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[Utah Code Table of Contents]
[TITLE 63. Table of Contents]
[CHAPTER 2. Table of Contents]
63-2-401 Appeal to head of governmental entity.
(1) (a) Any person aggrieved by a governmental entity's access determination under this chapter, including a person not a party to the governmental entity's proceeding, may appeal the determination within 30 days to the chief administrative officer of the governmental entity by filing a notice of appeal.
(b) If a governmental entity claims extraordinary circumstances and specifies the date when the records will be available under Subsection 63-2-204 (3), and, if the requester believes the extraordinary circumstances do not exist or that the time specified is unreasonable, the requester may appeal the governmental entity's claim of extraordinary circumstances or date for compliance 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 63-2-204 (7).
(2) The notice of appeal shall contain the following information:
(a) the petitioner's name, mailing address, and daytime telephone number; and
(b) the relief sought.
(3) The petitioner 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 63-2-308 , the chief administrative officer shall:
(i) send notice of the requester's 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 within three business days after receiving notice of the requester's appeal.
(b) The 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 determination on the appeal within the following period of time:
(i) within five business days after the chief administrative officer's receipt of the notice of appeal; or
(ii) within twelve business days after the governmental entity sends the requester's notice of appeal to a person who submitted a claim of business confidentiality.
(b) If the chief administrative officer fails to make a determination within the time specified in Subsection (5)(a), the failure shall be considered the equivalent of an order denying the appeal.
(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) 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 Section 63-2-302 (2) or protected under Section 63-2-304 if the interests favoring access outweigh the interests favoring restriction of access.
(7) The governmental entity shall send written notice of the determination of the chief administrative officer to all participants. If the chief administrative officer affirms the denial in whole or in part, the denial shall include a statement that the requester has the right to appeal the denial to either the records committee or district court, the time limits for filing an appeal, and the name and business address of the executive secretary of the records committee.
(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 determination 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.
1992
63-2-402 Option for appealing a denial.
(1) If the chief administrative officer of a governmental entity denies a records request under Section 63-2-401 , the requester may:
(a) appeal the denial to the records committee as provided in Section 63-2-403 ; or
(b) petition for judicial review in district court as provided in Section 63-2-404 .
(2) Any person aggrieved by a determination of the chief
administrative officer of a governmental entity under this
chapter, including persons who did not participate in the
governmental entity's proceeding, may appeal the determination
to the records committee as provided in Section
63-2-403
.
1992
63-2-403 Appeals to the records committee.
(1) A petitioner, including an aggrieved person who did not participate in the appeal to the governmental entity's chief administrative officer, may appeal to the records committee by filing a notice of appeal with the executive secretary no later than:
(a) 30 days after the chief administrative officer of the governmental entity has granted or denied the records request in whole or in part, including a denial under Subsection 63-2-204 (7);
(b) 45 days after the original request for records if:
(i) the circumstances described in Subsection 63-2-401 (1)(b) occur; and
(ii) the chief administrative officer failed to make a determination under Section 63-2-401 .
(2) The notice of appeal shall contain the following information:
(a) the petitioner's name, mailing address, and daytime telephone number;
(b) a copy of any denial of the records request; and
(c) the relief sought.
(3) The petitioner may file a short statement of facts, reasons, and legal authority in support of the appeal.
(4) (a) Except as provided in Subsection (4)(b), no later than three business days after receiving a notice of appeal, the executive secretary of the records committee shall:
(i) schedule a hearing for the records committee to discuss the appeal at the next regularly scheduled committee meeting falling at least 14 days after the date the notice of appeal is filed but no longer than 45 days after the date the notice of appeal was filed provided, however, the records committee may schedule an expedited hearing upon application of the petitioner and good cause shown;
(ii) send a copy of the notice of hearing to the petitioner; and
(iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing to:
(A) each member of the records committee;
(B) the records officer and the chief administrative officer of the governmental entity from which the appeal originated;
(C) any person who made a business confidentiality claim under Section 63-2-308 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.
(b) (i) The executive secretary of the 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 government entity to be appropriately classified as private, controlled, or protected.
(ii) (A) If the executive secretary of the records committee declines to schedule a hearing, the executive secretary of the records committee shall send a notice to the petitioner indicating that the request for hearing has been denied and the reason for the denial.
(B) The committee shall make rules to implement this section as provided by Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(5) (a) A written statement of facts, reasons, and legal authority in support of the governmental entity's position must be submitted to the executive secretary of the records committee not later than five business days before the hearing.
(b) The governmental entity shall send a copy of the written statement to the petitioner by first class mail, postage prepaid. The executive secretary shall forward a copy of the written statement to each member of the records committee.
(6) No later than ten business days after the notice of appeal is sent by the executive secretary, a person whose legal interests may be substantially affected by the proceeding may file a request for intervention before the records committee. Any written statement of facts, reasons, and legal authority in support of the intervener's position shall be filed with the request for intervention. The person seeking intervention shall provide copies of the statement to all parties to the proceedings before the records committee.
(7) The records committee shall hold a hearing within the period of time described in Subsection (4).
(8) At the hearing, the records committee shall allow the parties to testify, present evidence, and comment on the issues. The records committee may allow other interested persons to comment on the issues.
