First Substitute H.B. 133

Representative Lorie D. Fowlke proposes the following substitute bill:

1 RELEASE OF COURT DOCUMENTS AND
2 CHILD INTERVIEWS
3 2010 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Lorie D. Fowlke
6 Senate Sponsor: Curtis S. Bramble
7
8 LONG TITLE
9 General Description:
10 This bill limits the release of court documents and child interviews.
11 Highlighted Provisions:
12 This bill:
13 . limits who can receive and view interviews with child victims;
14 . creates a new provision in the Judiciary and Judicial Administration code;
15 . provides that documents received by pro se litigants are confidential;
16 . requires the court to advise pro se litigants of the confidentiality of documents
17 received during litigation;
18 . requires the court to specify who may receive child interviews; and
19 . provides that violations by pro se litigants may be punished by contempt or a class
20 B misdemeanor.
21 Monies Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 None
25 Utah Code Sections Affected:

26 AMENDS:
27 63G-2-305, as last amended by Laws of Utah 2009, Chapters 64 and 121
28 77-37-4, as enacted by Laws of Utah 1987, Chapter 194
29 78A-6-317, as last amended by Laws of Utah 2009, Chapter 161
30 ENACTS:
31 78A-2-229, Utah Code Annotated 1953
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 63G-2-305 is amended to read:
35 63G-2-305. Protected records.
36 The following records are protected if properly classified by a governmental entity:
37 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
38 has provided the governmental entity with the information specified in Section 63G-2-309 ;
39 (2) commercial information or nonindividual financial information obtained from a
40 person if:
41 (a) disclosure of the information could reasonably be expected to result in unfair
42 competitive injury to the person submitting the information or would impair the ability of the
43 governmental entity to obtain necessary information in the future;
44 (b) the person submitting the information has a greater interest in prohibiting access
45 than the public in obtaining access; and
46 (c) the person submitting the information has provided the governmental entity with
47 the information specified in Section 63G-2-309 ;
48 (3) commercial or financial information acquired or prepared by a governmental entity
49 to the extent that disclosure would lead to financial speculations in currencies, securities, or
50 commodities that will interfere with a planned transaction by the governmental entity or cause
51 substantial financial injury to the governmental entity or state economy;
52 (4) records the disclosure of which could cause commercial injury to, or confer a
53 competitive advantage upon a potential or actual competitor of, a commercial project entity as
54 defined in Subsection 11-13-103 (4);
55 (5) test questions and answers to be used in future license, certification, registration,
56 employment, or academic examinations;

57 (6) records the disclosure of which would impair governmental procurement
58 proceedings or give an unfair advantage to any person proposing to enter into a contract or
59 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
60 Subsection (6) does not restrict the right of a person to have access to, once the contract or
61 grant has been awarded, a bid, proposal, or application submitted to or by a governmental
62 entity in response to:
63 (a) a request for bids;
64 (b) a request for proposals;
65 (c) a grant; or
66 (d) other similar document;
67 (7) records that would identify real property or the appraisal or estimated value of real
68 or personal property, including intellectual property, under consideration for public acquisition
69 before any rights to the property are acquired unless:
70 (a) public interest in obtaining access to the information outweighs the governmental
71 entity's need to acquire the property on the best terms possible;
72 (b) the information has already been disclosed to persons not employed by or under a
73 duty of confidentiality to the entity;
74 (c) in the case of records that would identify property, potential sellers of the described
75 property have already learned of the governmental entity's plans to acquire the property;
76 (d) in the case of records that would identify the appraisal or estimated value of
77 property, the potential sellers have already learned of the governmental entity's estimated value
78 of the property; or
79 (e) the property under consideration for public acquisition is a single family residence
80 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
81 the property as required under Section 78B-6-505 ;
82 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
83 compensated transaction of real or personal property including intellectual property, which, if
84 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
85 of the subject property, unless:
86 (a) the public interest in access outweighs the interests in restricting access, including
87 the governmental entity's interest in maximizing the financial benefit of the transaction; or

88 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
89 the value of the subject property have already been disclosed to persons not employed by or
90 under a duty of confidentiality to the entity;
91 (9) records created or maintained for civil, criminal, or administrative enforcement
92 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
93 release of the records:
94 (a) reasonably could be expected to interfere with investigations undertaken for
95 enforcement, discipline, licensing, certification, or registration purposes;
96 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
97 proceedings;
98 (c) would create a danger of depriving a person of a right to a fair trial or impartial
99 hearing;
100 (d) reasonably could be expected to disclose the identity of a source who is not
101 generally known outside of government and, in the case of a record compiled in the course of
102 an investigation, disclose information furnished by a source not generally known outside of
103 government if disclosure would compromise the source; or
104 (e) reasonably could be expected to disclose investigative or audit techniques,
105 procedures, policies, or orders not generally known outside of government if disclosure would
106 interfere with enforcement or audit efforts;
107 (10) records the disclosure of which would jeopardize the life or safety of an
108 individual;
109 (11) records the disclosure of which would jeopardize the security of governmental
110 property, governmental programs, or governmental recordkeeping systems from damage, theft,
111 or other appropriation or use contrary to law or public policy;
112 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
113 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
114 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
115 (13) records that, if disclosed, would reveal recommendations made to the Board of
116 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
117 Board of Pardons and Parole, or the Department of Human Services that are based on the
118 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's

119 jurisdiction;
120 (14) records and audit workpapers that identify audit, collection, and operational
121 procedures and methods used by the State Tax Commission, if disclosure would interfere with
122 audits or collections;
123 (15) records of a governmental audit agency relating to an ongoing or planned audit
124 until the final audit is released;
125 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
126 litigation that are not available under the rules of discovery;
127 (17) records disclosing an attorney's work product, including the mental impressions or
128 legal theories of an attorney or other representative of a governmental entity concerning
129 litigation;
130 (18) records of communications between a governmental entity and an attorney
131 representing, retained, or employed by the governmental entity if the communications would be
132 privileged as provided in Section 78B-1-137 ;
133 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
134 from a member of the Legislature; and
135 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
136 legislative action or policy may not be classified as protected under this section; and
137 (b) (i) an internal communication that is part of the deliberative process in connection
138 with the preparation of legislation between:
139 (A) members of a legislative body;
140 (B) a member of a legislative body and a member of the legislative body's staff; or
141 (C) members of a legislative body's staff; and
142 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
143 legislative action or policy may not be classified as protected under this section;
144 (20) (a) records in the custody or control of the Office of Legislative Research and
145 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
146 legislation or contemplated course of action before the legislator has elected to support the
147 legislation or course of action, or made the legislation or course of action public; and
148 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
149 Office of Legislative Research and General Counsel is a public document unless a legislator

150 asks that the records requesting the legislation be maintained as protected records until such
151 time as the legislator elects to make the legislation or course of action public;
152 (21) research requests from legislators to the Office of Legislative Research and
153 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
154 in response to these requests;
155 (22) drafts, unless otherwise classified as public;
156 (23) records concerning a governmental entity's strategy about collective bargaining or
157 pending litigation;
158 (24) records of investigations of loss occurrences and analyses of loss occurrences that
159 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
160 Uninsured Employers' Fund, or similar divisions in other governmental entities;
161 (25) records, other than personnel evaluations, that contain a personal recommendation
162 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
163 personal privacy, or disclosure is not in the public interest;
164 (26) records that reveal the location of historic, prehistoric, paleontological, or
165 biological resources that if known would jeopardize the security of those resources or of
166 valuable historic, scientific, educational, or cultural information;
167 (27) records of independent state agencies if the disclosure of the records would
168 conflict with the fiduciary obligations of the agency;
169 (28) records of an institution within the state system of higher education defined in
170 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
171 retention decisions, and promotions, which could be properly discussed in a meeting closed in
172 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
173 the final decisions about tenure, appointments, retention, promotions, or those students
174 admitted, may not be classified as protected under this section;
175 (29) records of the governor's office, including budget recommendations, legislative
176 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
177 policies or contemplated courses of action before the governor has implemented or rejected
178 those policies or courses of action or made them public;
179 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
180 revenue estimates, and fiscal notes of proposed legislation before issuance of the final

