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7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to public transit districts.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines "large public transit district" for purposes of open meetings provisions and
13 government records provisions;
14 ▸ adds a subcommittee of the board of trustees of a large public transit district to the
15 definition of "public body," for purposes of open meetings laws;
16 ▸ requires a four-fifths vote of the board of trustees or a subcommittee of the board of
17 trustees of a large public transit district in order to close an open meeting;
18 ▸ requires a court to award reasonable attorney fees and court costs to a successful
19 plaintiff in an action against a large public transit district with respect to open
20 meetings law violations;
21 ▸ eliminates an appeal to the chief administrative officer if the appeal is of a large
22 public transit district's denial of a record request;
23 ▸ requires the state records committee to give precedence to an appeal from a large
24 public transit district's denial of a record request;
25 ▸ requires de novo review by the state records committee of an appeal from a large
26 public transit district's denial of a record request and establishes a standard of review for
27 deciding the appeal;
28 ▸ requires the state records committee to award reasonable attorney fees and costs to a
29 successful appellant who appeals a large public transit district's denial of a record
30 request;
31 ▸ modifies the basis upon which a court reviews a records committee order and
32 establishes a standard of review for a records committee order that does not uphold
33 a large public transit district's access denial;
34 ▸ eliminates a large public transit district's authority to adopt an ordinance or policy
35 relating to large public transit district records and makes large public transit districts
36 subject to the state code; and
37 ▸ eliminates a large public transit district's authority to establish its own appeals
38 process relating to record requests.
39 Money Appropriated in this Bill:
40 None
41 Other Special Clauses:
42 None
43 Utah Code Sections Affected:
44 AMENDS:
45 52-4-103, as last amended by Laws of Utah 2016, Chapter 77
46 52-4-204, as last amended by Laws of Utah 2013, Chapter 426
47 52-4-303, as last amended by Laws of Utah 2006, Chapter 263 and renumbered and
48 amended by Laws of Utah 2006, Chapter 14
49 52-4-304, as last amended by Laws of Utah 2008, Chapter 382
50 63G-2-103, as last amended by Laws of Utah 2015, Chapter 265
51 63G-2-400.5, as enacted by Laws of Utah 2015, Chapter 335
52 63G-2-401, as last amended by Laws of Utah 2015, Chapter 335
53 63G-2-403, as last amended by Laws of Utah 2015, Chapter 335
54 63G-2-404, as last amended by Laws of Utah 2015, Chapter 335
55 63G-2-701, as last amended by Laws of Utah 2015, Chapter 335
56
57 Be it enacted by the Legislature of the state of Utah:
58 Section 1. Section 52-4-103 is amended to read:
59 52-4-103. Definitions.
60 As used in this chapter:
61 (1) "Anchor location" means the physical location from which:
62 (a) an electronic meeting originates; or
63 (b) the participants are connected.
64 (2) "Capitol hill complex" means the grounds and buildings within the area bounded by
65 300 North Street, Columbus Street, 500 North Street, and East Capitol Boulevard in Salt Lake
66 City.
67 (3) "Convening" means the calling together of a public body by a person authorized to
68 do so for the express purpose of discussing or acting upon a subject over which that public
69 body has jurisdiction or advisory power.
70 (4) "Electronic meeting" means a public meeting convened or conducted by means of a
71 conference using electronic communications.
72 (5) "Electronic message" means a communication transmitted electronically, including:
73 (a) electronic mail;
74 (b) instant messaging;
75 (c) electronic chat;
76 (d) text messaging as defined in Section 76-4-401; or
77 (e) any other method that conveys a message or facilitates communication
78 electronically.
79 (6) "Large public transit district" means a public transit district under Title 17B,
80 Chapter 2a, Part 8, Public Transit District Act, that has more than 200,000 people residing
81 within the boundary of the public transit district.
82 [
83 a quorum present, including a workshop or an executive session, whether in person or by
84 means of electronic communications, for the purpose of discussing, receiving comments from
85 the public about, or acting upon a matter over which the public body or specific body has
86 jurisdiction or advisory power.
87 (b) "Meeting" does not mean:
88 (i) a chance gathering or social gathering; or
89 (ii) a convening of the State Tax Commission to consider a confidential tax matter in
90 accordance with Section 59-1-405.
91 (c) "Meeting" does not mean the convening of a public body that has both legislative
92 and executive responsibilities if:
93 (i) no public funds are appropriated for expenditure during the time the public body is
94 convened; and
95 (ii) the public body is convened solely for the discussion or implementation of
96 administrative or operational matters:
97 (A) for which no formal action by the public body is required; or
98 (B) that would not come before the public body for discussion or action.
99 [
100 the public statements of each member of the public body who is participating in a meeting.
101 [
102 public body, either verbally or electronically, so that each member of the public body can hear
103 or observe the communication.
104 [
105 (i) any administrative, advisory, executive, or legislative body of the state or [
106 state's political subdivisions that:
107 [
108 [
109 [
110 [
111 business[
112 (ii) a subcommittee of the board of trustees of a large public transit district.
113 (b) "Public body" includes, as defined in Section 11-13-103, an interlocal entity or joint
114 or cooperative undertaking.
115 (c) "Public body" does not include a:
116 (i) political party, political group, or political caucus;
117 (ii) conference committee, rules committee, or sifting committee of the Legislature; or
118 (iii) school community council or charter trust land council as defined in Section
119 53A-1a-108.1.
120 [
121 business of the public body with the intent that all other members of the public body receive it.
122 [
123 unless otherwise defined by applicable law.
124 (b) "Quorum" does not include a meeting of two elected officials by themselves when
125 no action, either formal or informal, is taken on a subject over which these elected officials
126 have advisory power.
127 [
128 proceedings of a meeting that can be used to review the proceedings of the meeting.
129 [
130 (a) means an administrative, advisory, executive, or legislative body that:
131 (i) is not a public body;
132 (ii) consists of three or more members; and
133 (iii) includes at least one member who is:
134 (A) a legislator; and
135 (B) officially appointed to the body by the president of the Senate, speaker of the
136 House of Representatives, or governor; and
137 (b) does not include a body listed in Subsection [
138 [
139 by electronic means.
140 Section 2. Section 52-4-204 is amended to read:
141 52-4-204. Closed meeting held upon vote of members -- Business -- Reasons for
142 meeting recorded.
143 (1) A closed meeting may be held if:
144 (a) (i) a quorum is present;
145 (ii) the meeting is an open meeting for which notice has been given under Section
146 52-4-202; and
147 (iii) (A) two-thirds of the members of the public body present at the open meeting vote
148 to approve closing the meeting;
149 (B) for a meeting that is required to be closed under Section 52-4-205, if a majority of
150 the members of the public body present at an open meeting vote to approve closing the
151 meeting;
152 (C) for an ethics committee of the Legislature that is conducting an open meeting for
153 the purpose of reviewing an ethics complaint, a majority of the members present vote to
154 approve closing the meeting for the purpose of seeking or obtaining legal advice on legal,
155 evidentiary, or procedural matters, or for conducting deliberations to reach a decision on the
156 complaint; [
157 (D) for the Political Subdivisions Ethics Review Commission established in Section
158 11-49-201 that is conducting an open meeting for the purpose of reviewing an ethics complaint
159 in accordance with Section 11-49-701, a majority of the members present vote to approve
160 closing the meeting for the purpose of seeking or obtaining legal advice on legal, evidentiary,
161 or procedural matters, or for conducting deliberations to reach a decision on the complaint; or
162 (E) for a meeting of the board of trustees or a subcommittee of the board of trustees of
163 a large public transit district, four-fifths of the members of the board of trustees or
164 subcommittee, respectively, present at an open meeting vote to approve closing the meeting; or
165 (b) (i) for the Independent Legislative Ethics Commission, the closed meeting is
166 convened for the purpose of conducting business relating to the receipt or review of an ethics
167 complaint, provided that public notice of the closed meeting is given under Section 52-4-202,
168 with the agenda for the meeting stating that the meeting will be closed for the purpose of
169 "conducting business relating to the receipt or review of ethics complaints";
170 (ii) for the Political Subdivisions Ethics Review Commission established in Section
171 11-49-201, the closed meeting is convened for the purpose of conducting business relating to
172 the preliminary review of an ethics complaint in accordance with Section 11-49-602, provided
173 that public notice of the closed meeting is given under Section 52-4-202, with the agenda for
174 the meeting stating that the meeting will be closed for the purpose of "conducting business
175 relating to the review of ethics complaints"; or
176 (iii) for the Independent Executive Branch Ethics Commission created in Section
177 63A-14-202, the closed meeting is convened for the purpose of conducting business relating to
178 an ethics complaint, provided that public notice of the closed meeting is given under Section
179 52-4-202, with the agenda for the meeting stating that the meeting will be closed for the
180 purpose of "conducting business relating to an ethics complaint."
181 (2) A closed meeting is not allowed unless each matter discussed in the closed meeting
182 is permitted under Section 52-4-205.
183 (3) An ordinance, resolution, rule, regulation, contract, or appointment may not be
184 approved at a closed meeting.
185 (4) The following information shall be publicly announced and entered on the minutes
186 of the open meeting at which the closed meeting was approved:
187 (a) the reason or reasons for holding the closed meeting;
188 (b) the location where the closed meeting will be held; and
189 (c) the vote by name, of each member of the public body, either for or against the
190 motion to hold the closed meeting.
191 (5) Except as provided in Subsection 52-4-205(2), nothing in this chapter shall be
192 construed to require any meeting to be closed to the public.
193 Section 3. Section 52-4-303 is amended to read:
194 52-4-303. Enforcement of chapter -- Suit to compel compliance.
195 (1) The attorney general and county attorneys of the state shall enforce this chapter.
196 (2) The attorney general shall, on at least a yearly basis, provide notice to all public
197 bodies that are subject to this chapter of any material changes to the requirements for the
198 conduct of meetings under this chapter.
199 (3) A person denied any right under this chapter may commence suit in a court of
200 competent jurisdiction to:
201 (a) compel compliance with or enjoin violations of this chapter; or
202 (b) determine the chapter's applicability to discussions or decisions of a public body.
203 (4) (a) The court may award reasonable attorney fees and court costs to a successful
204 plaintiff.
205 (b) In an action under this section against a large public transit district, the court shall
206 award reasonable attorney fees and court costs to a successful plaintiff.
207 Section 4. Section 52-4-304 is amended to read:
208 52-4-304. Action challenging closed meeting.
209 (1) Notwithstanding the procedure established under Subsection 63G-2-202(7), in any
210 action brought under the authority of this chapter to challenge the legality of a closed meeting
211 held by a public body, the court shall:
212 (a) review the recording or written minutes of the closed meeting in camera; and
213 (b) decide the legality of the closed meeting.
214 (2) (a) If the judge determines that the public body did not violate Section 52-4-204,
215 52-4-205, or 52-4-206 regarding closed meetings, the judge shall dismiss the case without
216 disclosing or revealing any information from the recording or minutes of the closed meeting.
217 (b) If the judge determines that the public body violated Section 52-4-204, 52-4-205, or
218 52-4-206 regarding closed meetings, the judge shall:
219 (i) publicly disclose or reveal from the recording or minutes of the closed meeting all
220 information about the portion of the meeting that was illegally closed[
221 (ii) award the plaintiff reasonable attorney fees and court costs, if the action was
222 brought to challenge the legality of a closed meeting held by the board of trustees or a
223 subcommittee of the board of trustees of a large public transit district.
224 Section 5. Section 63G-2-103 is amended to read:
225 63G-2-103. Definitions.
226 As used in this chapter:
227 (1) "Audit" means:
228 (a) a systematic examination of financial, management, program, and related records
229 for the purpose of determining the fair presentation of financial statements, adequacy of
230 internal controls, or compliance with laws and regulations; or
231 (b) a systematic examination of program procedures and operations for the purpose of
232 determining their effectiveness, economy, efficiency, and compliance with statutes and
233 regulations.
234 (2) "Chronological logs" mean the regular and customary summary records of law
235 enforcement agencies and other public safety agencies that show:
236 (a) the time and general nature of police, fire, and paramedic calls made to the agency;
237 and
238 (b) any arrests or jail bookings made by the agency.
239 (3) "Classification," "classify," and their derivative forms mean determining whether a
240 record series, record, or information within a record is public, private, controlled, protected, or
241 exempt from disclosure under Subsection 63G-2-201(3)(b).
242 (4) (a) "Computer program" means:
243 (i) a series of instructions or statements that permit the functioning of a computer
244 system in a manner designed to provide storage, retrieval, and manipulation of data from the
245 computer system; and
246 (ii) any associated documentation and source material that explain how to operate the
247 computer program.
248 (b) "Computer program" does not mean:
249 (i) the original data, including numbers, text, voice, graphics, and images;
250 (ii) analysis, compilation, and other manipulated forms of the original data produced by
251 use of the program; or
252 (iii) the mathematical or statistical formulas, excluding the underlying mathematical
253 algorithms contained in the program, that would be used if the manipulated forms of the
254 original data were to be produced manually.
255 (5) (a) "Contractor" means:
256 (i) any person who contracts with a governmental entity to provide goods or services
257 directly to a governmental entity; or
258 (ii) any private, nonprofit organization that receives funds from a governmental entity.
259 (b) "Contractor" does not mean a private provider.
260 (6) "Controlled record" means a record containing data on individuals that is controlled
261 as provided by Section 63G-2-304.
262 (7) "Designation," "designate," and their derivative forms mean indicating, based on a
263 governmental entity's familiarity with a record series or based on a governmental entity's
264 review of a reasonable sample of a record series, the primary classification that a majority of
265 records in a record series would be given if classified and the classification that other records
266 typically present in the record series would be given if classified.
267 (8) "Elected official" means each person elected to a state office, county office,
268 municipal office, school board or school district office, local district office, or special service
269 district office, but does not include judges.
270 (9) "Explosive" means a chemical compound, device, or mixture:
271 (a) commonly used or intended for the purpose of producing an explosion; and
272 (b) that contains oxidizing or combustive units or other ingredients in proportions,
273 quantities, or packing so that:
274 (i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the
275 compound or mixture may cause a sudden generation of highly heated gases; and
276 (ii) the resultant gaseous pressures are capable of:
277 (A) producing destructive effects on contiguous objects; or
278 (B) causing death or serious bodily injury.
279 (10) "Government audit agency" means any governmental entity that conducts an audit.
280 (11) (a) "Governmental entity" means:
281 (i) executive department agencies of the state, the offices of the governor, lieutenant
282 governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole,
283 the Board of Examiners, the National Guard, the Career Service Review Office, the State
284 Board of Education, the State Board of Regents, and the State Archives;
285 (ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal
286 Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative
287 committees, except any political party, group, caucus, or rules or sifting committee of the
288 Legislature;
289 (iii) courts, the Judicial Council, the Office of the Court Administrator, and similar
290 administrative units in the judicial branch;
291 (iv) any state-funded institution of higher education or public education; or
292 (v) any political subdivision of the state, but, if a political subdivision has adopted an
293 ordinance or a policy relating to information practices pursuant to Section 63G-2-701, this
294 chapter shall apply to the political subdivision to the extent specified in Section 63G-2-701 or
295 as specified in any other section of this chapter that specifically refers to political subdivisions.
296 (b) "Governmental entity" also means:
297 (i) every office, agency, board, bureau, committee, department, advisory board, or
298 commission of an entity listed in Subsection (11)(a) that is funded or established by the
299 government to carry out the public's business; and
300 (ii) as defined in Section 11-13-103, an interlocal entity or joint or cooperative
301 undertaking.
302 (c) "Governmental entity" does not include the Utah Educational Savings Plan created
303 in Section 53B-8a-103.
304 (12) "Gross compensation" means every form of remuneration payable for a given
305 period to an individual for services provided including salaries, commissions, vacation pay,
306 severance pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any
307 similar benefit received from the individual's employer.
308 (13) "Individual" means a human being.
309 (14) (a) "Initial contact report" means an initial written or recorded report, however
310 titled, prepared by peace officers engaged in public patrol or response duties describing official
311 actions initially taken in response to either a public complaint about or the discovery of an
312 apparent violation of law, which report may describe:
313 (i) the date, time, location, and nature of the complaint, the incident, or offense;
314 (ii) names of victims;
315 (iii) the nature or general scope of the agency's initial actions taken in response to the
316 incident;
317 (iv) the general nature of any injuries or estimate of damages sustained in the incident;
318 (v) the name, address, and other identifying information about any person arrested or
319 charged in connection with the incident; or
320 (vi) the identity of the public safety personnel, except undercover personnel, or
321 prosecuting attorney involved in responding to the initial incident.
322 (b) Initial contact reports do not include follow-up or investigative reports prepared
323 after the initial contact report. However, if the information specified in Subsection (14)(a)
324 appears in follow-up or investigative reports, it may only be treated confidentially if it is
325 private, controlled, protected, or exempt from disclosure under Subsection 63G-2-201(3)(b).
326 (15) "Large public transit district" means a public transit district under Title 17B,
327 Chapter 2a, Part 8, Public Transit District Act, that has more than 200,000 people residing
328 within the boundary of the public transit district.
329 [
330 [
331 entity has complied with a records committee order.
332 [
333 (a) an individual;
334 (b) a nonprofit or profit corporation;
335 (c) a partnership;
336 (d) a sole proprietorship;
337 (e) other type of business organization; or
338 (f) any combination acting in concert with one another.
339 [
340 entity to provide services directly to the public.
341 [
342 private as provided by Section 63G-2-302.
343 [
344 Section 63G-2-305.
345 [
346 and that is not exempt from disclosure as provided in Subsection 63G-2-201(3)(b).
347 [
348 film, card, tape, recording, electronic data, or other documentary material regardless of physical
349 form or characteristics:
350 (i) that is prepared, owned, received, or retained by a governmental entity or political
351 subdivision; and
352 (ii) where all of the information in the original is reproducible by photocopy or other
353 mechanical or electronic means.
354 (b) "Record" does not mean:
355 (i) a personal note or personal communication prepared or received by an employee or
356 officer of a governmental entity:
357 (A) in a capacity other than the employee's or officer's governmental capacity; or
358 (B) that is unrelated to the conduct of the public's business;
359 (ii) a temporary draft or similar material prepared for the originator's personal use or
360 prepared by the originator for the personal use of an individual for whom the originator is
361 working;
362 (iii) material that is legally owned by an individual in the individual's private capacity;
363 (iv) material to which access is limited by the laws of copyright or patent unless the
364 copyright or patent is owned by a governmental entity or political subdivision;
365 (v) proprietary software;
366 (vi) junk mail or a commercial publication received by a governmental entity or an
367 official or employee of a governmental entity;
368 (vii) a book that is cataloged, indexed, or inventoried and contained in the collections
369 of a library open to the public;
370 (viii) material that is cataloged, indexed, or inventoried and contained in the collections
371 of a library open to the public, regardless of physical form or characteristics of the material;
372 (ix) a daily calendar or other personal note prepared by the originator for the
373 originator's personal use or for the personal use of an individual for whom the originator is
374 working;
375 (x) a computer program that is developed or purchased by or for any governmental
376 entity for its own use;
377 (xi) a note or internal memorandum prepared as part of the deliberative process by:
378 (A) a member of the judiciary;
379 (B) an administrative law judge;
380 (C) a member of the Board of Pardons and Parole; or
381 (D) a member of any other body charged by law with performing a quasi-judicial
382 function;
383 (xii) a telephone number or similar code used to access a mobile communication
384 device that is used by an employee or officer of a governmental entity, provided that the
385 employee or officer of the governmental entity has designated at least one business telephone
386 number that is a public record as provided in Section 63G-2-301;
387 (xiii) information provided by the Public Employees' Benefit and Insurance Program,
388 created in Section 49-20-103, to a county to enable the county to calculate the amount to be
389 paid to a health care provider under Subsection 17-50-319(2)(e)(ii);
390 (xiv) information that an owner of unimproved property provides to a local entity as
391 provided in Section 11-42-205; or
392 (xv) a video or audio recording of an interview, or a transcript of the video or audio
393 recording, that is conducted at a Children's Justice Center established under Section 67-5b-102.
394 [
395 purposes of designation, description, management, or disposition.
396 [
397 Section 63G-2-501.
398 [
399 administrative officer of each governmental entity, or the political subdivision to work with
400 state archives in the care, maintenance, scheduling, designation, classification, disposal, and
401 preservation of records.
402 [
403 specifying the length of time each record series should be retained by a governmental entity for
404 administrative, legal, fiscal, or historical purposes and when each record series should be
405 transferred to the state archives or destroyed.
406 [
407 activities as defined by the federal Executive Office of the President, Office of Management
408 and Budget:
409 (a) conducted:
410 (i) by an institution within the state system of higher education defined in Section
411 53B-1-102; and
412 (ii) through an office responsible for sponsored projects or programs; and
413 (b) funded or otherwise supported by an external:
414 (i) person that is not created or controlled by the institution within the state system of
415 higher education; or
416 (ii) federal, state, or local governmental entity.
417 [
418 created in Section 63A-12-101.
419 [
420 [
421 data derived from private, controlled, or protected information but that do not disclose private,
422 controlled, or protected information.
423 Section 6. Section 63G-2-400.5 is amended to read:
424 63G-2-400.5. Definitions.
425 As used in this part:
426 (1) "Access denial" means a governmental entity's denial, under Subsection
427 63G-2-204(8) or Section 63G-2-205, in whole or in part, of a record request.
428 (2) "Appellate affirmation" means a decision of a chief administrative officer, local
429 appeals board, or records committee affirming an access denial.
430 (3) "Interested party" means a person, other than a requester, who is aggrieved by an
431 access denial or an appellate affirmation, whether or not the person participated in proceedings
432 leading to the access denial or appellate affirmation.
433 (4) "Local appeals board" means an appeals board established by a political subdivision
434 under Subsection 63G-2-701(5)(c).
435 (5) "Record request" means a request for a record under Section 63G-2-204.
436 (6) "Records committee appellant" means:
437 (a) a political subdivision , other than a large public transit district, that seeks to appeal
438 a decision of a local appeals board to the records committee; or
439 (b) a requester or interested party who seeks to appeal to the records committee a
440 decision affirming an access denial.
441 (7) "Requester" means a person who submits a record request to a governmental entity.
442 Section 7. Section 63G-2-401 is amended to read:
443 63G-2-401. Appeal to chief administrative officer -- Notice of the decision of the
444 appeal.
445 (1) (a) A requester or interested party may appeal an access denial to the chief
446 administrative officer of the governmental entity by filing a notice of appeal with the chief
447 administrative officer within 30 days after:
448 (i) the governmental entity sends a notice of denial under Section 63G-2-205, if the
449 governmental entity denies a record request under Subsection 63G-2-205(1); or
450 (ii) the record request is considered denied under Subsection 63G-2-204(8), if that
451 subsection applies.
452 (b) If a governmental entity claims extraordinary circumstances and specifies the date
453 when the records will be available under Subsection 63G-2-204(3), and, if the requester
454 believes the extraordinary circumstances do not exist or that the date specified is unreasonable,
455 the requester may appeal the governmental entity's claim of extraordinary circumstances or date
456 for compliance to the chief administrative officer by filing a notice of appeal with the chief
457 administrative officer within 30 days after notification of a claim of extraordinary
458 circumstances by the governmental entity, despite the lack of a "determination" or its
459 equivalent under Subsection 63G-2-204(8).
460 (2) A notice of appeal shall contain:
461 (a) the name, mailing address, and daytime telephone number of the requester or
462 interested party; and
463 (b) the relief sought.
464 (3) The requester or interested party may file a short statement of facts, reasons, and
465 legal authority in support of the appeal.
466 (4) (a) If the appeal involves a record that is the subject of a business confidentiality
467 claim under Section 63G-2-309, the chief administrative officer shall:
468 (i) send notice of the appeal to the business confidentiality claimant within three
469 business days after receiving notice, except that if notice under this section must be given to
470 more than 35 persons, it shall be given as soon as reasonably possible; and
471 (ii) send notice of the business confidentiality claim and the schedule for the chief
472 administrative officer's determination to the requester or interested party within three business
473 days after receiving notice of the appeal.
474 (b) The business confidentiality claimant shall have seven business days after notice is
475 sent by the administrative officer to submit further support for the claim of business
476 confidentiality.
477 (5) (a) The chief administrative officer shall make a decision on the appeal within:
478 (i) five business days after the chief administrative officer's receipt of the notice of
479 appeal; or
480 (ii) 12 business days after the governmental entity sends the notice of appeal to a person
481 who submitted a claim of business confidentiality.
482 (b) (i) If the chief administrative officer fails to make a decision on an appeal of an
483 access denial within the time specified in Subsection (5)(a), the failure is the equivalent of a
484 decision affirming the access denial.
485 (ii) If the chief administrative officer fails to make a decision on an appeal under
486 Subsection (1)(b) within the time specified in Subsection (5)(a), the failure is the equivalent of
487 a decision affirming the claim of extraordinary circumstances or the reasonableness of the date
488 specified when the records will be available.
489 (c) The provisions of this section notwithstanding, the parties participating in the
490 proceeding may, by agreement, extend the time periods specified in this section.
491 (6) Except as provided in Section 63G-2-406, the chief administrative officer may,
492 upon consideration and weighing of the various interests and public policies pertinent to the
493 classification and disclosure or nondisclosure, order the disclosure of information properly
494 classified as private under Subsection 63G-2-302(2) or protected under Section 63G-2-305 if
495 the interests favoring access are greater than or equal to the interests favoring restriction of
496 access.
497 (7) (a) The governmental entity shall send written notice of the chief administrative
498 officer's decision to all participants.
499 (b) If the chief administrative officer's decision is to affirm the access denial in whole
500 or in part, the notice under Subsection (7)(a) shall include:
501 (i) a statement that the requester or interested party has the right to appeal the decision,
502 as provided in Section 63G-2-402, to:
503 (A) the records committee or district court; or
504 (B) the local appeals board, if the governmental entity is a political subdivision and the
505 governmental entity has established a local appeals board;
506 (ii) the time limits for filing an appeal; and
507 (iii) the name and business address of:
508 (A) the executive secretary of the records committee; and
509 (B) the individual designated as the contact individual for the appeals board, if the
510 governmental entity is a political subdivision that has established an appeals board under
511 Subsection 63G-2-701(5)(c).
512 (8) A person aggrieved by a governmental entity's classification or designation
513 determination under this chapter, but who is not requesting access to the records, may appeal
514 that determination using the procedures provided in this section. If a nonrequester is the only
515 appellant, the procedures provided in this section shall apply, except that the decision on the
516 appeal shall be made within 30 days after receiving the notice of appeal.
517 (9) The duties of the chief administrative officer under this section may be delegated.
518 (10) A large public transit district's denial, in whole or in part, of a record request is not
519 subject to an appeal to a chief administrative officer, as provided in this section, but may be
520 appealed directly to the records committee, as provided in this part.
521 Section 8. Section 63G-2-403 is amended to read:
522 63G-2-403. Appeals to the records committee.
523 (1) (a) A records committee appellant appeals to the records committee by filing a
524 notice of appeal with the executive secretary of the records committee no later than 30 days
525 after:
526 (i) the date of the access denial, for an appeal from a large public transit district's
527 access denial; or
528 (ii) the date of issuance of the decision being appealed , for any other appeal .
