This document includes House Committee Amendments incorporated into the bill on Fri, Feb 27, 2015 at 12:31 PM by lerror.
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7 LONG TITLE
8 General Description:
9 This bill modifies the treatment of agency records, including providing for the
10 administrative expungement of agency records under certain circumstances.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ provides that agency records may be classified as protected under certain
15 circumstances;
16 ▸ provides that an individual may apply for administrative expungement of records
17 related to disciplinary action previously taken by an agency against the individual
18 under certain circumstances, including that the individual:
19 • has had no additional disciplinary action for a certain period of time; and
20 • has fully complied with agency requirements regarding previous disciplinary
21 action;
22 ▸ describes the application and fee requirements for seeking the administrative
23 expungement of agency records related to action taken by the agency;
24 ▸ provides that records expunged under this legislation may still be used internally by
25 the agency and shared with law enforcement, with the courts, and as directed by
26 court order; and
27 ▸ makes technical changes.
28 Money Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 None
32 Utah Code Sections Affected:
33 AMENDS:
34 63G-2-305, as last amended by Laws of Utah 2014, Chapters 90 and 320
35 63G-4-102, as last amended by Laws of Utah 2012, Chapter 333
36 ENACTS:
37 63G-4-701, Utah Code Annotated 1953
38 63G-4-702, Utah Code Annotated 1953
39 63G-4-703, Utah Code Annotated 1953
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41 Be it enacted by the Legislature of the state of Utah:
42 Section 1. Section 63G-2-305 is amended to read:
43 63G-2-305. Protected records.
44 The following records are protected if properly classified by a governmental entity:
45 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
46 has provided the governmental entity with the information specified in Section 63G-2-309;
47 (2) commercial information or nonindividual financial information obtained from a
48 person if:
49 (a) disclosure of the information could reasonably be expected to result in unfair
50 competitive injury to the person submitting the information or would impair the ability of the
51 governmental entity to obtain necessary information in the future;
52 (b) the person submitting the information has a greater interest in prohibiting access
53 than the public in obtaining access; and
54 (c) the person submitting the information has provided the governmental entity with
55 the information specified in Section 63G-2-309;
56 (3) commercial or financial information acquired or prepared by a governmental entity
57 to the extent that disclosure would lead to financial speculations in currencies, securities, or
58 commodities that will interfere with a planned transaction by the governmental entity or cause
59 substantial financial injury to the governmental entity or state economy;
60 (4) records, the disclosure of which could cause commercial injury to, or confer a
61 competitive advantage upon a potential or actual competitor of, a commercial project entity as
62 defined in Subsection 11-13-103(4);
63 (5) test questions and answers to be used in future license, certification, registration,
64 employment, or academic examinations;
65 (6) records, the disclosure of which would impair governmental procurement
66 proceedings or give an unfair advantage to any person proposing to enter into a contract or
67 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
68 Subsection (6) does not restrict the right of a person to have access to, after the contract or
69 grant has been awarded and signed by all parties, a bid, proposal, application, or other
70 information submitted to or by a governmental entity in response to:
71 (a) an invitation for bids;
72 (b) a request for proposals;
73 (c) a request for quotes;
74 (d) a grant; or
75 (e) other similar document;
76 (7) information submitted to or by a governmental entity in response to a request for
77 information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict
78 the right of a person to have access to the information, after:
79 (a) a contract directly relating to the subject of the request for information has been
80 awarded and signed by all parties; or
81 (b) (i) a final determination is made not to enter into a contract that relates to the
82 subject of the request for information; and
83 (ii) at least two years have passed after the day on which the request for information is
84 issued;
85 (8) records that would identify real property or the appraisal or estimated value of real
86 or personal property, including intellectual property, under consideration for public acquisition
87 before any rights to the property are acquired unless:
88 (a) public interest in obtaining access to the information is greater than or equal to the
89 governmental entity's need to acquire the property on the best terms possible;
90 (b) the information has already been disclosed to persons not employed by or under a
91 duty of confidentiality to the entity;
92 (c) in the case of records that would identify property, potential sellers of the described
93 property have already learned of the governmental entity's plans to acquire the property;
94 (d) in the case of records that would identify the appraisal or estimated value of
95 property, the potential sellers have already learned of the governmental entity's estimated value
96 of the property; or
97 (e) the property under consideration for public acquisition is a single family residence
98 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
99 the property as required under Section 78B-6-505;
100 (9) records prepared in contemplation of sale, exchange, lease, rental, or other
101 compensated transaction of real or personal property including intellectual property, which, if
102 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
103 of the subject property, unless:
104 (a) the public interest in access is greater than or equal to the interests in restricting
105 access, including the governmental entity's interest in maximizing the financial benefit of the
106 transaction; or
107 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
108 the value of the subject property have already been disclosed to persons not employed by or
109 under a duty of confidentiality to the entity;
110 (10) records created or maintained for civil, criminal, or administrative enforcement
111 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
112 release of the records:
113 (a) reasonably could be expected to interfere with investigations undertaken for
114 enforcement, discipline, licensing, certification, or registration purposes;
115 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
116 proceedings;
117 (c) would create a danger of depriving a person of a right to a fair trial or impartial
118 hearing;
119 (d) reasonably could be expected to disclose the identity of a source who is not
120 generally known outside of government and, in the case of a record compiled in the course of
121 an investigation, disclose information furnished by a source not generally known outside of
122 government if disclosure would compromise the source; or
123 (e) reasonably could be expected to disclose investigative or audit techniques,
124 procedures, policies, or orders not generally known outside of government if disclosure would
125 interfere with enforcement or audit efforts;
126 (11) records the disclosure of which would jeopardize the life or safety of an
127 individual;
128 (12) records the disclosure of which would jeopardize the security of governmental
129 property, governmental programs, or governmental recordkeeping systems from damage, theft,
130 or other appropriation or use contrary to law or public policy;
131 (13) records that, if disclosed, would jeopardize the security or safety of a correctional
132 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
133 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
134 (14) records that, if disclosed, would reveal recommendations made to the Board of
135 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
136 Board of Pardons and Parole, or the Department of Human Services that are based on the
137 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
138 jurisdiction;
139 (15) records and audit workpapers that identify audit, collection, and operational
140 procedures and methods used by the State Tax Commission, if disclosure would interfere with
141 audits or collections;
142 (16) records of a governmental audit agency relating to an ongoing or planned audit
143 until the final audit is released;
144 (17) records that are subject to the attorney client privilege;
145 (18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer,
146 employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial,
147 quasi-judicial, or administrative proceeding;
148 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
149 from a member of the Legislature; and
150 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
151 legislative action or policy may not be classified as protected under this section; and
152 (b) (i) an internal communication that is part of the deliberative process in connection
153 with the preparation of legislation between:
154 (A) members of a legislative body;
155 (B) a member of a legislative body and a member of the legislative body's staff; or
156 (C) members of a legislative body's staff; and
157 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
158 legislative action or policy may not be classified as protected under this section;
159 (20) (a) records in the custody or control of the Office of Legislative Research and
160 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
161 legislation or contemplated course of action before the legislator has elected to support the
162 legislation or course of action, or made the legislation or course of action public; and
163 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
164 Office of Legislative Research and General Counsel is a public document unless a legislator
165 asks that the records requesting the legislation be maintained as protected records until such
166 time as the legislator elects to make the legislation or course of action public;
167 (21) research requests from legislators to the Office of Legislative Research and
168 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
169 in response to these requests;
170 (22) drafts, unless otherwise classified as public;
171 (23) records concerning a governmental entity's strategy about:
172 (a) collective bargaining; or
173 (b) imminent or pending litigation;
174 (24) records of investigations of loss occurrences and analyses of loss occurrences that
175 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
176 Uninsured Employers' Fund, or similar divisions in other governmental entities;
177 (25) records, other than personnel evaluations, that contain a personal recommendation
178 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
179 personal privacy, or disclosure is not in the public interest;
180 (26) records that reveal the location of historic, prehistoric, paleontological, or
181 biological resources that if known would jeopardize the security of those resources or of
182 valuable historic, scientific, educational, or cultural information;
183 (27) records of independent state agencies if the disclosure of the records would
184 conflict with the fiduciary obligations of the agency;
185 (28) records of an institution within the state system of higher education defined in
186 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
187 retention decisions, and promotions, which could be properly discussed in a meeting closed in
