Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 266 First Substitute (2024GS)

Sponsor

Rep. Loubet, A.

Final action

Governor Signed 3/19/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• modifies a provision relating to government records ombudsman mediation of disputes between requesters and responders;
• requires the government records ombudsman to certify the conclusion of certain mediations;
• requires a notice of access denial to include a statement relating to the requester's right to request mediation; and
• suspends a requester's time to file a notice of appeal for a specified time if the requester has requested mediation.

Every vote on this bill

Bill text

GOVERNMENT RECORDS OMBUDSMAN AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Anthony E. Loubet
Senate Sponsor: 
 Curtis S. Bramble
LONG TITLE
General Description:
This bill modifies provisions relating to government records.
Highlighted Provisions:
This bill:
▸ modifies a provision relating to government records ombudsman mediation of
disputes between requesters and responders;
▸ requires the government records ombudsman to certify the conclusion of certain
mediations;
▸ requires a notice of access denial to include a statement relating to the requester's
right to request mediation; and
▸ suspends a requester's time to file a notice of appeal for a specified time if the
requester has requested mediation.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63A-12-111
, as last amended by Laws of Utah 2019, Chapter 254
63G-2-203
, as last amended by Laws of Utah 2022, Chapter 128
63G-2-205
, as renumbered and amended by Laws of Utah 2008, Chapter 382
63G-2-401
, as last amended by Laws of Utah 2019, Chapters 254, 334
63G-2-403
, as last amended by Laws of Utah 2019, Chapter 254
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
63A-12-111
 is amended to read:
63A-12-111.
Government records ombudsman.
(1) (a) The director of the division shall appoint a government records ombudsman.
(b) The government records ombudsman may not be a member of the State Records
Committee created in Section 
63G-2-501
.
(2) The government records ombudsman shall:
(a) be familiar with the provisions of Title 63G, Chapter 2, Government Records
Access and Management Act;
(b) serve as a resource for a person who is making or responding to a records request or
filing an appeal relating to a records request;
[
(c) upon request, attempt to mediate disputes between requestors and responders; and
]
(c) upon a request from a requester or responder, and with the consent of both the
requester and responder, mediate a dispute between a requester and responder, including a
dispute between a requester and a governmental entity regarding the governmental entity's
access denial, as defined in Section 
63G-2-400.5
; and
(d) on an annual basis, electronically transmit a written report to the Government
Operations Interim Committee on the work performed by the government records ombudsman
during the previous year.
(3) The government records ombudsman may not testify, or be compelled to testify,
before the State Records Committee created in Section 
63G-2-501
, another administrative
body, or a court regarding a matter that the government records ombudsman provided services
in relation to under this section.
(4) Upon the conclusion of a mediation under Subsection (2)(c) or upon the
government records ombudsman's determination that the required consent for the mediation is
lacking, the government records ombudsman shall:
(a) certify in writing that the mediation:
(i) is concluded; or
(ii) did not take place because of a lack of the required consent; and
(b) provide a copy of the written certification to the requester and the responder.
Section 2. Section 
63G-2-203
 is amended to read:
63G-2-203.
Fees.
(1) (a) Subject to Subsection (5), a governmental entity may charge a reasonable fee to
cover the governmental entity's actual cost of providing a record.
(b) A fee under Subsection (1)(a) shall be approved by the governmental entity's
executive officer.
(2) (a) When a governmental entity compiles a record in a form other than that
normally maintained by the governmental entity, the actual costs under this section may include
the following:
(i) the cost of staff time for compiling, formatting, manipulating, packaging,
summarizing, or tailoring the record either into an organization or media to meet the person's
request;
(ii) the cost of staff time for search, retrieval, and other direct administrative costs for
complying with a request; and
(iii) in the case of fees for a record that is the result of computer output other than word
processing, the actual incremental cost of providing the electronic services and products
together with a reasonable portion of the costs associated with formatting or interfacing the
information for particular users, and the administrative costs as set forth in Subsections
(2)(a)(i) and (ii).
(b) An hourly charge under Subsection (2)(a) may not exceed the salary of the lowest
paid employee who, in the discretion of the custodian of records, has the necessary skill and
training to perform the request.
(3) (a) Fees shall be established as provided in this Subsection (3).
(b) A governmental entity with fees established by the Legislature:
(i) shall establish the fees defined in Subsection (2), or other actual costs associated
with this section through the budget process; and
(ii) may use the procedures of Section 
63J-1-504
 to set fees until the Legislature
establishes fees through the budget process.
(c) Political subdivisions shall establish fees by ordinance or written formal policy
adopted by the governing body.
(d) The judiciary shall establish fees by rules of the judicial council.
(4) A governmental entity may fulfill a record request without charge and is
encouraged to do so if it determines that:
(a) releasing the record primarily benefits the public rather than a person;
(b) the individual requesting the record is the subject of the record, or an individual
specified in Subsection 
63G-2-202
(1) or (2); or
(c) the requester's legal rights are directly implicated by the information in the record,
and the requester is impecunious.
(5) (a) As used in this Subsection (5), "media representative":
(i) means a person who requests a record to obtain information for a story or report for
publication or broadcast to the general public; and
(ii) does not include a person who requests a record to obtain information for a blog,
podcast, social media account, or other means of mass communication generally available to a
member of the public.
(b) A governmental entity may not charge a fee for:
(i) reviewing a record to determine whether it is subject to disclosure, except as
permitted by Subsection (2)(a)(ii);
(ii) inspecting a record; or
(iii) the first quarter hour of staff time spent in responding to a request under Section
63G-2-204
.
(c) Notwithstanding Subsection (5)(b)(iii), a governmental entity is not prevented from
charging a fee for the first quarter hour of staff time spent in responding to a request under
Section 
63G-2-204
 if the person who submits the request:
(i) is not a Utah media representative; and
(ii) previously submitted a separate request within the 10-day period immediately
before the date of the request to which the governmental entity is responding.
(6) (a) A person who believes that there has been an unreasonable denial of a fee
waiver under Subsection (4) may
:
(i) seek mediation of the fee dispute under Subsection 
63A-12-111
(2)(c); and
(ii)
 appeal the denial in the same manner as a person appeals when inspection of a
public record is denied under Section 
63G-2-205
.
(b) The adjudicative body hearing [
the
] 
an
 appeal 
under Subsection (6)(a)(ii)
:
(i) shall review the fee waiver de novo, but shall review and consider the governmental
entity's denial of the fee waiver and any determination under Subsection (4); and
(ii) has the same authority when a fee waiver or reduction is denied as it has when the
inspection of a public record is denied.
(7) (a) All fees received under this section by a governmental entity subject to
Subsection (3)(b) shall be retained by the governmental entity as a dedicated credit.
(b) Those funds shall be used to recover the actual cost and expenses incurred by the
governmental entity in providing the requested record or record series.
(8) (a) A governmental entity may require payment of past fees and future estimated
fees before beginning to process a request if:
(i) fees are expected to exceed $50; or
(ii) the requester has not paid fees from previous requests.
(b) Any prepaid amount in excess of fees due shall be returned to the requester.
(9) This section does not alter, repeal, or reduce fees established by other statutes or
legislative acts.
(10) (a) Notwithstanding Subsection (3)(c), fees for voter registration records shall be
set as provided in this Subsection (10).
(b) The lieutenant governor shall:
(i) after consultation with county clerks, establish uniform fees for voter registration
and voter history records that meet the requirements of this section; and
(ii) obtain legislative approval of those fees by following the procedures and
requirements of Section 
63J-1-504
.
Section 3. Section 
63G-2-205
 is amended to read:
63G-2-205.
Denials.
(1) If [
the
] 
a
 governmental entity denies [
the
] 
a record
 request
,
 in whole or part, [
it
] 
the
governmental entity
 shall provide a notice of denial to the requester either in person or by
sending the notice to the requester's address.
(2) The notice of denial shall contain the following information:
(a) a description of the record or portions of the record to which access was denied,
provided that the description does not disclose private, controlled, or protected information or
information exempt from disclosure under Subsection 
63G-2-201
(3)(b);
(b) citations to the provisions of this chapter, court rule or order, another state statute,
federal statute, or federal regulation that exempt the record or portions of the record from
disclosure, provided that the citations do not disclose private, controlled, or protected
information or information exempt from disclosure under Subsection 
63G-2-201
(3)(b);
(c) 
(i)
 a statement that the requester has the right to appeal the denial to the chief
administrative officer of the governmental entity; and
[
(d)
] 
(ii)
 the time limits for filing an appeal, and the name and business address of the
chief administrative officer of the governmental entity[
.
]
; and
(d) a statement that the requester has a right under Section 
63A-12-111
 to request the
government records ombudsman to mediate the dispute between the requester and the
governmental entity.
(3) Unless otherwise required by a court or agency of competent jurisdiction, a
governmental entity may not destroy or give up custody of any record to which access was
denied until the period for an appeal has expired or the end of the appeals process, including
judicial appeal.
Section 4. Section 
63G-2-401
 is amended to read:
63G-2-401.