181 recommendations in these areas;
182 (31) records provided by the United States or by a government entity outside the state
183 that are given to the governmental entity with a requirement that they be managed as protected
184 records if the providing entity certifies that the record would not be subject to public disclosure
185 if retained by it;
186 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
187 except as provided in Section 52-4-206 ;
188 (33) records that would reveal the contents of settlement negotiations but not including
189 final settlements or empirical data to the extent that they are not otherwise exempt from
190 disclosure;
191 (34) memoranda prepared by staff and used in the decision-making process by an
192 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
193 other body charged by law with performing a quasi-judicial function;
194 (35) records that would reveal negotiations regarding assistance or incentives offered
195 by or requested from a governmental entity for the purpose of encouraging a person to expand
196 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
197 person or place the governmental entity at a competitive disadvantage, but this section may not
198 be used to restrict access to a record evidencing a final contract;
199 (36) materials to which access must be limited for purposes of securing or maintaining
200 the governmental entity's proprietary protection of intellectual property rights including patents,
201 copyrights, and trade secrets;
202 (37) the name of a donor or a prospective donor to a governmental entity, including an
203 institution within the state system of higher education defined in Section 53B-1-102 , and other
204 information concerning the donation that could reasonably be expected to reveal the identity of
205 the donor, provided that:
206 (a) the donor requests anonymity in writing;
207 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
208 classified protected by the governmental entity under this Subsection (37); and
209 (c) except for an institution within the state system of higher education defined in
210 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
211 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority

212 over the donor, a member of the donor's immediate family, or any entity owned or controlled
213 by the donor or the donor's immediate family;
214 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
215 73-18-13 ;
216 (39) a notification of workers' compensation insurance coverage described in Section
217 34A-2-205 ;
218 (40) (a) the following records of an institution within the state system of higher
219 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
220 or received by or on behalf of faculty, staff, employees, or students of the institution:
221 (i) unpublished lecture notes;
222 (ii) unpublished notes, data, and information:
223 (A) relating to research; and
224 (B) of:
225 (I) the institution within the state system of higher education defined in Section
226 53B-1-102 ; or
227 (II) a sponsor of sponsored research;
228 (iii) unpublished manuscripts;
229 (iv) creative works in process;
230 (v) scholarly correspondence; and
231 (vi) confidential information contained in research proposals;
232 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
233 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
234 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
235 (41) (a) records in the custody or control of the Office of Legislative Auditor General
236 that would reveal the name of a particular legislator who requests a legislative audit prior to the
237 date that audit is completed and made public; and
238 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
239 Office of the Legislative Auditor General is a public document unless the legislator asks that
240 the records in the custody or control of the Office of Legislative Auditor General that would
241 reveal the name of a particular legislator who requests a legislative audit be maintained as
242 protected records until the audit is completed and made public;

243 (42) records that provide detail as to the location of an explosive, including a map or
244 other document that indicates the location of:
245 (a) a production facility; or
246 (b) a magazine;
247 (43) information:
248 (a) contained in the statewide database of the Division of Aging and Adult Services
249 created by Section 62A-3-311.1 ; or
250 (b) received or maintained in relation to the Identity Theft Reporting Information
251 System (IRIS) established under Section 67-5-22 ;
252 (44) information contained in the Management Information System and Licensing
253 Information System described in Title 62A, Chapter 4a, Child and Family Services;
254 (45) information regarding National Guard operations or activities in support of the
255 National Guard's federal mission;
256 (46) records provided by any pawn or secondhand business to a law enforcement
257 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
258 Secondhand Merchandise Transaction Information Act;
259 (47) information regarding food security, risk, and vulnerability assessments performed
260 by the Department of Agriculture and Food;
261 (48) except to the extent that the record is exempt from this chapter pursuant to Section
262 63G-2-106 , records related to an emergency plan or program prepared or maintained by the
263 Division of Homeland Security the disclosure of which would jeopardize:
264 (a) the safety of the general public; or
265 (b) the security of:
266 (i) governmental property;
267 (ii) governmental programs; or
268 (iii) the property of a private person who provides the Division of Homeland Security
269 information;
270 (49) records of the Department of Agriculture and Food relating to the National
271 Animal Identification System or any other program that provides for the identification, tracing,
272 or control of livestock diseases, including any program established under Title 4, Chapter 24,
273 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and

274 Quarantine;
275 (50) as provided in Section 26-39-501 :
276 (a) information or records held by the Department of Health related to a complaint
277 regarding a child care program or residential child care which the department is unable to
278 substantiate; and
279 (b) information or records related to a complaint received by the Department of Health
280 from an anonymous complainant regarding a child care program or residential child care;
281 (51) unless otherwise classified as public under Section 63G-2-301 and except as
282 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
283 personal mobile phone number, if:
284 (a) the individual is required to provide the information in order to comply with a law,
285 ordinance, rule, or order of a government entity; and
286 (b) the subject of the record has a reasonable expectation that this information will be
287 kept confidential due to:
288 (i) the nature of the law, ordinance, rule, or order; and
289 (ii) the individual complying with the law, ordinance, rule, or order;
290 (52) the name, home address, work addresses, and telephone numbers of an individual
291 that is engaged in, or that provides goods or services for, medical or scientific research that is:
292 (a) conducted within the state system of higher education, as defined in Section
293 53B-1-102 ; and
294 (b) conducted using animals;
295 (53) an initial proposal under Title 63M, Chapter 1, Part 26, Government Procurement
296 Private Proposal Program, to the extent not made public by rules made under that chapter;
297 (54) information collected and a report prepared by the Judicial Performance
298 Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
299 12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
300 the information or report;
301 (55) (a) records of the Utah Educational Savings Plan Trust created under Section
302 53B-8a-103 if the disclosure of the records would conflict with its fiduciary obligations;
303 (b) proposals submitted to the Utah Educational Savings Plan Trust; and
304 (c) contracts entered into by the Utah Educational Savings Plan Trust and the related