188 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
189 the final decisions about tenure, appointments, retention, promotions, or those students
190 admitted, may not be classified as protected under this section;
191 (29) records of the governor's office, including budget recommendations, legislative
192 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
193 policies or contemplated courses of action before the governor has implemented or rejected
194 those policies or courses of action or made them public;
195 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
196 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
197 recommendations in these areas;
198 (31) records provided by the United States or by a government entity outside the state
199 that are given to the governmental entity with a requirement that they be managed as protected
200 records if the providing entity certifies that the record would not be subject to public disclosure
201 if retained by it;
202 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
203 except as provided in Section 52-4-206;
204 (33) records that would reveal the contents of settlement negotiations but not including
205 final settlements or empirical data to the extent that they are not otherwise exempt from
206 disclosure;
207 (34) memoranda prepared by staff and used in the decision-making process by an
208 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
209 other body charged by law with performing a quasi-judicial function;
210 (35) records that would reveal negotiations regarding assistance or incentives offered
211 by or requested from a governmental entity for the purpose of encouraging a person to expand
212 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
213 person or place the governmental entity at a competitive disadvantage, but this section may not
214 be used to restrict access to a record evidencing a final contract;
215 (36) materials to which access must be limited for purposes of securing or maintaining
216 the governmental entity's proprietary protection of intellectual property rights including patents,
217 copyrights, and trade secrets;
218 (37) the name of a donor or a prospective donor to a governmental entity, including an
219 institution within the state system of higher education defined in Section 53B-1-102, and other
220 information concerning the donation that could reasonably be expected to reveal the identity of
221 the donor, provided that:
222 (a) the donor requests anonymity in writing;
223 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
224 classified protected by the governmental entity under this Subsection (37); and
225 (c) except for an institution within the state system of higher education defined in
226 Section 53B-1-102, the governmental unit to which the donation is made is primarily engaged
227 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
228 over the donor, a member of the donor's immediate family, or any entity owned or controlled
229 by the donor or the donor's immediate family;
230 (38) accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and
231 73-18-13;
232 (39) a notification of workers' compensation insurance coverage described in Section
233 34A-2-205;
234 (40) (a) the following records of an institution within the state system of higher
235 education defined in Section 53B-1-102, which have been developed, discovered, disclosed to,
236 or received by or on behalf of faculty, staff, employees, or students of the institution:
237 (i) unpublished lecture notes;
238 (ii) unpublished notes, data, and information:
239 (A) relating to research; and
240 (B) of:
241 (I) the institution within the state system of higher education defined in Section
242 53B-1-102; or
243 (II) a sponsor of sponsored research;
244 (iii) unpublished manuscripts;
245 (iv) creative works in process;
246 (v) scholarly correspondence; and
247 (vi) confidential information contained in research proposals;
248 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
249 information required pursuant to Subsection 53B-16-302(2)(a) or (b); and
250 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
251 (41) (a) records in the custody or control of the Office of Legislative Auditor General
252 that would reveal the name of a particular legislator who requests a legislative audit prior to the
253 date that audit is completed and made public; and
254 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
255 Office of the Legislative Auditor General is a public document unless the legislator asks that
256 the records in the custody or control of the Office of Legislative Auditor General that would
257 reveal the name of a particular legislator who requests a legislative audit be maintained as
258 protected records until the audit is completed and made public;
259 (42) records that provide detail as to the location of an explosive, including a map or
260 other document that indicates the location of:
261 (a) a production facility; or
262 (b) a magazine;
263 (43) information:
264 (a) contained in the statewide database of the Division of Aging and Adult Services
265 created by Section 62A-3-311.1; or
266 (b) received or maintained in relation to the Identity Theft Reporting Information
267 System (IRIS) established under Section 67-5-22;
268 (44) information contained in the Management Information System and Licensing
269 Information System described in Title 62A, Chapter 4a, Child and Family Services;
270 (45) information regarding National Guard operations or activities in support of the
271 National Guard's federal mission;
272 (46) records provided by any pawn or secondhand business to a law enforcement
273 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
274 Secondhand Merchandise Transaction Information Act;
275 (47) information regarding food security, risk, and vulnerability assessments performed
276 by the Department of Agriculture and Food;
