1     
BACKGROUND CHECK MODIFICATIONS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Keith Grover

5     
House Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill requires background checks for certain individuals who have direct contact
10     with children.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     requires an employee, independent contractor, or volunteer who has direct contact
15     with a child to obtain a background check every 60 months, unless otherwise
16     required by state or federal law;
17          ▸     requires a person to obtain a background check for an individual before deciding
18     whether to engage that individual in a position where the individual will have direct
19     contact with children;
20          ▸     classifies certain background check information as a protected record under the
21     Government Records Access and Management Act;
22          ▸     limits the sharing and use of certain background check information; and
23          ▸     makes it a class C misdemeanor for a person who fails to obtain or maintain a
24     background check for an employee, contractor, or volunteer who has direct contact
25     with children.
26     Money Appropriated in this Bill:
27          None

28     Other Special Clauses:
29          None
30     Utah Code Sections Affected:
31     AMENDS:
32          63G-2-302, as last amended by Laws of Utah 2022, Chapters 169, 334
33     ENACTS:
34          80-8-101, Utah Code Annotated 1953
35          80-8-102, Utah Code Annotated 1953
36          80-8-201, Utah Code Annotated 1953
37          80-8-202, Utah Code Annotated 1953
38          80-8-203, Utah Code Annotated 1953
39     

40     Be it enacted by the Legislature of the state of Utah:
41          Section 1. Section 63G-2-302 is amended to read:
42          63G-2-302. Private records.
43          (1) The following records are private:
44          (a) records concerning an individual's eligibility for unemployment insurance benefits,
45     social services, welfare benefits, or the determination of benefit levels;
46          (b) records containing data on individuals describing medical history, diagnosis,
47     condition, treatment, evaluation, or similar medical data;
48          (c) records of publicly funded libraries that when examined alone or with other records
49     identify a patron;
50          (d) records received by or generated by or for:
51          (i) the Independent Legislative Ethics Commission, except for:
52          (A) the commission's summary data report that is required under legislative rule; and
53          (B) any other document that is classified as public under legislative rule; or
54          (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints,
55     unless the record is classified as public under legislative rule;
56          (e) records received by, or generated by or for, the Independent Executive Branch
57     Ethics Commission, except as otherwise expressly provided in Title 63A, Chapter 14, Review
58     of Executive Branch Ethics Complaints;

59          (f) records received or generated for a Senate confirmation committee concerning
60     character, professional competence, or physical or mental health of an individual:
61          (i) if, prior to the meeting, the chair of the committee determines release of the records:
62          (A) reasonably could be expected to interfere with the investigation undertaken by the
63     committee; or
64          (B) would create a danger of depriving a person of a right to a fair proceeding or
65     impartial hearing; and
66          (ii) after the meeting, if the meeting was closed to the public;
67          (g) employment records concerning a current or former employee of, or applicant for
68     employment with, a governmental entity that would disclose that individual's home address,
69     home telephone number, social security number, insurance coverage, marital status, or payroll
70     deductions;
71          (h) records or parts of records under Section 63G-2-303 that a current or former
72     employee identifies as private according to the requirements of that section;
73          (i) that part of a record indicating a person's social security number or federal employer
74     identification number if provided under Section 31A-23a-104, 31A-25-202, 31A-26-202,
75     58-1-301, 58-55-302, 61-1-4, or 61-2f-203;
76          (j) that part of a voter registration record identifying a voter's:
77          (i) driver license or identification card number;
78          (ii) social security number, or last four digits of the social security number;
79          (iii) email address;
80          (iv) date of birth; or
81          (v) phone number;
82          (k) a voter registration record that is classified as a private record by the lieutenant
83     governor or a county clerk under Subsection 20A-2-101.1(5)(a), 20A-2-104(4)(h), or
84     20A-2-204(4)(b);
85          (l) a voter registration record that is withheld under Subsection 20A-2-104(7);
86          (m) a withholding request form described in Subsections 20A-2-104(7) and (8) and any
87     verification submitted in support of the form;
88          (n) a record that:
89          (i) contains information about an individual;

90          (ii) is voluntarily provided by the individual; and
91          (iii) goes into an electronic database that:
92          (A) is designated by and administered under the authority of the Chief Information
93     Officer; and
94          (B) acts as a repository of information about the individual that can be electronically
95     retrieved and used to facilitate the individual's online interaction with a state agency;
96          (o) information provided to the Commissioner of Insurance under:
97          (i) Subsection 31A-23a-115(3)(a);
98          (ii) Subsection 31A-23a-302(4); or
99          (iii) Subsection 31A-26-210(4);
100          (p) information obtained through a criminal background check under Title 11, Chapter
101     40, Criminal Background Checks by Political Subdivisions Operating Water Systems;
102          (q) information provided by an offender that is:
103          (i) required by the registration requirements of Title 77, Chapter 41, Sex and Kidnap
104     Offender Registry or Title 77, Chapter 43, Child Abuse Offender Registry; and
105          (ii) not required to be made available to the public under Subsection 77-41-110(4) or
106     77-43-108(4);
107          (r) a statement and any supporting documentation filed with the attorney general in
108     accordance with Section 34-45-107, if the federal law or action supporting the filing involves
109     homeland security;
110          (s) electronic toll collection customer account information received or collected under
111     Section 72-6-118 and customer information described in Section 17B-2a-815 received or
112     collected by a public transit district, including contact and payment information and customer
113     travel data;
114          (t) an email address provided by a military or overseas voter under Section
115     20A-16-501;
116          (u) a completed military-overseas ballot that is electronically transmitted under Title
117     20A, Chapter 16, Uniform Military and Overseas Voters Act;
118          (v) records received by or generated by or for the Political Subdivisions Ethics Review
119     Commission established in Section 63A-15-201, except for:
120          (i) the commission's summary data report that is required in Section 63A-15-202; and