305 payments;
306 (56) records contained in the Management Information System created in Section
307 62A-4a-1003 ;
308 (57) records provided or received by the Public Lands Policy Coordinating Office in
309 furtherance of any contract or other agreement made in accordance with Section 63J-4-603 ;
310 [and]
311 (58) information requested by and provided to the Utah State 911 Committee under
312 Section 53-10-602 [.]; and
313 (59) recorded Children's Justice Center investigative interviews, both video and audio,
314 the release of which are governed by Section 77-37-44 .
315 Section 2. Section 77-37-4 is amended to read:
316 77-37-4. Additional rights -- Children.
317 In addition to all rights afforded to victims and witnesses under this chapter, child
318 victims and witnesses shall be afforded these rights:
319 (1) Children have the right to protection from physical and emotional abuse during
320 their involvement with the criminal justice process.
321 (2) Children are not responsible for inappropriate behavior adults commit against them
322 and have the right not to be questioned, in any manner, nor to have allegations made, implying
323 this responsibility. Those who interview children have the responsibility to consider the
324 interests of the child in this regard.
325 (3) Child victims and witnesses have the right to have interviews relating to a criminal
326 prosecution kept to a minimum. All agencies shall coordinate interviews and ensure that they
327 are conducted by persons sensitive to the needs of children.
328 (4) Child victims have the right to be informed of available community resources that
329 might assist them and how to gain access to those resources. Law enforcement and prosecutors
330 have the duty to ensure that child victims are informed of community resources, including
331 counseling prior to the court proceeding, and have those services available throughout the
332 criminal justice process.
333 (5) Child victims have the right, once an investigation has been initiated by law
334 enforcement or the Division of Child and Family Services, to have their investigative
335 interviews that are conducted at a Children's Justice Center, including both video and audio

336 recordings, protected. Except as provided in Subsection (5)(b) and (c), interviews may not be
337 distributed, released, or displayed to anyone without a court order.
338 (a) The court order:
339 (i) shall describe with particularity to whom the interview may be released and prohibit
340 further distribution or viewing by anyone not named in the order; and
341 (ii) may impose restrictions on access to the materials considered reasonable to protect
342 the privacy of the child victim.
343 (b) Following the conclusion of any legal proceedings in which the recordings or
344 transcripts are used, the court shall order the recordings and transcripts in the court's file sealed
345 and preserved.
346 (c) (i) The Division of Child and Family Services or law enforcement may distribute a
347 copy of the interview:
348 (A) to the prosecutor's office;
349 (B) the Attorney General's child protection division;
350 (C) to another law enforcement agency; and
351 (D) to the attorney for the child who is the subject of the interview.
352 (ii) Any further distribution, release, or display is subject to this Subsection (5).
353 (d) In a criminal case, the prosecutor may distribute a copy of the interview to the
354 attorney for the defendant or a pro se defendant pursuant to a valid request for discovery. The
355 attorney for the defendant in a criminal case may permit the defendant to view the interview,
356 but may not distribute or release the interview to their client. Any further distribution, release,
357 or display is subject to this Subsection (5).
358 (e) Pro se defendants shall be advised by the court that an interview received as part of
359 discovery is confidential and may not be distributed, released, or displayed without prior
360 authorization from the court.
361 (f) Multidisciplinary teams or other state agencies that provide services to children and
362 families may view interviews of children, and families for whom they are providing services,
363 but may not receive copies.
364 (g) Violation of this section is:
365 (i) punishable by contempt if distribution, release, or display occurs before the
366 resolution of the case and the court still has jurisdiction over the defendant; or