277 (48) except to the extent that the record is exempt from this chapter pursuant to Section
278 63G-2-106, records related to an emergency plan or program, a copy of which is provided to or
279 prepared or maintained by the Division of Emergency Management, and the disclosure of
280 which would jeopardize:
281 (a) the safety of the general public; or
282 (b) the security of:
283 (i) governmental property;
284 (ii) governmental programs; or
285 (iii) the property of a private person who provides the Division of Emergency
286 Management information;
287 (49) records of the Department of Agriculture and Food that provides for the
288 identification, tracing, or control of livestock diseases, including any program established under
289 Title 4, Chapter 24, Utah Livestock Brand and Anti-Theft Act, or Title 4, Chapter 31, Control
290 of Animal Disease;
291 (50) as provided in Section 26-39-501:
292 (a) information or records held by the Department of Health related to a complaint
293 regarding a child care program or residential child care which the department is unable to
294 substantiate; and
295 (b) information or records related to a complaint received by the Department of Health
296 from an anonymous complainant regarding a child care program or residential child care;
297 (51) unless otherwise classified as public under Section 63G-2-301 and except as
298 provided under Section 41-1a-116, an individual's home address, home telephone number, or
299 personal mobile phone number, if:
300 (a) the individual is required to provide the information in order to comply with a law,
301 ordinance, rule, or order of a government entity; and
302 (b) the subject of the record has a reasonable expectation that this information will be
303 kept confidential due to:
304 (i) the nature of the law, ordinance, rule, or order; and
305 (ii) the individual complying with the law, ordinance, rule, or order;
306 (52) the name, home address, work addresses, and telephone numbers of an individual
307 that is engaged in, or that provides goods or services for, medical or scientific research that is:
308 (a) conducted within the state system of higher education, as defined in Section
309 53B-1-102; and
310 (b) conducted using animals;
311 (53) an initial proposal under Title 63M, Chapter 1, Part 26, Government Procurement
312 Private Proposal Program, to the extent not made public by rules made under that chapter;
313 (54) in accordance with Section 78A-12-203, any record of the Judicial Performance
314 Evaluation Commission concerning an individual commissioner's vote on whether or not to
315 recommend that the voters retain a judge;
316 (55) information collected and a report prepared by the Judicial Performance
317 Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
318 12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
319 the information or report;
320 (56) records contained in the Management Information System created in Section
321 62A-4a-1003;
322 (57) records provided or received by the Public Lands Policy Coordinating Office in
323 furtherance of any contract or other agreement made in accordance with Section 63J-4-603;
324 (58) information requested by and provided to the Utah [
325 Section 63H-7-303;
326 (59) in accordance with Section 73-10-33:
327 (a) a management plan for a water conveyance facility in the possession of the Division
328 of Water Resources or the Board of Water Resources; or
329 (b) an outline of an emergency response plan in possession of the state or a county or
330 municipality;
331 (60) the following records in the custody or control of the Office of Inspector General
332 of Medicaid Services, created in Section 63A-13-201:
333 (a) records that would disclose information relating to allegations of personal
334 misconduct, gross mismanagement, or illegal activity of a person if the information or
335 allegation cannot be corroborated by the Office of Inspector General of Medicaid Services
336 through other documents or evidence, and the records relating to the allegation are not relied
337 upon by the Office of Inspector General of Medicaid Services in preparing a final investigation
338 report or final audit report;
339 (b) records and audit workpapers to the extent they would disclose the identity of a
340 person who, during the course of an investigation or audit, communicated the existence of any
341 Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or
342 regulation adopted under the laws of this state, a political subdivision of the state, or any
343 recognized entity of the United States, if the information was disclosed on the condition that
344 the identity of the person be protected;
345 (c) before the time that an investigation or audit is completed and the final
346 investigation or final audit report is released, records or drafts circulated to a person who is not
347 an employee or head of a governmental entity for the person's response or information;
348 (d) records that would disclose an outline or part of any investigation, audit survey
349 plan, or audit program; or
350 (e) requests for an investigation or audit, if disclosure would risk circumvention of an
351 investigation or audit;
352 (61) records that reveal methods used by the Office of Inspector General of Medicaid
353 Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or
354 abuse;
355 (62) information provided to the Department of Health or the Division of Occupational
356 and Professional Licensing under Subsection 58-68-304(3) or (4);
357 (63) a record described in Section 63G-12-210; [
358 (64) captured plate data that is obtained through an automatic license plate reader
359 system used by a governmental entity as authorized in Section 41-6a-2003[
360 (65) records created or maintained for an investigation of an individual, if the records
361 were created or maintained as the result of a complaint and the governmental entity determines
362 the investigated individual has not committed a violation.
363 Section 2. Section 63G-4-102 is amended to read:
364 63G-4-102. Scope and applicability of chapter.
365 (1) Except as set forth in Subsection (2), and except as otherwise provided by a statute
366 superseding provisions of this chapter by explicit reference to this chapter, the provisions of
367 this chapter apply to every agency of the state and govern:
368 (a) state agency action that determines the legal rights, duties, privileges, immunities,
369 or other legal interests of an identifiable person, including agency action to grant, deny, revoke,
370 suspend, modify, annul, withdraw, or amend an authority, right, or license; and
371 (b) judicial review of the action.
372 (2) This chapter does not govern:
373 (a) the procedure for making agency rules, or judicial review of the procedure or rules;
374 (b) the issuance of a notice of a deficiency in the payment of a tax, the decision to
375 waive a penalty or interest on taxes, the imposition of and penalty or interest on taxes, or the
376 issuance of a tax assessment, except that this chapter governs an agency action commenced by
377 a taxpayer or by another person authorized by law to contest the validity or correctness of the
378 action;
379 (c) state agency action relating to extradition, to the granting of a pardon or parole, a
380 commutation or termination of a sentence, or to the rescission, termination, or revocation of
381 parole or probation, to the discipline of, resolution of a grievance of, supervision of,
382 confinement of, or the treatment of an inmate or resident of a correctional facility, the Utah
383 State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction
384 of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or
385 judicial review of the action;
386 (d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a
387 student or teacher in a school or educational institution, or judicial review of the action;
388 (e) an application for employment and internal personnel action within an agency
389 concerning its own employees, or judicial review of the action;
390 (f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah
391 Occupational Safety and Health Act, and Title 58, Occupations and Professions, except that
392 this chapter governs an agency action commenced by the employer, licensee, or other person
393 authorized by law to contest the validity or correctness of the citation or assessment;
394 (g) state agency action relating to management of state funds, the management and
395 disposal of school and institutional trust land assets, and contracts for the purchase or sale of
396 products, real property, supplies, goods, or services by or for the state, or by or for an agency of
397 the state, except as provided in those contracts, or judicial review of the action;
398 (h) state agency action under Title 7, Chapter 1, Part 3, Powers and Duties of
399 Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution
400 by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or
401 Holding Companies, and Title 63G, Chapter 7, Governmental Immunity Act of Utah, or
402 judicial review of the action;
403 (i) the initial determination of a person's eligibility for unemployment benefits, the
404 initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers'
405 Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial
406 determination of a person's unemployment tax liability;
407 (j) state agency action relating to the distribution or award of a monetary grant to or
408 between governmental units, or for research, development, or the arts, or judicial review of the
409 action;
410 (k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah
411 Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservation Act, Title 19,
412 Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19,
413 Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act,
414 Title 19, Chapter 6, Part 4, Underground Storage Tank Act, [
415 Used Oil Management Act, or Title 19, Chapter 6, Part 10, Mercury Switch Removal Act,
416 except that this chapter governs an agency action commenced by a person authorized by law to
417 contest the validity or correctness of the notice or order;
418 (l) state agency action, to the extent required by federal statute or regulation, to be
419 conducted according to federal procedures;
420 (m) the initial determination of a person's eligibility for government or public
421 assistance benefits;
422 (n) state agency action relating to wildlife licenses, permits, tags, and certificates of
423 registration;
424 (o) a license for use of state recreational facilities;
425 (p) state agency action under Title 63G, Chapter 2, Government Records Access and
426 Management Act, except as provided in [
427 (q) state agency action relating to the collection of water commissioner fees and
428 delinquency penalties, or judicial review of the action;
429 (r) state agency action relating to the installation, maintenance, and repair of headgates,
430 caps, values, or other water controlling works and weirs, flumes, meters, or other water
431 measuring devices, or judicial review of the action;
432 (s) the issuance and enforcement of an initial order under Section 73-2-25;
433 (t) (i) a hearing conducted by the Division of Securities under Section 61-1-11.1; and
434 (ii) an action taken by the Division of Securities pursuant to a hearing conducted under
435 Section 61-1-11.1, including a determination regarding the fairness of an issuance or exchange
436 of securities described in Subsection 61-1-11.1(1); and
437 (u) state agency action relating to water well driller licenses, water well drilling
438 permits, water well driller registration, or water well drilling construction standards, or judicial
439 review of the action.