121          (ii) any other document that is classified as public in accordance with Title 63A,
122     Chapter 15, Political Subdivisions Ethics Review Commission;
123          (w) a record described in Section 53G-9-604 that verifies that a parent was notified of
124     an incident or threat;
125          (x) a criminal background check or credit history report conducted in accordance with
126     Section 63A-3-201;
127          (y) a record described in Subsection 53-5a-104(7);
128          (z) on a record maintained by a county for the purpose of administering property taxes,
129     an individual's:
130          (i) email address;
131          (ii) phone number; or
132          (iii) personal financial information related to a person's payment method;
133          (aa) a record submitted by a taxpayer to establish the taxpayer's eligibility for an
134     exemption, deferral, abatement, or relief under:
135          (i) Title 59, Chapter 2, Part 11, Exemptions, Deferrals, and Abatements;
136          (ii) Title 59, Chapter 2, Part 12, Property Tax Relief;
137          (iii) Title 59, Chapter 2, Part 18, Tax Deferral and Tax Abatement; or
138          (iv) Title 59, Chapter 2, Part 19, Armed Forces Exemptions;
139          (bb) a record provided by the State Tax Commission in response to a request under
140     Subsection 59-1-403(4)(y)(iii);
141          (cc) a record of the Child Welfare Legislative Oversight Panel regarding an individual
142     child welfare case, as described in Subsection 36-33-103(3); [and]
143          (dd) a record relating to drug or alcohol testing of a state employee under Section
144     63A-17-1004[.]; and
145          (ee) a criminal history record under Title 80, Chapter 8, Background Checks.
146          (2) The following records are private if properly classified by a governmental entity:
147          (a) records concerning a current or former employee of, or applicant for employment
148     with a governmental entity, including performance evaluations and personal status information
149     such as race, religion, or disabilities, but not including records that are public under Subsection
150     63G-2-301(2)(b) or 63G-2-301(3)(o) or private under Subsection (1)(b);
151          (b) records describing an individual's finances, except that the following are public:

152          (i) records described in Subsection 63G-2-301(2);
153          (ii) information provided to the governmental entity for the purpose of complying with
154     a financial assurance requirement; or
155          (iii) records that must be disclosed in accordance with another statute;
156          (c) records of independent state agencies if the disclosure of those records would
157     conflict with the fiduciary obligations of the agency;
158          (d) other records containing data on individuals the disclosure of which constitutes a
159     clearly unwarranted invasion of personal privacy;
160          (e) records provided by the United States or by a government entity outside the state
161     that are given with the requirement that the records be managed as private records, if the
162     providing entity states in writing that the record would not be subject to public disclosure if
163     retained by it;
164          (f) any portion of a record in the custody of the Division of Aging and Adult Services,
165     created in Section 62A-3-102, that may disclose, or lead to the discovery of, the identity of a
166     person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult; and
167          (g) audio and video recordings created by a body-worn camera, as defined in Section
168     77-7a-103, that record sound or images inside a home or residence except for recordings that:
169          (i) depict the commission of an alleged crime;
170          (ii) record any encounter between a law enforcement officer and a person that results in
171     death or bodily injury, or includes an instance when an officer fires a weapon;
172          (iii) record any encounter that is the subject of a complaint or a legal proceeding
173     against a law enforcement officer or law enforcement agency;
174          (iv) contain an officer involved critical incident as defined in Subsection
175     76-2-408(1)(f); or
176          (v) have been requested for reclassification as a public record by a subject or
177     authorized agent of a subject featured in the recording.
178          (3) (a) As used in this Subsection (3), "medical records" means medical reports,
179     records, statements, history, diagnosis, condition, treatment, and evaluation.
180          (b) Medical records in the possession of the University of Utah Hospital, its clinics,
181     doctors, or affiliated entities are not private records or controlled records under Section
182     63G-2-304 when the records are sought:

183          (i) in connection with any legal or administrative proceeding in which the patient's
184     physical, mental, or emotional condition is an element of any claim or defense; or
185          (ii) after a patient's death, in any legal or administrative proceeding in which any party
186     relies upon the condition as an element of the claim or defense.
187          (c) Medical records are subject to production in a legal or administrative proceeding
188     according to state or federal statutes or rules of procedure and evidence as if the medical
189     records were in the possession of a nongovernmental medical care provider.
190          Section 2. Section 80-8-101 is enacted to read:
191     
CHAPTER 8. BACKGROUND CHECKS

