity if the communications would be
125 privileged as provided in Section 78-24-8 ;
126 (19) personal files of a legislator, including personal correspondence to or from a
127 member of the Legislature, provided that correspondence that gives notice of legislative action
128 or policy may not be classified as protected under this section;
129 (20) (a) records in the custody or control of the Office of Legislative Research and
130 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
131 legislation or contemplated course of action before the legislator has elected to support the
132 legislation or course of action, or made the legislation or course of action public; and
133 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
134 Office of Legislative Research and General Counsel is a public document unless a legislator
135 asks that the records requesting the legislation be maintained as protected records until such
136 time as the legislator elects to make the legislation or course of action public;
137 (21) research requests from legislators to the Office of Legislative Research and
138 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
139 in response to these requests;
140 (22) drafts, unless otherwise classified as public;
141 (23) records concerning a governmental entity's strategy about collective bargaining or
142 pending litigation;
143 (24) records of investigations of loss occurrences and analyses of loss occurrences that
144 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
145 Uninsured Employers' Fund, or similar divisions in other governmental entities;
146 (25) records, other than personnel evaluations, that contain a personal recommendation
147 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
148 personal privacy, or disclosure is not in the public interest;
149 (26) records that reveal the location of historic, prehistoric, paleontological, or
150 biological resources that if known would jeopardize the security of those resources or of
151 valuable historic, scientific, educational, or cultural information;

152 (27) records of independent state agencies if the disclosure of the records would
153 conflict with the fiduciary obligations of the agency;
154 (28) records of an institution within the state system of higher education defined in
155 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
156 retention decisions, and promotions, which could be properly discussed in a meeting closed in
157 accordance with Title 52, Chapter 4, Open and Public Meetings, provided that records of the
158 final decisions about tenure, appointments, retention, promotions, or those students admitted,
159 may not be classified as protected under this section;
160 (29) records of the governor's office, including budget recommendations, legislative
161 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
162 policies or contemplated courses of action before the governor has implemented or rejected
163 those policies or courses of action or made them public;
164 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
165 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
166 recommendations in these areas;
167 (31) records provided by the United States or by a government entity outside the state
168 that are given to the governmental entity with a requirement that they be managed as protected
169 records if the providing entity certifies that the record would not be subject to public disclosure
170 if retained by it;
171 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
172 except as provided in Section 52-4-7 ;
173 (33) records that would reveal the contents of settlement negotiations but not including
174 final settlements or empirical data to the extent that they are not otherwise exempt from
175 disclosure;
176 (34) memoranda prepared by staff and used in the decision-making process by an
177 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
178 other body charged by law with performing a quasi-judicial function;
179 (35) records that would reveal negotiations regarding assistance or incentives offered
180 by or requested from a governmental entity for the purpose of encouraging a person to expand
181 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
182 person or place the governmental entity at a competitive disadvantage, but this section may not

183 be used to restrict access to a record evidencing a final contract;
184 (36) materials to which access must be limited for purposes of securing or maintaining
185 the governmental entity's proprietary protection of intellectual property rights including patents,
186 copyrights, and trade secrets;
187 (37) the name of a donor or a prospective donor to a governmental entity, including an
188 institution within the state system of higher education defined in Section 53B-1-102 , and other
189 information concerning the donation that could reasonably be expected to reveal the identity of
190 the donor, provided that:
191 (a) the donor requests anonymity in writing;
192 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
193 classified protected by the governmental entity under this Subsection (37); and
194 (c) except for an institution within the state system of higher education defined in
195 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
196 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
197 over the donor, a member of the donor's immediate family, or any entity owned or controlled
198 by the donor or the donor's immediate family;
199 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
200 73-18-13 ;
201 (39) a notification of workers' compensation insurance coverage described in Section
202 34A-2-205 ;
203 (40) (a) the following records of an institution within the state system of higher
204 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
205 or received by or on behalf of faculty, staff, employees, or students of the institution:
206 (i) unpublished lecture notes;
207 (ii) unpublished notes, data, and information:
208 (A) relating to research; and
209 (B) of:
210 (I) the institution within the state system of higher education defined in Section
211 53B-1-102 ; or
212 (II) a sponsor of sponsored research;
213 (iii) unpublished manuscripts;

214 (iv) creative works in process;
215 (v) scholarly correspondence; and
216 (vi) confidential information contained in research proposals;
217 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
218 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
219 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
220 (41) (a) records in the custody or control of the Office of Legislative Auditor General
221 that would reveal the name of a particular legislator who requests a legislative audit prior to the
222 date that audit is completed and made public; and
223 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
224 Office of the Legislative Auditor General is a public document unless the legislator asks that
225 the records in the custody or control of the Office of Legislative Auditor General that would
226 reveal the name of a particular legislator who requests a legislative audit be maintained as
227 protected records until the audit is completed and made public;
228 (42) records that provide detail as to the location of an explosive, including a map or
229 other document that indicates the location of:
230 (a) a production facility; or
231 (b) a magazine;
232 (43) information contained in the database described in Section 62A-3-311.1 ;
233 (44) information contained in the Management Information System and Licensing
234 Information System described in Title 62A, Chapter 4a, Child and Family Services;
235 (45) information regarding National Guard operations or activities in support of the
236 National Guard's federal mission;
237 (46) records provided by any pawnbroker or pawnshop to a law enforcement agency or
238 to the central database in compliance with Title 13, Chapter 32a, Pawnshop Transaction
239 Information Act;
240 (47) information regarding food security, risk, and vulnerability assessments performed
241 by the Department of Agriculture and Food;
242 (48) except to the extent that the record is exempt from this chapter pursuant to Section
243 63-2-106 , records related to an emergency plan or program prepared or maintained by the
244 Division of Emergency Services and Homeland Security the disclosure of which would

245 jeopardize:
246 (a) the safety of the general public; or
247 (b) the security of:
248 (i) governmental property;
249 (ii) governmental programs; or
250 (iii) the property of a private person who provides the Division of Emergency Services
251 and Homeland Security information;
252 (49) records of the Department of Agriculture and Food relating to the National
253 Animal Identification System or any other program that provides for the identification, tracing,
254 or control of livestock diseases, including any program established under Title 4, Chapter 24,
255 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, [Utah] Livestock Inspection
256 and Quarantine; and
257 (50) as provided in Section 26-39-109 :
258 (a) information or records held by the Department of Health related to a complaint
259 regarding a child care program or residential child care which the department is unable to
260 substantiate; and
261 (b) information or records related to a complaint received by the Department of Health
262 from an anonymous complainant regarding a child care program or residential child care.




Legislative Review Note
as of 1-25-06 6:38 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel