1     
GOVERNMENT RECORD AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ryan D. Wilcox

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to government records.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the list of records that may be classified as protected to include an
13     employee statement given as part of a governmental entity's investigation into
14     possible wrongdoing, under certain circumstances;
15          ▸     modifies governmental immunity provisions relating to claims for attorney fees and
16     costs under the Government Records Access and Management Act and makes those
17     claims not subject to the Governmental Immunity Act of Utah;
18          ▸     includes costs in what can be claimed in certain proceedings under the Government
19     Records Access and Management Act;
20          ▸     modifies a provision relating to the jurisdiction of the Court of Appeals to exclude a
21     proceeding under the Government Records Access and Management Act that
22     precedes judicial review; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:

30          63G-2-305, as last amended by Laws of Utah 2021, Chapters 148, 179, 231, 353, 373,
31     and 382
32          63G-2-405, as last amended by Laws of Utah 2012, Chapter 377
33          63G-2-802, as last amended by Laws of Utah 2019, Chapter 334
34          63G-7-301, as last amended by Laws of Utah 2020, Chapters 288, 338, and 365
35          63G-7-302, as last amended by Laws of Utah 2008, Chapter 3 and renumbered and
36     amended by Laws of Utah 2008, Chapter 382
37          78A-4-103, as last amended by Laws of Utah 2021, Chapter 130
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 63G-2-305 is amended to read:
41          63G-2-305. Protected records.
42          The following records are protected if properly classified by a governmental entity:
43          (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
44     has provided the governmental entity with the information specified in Section 63G-2-309;
45          (2) commercial information or nonindividual financial information obtained from a
46     person if:
47          (a) disclosure of the information could reasonably be expected to result in unfair
48     competitive injury to the person submitting the information or would impair the ability of the
49     governmental entity to obtain necessary information in the future;
50          (b) the person submitting the information has a greater interest in prohibiting access
51     than the public in obtaining access; and
52          (c) the person submitting the information has provided the governmental entity with
53     the information specified in Section 63G-2-309;
54          (3) commercial or financial information acquired or prepared by a governmental entity
55     to the extent that disclosure would lead to financial speculations in currencies, securities, or
56     commodities that will interfere with a planned transaction by the governmental entity or cause
57     substantial financial injury to the governmental entity or state economy;

58          (4) records, the disclosure of which could cause commercial injury to, or confer a
59     competitive advantage upon a potential or actual competitor of, a commercial project entity as
60     defined in Subsection 11-13-103(4);
61          (5) test questions and answers to be used in future license, certification, registration,
62     employment, or academic examinations;
63          (6) records, the disclosure of which would impair governmental procurement
64     proceedings or give an unfair advantage to any person proposing to enter into a contract or
65     agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
66     Subsection (6) does not restrict the right of a person to have access to, after the contract or
67     grant has been awarded and signed by all parties:
68          (a) a bid, proposal, application, or other information submitted to or by a governmental
69     entity in response to:
70          (i) an invitation for bids;
71          (ii) a request for proposals;
72          (iii) a request for quotes;
73          (iv) a grant; or
74          (v) other similar document; or
75          (b) an unsolicited proposal, as defined in Section 63G-6a-712;
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, recordings, or reports of the closed portion of a meeting of a
203     public body 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 the Legislative Auditor
252     General that would reveal the name of a particular legislator who requests a legislative audit
253     prior to the 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 the 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 Licensing Information System described in Title
269     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 portion of the following documents that contains a candidate's residential or
307     mailing address, if the candidate provides to the filing officer another address or phone number
308     where the candidate may be contacted:
309          (a) a declaration of candidacy, a nomination petition, or a certificate of nomination,

310     described in Section 20A-9-201, 20A-9-202, 20A-9-203, 20A-9-404, 20A-9-405, 20A-9-408,
311     20A-9-408.5, 20A-9-502, or 20A-9-601;
312          (b) an affidavit of impecuniosity, described in Section 20A-9-201; or
313          (c) a notice of intent to gather signatures for candidacy, described in Section
314     20A-9-408;
315          (53) the name, home address, work addresses, and telephone numbers of an individual
316     that is engaged in, or that provides goods or services for, medical or scientific research that is:
317          (a) conducted within the state system of higher education, as defined in Section
318     53B-1-102; and
319          (b) conducted using animals;
320          (54) in accordance with Section 78A-12-203, any record of the Judicial Performance
321     Evaluation Commission concerning an individual commissioner's vote on whether or not to
322     recommend that the voters retain a judge including information disclosed under Subsection
323     78A-12-203(5)(e);
324          (55) information collected and a report prepared by the Judicial Performance
325     Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
326     12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
327     the information or report;
328          (56) records provided or received by the Public Lands Policy Coordinating Office in
329     furtherance of any contract or other agreement made in accordance with Section 63L-11-202;
330          (57) information requested by and provided to the 911 Division under Section
331     63H-7a-302;
332          (58) in accordance with Section 73-10-33:
333          (a) a management plan for a water conveyance facility in the possession of the Division
334     of Water Resources or the Board of Water Resources; or
335          (b) an outline of an emergency response plan in possession of the state or a county or
336     municipality;
337          (59) the following records in the custody or control of the Office of Inspector General

338     of Medicaid Services, created in Section 63A-13-201:
339          (a) records that would disclose information relating to allegations of personal
340     misconduct, gross mismanagement, or illegal activity of a person if the information or
341     allegation cannot be corroborated by the Office of Inspector General of Medicaid Services
342     through other documents or evidence, and the records relating to the allegation are not relied
343     upon by the Office of Inspector General of Medicaid Services in preparing a final investigation
344     report or final audit report;
345          (b) records and audit workpapers to the extent they would disclose the identity of a
346     person who, during the course of an investigation or audit, communicated the existence of any
347     Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or
348     regulation adopted under the laws of this state, a political subdivision of the state, or any
349     recognized entity of the United States, if the information was disclosed on the condition that
350     the identity of the person be protected;
351          (c) before the time that an investigation or audit is completed and the final
352     investigation or final audit report is released, records or drafts circulated to a person who is not
353     an employee or head of a governmental entity for the person's response or information;
354          (d) records that would disclose an outline or part of any investigation, audit survey
355     plan, or audit program; or
356          (e) requests for an investigation or audit, if disclosure would risk circumvention of an
357     investigation or audit;
358          (60) records that reveal methods used by the Office of Inspector General of Medicaid
359     Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or
360     abuse;
361          (61) information provided to the Department of Health or the Division of Occupational
362     and Professional Licensing under Subsections 58-67-304(3) and (4) and Subsections
363     58-68-304(3) and (4);
364          (62) a record described in Section 63G-12-210;
365          (63) captured plate data that is obtained through an automatic license plate reader

366     system used by a governmental entity as authorized in Section 41-6a-2003;
367          (64) any record in the custody of the Utah Office for Victims of Crime relating to a
368     victim, including:
369          (a) a victim's application or request for benefits;
370          (b) a victim's receipt or denial of benefits; and
371          (c) any administrative notes or records made or created for the purpose of, or used to,
372     evaluate or communicate a victim's eligibility for or denial of benefits from the Crime Victim
373     Reparations Fund;
374          (65) an audio or video recording created by a body-worn camera, as that term is
375     defined in Section 77-7a-103, that records sound or images inside a hospital or health care
376     facility as those terms are defined in Section 78B-3-403, inside a clinic of a health care
377     provider, as that term is defined in Section 78B-3-403, or inside a human service program as
378     that term is defined in Section 62A-2-101, except for recordings that:
379          (a) depict the commission of an alleged crime;
380          (b) record any encounter between a law enforcement officer and a person that results in
381     death or bodily injury, or includes an instance when an officer fires a weapon;
382          (c) record any encounter that is the subject of a complaint or a legal proceeding against
383     a law enforcement officer or law enforcement agency;
384          (d) contain an officer involved critical incident as defined in Subsection
385     76-2-408(1)(f); or
386          (e) have been requested for reclassification as a public record by a subject or
387     authorized agent of a subject featured in the recording;
388          (66) a record pertaining to the search process for a president of an institution of higher
389     education described in Section 53B-2-102, except for application materials for a publicly
390     announced finalist;
391          (67) an audio recording that is:
392          (a) produced by an audio recording device that is used in conjunction with a device or
393     piece of equipment designed or intended for resuscitating an individual or for treating an

394     individual with a life-threatening condition;
395          (b) produced during an emergency event when an individual employed to provide law
396     enforcement, fire protection, paramedic, emergency medical, or other first responder service:
397          (i) is responding to an individual needing resuscitation or with a life-threatening
398     condition; and
399          (ii) uses a device or piece of equipment designed or intended for resuscitating an
400     individual or for treating an individual with a life-threatening condition; and
401          (c) intended and used for purposes of training emergency responders how to improve
402     their response to an emergency situation;
403          (68) records submitted by or prepared in relation to an applicant seeking a
404     recommendation by the Research and General Counsel Subcommittee, the Budget
405     Subcommittee, or the Audit Subcommittee, established under Section 36-12-8, for an
406     employment position with the Legislature;
407          (69) work papers as defined in Section 31A-2-204;
408          (70) a record made available to Adult Protective Services or a law enforcement agency
409     under Section 61-1-206;
410          (71) a record submitted to the Insurance Department in accordance with Section
411     31A-37-201;
412          (72) a record described in Section 31A-37-503;
413          (73) any record created by the Division of Occupational and Professional Licensing as
414     a result of Subsection 58-37f-304(5) or 58-37f-702(2)(a)(ii);
415          (74) a record described in Section 72-16-306 that relates to the reporting of an injury
416     involving an amusement ride;
417          (75) except as provided in Subsection 63G-2-305.5(1), the signature of an individual
418     on a political petition, or on a request to withdraw a signature from a political petition,
419     including a petition or request described in the following titles:
420          (a) Title 10, Utah Municipal Code;
421          (b) Title 17, Counties;

422          (c) Title 17B, Limited Purpose Local Government Entities - Local Districts;
423          (d) Title 17D, Limited Purpose Local Government Entities - Other Entities; and
424          (e) Title 20A, Election Code;
425          (76) except as provided in Subsection 63G-2-305.5(2), the signature of an individual in
426     a voter registration record;
427          (77) except as provided in Subsection 63G-2-305.5(3), any signature, other than a
428     signature described in Subsection (75) or (76), in the custody of the lieutenant governor or a
429     local political subdivision collected or held under, or in relation to, Title 20A, Election Code;
430          (78) a Form I-918 Supplement B certification as described in Title 77, Chapter 38, Part
431     5, Victims Guidelines for Prosecutors Act;
432          (79) a record submitted to the Insurance Department under Subsection
433     31A-48-103(1)(b);
434          (80) personal information, as defined in Section 63G-26-102, to the extent disclosure is
435     prohibited under Section 63G-26-103;
436          (81) (a) an image taken of an individual during the process of booking the individual
437     into jail, unless:
438          (i) the individual is convicted of a criminal offense based upon the conduct for which
439     the individual was incarcerated at the time the image was taken;
440          (ii) a law enforcement agency releases or disseminates the image after determining
441     that:
442          (A) the individual is a fugitive or an imminent threat to an individual or to public
443     safety; and
444          (B) releasing or disseminating the image will assist in apprehending the individual or
445     reducing or eliminating the threat; or
446          (iii) a judge orders the release or dissemination of the image based on a finding that the
447     release or dissemination is in furtherance of a legitimate law enforcement interest.
448          (82) a record:
449          (a) concerning an interstate claim to the use of waters in the Colorado River system;

450          (b) relating to a judicial proceeding, administrative proceeding, or negotiation with a
451     representative from another state or the federal government as provided in Section
452     63M-14-205; and
453          (c) the disclosure of which would:
454          (i) reveal a legal strategy relating to the state's claim to the use of the water in the
455     Colorado River system;
456          (ii) harm the ability of the Colorado River Authority of Utah or river commissioner to
457     negotiate the best terms and conditions regarding the use of water in the Colorado River
458     system; or
459          (iii) give an advantage to another state or to the federal government in negotiations
460     regarding the use of water in the Colorado River system; [and]
461          (83) any part of an application described in Section 63N-16-201 that the Governor's
462     Office of Economic Opportunity determines is nonpublic, confidential information that if
463     disclosed would result in actual economic harm to the applicant, but this Subsection (83) may
464     not be used to restrict access to a record evidencing a final contract or approval decision[.]; and
465          (84) a statement that an employee of a governmental entity provides to the
466     governmental entity as part of the governmental entity's personnel or administrative
467     investigation into potential misconduct involving the employee if the governmental entity:
468          (a) requires the statement under threat of employment disciplinary action, including
469     possible termination of employment, for the employee's refusal to provide the statement; and
470          (b) provides the employee assurance that the statement cannot be used against the
471     employee in any criminal proceeding.
472          Section 2. Section 63G-2-405 is amended to read:
473          63G-2-405. Confidential treatment of records for which no exemption applies.
474          (1) A court may, on appeal or in a declaratory or other action, order the confidential
475     treatment of records for which no exemption from disclosure applies if:
476          (a) there are compelling interests favoring restriction of access to the record; and
477          (b) the interests favoring restriction of access clearly are greater than or equal to the