192     
Part 1. General Provisions

193          80-8-101. Definitions.
194          As used in this chapter:
195          (1) "Administrator" means a person responsible for deciding to engage an individual
196     for a position where the individual will have direct contact with a child.
197          (2) "Bureau" means the Bureau of Criminal Identification created in Section
198     53-10-201.
199          (3) "Criminal history record" means the results from state and federal criminal history
200     background checks performed by the Bureau.
201          (4) "Direct contact with a child" means:
202          (a) the care, supervision, guidance, or control of a qualifying child; or
203          (b) routine interaction with a qualifying child.
204          (5) "Engage" means to employ, contract with, or select as a volunteer.
205          (6) "Qualifying child" means a child of someone other than the individual who has
206     direct contact with the child.
207          (7) "Qualifying individual" means an individual who, as an employee, independent
208     contractor, or volunteer, has direct contact with a qualifying child.
209          (8) "Routine interaction" means regular and repeated contact that is integral to an
210     individual's employment, contract, or volunteer responsibilities.
211          Section 3. Section 80-8-102 is enacted to read:
212          80-8-102. Use of information.
213          An administrator may not:

214          (1) disclose the contents of a criminal history record provided under this chapter to
215     anyone who is not directly involved in considering whether to engage the individual who is the
216     subject of the report; or
217          (2) use the information in a criminal history record for any purpose other than
218     considering whether to engage the individual who is the subject of the report.
219          Section 4. Section 80-8-201 is enacted to read:
220     
Part 2. Background Checks

221          80-8-201. Criminal background checks required.
222          (1) Except as provided in Subsection (5), by no later than December 31, 2023, a
223     qualifying individual shall submit a copy of the individual's criminal history record to the
224     administrator for the qualifying individual's position.
225          (2) Except as provided in Subsection (6), beginning December 31, 2023:
226          (a) an individual who seeks to be engaged for a position that would make the
227     individual a qualifying individual shall provide a copy of the individual's criminal history
228     record to the administrator for that position; and
229          (b) before engaging an individual for a role that would make the individual a qualifying
230     individual, an administrator shall require the individual to submit a copy of the individual's
231     criminal history record to the administrator.
232          (3) Except as provided in Subsection (6), an administrator shall maintain a copy of
233     each criminal history record provided to the administrator under Subsections (1) and (2).
234          (4) (a) A qualifying individual who is required to submit a criminal history record
235     under this section shall:
236          (i) submit to the Bureau a criminal history record application prescribed by the Bureau;
237     and
238          (ii) pay an application fee as determined by the Bureau under Section 63J-1-504.
239          (b) For a completed application submitted under Subsection (4)(a), the Bureau shall:
240          (i) check state criminal background databases for the individual's criminal history;
241          (ii) check national criminal background databases for the individual's criminal history;
242     and
243          (iii) provide the individual a copy of the individual's criminal history record.
244          (5) A qualifying individual who was subject to a state and federal criminal background

245     check related to the qualifying individual's position on or after December 31, 2018, and who is
246     not subject to Subsection (6), shall submit an updated criminal history record in accordance
247     with Section 80-8-202.
248          (6) (a) Subsection (2)(a) does not apply to an individual who is otherwise required by
249     state or federal law to complete a state and federal criminal background check in relation to the
250     position for which the individual seeks to be engaged.
251          (b) Subsections (2)(b) and (3) do not apply to an administrator who is otherwise
252     required by federal or state law to complete a state and federal criminal background check for
253     an individual who is being considered for a position where the individual will have direct
254     contact with a child.
255          Section 5. Section 80-8-202 is enacted to read:
256          80-8-202. Background check renewal.
257          (1) A qualifying individual who is subject to Subsection 80-8-201(1) or 80-8-201(2)(a)
258     shall submit to the qualifying individual's administrator an updated criminal history record no
259     later than 60 months after the date of the qualifying individual's most recent criminal history
260     record.
261          (2) An administrator who is subject to Subsection 80-8-201(2)(b) shall require each
262     qualifying individual engaged by the administrator to submit an updated criminal history record
263     to the administrator no later than 60 months after the date of the qualifying individual's most
264     recent criminal history record.
265          Section 6. Section 80-8-203 is enacted to read:
266          80-8-203. Penalty.
267          (1) Terms defined in Section 76-1-101.5 apply to this section.
268          (2) It is unlawful for a person who is subject to Subsection 80-8-201(2)(b) to:
269          (a) willfully fail to require an individual to submit the individual's criminal history
270     record before engaging the individual for a position where the individual will have direct
271     contact with a child; or
272          (b) willfully fail to maintain a copy of information submitted to the person under
273     Subsection 80-8-201(1) or 80-8-201(2)(a).
274          (3) A person who violates Subsection (2) is guilty of a class C misdemeanor.