(9) (a) The records committee may review the disputed records. However, if the committee is weighing the various interests under Subsection (11), the committee must review the disputed records. The review shall be in camera.
(b) Members of the 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 records committee may issue subpoenas or other orders to compel production of necessary evidence.
(b) When the subject of a records committee subpoena disobeys or fails to comply with the subpoena, the records committee may file a motion for an order to compel obedience to the subpoena with the district court.
(c) The records committee's review shall be de novo.
(11) (a) No later than three business days after the hearing, the records committee shall issue a signed order either granting the petition in whole or in part or upholding the determination of the governmental entity in whole or in part.
(b) The 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 outweighs the interest favoring restriction of access.
(c) In making a determination under Subsection (11)(b), the records committee shall consider and, where appropriate, limit the requester's use and further disclosure of the record in order to protect privacy interests in the case of private or controlled records, business confidentiality interests in the case of records protected under Subsections 63-2-304 (1) and (2), and privacy interests or the public interest in the case of other protected records.
(12) The order of the 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, provided that 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, provided that the description does not disclose private, controlled, or protected information or information exempt from disclosure under Subsection 63-2-201 (3)(b);
(c) a statement that any party to the proceeding before the records committee may appeal the records 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 records committee fails to issue a decision within 35 days of the filing of the notice of appeal, that failure shall be considered the equivalent of an order denying the appeal. The petitioner shall notify the records committee in writing if he considers the appeal denied.
(14) (a) Each government entity shall comply with the order of the records committee and, if records are ordered to be produced, file:
(i) a notice of compliance with the records committee upon production of the records; or
(ii) a notice of intent to appeal.
(b) (i) If the government entity fails to file a notice of compliance or a notice of intent to appeal, the 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 entity's noncompliance to the governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.
(ii) In imposing a civil penalty, the 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.
1999
63-2-404 Judicial review.
(1) (a) Any party to a proceeding before the records committee may petition for judicial review by the district court of the records committee's order.
(b) The petition shall be filed no later than 30 days after the date of the records committee's order.
(c) The records committee is a necessary party to the petition for judicial review.
(d) The executive secretary of the records committee shall be served with notice of the petition in accordance with the Utah Rules of Civil Procedure.
(2) (a) A requester may petition for judicial review by the district court of a governmental entity's determination as specified in Subsection 63-2-402 (1)(b).
(b) The requester shall file a petition no later than:
(i) 30 days after the governmental entity has responded to the records request by either providing the requested records or denying the request in whole or in part;
(ii) 35 days after the original request if the governmental entity failed to respond to the request; or
(iii) 45 days after the original request for records if:
(A) the circumstances described in Subsection 63-2-401 (1)(b) occur; and
(B) the chief administrative officer failed to make a determination under Section 63-2-401 .
(3) The petition for judicial review shall be a complaint governed by the Utah Rules of Civil Procedure and shall contain:
(a) the petitioner's name and mailing address;
(b) a copy of the records committee order from which the appeal is taken, if the petitioner brought a prior appeal to the records committee;
(c) the name and mailing address of the governmental entity that issued the initial determination with a copy of that determination;
(d) a request for relief specifying the type and extent of relief requested; and
(e) a statement of the reasons why the petitioner is entitled to relief.
(4) If the appeal is based on the denial of access to a protected record, the court shall allow the claimant of business confidentiality to provide to the court the reasons for the claim of business confidentiality.
(5) All additional pleadings and proceedings in the district court are governed by the Utah Rules of Civil Procedure.
(6) The district court may review the disputed records. The review shall be in camera.
(7) The court shall:
(a) make its decision de novo, but allow introduction of evidence presented to the records committee;
(b) determine all questions of fact and law without a jury; and
(c) decide the issue at the earliest practical opportunity.
(8) (a) The court 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 interest favoring access outweighs the interest favoring restriction of access.
(b) The court shall consider and, where appropriate, limit
the requester's use and further disclosure of the record
in order to protect privacy interests in the case of private
or controlled records, business confidentiality interests
in the case of records protected under Subsections
63-2-304
(1) and (2), and privacy interests or the public
interest in the case of other protected records.
1995
63-2-405 Confidential treatment of records for which no exemption applies.
(1) A court may, on appeal or in a declaratory or other action, order the confidential treatment of records for which no exemption from disclosure applies if:
(a) there are compelling interests favoring restriction of access to the record; and
(b) the interests favoring restriction of access clearly outweigh the interests favoring access.
(2) If a governmental entity requests a court to restrict access to a record under this section, the court shall require the governmental entity to pay the reasonable attorneys' fees incurred by the lead party in opposing the governmental entity's request, if:
(a) the court finds that no statutory or constitutional exemption from disclosure could reasonably apply to the record in question; and
(b) the court denies confidential treatment under this section.
(3) This section does not apply to records that are specifically required to be public under statutory provisions outside of this chapter or under Section 63-2-301 , except as provided in Subsection (4).
(4) (a) Access to drafts and empirical data in drafts may be limited under this section, but the court may consider, in its evaluation of interests favoring restriction of access, only those interests that relate to the underlying information, and not to the deliberative nature of the record.
(b) Access to original data in a computer program may
be limited under this section, but the court may consider,
in its evaluation of interests favoring restriction of access,
only those interests that relate to the underlying information,
and not to the status of that data as part of a computer
program.
1992