529 (b) Notwithstanding Subsection (1)(a), a requester may file a notice of appeal with the
530 executive secretary of the records committee no later than 45 days after the day on which the
531 record request is made if:
532 (i) the circumstances described in Subsection 63G-2-401(1)(b) occur; and
533 (ii) the chief administrative officer fails to make a decision under Section 63G-2-401.
534 (2) The notice of appeal shall:
535 (a) contain the name, mailing address, and daytime telephone number of the records
536 committee appellant;
537 (b) be accompanied by a copy of the decision being appealed; and
538 (c) state the relief sought.
539 (3) The records committee appellant:
540 (a) shall, on the day on which the notice of appeal is filed with the records committee,
541 serve a copy of the notice of appeal on:
542 (i) the governmental entity whose access denial is the subject of the appeal, if the
543 records committee appellant is a requester or interested party; or
544 (ii) the requester or interested party who is a party to the local appeals board
545 proceeding that resulted in the decision that the political subdivision is appealing to the records
546 committee, if the records committee appellant is a political subdivision; and
547 (b) may file a short statement of facts, reasons, and legal authority in support of the
548 appeal.
549 (4) (a) Except as provided in Subsections (4)(b) and (c), no later than seven business
550 days after receiving a notice of appeal, the executive secretary of the records committee shall:
551 (i) schedule a hearing for the records committee to discuss the appeal at the next
552 regularly scheduled committee meeting falling at least 16 days after the date the notice of
553 appeal is filed but no longer than 64 calendar days after the date the notice of appeal was filed
554 except that the records committee may schedule an expedited hearing upon application of the
555 records committee appellant and good cause shown;
556 (ii) send a copy of the notice of hearing to the records committee appellant; and
557 (iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing
558 to:
559 (A) each member of the records committee;
560 (B) the records officer and the chief administrative officer of the governmental entity
561 whose access denial is the subject of the appeal, if the records committee appellant is a
562 requester or interested party;
563 (C) any person who made a business confidentiality claim under Section 63G-2-309 for
564 a record that is the subject of the appeal; and
565 (D) all persons who participated in the proceedings before the governmental entity's
566 chief administrative officer, if the appeal is of the chief administrative officer's decision
567 affirming an access denial.
568 (b) (i) The executive secretary of the records committee may decline to schedule a
569 hearing if the record series that is the subject of the appeal has been found by the committee in
570 a previous hearing involving the same governmental entity to be appropriately classified as
571 private, controlled, or protected.
572 (ii) (A) If the executive secretary of the records committee declines to schedule a
573 hearing, the executive secretary of the records committee shall send a notice to the records
574 committee appellant indicating that the request for hearing has been denied and the reason for
575 the denial.
576 (B) The committee shall make rules to implement this section as provided by Title
577 63G, Chapter 3, Utah Administrative Rulemaking Act.
578 (c) The executive secretary of the records committee may schedule a hearing on an
579 appeal to the records committee at a regularly scheduled records committee meeting that is
580 later than the period described in Subsection (4)(a)(i) if that records committee meeting is the
581 first regularly scheduled records committee meeting at which there are fewer than 10 appeals
582 scheduled to be heard.
583 (d) The records committee shall give precedence to an appeal from a large public
584 transit district's access denial and schedule a hearing as expeditiously as possible.
585 (5) (a) No later than five business days before the hearing, a governmental entity shall
586 submit to the executive secretary of the records committee a written statement of facts, reasons,
587 and legal authority in support of the governmental entity's position.
588 (b) The governmental entity shall send a copy of the written statement by first class
589 mail, postage prepaid, to the requester or interested party involved in the appeal. The executive
590 secretary shall forward a copy of the written statement to each member of the records
591 committee.
592 (6) (a) No later than 10 business days after the notice of appeal is sent by the executive
593 secretary, a person whose legal interests may be substantially affected by the proceeding may
594 file a request for intervention before the records committee.
595 (b) Any written statement of facts, reasons, and legal authority in support of the
596 intervener's position shall be filed with the request for intervention.
597 (c) The person seeking intervention shall provide copies of the statement described in
598 Subsection (6)(b) to all parties to the proceedings before the records committee.
599 (7) The records committee shall hold a hearing within the period of time described in
600 Subsection (4).
601 (8) At the hearing, the records committee shall allow the parties to testify, present
602 evidence, and comment on the issues. The records committee may allow other interested
603 persons to comment on the issues.
604 (9) (a) (i) The records committee:
605 (A) may review the disputed records; and
606 (B) shall review the disputed records, if the committee is weighing the various interests
607 under Subsection (11).
608 (ii) A review of the disputed records under Subsection (9)(a)(i) shall be in camera.
609 (b) Members of the records committee may not disclose any information or record
610 reviewed by the committee in camera unless the disclosure is otherwise authorized by this
611 chapter.
612 (10) (a) Discovery is prohibited, but the records committee may issue subpoenas or
613 other orders to compel production of necessary evidence.
614 (b) When the subject of a records committee subpoena disobeys or fails to comply with
615 the subpoena, the records committee may file a motion for an order to compel obedience to the
616 subpoena with the district court.
617 (c) (i) The records committee's review shall be de novo, if the appeal is an appeal from
618 a decision of a chief administrative officer:
619 (A) issued under Section 63G-2-401; or
620 (B) issued by a chief administrative officer of a political subdivision that has not
621 established a local appeals board.
622 (ii) For an appeal from a decision of a local appeals board, the records committee shall
623 review and consider the decision of the local appeals board.