478     interests favoring access.
479          (2) If a governmental entity requests a court to restrict access to a record under this
480     section, the court shall require the governmental entity to pay the reasonable attorney fees and
481     costs incurred by the lead party in opposing the governmental entity's request, if:
482          (a) the court finds that no statutory or constitutional exemption from disclosure could
483     reasonably apply to the record in question; and
484          (b) the court denies confidential treatment under this section.
485          (3) This section does not apply to records that are specifically required to be public
486     under statutory provisions outside of this chapter or under Section 63G-2-301, except as
487     provided in Subsection (4).
488          (4) (a) Access to drafts and empirical data in drafts may be limited under this section,
489     but the court may consider, in its evaluation of interests favoring restriction of access, only
490     those interests that relate to the underlying information, and not to the deliberative nature of the
491     record.
492          (b) Access to original data in a computer program may be limited under this section,
493     but the court may consider, in its evaluation of interests favoring restriction of access, only
494     those interests that relate to the underlying information, and not to the status of that data as part
495     of a computer program.
496          (5) Except for the waiver of immunity in Subsection 63G-7-301(2)(e), a claim for
497     attorney fees or costs under this section is not subject to Chapter 7, Governmental Immunity
498     Act of Utah.
499          Section 3. Section 63G-2-802 is amended to read:
500          63G-2-802. Injunction -- Attorney fees and costs.
501          (1) A district court in this state may enjoin any governmental entity or political
502     subdivision that violates or proposes to violate the provisions of this chapter.
503          (2) (a) A district court may assess against any governmental entity or political
504     subdivision reasonable attorney fees and [other litigation] costs reasonably incurred in
505     connection with a judicial appeal to determine whether a requester is entitled to access to

506     records under a records request, if the requester substantially prevails.
507          (b) In determining whether to award [attorneys' fees] attorney fees or costs under this
508     section, the court shall consider:
509          (i) the public benefit derived from the case;
510          (ii) the nature of the requester's interest in the records; and
511          (iii) whether the governmental entity's or political subdivision's actions had a
512     reasonable basis.
513          (c) Attorney fees and costs shall not ordinarily be awarded if the purpose of the
514     litigation is primarily to benefit the requester's financial or commercial interest.
515          (3) Neither attorney fees nor costs [shall] may be awarded for fees or costs incurred
516     during administrative proceedings.
517          (4) Notwithstanding Subsection (2), a court may only award attorney fees and costs
518     incurred in connection with appeals to district courts under Subsection 63G-2-404(2) if the
519     attorney fees and costs were incurred 20 or more days after the requester provided to the
520     governmental entity or political subdivision a statement of position that adequately explains the
521     basis for the requester's position.
522          (5) [Claims] Except for the waiver of immunity in Subsection 63G-7-301(2)(e), a claim
523     for attorney fees or costs as provided in this section [or for damages are] is not subject to [Title
524     63G,] Chapter 7, Governmental Immunity Act of Utah.
525          Section 4. Section 63G-7-301 is amended to read:
526          63G-7-301. Waivers of immunity.
527          (1) (a) Immunity from suit of each governmental entity is waived as to any contractual
528     obligation.
529          (b) Actions arising out of contractual rights or obligations are not subject to the
530     requirements of Section 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601.
531          (c) The Division of Water Resources is not liable for failure to deliver water from a
532     reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
533     Act, if the failure to deliver the contractual amount of water is due to drought, other natural

534     condition, or safety condition that causes a deficiency in the amount of available water.
535          (2) Immunity from suit of each governmental entity is waived:
536          (a) as to any action brought to recover, obtain possession of, or quiet title to real or
537     personal property;
538          (b) as to any action brought to foreclose mortgages or other liens on real or personal
539     property, to determine any adverse claim on real or personal property, or to obtain an
540     adjudication about any mortgage or other lien that the governmental entity may have or claim
541     on real or personal property;
542          (c) as to any action based on the negligent destruction, damage, or loss of goods,
543     merchandise, or other property while it is in the possession of any governmental entity or
544     employee, if the property was seized for the purpose of forfeiture under any provision of state
545     law;
546          (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
547     Utah Constitution, Article I, Section 22, for the recovery of compensation from the
548     governmental entity when the governmental entity has taken or damaged private property for
549     public uses without just compensation;
550          (e) [subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
551     fees] as to any claim for attorney fees or costs under Sections 63G-2-405 and 63G-2-802;
552          (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
553     Act;
554          (g) as to any action brought to obtain relief from a land use regulation that imposes a
555     substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
556     Land Use Act;
557          (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
558          (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
559     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
560          (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
561     or other public improvement;