440 (3) This chapter does not affect a legal remedy otherwise available to:
441 (a) compel an agency to take action; or
442 (b) challenge an agency's rule.
443 (4) This chapter does not preclude an agency, prior to the beginning of an adjudicative
444 proceeding, or the presiding officer during an adjudicative proceeding from:
445 (a) requesting or ordering a conference with parties and interested persons to:
446 (i) encourage settlement;
447 (ii) clarify the issues;
448 (iii) simplify the evidence;
449 (iv) facilitate discovery; or
450 (v) expedite the proceeding; or
451 (b) granting a timely motion to dismiss or for summary judgment if the requirements of
452 Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party,
453 except to the extent that the requirements of those rules are modified by this chapter.
454 (5) (a) A declaratory proceeding authorized by Section 63G-4-503 is not governed by
455 this chapter, except as explicitly provided in that section.
456 (b) Judicial review of a declaratory proceeding authorized by Section 63G-4-503 is
457 governed by this chapter.
458 (6) This chapter does not preclude an agency from enacting a rule affecting or
459 governing an adjudicative proceeding or from following the rule, if the rule is enacted
460 according to the procedures outlined in Title 63G, Chapter 3, Utah Administrative Rulemaking
461 Act, and if the rule conforms to the requirements of this chapter.
462 (7) (a) If the attorney general issues a written determination that a provision of this
463 chapter would result in the denial of funds or services to an agency of the state from the federal
464 government, the applicability of the provision to that agency shall be suspended to the extent
465 necessary to prevent the denial.
466 (b) The attorney general shall report the suspension to the Legislature at its next
467 session.
468 (8) Nothing in this chapter may be interpreted to provide an independent basis for
469 jurisdiction to review final agency action.
470 (9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good
471 cause shown, from lengthening or shortening a time period prescribed in this chapter, except
472 the time period established for judicial review.
473 (10) Notwithstanding any other provision of this section, this chapter does not apply to
474 a permit review adjudicative proceeding, as defined in Section 19-1-301.5, except to the extent
475 expressly provided in Section 19-1-301.5.
476 Section 3. Section 63G-4-701 is enacted to read:
477
478 63G-4-701. Title -- Relationship to Utah Expungement Act.
479 (1) This part is known as "Expungement of Administrative Disciplinary Action."
480 (2) The provisions of this part do not affect or supercede the expungement of a record
481 under Title 77, Chapter 40, Utah Expungement Act.
482 (3) The provisions of this part only apply to a state agency that makes records
483 regarding disciplinary action against an eligible petitioner available to the public.
484 Section 4. Section 63G-4-702 is enacted to read:
485 63G-4-702. Definitions.
486 As used in this part:
487 (1) "Administrative expungement" or "expunge" means that a state agency no longer
488 makes a qualifying record available to the public, including through an agency controlled
489 website or other electronic means.
490 (2) (a) "Disciplinary action" means, subject to the limitations described in Section
491 63G-4-102, state agency action against the interest of an individual that affects a legal right,
492 duty, privilege, immunity, or other legal interest of an individual, including agency action to
493 deny, revoke, suspend, modify, annul, withdraw, or amend an authority, right, or license.
494 (b) "Disciplinary action" does not include an investigation, detention, or conviction by
495 law enforcement or a court.