 Appeal to chief administrative officer -- Notice of the decision of the
appeal.
(1) (a) A requester or interested party may appeal an access denial 
or the denial of a fee
waiver under Subsection 
63G-2-203
(4)
 to the chief administrative officer of the governmental
entity by filing a notice of appeal with the chief administrative officer within 30 days after:
(i) 
for an access denial:
(A)
 the governmental entity sends a notice of denial under Section 
63G-2-205
, if the
governmental entity denies a record request under Subsection 
63G-2-205
(1); or
[
(ii)
] 
(B)
 the record request is considered denied under Subsection 
63G-2-204
(9), if
that subsection applies[
.
]
; or
(ii) for a denial of a fee waiver, the date the governmental entity notifies the requester
that the fee waiver is denied.
(b) The time for a requester to file a notice of appeal under Subsection (1)(a) is
suspended for the period of time that:
(i) begins the date the requester submits a request under Section 
63A-12-111
 for the
government records ombudsman to mediate the dispute between the requester and the
governmental entity; and
(ii) ends the earliest of the following dates:
(A) the date that the government records ombudsman certifies in writing that the
mediation is concluded;
(B) the date that the government records ombudsman certifies in writing that the
mediation did not occur because of a lack of consent to the mediation; and
(C) the date that is 30 days after the date described in Subsection (1)(b)(i).
[
(b)
] 
(c)
 If a governmental entity claims extraordinary circumstances and specifies the
date when the records will be available under Subsection 
63G-2-204
(4), and, if the requester
believes the extraordinary circumstances do not exist or that the date specified is unreasonable,
the requester may appeal the governmental entity's claim of extraordinary circumstances or date
for compliance to the chief administrative officer by filing a notice of appeal with the chief
administrative officer within 30 days after notification of a claim of extraordinary
circumstances by the governmental entity, despite the lack of a "determination" or its
equivalent under Subsection 
63G-2-204
(9).
(2) A notice of appeal shall contain:
(a) the name, mailing address, and daytime telephone number of the requester or
interested party; and
(b) the relief sought.
(3) The requester or interested party may file a short statement of facts, reasons, and
legal authority in support of the appeal.
(4) (a) If the appeal involves a record that is the subject of a business confidentiality
claim under Section 
63G-2-309
, the chief administrative officer shall:
(i) send notice of the appeal to the business confidentiality claimant within three
business days after receiving notice, except that if notice under this section must be given to
more than 35 persons, it shall be given as soon as reasonably possible; and
(ii) send notice of the business confidentiality claim and the schedule for the chief
administrative officer's determination to the requester or interested party within three business
days after receiving notice of the appeal.
(b) The business confidentiality claimant shall have seven business days after notice is
sent by the administrative officer to submit further support for the claim of business
confidentiality.
(5) (a) The chief administrative officer shall make a decision on the appeal within:
(i) (A) 10 business days after the chief administrative officer's receipt of the notice of
appeal; or
(B) five business days after the chief administrative officer's receipt of the notice of
appeal, if the requester or interested party demonstrates that an expedited decision benefits the
public rather than the requester or interested party; or
(ii) 12 business days after the governmental entity sends the notice of appeal to a
person who submitted a claim of business confidentiality.
(b) (i) If the chief administrative officer fails to make a decision on an appeal of an
access denial within the time specified in Subsection (5)(a), the failure is the equivalent of a
decision affirming the access denial.
(ii) If the chief administrative officer fails to make a decision on an appeal under
Subsection [
(1)(b)
] 
(1)(c)
 within the time specified in Subsection (5)(a), the failure is the
equivalent of a decision affirming the claim of extraordinary circumstances or the
reasonableness of the date specified when the records will be available.
(c) The provisions of this section notwithstanding, the parties participating in the
proceeding may, by agreement, extend the time periods specified in this section.
(6) Except as provided in Section 
63G-2-406
, the chief administrative officer may,
upon consideration and weighing of the various interests and public policies pertinent to the
classification and disclosure or nondisclosure, order the disclosure of information properly
classified as private under Subsection 
63G-2-302
(2) or protected under Section 
63G-2-305
 if
the interests favoring access are greater than or equal to the interests favoring restriction of
access.
(7) (a) The governmental entity shall send written notice of the chief administrative
officer's decision to all participants.