562          (i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury
563     proximately caused by a negligent act or omission of an employee committed within the scope
564     of employment; and
565          (j) notwithstanding Subsection 63G-7-101(4), as to a claim for an injury resulting from
566     a sexual battery, as provided in Section 76-9-702.1, committed:
567          (i) against a student of a public elementary or secondary school, including a charter
568     school; and
569          (ii) by an employee of a public elementary or secondary school or charter school who:
570          (A) at the time of the sexual battery, held a position of special trust, as defined in
571     Section 76-5-404.1, with respect to the student;
572          (B) is criminally charged in connection with the sexual battery; and
573          (C) the public elementary or secondary school or charter school knew or in the exercise
574     of reasonable care should have known, at the time of the employee's hiring, to be a sex
575     offender, as defined in Section 77-41-102, required to register under Title 77, Chapter 41, Sex
576     and Kidnap Offender Registry, whose status as a sex offender would have been revealed in a
577     background check under Section 53G-11-402.
578          (3) (a) As used in this Subsection (3):
579          (i) "Code of conduct" means a code of conduct that:
580          (A) is not less stringent than a model code of conduct, created by the State Board of
581     Education, establishing a professional standard of care for preventing the conduct described in
582     Subsection (3)(a)(i)(D);
583          (B) is adopted by the applicable local education governing body;
584          (C) regulates behavior of a school employee toward a student; and
585          (D) includes a prohibition against any sexual conduct between an employee and a
586     student and against the employee and student sharing any sexually explicit or lewd
587     communication, image, or photograph.
588          (ii) "Local education agency" means:
589          (A) a school district;

590          (B) a charter school; or
591          (C) the Utah Schools for the Deaf and the Blind.
592          (iii) "Local education governing board" means:
593          (A) for a school district, the local school board;
594          (B) for a charter school, the charter school governing board; or
595          (C) for the Utah Schools for the Deaf and the Blind, the state board.
596          (iv) "Public school" means a public elementary or secondary school.
597          (v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2).
598          (vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering
599     the term "child" in that section to include an individual under age 18.
600          (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
601     claim against a local education agency for an injury resulting from a sexual battery or sexual
602     abuse committed against a student of a public school by a paid employee of the public school
603     who is criminally charged in connection with the sexual battery or sexual abuse, unless:
604          (i) at the time of the sexual battery or sexual abuse, the public school was subject to a
605     code of conduct; and
606          (ii) before the sexual battery or sexual abuse occurred, the public school had:
607          (A) provided training on the code of conduct to the employee; and
608          (B) required the employee to sign a statement acknowledging that the employee has
609     read and understands the code of conduct.
610          (4) (a) As used in this Subsection (4):
611          (i) "Higher education institution" means an institution included within the state system
612     of higher education under Section 53B-1-102.
613          (ii) "Policy governing behavior" means a policy adopted by a higher education
614     institution or the Utah Board of Higher Education that:
615          (A) establishes a professional standard of care for preventing the conduct described in
616     Subsections (4)(a)(ii)(C) and (D);
617          (B) regulates behavior of a special trust employee toward a subordinate student;

618          (C) includes a prohibition against any sexual conduct between a special trust employee
619     and a subordinate student; and
620          (D) includes a prohibition against a special trust employee and subordinate student
621     sharing any sexually explicit or lewd communication, image, or photograph.
622          (iii) "Sexual battery" means the offense described in Section 76-9-702.1.
623          (iv) "Special trust employee" means an employee of a higher education institution who
624     is in a position of special trust, as defined in Section 76-5-404.1, with a higher education
625     student.
626          (v) "Subordinate student" means a student:
627          (A) of a higher education institution; and
628          (B) whose educational opportunities could be adversely impacted by a special trust
629     employee.
630          (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a
631     claim for an injury resulting from a sexual battery committed against a subordinate student by a
632     special trust employee, unless:
633          (i) the institution proves that the special trust employee's behavior that otherwise would
634     constitute a sexual battery was:
635          (A) with a subordinate student who was at least 18 years old at the time of the
636     behavior; and
637          (B) with the student's consent; or
638          (ii) (A) at the time of the sexual battery, the higher education institution was subject to
639     a policy governing behavior; and
640          (B) before the sexual battery occurred, the higher education institution had taken steps
641     to implement and enforce the policy governing behavior.
642          Section 5. Section 63G-7-302 is amended to read:
643          63G-7-302. Assessment of compensation and damages in an action for taking or
644     damaging private property.
645          [(1)] In any action brought under the authority of Article I, Section 22, of the Utah