496 (3) "Eligible petitioner" means an individual who was previously the subject of
497 disciplinary action by a state agency but who has:
498 (a) not been convicted of a crime for behavior related to the disciplinary action, unless
499 that criminal conviction has been expunged under Title 77, Chapter 40, Utah Expungement
500 Act;
501 (b) not been the subject of disciplinary action Ĥ→ or a criminal conviction ←Ĥ during
501a the preceding Ĥ→ [
502 (c) at least two years before the date of the application, fully complied with agency
503 requirements regarding previous disciplinary action; and
504 (d) not previously obtained more than one administrative expungement under this part.
505 (4) (a) "Qualifying record" means a record of a state agency that the agency makes
506 available to the public, including through an agency controlled website or other electronic
507 means, regarding disciplinary action that was a final agency action at least three years before an
508 eligible petitioner applies to the agency for expungement of the record under this part.
509 (b) "Qualifying record" does not include a recording, written minutes, or any other
510 record created in compliance with Title 52, Chapter 4, Open and Public Meetings Act.
511 Section 5. Section 63G-4-703 is enacted to read:
512 63G-4-703. Expungement of disciplinary action.
513 (1) Notwithstanding any conflicting provisions of Title 63G, Chapter 2, Government
514 Records Access and Management Act, and except as provided in Subsection (2), within 60
515 days after the day on which an agency receives an application for administrative expungement
516 from an eligible petitioner, the agency shall expunge the qualifying record of the eligible
517 petitioner if:
518 (a) the petitioner applies to the agency for administrative expungement in a form
519 established by agency rule in accordance with Title 63G, Chapter 3, Utah Administrative
520 Rulemaking Act; and
521 (b) the petitioner pays an application fee determined by the agency under Section
522 63J-1-504.
523 (2) Within 60 days after the day on which an agency receives an application for
524 administrative expungement, the agency head, or the agency head's designee, may deny the
525 application if:
526 (a) the petitioner filing the application is not an eligible petitioner;
527 (b) the record identified for administrative expungement is not a qualifying record;
528 (c) the petitioner provides false information on the application;
529 (d) the record for which administrative expungement is sought relates to criminal
530 conduct that resulted in a conviction that has not been expunged in accordance with Title 77,
531 Chapter 40, Utah Expungement Act;
532 (e) the agency head, or the agency head's designee, after Ĥ→ [
532a the public's interest
533 against the petitioner's right to privacy, determines that Ĥ→ [
534 unreasonably endanger the health or safety of the public
534a from administrative expungement outweighs the petitioner's privacy interest ←Ĥ ; or
535 (f) the agency head, or the agency head's designee, determines that the petitioner's
536 behavior was of such Ĥ→ [
536a time is
537 required before administrative expungement is warranted.
538 (3) If the agency head, or the agency head's designee, denies an application for
539 administrative expungement under Subsection (2), the agency shall provide a written
540 explanation of the denial to the petitioner.
541 (4) If the agency does not provide a written explanation of a denial or otherwise
542 respond to a petitioner within 60 days after the day on which the agency receives an application
543 for administrative expungement, the agency shall expunge the qualifying record of an eligible
544 petitioner.
545 (5) An eligible petitioner whose application for administrative expungement is denied
546 as described in Subsection (2) may seek judicial review of the decision in accordance with
547 Section 63G-4-401.
548 (6) Notwithstanding the provisions of this part, a record expunged under this part may
549 be:
550 (a) used by the agency in any manner consistent with agency procedures, if the records
551 are not made available to the public;
552 (b) shared by the agency with law enforcement or a court;
553 (c) shared by the agency with another Ĥ→ state ←Ĥ agency, if that agency agrees
553a to not make the
554 record available to the public; and
555 (d) distributed by the agency as directed by court order.
556 (7) Within three years after the administrative expungement of a record under this part,
557 the agency head, or the agency head's designee, may rescind the administrative expungement of
558 an expunged record if:
559 (a) an additional and final record of disciplinary action is entered against the eligible
560 petitioner; or
561 (b) the agency determines that material information provided in the petitioner's
562 application for administrative expungement was false.
563 (8) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, a
564 state agency may establish rules for the purpose of administering this section, including rules:
565 (a) establishing standards upon which to deny or rescind an administrative
566 expungement under this part; and
567 (b) to notify and accept comments from any individual affected by the behavior that
568 was the basis for the disciplinary action that is the subject of an administrative expungement
569 application under this part.