(b) If the chief administrative officer's decision is to affirm the access denial in whole
or in part, the notice under Subsection (7)(a) shall include:
(i) a statement that the requester or interested party has the right to appeal the decision,
as provided in Section 
63G-2-402
, to:
(A) the State Records Committee or district court; or
(B) the local appeals board, if the governmental entity is a political subdivision and the
governmental entity has established a local appeals board;
(ii) the time limits for filing an appeal; and
(iii) the name and business address of:
(A) the executive secretary of the State Records Committee; and
(B) the individual designated as the contact individual for the appeals board, if the
governmental entity is a political subdivision that has established an appeals board under
Subsection 
63G-2-701
(5)(c).
(8) A person aggrieved by a governmental entity's classification or designation
determination under this chapter, but who is not requesting access to the records, may appeal
that determination using the procedures provided in this section. If a nonrequester is the only
appellant, the procedures provided in this section shall apply, except that the decision on the
appeal shall be made within 30 days after receiving the notice of appeal.
(9) The duties of the chief administrative officer under this section may be delegated.
Section 5. Section 
63G-2-403
 is amended to read:
63G-2-403.
Appeals to the State Records Committee.
(1) (a) A records committee appellant appeals to the State Records Committee by filing
a notice of appeal with the executive secretary of the State Records Committee no later than 30
days after the date of issuance of the decision being appealed.
(b) Notwithstanding Subsection (1)(a), a requester may file a notice of appeal with the
executive secretary of the State Records Committee no later than 45 days after the day on
which the record request is made if:
(i) the circumstances described in Subsection 
63G-2-401
(1)[
(b)
] 
(c)
 occur; and
(ii) the chief administrative officer fails to make a decision under Section 
63G-2-401
.
(2) The notice of appeal shall:
(a) contain the name, mailing address, and daytime telephone number of the records
committee appellant;
(b) be accompanied by a copy of the decision being appealed; and
(c) state the relief sought.
(3) The records committee appellant:
(a) shall, on the day on which the notice of appeal is filed with the State Records
Committee, serve a copy of the notice of appeal on:
(i) the governmental entity whose access denial is the subject of the appeal, if the
records committee appellant is a requester or interested party; or
(ii) the requester or interested party who is a party to the local appeals board
proceeding that resulted in the decision that the political subdivision is appealing to the
committee, if the records committee appellant is a political subdivision; and
(b) may file a short statement of facts, reasons, and legal authority in support of the
appeal.
(4) (a) Except as provided in Subsections (4)(b) and (c), no later than seven business
days after receiving a notice of appeal, the executive secretary of the State Records Committee
shall:
(i) schedule a hearing for the State Records Committee to discuss the appeal at the next
regularly scheduled committee meeting falling at least 16 days after the date the notice of
appeal is filed but no longer than 64 calendar days after the date the notice of appeal was filed
except that the committee may schedule an expedited hearing upon application of the records
committee appellant and good cause shown;
(ii) send a copy of the notice of hearing to the records committee appellant; and
(iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing
to:
(A) each member of the State Records Committee;
(B) the records officer and the chief administrative officer of the governmental entity
whose access denial is the subject of the appeal, if the records committee appellant is a
requester or interested party;
(C) any person who made a business confidentiality claim under Section 
63G-2-309
 for
a record that is the subject of the appeal; and
(D) all persons who participated in the proceedings before the governmental entity's
chief administrative officer, if the appeal is of the chief administrative officer's decision
affirming an access denial.
(b) (i) The executive secretary of the State Records Committee may decline to schedule
a hearing if the record series that is the subject of the appeal has been found by the committee
in a previous hearing involving the same governmental entity to be appropriately classified as
private, controlled, or protected.
(ii) (A) If the executive secretary of the State Records Committee declines to schedule
a hearing, the executive secretary shall send a notice to the records committee appellant
indicating that the request for hearing has been denied and the reason for the denial.
(B) The State Records Committee shall make rules to implement this section as
provided by Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) The executive secretary of the State Records Committee may schedule a hearing on
an appeal to the State Records Committee at a regularly scheduled State Records Committee
meeting that is later than the period described in Subsection (4)(a)(i) if that committee meeting
is the first regularly scheduled State Records Committee meeting at which there are fewer than
10 appeals scheduled to be heard.
(5) (a) No later than five business days before the hearing, a governmental entity shall
submit to the executive secretary of the State Records Committee a written statement of facts,
reasons, and legal authority in support of the governmental entity's position.
(b) The governmental entity shall send a copy of the written statement by first class
mail, postage prepaid, to the requester or interested party involved in the appeal. The executive
secretary shall forward a copy of the written statement to each member of the State Records
Committee.
(6) (a) No later than 10 business days after the day on which the executive secretary
sends the notice of appeal, a person whose legal interests may be substantially affected by the
proceeding may file a request for intervention with the State Records Committee.