367 (ii) a class B misdemeanor if the case has been resolved and the court no longer has
368 jurisdiction over the defendant.
369 Section 3. Section 78A-2-229 is enacted to read:
370 78A-2-229. Documents provided to pro se litigants.
371 (1) Documents classified as private, protected, or sealed by court rule and are provided
372 to a pro se litigant in the course of an action or in accordance with Subsection 63G-2-202 (7)
373 may not be distributed, released, or displayed to any other person except the court, the other
374 party and their counsel, or any other person who may be authorized by the court to inspect the
375 documents.
376 (2) Pro se litigants shall be advised by the court that private, protected, or sealed any
377 documents received by the party that the party would not have received but for the litigation
378 and pro se representation are confidential and may not be distributed outside the parties or the
379 court without prior authorization by the court.
380 (3) Violation of this section is:
381 (a) punishable by contempt if distribution or release occurs before a final determination
382 is made by the court and the court still has jurisdiction over the parties; or
383 (b) a class B misdemeanor if the litigation has been concluded and the court no longer
384 has jurisdiction over the parties.
385 Section 4. Section 78A-6-317 is amended to read:
386 78A-6-317. All proceedings -- Persons entitled to be present.
387 (1) A child who is the subject of a juvenile court hearing, any person entitled to notice
388 pursuant to Section 78A-6-306 or 78A-6-310 , preadoptive parents, foster parents, and any
389 relative providing care for the child, are:
390 (a) entitled to notice of, and to be present at, each hearing and proceeding held under
391 this part, including administrative reviews; and
392 (b) have a right to be heard at each hearing and proceeding described in Subsection
393 (1)(a).
394 (2) A child shall be represented at each hearing by the guardian ad litem appointed to
395 the child's case by the court. The child has a right to be present at each hearing, subject to the
396 discretion of the guardian ad litem or the court regarding any possible detriment to the child.
397 (3) (a) The parent or guardian of a child who is the subject of a petition under this part

398 has the right to be represented by counsel, and to present evidence, at each hearing.
399 (b) When it appears to the court that a parent or guardian of the child desires counsel
400 but is financially unable to afford and cannot for that reason employ counsel, and the child has
401 been placed in out-of-home care, or the petitioner is recommending that the child be placed in
402 out-of-home care, the court shall appoint counsel.
403 (4) In every abuse, neglect, or dependency proceeding under this chapter, the court
404 shall order that the child be represented by a guardian ad litem, in accordance with Section
405 78A-6-902 . The guardian ad litem shall represent the best interest of the child, in accordance
406 with the requirements of that section, at the shelter hearing and at all subsequent court and
407 administrative proceedings, including any proceeding for termination of parental rights in
408 accordance with Part 5, Termination of Parental Rights Act.
409 (5) (a) Except as provided in Subsection (5)(b), and notwithstanding any other
410 provision of law:
411 (i) counsel for all parties to the action shall be given access to all records, maintained
412 by the division or any other state or local public agency, that are relevant to the abuse, neglect,
413 or dependency proceeding under this chapter; and
414 (ii) if the natural parent of a child is not represented by counsel, the natural parent shall
415 have access to the records described in Subsection (5)(a)(i).
416 (b) The disclosures described in Subsection (5)(a) are not required in the following
417 circumstances:
418 (i) subject to Subsection (5)(c), the division or other state or local public agency did not
419 originally create the record being requested;
420 (ii) disclosure of the record would jeopardize the life or physical safety of a child who
421 has been a victim of abuse or neglect, or any person who provided substitute care for the child;
422 (iii) disclosure of the record would jeopardize the anonymity of the person or persons
423 making the initial report of abuse or neglect or any others involved in the subsequent
424 investigation;
425 (iv) disclosure of the record would jeopardize the life or physical safety of a person
426 who has been a victim of domestic violence; [or]
427 (v) the record is a report maintained in the Management Information System, for which
428 a finding of unsubstantiated, unsupported, or without merit has been made, unless the person

429 requesting the information is the alleged perpetrator in the report or counsel for the alleged
430 perpetrator in the report[.]; or
431 (vi) the record is a Children's Justice Center investigative interview, video or audio, the
432 release of which is governed by Section 77-37-44 .
433 (c) If a disclosure is denied under Subsection (5)(b)(i), the division shall inform the
434 person making the request of the following:
435 (i) the existence of all records in the possession of the division or any other state or
436 local public agency;
437 (ii) the name and address of the person or agency that originally created the record; and
438 (iii) that the person must seek access to the record from the person or agency that
439 originally created the record.