624 (iii) For an appeal from a large public transit district's access denial:
625 (A) the records committee's review shall be de novo; and
626 (B) the records committee may not uphold the access denial unless there is specific
627 statutory language, clearly applicable to the contested record, that requires nondisclosure of the
628 record.
629 (11) (a) No later than seven business days after the hearing, the records committee shall
630 issue a signed order:
631 (i) granting the relief sought, in whole or in part; or
632 (ii) upholding the governmental entity's access denial, in whole or in part.
633 (b) Except as provided in Section 63G-2-406, the records committee may, upon
634 consideration and weighing of the various interests and public policies pertinent to the
635 classification and disclosure or nondisclosure, order the disclosure of information properly
636 classified as private, controlled, or protected if the public interest favoring access is greater
637 than or equal to the interest favoring restriction of access.
638 (c) In making a determination under Subsection (11)(b), the records committee shall
639 consider and, where appropriate, limit the requester's or interested party's use and further
640 disclosure of the record in order to protect:
641 (i) privacy interests in the case of a private or controlled record;
642 (ii) business confidentiality interests in the case of a record protected under Subsection
643 63G-2-305(1), (2), (40)(a)(ii), or (40)(a)(vi); and
644 (iii) privacy interests or the public interest in the case of other protected records.
645 (12) The order of the records committee shall include:
646 (a) a statement of reasons for the decision, including citations to this chapter, court rule
647 or order, another state statute, federal statute, or federal regulation that governs disclosure of
648 the record, if the citations do not disclose private, controlled, or protected information;
649 (b) a description of the record or portions of the record to which access was ordered or
650 denied, if the description does not disclose private, controlled, or protected information or
651 information exempt from disclosure under Subsection 63G-2-201(3)(b);
652 (c) a statement that any party to the proceeding before the records committee may
653 appeal the records committee's decision to district court; [
654 (d) a brief summary of the appeals process, the time limits for filing an appeal, and a
655 notice that in order to protect its rights on appeal, the party may wish to seek advice from an
656 attorney[
657 (e) for an appeal of a large public transit district's access denial, an award to the records
658 committee appellant of the records committee appellant's reasonable attorney fees and costs
659 incurred in pursuing the appeal, if the records committee order does not uphold the large public
660 transit district's access denial.
661 (13) If the records committee fails to issue a decision within 73 calendar days of the
662 filing of the notice of appeal, that failure is the equivalent of an order denying the appeal. A
663 records committee appellant shall notify the records committee in writing if the records
664 committee appellant considers the appeal denied.
665 (14) (a) A party to a proceeding before the records committee may seek judicial review
666 in district court of a records committee order by filing a petition for review of the records
667 committee order as provided in Section 63G-2-404.
668 (b) A records committee appellant may bring a judicial action in district court seeking
669 enforcement of an award of attorney fees and costs under Subsection (12)(e).
670 (15) (a) Unless a notice of intent to appeal is filed under Subsection (15)(b), each party
671 to the proceeding shall comply with the order of the records committee.
672 (b) If a party disagrees with the order of the records committee, that party may file a
673 notice of intent to appeal the order of the records committee.
674 (c) If the records committee orders the governmental entity to produce a record and no
675 appeal is filed, or if, as a result of the appeal, the governmental entity is required to produce a
676 record, the governmental entity shall:
677 (i) produce the record; and
678 (ii) file a notice of compliance with the records committee.
679 (d) (i) If the governmental entity that is ordered to produce a record fails to file a notice
680 of compliance or a notice of intent to appeal, the records committee may do either or both of
681 the following:
682 (A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or
683 (B) send written notice of the governmental entity's noncompliance to:
684 (I) the governor for executive branch entities;
685 (II) the Legislative Management Committee for legislative branch entities; and
686 (III) the Judicial Council for judicial branch agencies entities.
687 (ii) In imposing a civil penalty, the records committee shall consider the gravity and
688 circumstances of the violation, including whether the failure to comply was due to neglect or
689 was willful or intentional.
690 Section 9. Section 63G-2-404 is amended to read:
691 63G-2-404. Judicial review.
692 (1) (a) A petition for judicial review of an order or decision, as allowed under this part
693 or in Subsection 63G-2-701(6)(a)(ii), shall be filed no later than 30 days after the date of the
694 order or decision.
695 (b) The records committee is a necessary party to a petition for judicial review of a
696 records committee order.
697 (c) The executive secretary of the records committee shall be served with notice of a
698 petition for judicial review of a records committee order, in accordance with the Utah Rules of
699 Civil Procedure.
700 (2) A petition for judicial review is a complaint governed by the Utah Rules of Civil
701 Procedure and shall contain:
702 (a) the petitioner's name and mailing address;
703 (b) a copy of the records committee order from which the appeal is taken, if the
704 petitioner is seeking judicial review of an order of the records committee;
705 (c) the name and mailing address of the governmental entity that issued the initial
706 determination with a copy of that determination;
707 (d) a request for relief specifying the type and extent of relief requested; and
708 (e) a statement of the reasons why the petitioner is entitled to relief.
709 (3) If the [
710 on a claim of business confidentiality, the court shall allow the claimant of business
711 confidentiality to provide to the court the reasons for the claim of business confidentiality.
712 (4) All additional pleadings and proceedings in the district court are governed by the
713 Utah Rules of Civil Procedure.
714 (5) The district court may review the disputed records. The review shall be in camera.