(b) Any written statement of facts, reasons, and legal authority in support of the
intervener's position shall be filed with the request for intervention.
(c) The person seeking intervention shall provide copies of the statement described in
Subsection (6)(b) to all parties to the proceedings before the State Records Committee.
(7) The State Records Committee shall hold a hearing within the period of time
described in Subsection (4).
(8) At the hearing, the State Records Committee shall allow the parties to testify,
present evidence, and comment on the issues. The committee may allow other interested
persons to comment on the issues.
(9) (a) (i) The State Records Committee:
(A) may review the disputed records; and
(B) shall review the disputed records, if the committee is weighing the various interests
under Subsection (11).
(ii) A review of the disputed records under Subsection (9)(a)(i) shall be in camera.
(b) Members of the State Records Committee may not disclose any information or
record reviewed by the committee in camera unless the disclosure is otherwise authorized by
this chapter.
(10) (a) Discovery is prohibited, but the State Records Committee may issue subpoenas
or other orders to compel production of necessary evidence.
(b) When the subject of a State Records Committee subpoena disobeys or fails to
comply with the subpoena, the committee may file a motion for an order to compel obedience
to the subpoena with the district court.
(c) (i) The State Records Committee's review shall be de novo, if the appeal is an
appeal from a decision of a chief administrative officer:
(A) issued under Section 
63G-2-401
; or
(B) issued by a chief administrative officer of a political subdivision that has not
established a local appeals board.
(ii) For an appeal from a decision of a local appeals board, the State Records
Committee shall review and consider the decision of the local appeals board.
(11) (a) No later than seven business days after the hearing, the State Records
Committee shall issue a signed order:
(i) granting the relief sought, in whole or in part; or
(ii) upholding the governmental entity's access denial, in whole or in part.
(b) Except as provided in Section 
63G-2-406
, the State Records Committee may, upon
consideration and weighing of the various interests and public policies pertinent to the
classification and disclosure or nondisclosure, order the disclosure of information properly
classified as private, controlled, or protected if the public interest favoring access is greater
than or equal to the interest favoring restriction of access.
(c) In making a determination under Subsection (11)(b), the State Records Committee
shall consider and, where appropriate, limit the requester's or interested party's use and further
disclosure of the record in order to protect:
(i) privacy interests in the case of a private or controlled record;
(ii) business confidentiality interests in the case of a record protected under Subsection
63G-2-305
(1), (2), (40)(a)(ii), or (40)(a)(vi); and
(iii) privacy interests or the public interest in the case of other protected records.
(12) The order of the State Records Committee shall include:
(a) a statement of reasons for the decision, including citations to this chapter, court rule
or order, another state statute, federal statute, or federal regulation that governs disclosure of
the record, if the citations do not disclose private, controlled, or protected information;
(b) a description of the record or portions of the record to which access was ordered or
denied, if the description does not disclose private, controlled, or protected information or
information exempt from disclosure under Subsection 
63G-2-201
(3)(b);
(c) a statement that any party to the proceeding before the State Records Committee
may appeal the committee's decision to district court; and
(d) a brief summary of the appeals process, the time limits for filing an appeal, and a
notice that in order to protect its rights on appeal, the party may wish to seek advice from an
attorney.
(13) If the State Records Committee fails to issue a decision within 73 calendar days of
the filing of the notice of appeal, that failure is the equivalent of an order denying the appeal. A
records committee appellant shall notify the State Records Committee in writing if the records
committee appellant considers the appeal denied.
(14) A party to a proceeding before the State Records Committee may seek judicial
review in district court of a State Records Committee order by filing a petition for review of the
order as provided in Section 
63G-2-404
.
(15) (a) Unless a notice of intent to appeal is filed under Subsection (15)(b), each party
to the proceeding shall comply with the order of the State Records Committee.
(b) If a party disagrees with the order of the State Records Committee, that party may
file a notice of intent to appeal the order.
(c) If the State Records Committee orders the governmental entity to produce a record
and no appeal is filed, or if, as a result of the appeal, the governmental entity is required to
produce a record, the governmental entity shall:
(i) produce the record; and
(ii) file a notice of compliance with the committee.
(d) (i) If the governmental entity that is ordered to produce a record fails to file a notice
of compliance or a notice of intent to appeal, the State Records Committee may do either or
both of the following:
(A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or
(B) send written notice of the governmental entity's noncompliance to the governor.
(ii) In imposing a civil penalty, the State Records Committee shall consider the gravity
and circumstances of the violation, including whether the failure to comply was due to neglect
or was willful or intentional.
Section 6. 
Effective date.
This bill takes effect on May 1, 2024.