646     Constitution for the recovery of compensation from the governmental entity when the
647     governmental entity has taken or damaged private property for public uses without just
648     compensation, compensation and damages shall be assessed according to the requirements of
649     Title 78B, Chapter 6, Part 5, Eminent Domain.
650          [(2) (a) Notwithstanding Section 63G-7-401, a notice of claim for attorney fees under
651     Subsection 63G-7-301(2)(e) may be filed contemporaneously with a petition for review under
652     Section 63G-2-404.]
653          [(b) The provisions of Subsection 63G-7-403(1), relating to the governmental entity's
654     response to a claim, and the provisions of Section 63G-7-601, requiring an undertaking, do not
655     apply to a notice of claim for attorney fees filed contemporaneously with a petition for review
656     under Section 63G-2-404.]
657          [(c) Any other claim under this chapter that is related to a claim for attorney fees under
658     Subsection 63G-7-301(2)(e) may be brought contemporaneously with the claim for attorney
659     fees or in a subsequent action.]
660          Section 6. Section 78A-4-103 is amended to read:
661          78A-4-103. Court of Appeals jurisdiction.
662          (1) As used in this section, "informal adjudicative proceeding" does not include a
663     proceeding under Title 63G, Chapter 2, Part 4, Appeals, that precedes judicial review under
664     Section 63G-2-404.
665          [(1)] (2) The Court of Appeals has jurisdiction to issue all extraordinary writs and to
666     issue all writs and process necessary:
667          (a) to carry into effect its judgments, orders, and decrees; or
668          (b) in aid of its jurisdiction.
669          [(2)] (3) The Court of Appeals has appellate jurisdiction, including jurisdiction of
670     interlocutory appeals, over:
671          (a) (i) a final order or decree resulting from:
672          (A) a formal adjudicative proceeding of a state agency;
673          (B) a special adjudicative proceeding, as described in Section 19-1-301.5; or

674          (C) a hearing before a local school board or the State Board of Education as described
675     in Section 53G-11-515; or
676          (ii) an appeal from the district court review of an informal adjudicative proceeding of
677     an agency other than the following:
678          (A) the Public Service Commission;
679          (B) the State Tax Commission;
680          (C) the School and Institutional Trust Lands Board of Trustees;
681          (D) the Division of Forestry, Fire, and State Lands, for an action reviewed by the
682     executive director of the Department of Natural Resources;
683          (E) the Board of Oil, Gas, and Mining; or
684          (F) the state engineer;
685          (b) appeals from the district court review of:
686          (i) adjudicative proceedings of agencies of political subdivisions of the state or other
687     local agencies; and
688          (ii) a challenge to agency action under Section 63G-3-602;
689          (c) appeals from the juvenile courts;
690          (d) interlocutory appeals from any court of record in criminal cases, except those
691     involving a charge of a first degree or capital felony;
692          (e) appeals from a court of record in criminal cases, except those involving a
693     conviction or charge of a first degree felony or capital felony;
694          (f) appeals from orders on petitions for extraordinary writs sought by persons who are
695     incarcerated or serving any other criminal sentence, except petitions constituting a challenge to
696     a conviction of or the sentence for a first degree or capital felony;
697          (g) appeals from the orders on petitions for extraordinary writs challenging the
698     decisions of the Board of Pardons and Parole except in cases involving a first degree or capital
699     felony;
700          (h) appeals from district court involving domestic relations cases, including, but not
701     limited to, divorce, annulment, property division, child custody, support, parent-time,

702     visitation, adoption, and paternity;
703          (i) appeals from the Utah Military Court; and
704          (j) cases transferred to the Court of Appeals from the Supreme Court.
705          [(3)] (4) The Court of Appeals upon its own motion only and by the vote of four judges
706     of the court may certify to the Supreme Court for original appellate review and determination
707     any matter over which the Court of Appeals has original appellate jurisdiction.
708          [(4)] (5) The Court of Appeals shall comply with the requirements of Title 63G,
709     Chapter 4, Administrative Procedures Act, in its review of agency adjudicative proceedings.