715 (6) The court shall:
716 (a) [
717 petition de novo, but, for a petition seeking judicial review of a records committee order, allow
718 introduction of evidence presented to the records committee; and
719 (ii) decide the petition on the record of the records committee, if the petition seeks
720 review of a records committee order that does not uphold a large public transit district's access
721 denial;
722 (b) for a records committee order that does not uphold a large public transit district's
723 access denial, affirm the records committee's decision unless the decision is clearly illegal or
724 arbitrary;
725 [
726 [
727 (7) (a) Except as provided in Section 63G-2-406, the court may, upon consideration
728 and weighing of the various interests and public policies pertinent to the classification and
729 disclosure or nondisclosure, order the disclosure of information properly classified as private,
730 controlled, or protected if the interest favoring access is greater than or equal to the interest
731 favoring restriction of access.
732 (b) The court shall consider and, where appropriate, limit the requester's use and
733 further disclosure of the record in order to protect privacy interests in the case of private or
734 controlled records, business confidentiality interests in the case of records protected under
735 Subsections 63G-2-305(1) and (2), and privacy interests or the public interest in the case of
736 other protected records.
737 Section 10. Section 63G-2-701 is amended to read:
738 63G-2-701. Political subdivisions may adopt ordinances in compliance with
739 chapter -- Appeal process.
740 (1) As used in this section:
741 (a) "Access denial" means the same as that term is defined in Section 63G-2-400.5.
742 (b) "Interested party" means the same as that term is defined in Section 63G-2-400.5.
743 (c) "Requester" means the same as that term is defined in Section 63G-2-400.5.
744 (2) (a) Each political subdivision , except a large public transit district, may adopt an
745 ordinance or a policy applicable throughout its jurisdiction relating to information practices
746 including classification, designation, access, denials, segregation, appeals, management,
747 retention, and amendment of records.
748 (b) The ordinance or policy shall comply with the criteria set forth in this section.
749 (c) [
750
751 (i) the political subdivision does not adopt and maintain an ordinance or policy; or
752 (ii) the political subdivision is a large public transit district.
753 (d) Notwithstanding the adoption of an ordinance or policy, each political subdivision
754 is subject to Part 1, General Provisions, Part 3, Classification, and Sections 63A-12-105,
755 63A-12-107, 63G-2-201, 63G-2-202, 63G-2-205, 63G-2-206, 63G-2-601, and 63G-2-602.
756 (e) Every ordinance, policy, or amendment to the ordinance or policy shall be filed
757 with the state archives no later than 30 days after its effective date.
758 (f) The political subdivision shall also report to the state archives all retention
759 schedules, and all designations and classifications applied to record series maintained by the
760 political subdivision.
761 (g) The report required by Subsection (2)(f) is notification to state archives of the
762 political subdivision's retention schedules, designations, and classifications. The report is not
763 subject to approval by state archives. If state archives determines that a different retention
764 schedule is needed for state purposes, state archives shall notify the political subdivision of the
765 state's retention schedule for the records and shall maintain the records if requested to do so
766 under Subsection 63A-12-105(2).
767 (3) Each ordinance or policy relating to information practices shall:
768 (a) provide standards for the classification and designation of the records of the
769 political subdivision as public, private, controlled, or protected in accordance with Part 3,
770 Classification;
771 (b) require the classification of the records of the political subdivision in accordance
772 with those standards;
773 (c) provide guidelines for establishment of fees in accordance with Section 63G-2-203;
774 and
775 (d) provide standards for the management and retention of the records of the political
776 subdivision comparable to Section 63A-12-103.
777 (4) (a) Each ordinance or policy shall establish access criteria, procedures, and
778 response times for requests to inspect, obtain, or amend records of the political subdivision,
779 and time limits for appeals consistent with this chapter.
780 (b) In establishing response times for access requests and time limits for appeals, the
781 political subdivision may establish reasonable time frames different than those set out in
782 Section 63G-2-204 and Part 4, Appeals, if it determines that the resources of the political
783 subdivision are insufficient to meet the requirements of those sections.
784 (5) (a) A political subdivision authorized under Subsection (2) to adopt an ordinance or
785 policy shall establish an appeals process for persons aggrieved by classification, designation, or
786 access decisions.
787 (b) A political subdivision's appeals process shall include a process for a requester or
788 interested party to appeal an access denial to a person designated by the political subdivision as
789 the chief administrative officer for purposes of an appeal under Section 63G-2-401.
790 (c) (i) A political subdivision authorized under Subsection (2) to adopt an ordinance or
791 policy may establish an appeals board to decide an appeal of a decision of the chief
792 administrative officer affirming an access denial.
793 (ii) An appeals board established by a political subdivision shall be composed of three
794 members:
795 (A) one of whom shall be an employee of the political subdivision; and
796 (B) two of whom shall be members of the public, at least one of whom shall have
797 professional experience with requesting or managing records.
798 (iii) If a political subdivision establishes an appeals board, any appeal of a decision of a
799 chief administrative officer shall be made to the appeals board.
800 (iv) If a political subdivision does not establish an appeals board, the political
801 subdivision's appeals process shall provide for an appeal of a chief administrative officer's
802 decision to the records committee, as provided in Section 63G-2-403.
803 (6) (a) A political subdivision or requester may appeal an appeals board decision:
804 (i) to the records committee, as provided in Section 63G-2-403; or
805 (ii) by filing a petition for judicial review with the district court.
806 (b) The contents of a petition for judicial review under Subsection (6)(a)(ii) and the
807 conduct of the proceeding shall be in accordance with Sections 63G-2-402 and 63G-2-404.
808 (c) A person who appeals an appeals board decision to the records committee does not
809 lose or waive the right to seek judicial review of the decision of the records committee.
810 (7) Any political subdivision that adopts an ordinance or policy under Subsection (1)
811 shall forward to state archives a copy and summary description of the ordinance or policy.