Utah Code 63G-2-403. Appeals to the State Records Committee

(1)

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Terms Used In Utah Code 63G-2-403

Access denial: means a governmental entity's denial, under Subsection 63G-2-204(9) or Section 63G-2-205, in whole or in part, of a record request. See Utah Code 63G-2-400.5
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Controlled record: means a record containing data on individuals that is controlled as provided by Section 63G-2-304. See Utah Code 63G-2-103
Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
Equal: means , with respect to biological sex, of the same value. See Utah Code 68-3-12.5
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Governmental entity: means :
          (11)(a)(i) executive department agencies of the state, the offices of the governor, lieutenant governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole, the Board of Examiners, the National Guard, the Career Service Review Office, the State Board of Education, the Utah Board of Higher Education, and the State Archives;
          (11)(a)(ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative committees, except any political party, group, caucus, or rules or sifting committee of the Legislature;
          (11)(a)(iii) courts, the Judicial Council, the Administrative Office of the Courts, and similar administrative units in the judicial branch;
          (11)(a)(iv) any state-funded institution of higher education or public education; or
          (11)(a)(v) any political subdivision of the state, but, if a political subdivision has adopted an ordinance or a policy relating to information practices pursuant to Section 63G-2-701, this chapter shall apply to the political subdivision to the extent specified in Section 63G-2-701 or as specified in any other section of this chapter that specifically refers to political subdivisions. See Utah Code 63G-2-103
Interested party: means a person, other than a requester, who is aggrieved by an access denial or an appellate affirmation, whether or not the person participated in proceedings leading to the access denial or appellate affirmation. See Utah Code 63G-2-400.5
Local appeals board: means an appeals board established by a political subdivision under Subsection 63G-2-701(5)(c). See Utah Code 63G-2-400.5
Notice of compliance: means a statement confirming that a governmental entity has complied with an order of the State Records Committee. See Utah Code 63G-2-103
Person: means :
     (17)(a) an individual;
     (17)(b) a nonprofit or profit corporation;
     (17)(c) a partnership;
     (17)(d) a sole proprietorship;
     (17)(e) other type of business organization; or
     (17)(f) any combination acting in concert with one another. See Utah Code 63G-2-103
Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
Record: means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics:
(25)(a)(i) that is prepared, owned, received, or retained by a governmental entity or political subdivision; and
(25)(a)(ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. See Utah Code 63G-2-103
Record series: means a group of records that may be treated as a unit for purposes of designation, description, management, or disposition. See Utah Code 63G-2-103
Records committee appellant: means :
(6)(a) a political subdivision that seeks to appeal a decision of a local appeals board to the State Records Committee; or
(6)(b) a requester or interested party who seeks to appeal to the State Records Committee a decision affirming an access denial. See Utah Code 63G-2-400.5
Records officer: means the individual appointed by the chief administrative officer of each governmental entity, or the political subdivision to work with state archives in the care, maintenance, scheduling, designation, classification, disposal, and preservation of records. See Utah Code 63G-2-103
Requester: means a person who submits a record request to a governmental entity. See Utah Code 63G-2-400.5
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
State Records Committee: means the State Records Committee created in Section 63G-2-501. See Utah Code 63G-2-103
Statute: A law passed by a legislature.
Subpoena: A command to a witness to appear and give testimony.
Writing: includes :
     (48)(a) printing;
     (48)(b) handwriting; and
     (48)(c) information stored in an electronic or other medium if the information is retrievable in a perceivable format. See Utah Code 68-3-12.5

(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.

(1)(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:

(1)(b)(i) the circumstances described in Subsection 63G-2-401(1)(b) occur; and

(1)(b)(ii) the chief administrative officer fails to make a decision under Section 63G-2-401.

(1)(c) The time for a requester to file a notice of appeal under Subsection (1)(a) or (b) is suspended for the period of time that:

(1)(c)(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

(1)(c)(ii) ends the earlier of the following dates:

(1)(c)(ii)(A) the date that the government records ombudsman certifies in writing that the mediation is concluded; or

(1)(c)(ii)(B) the date that the government records ombudsman certifies in writing that the mediation did not occur or was not concluded because of a lack of the required consent.

(2) The notice of appeal shall:

(2)(a) contain the name, mailing address, and daytime telephone number of the records committee appellant;

(2)(b) be accompanied by a copy of the decision being appealed; and

(2)(c) state the relief sought.

(3) The records committee appellant:

(3)(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:

(3)(a)(i) the governmental entity whose access denial or fee waiver denial is the subject of the appeal, if the records committee appellant is a requester or interested party; or

(3)(a)(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

(3)(b) may file a short statement of facts, reasons, and legal authority in support of the appeal.

(4)

(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:

(4)(a)(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;

(4)(a)(ii) send a copy of the notice of hearing to the records committee appellant; and

(4)(a)(iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing to:

(4)(a)(iii)(A) each member of the State Records Committee;

(4)(a)(iii)(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;

(4)(a)(iii)(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

(4)(a)(iii)(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.

(4)(b)

(4)(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.

(4)(b)(ii)

(4)(b)(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.

(4)(b)(ii)(B) The State Records Committee shall make rules to implement this section as provided by Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

(4)(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)

(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.

(5)(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)

(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.

(6)(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.

(6)(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)

(9)(a)

(9)(a)(i) The State Records Committee:

(9)(a)(i)(A) may review the disputed records; and

(9)(a)(i)(B) shall review the disputed records, if the committee is weighing the various interests under Subsection (11).

(9)(a)(ii) A review of the disputed records under Subsection (9)(a)(i) shall be in camera.

(9)(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)

(10)(a) Discovery is prohibited, but the State Records Committee may issue subpoenas or other orders to compel production of necessary evidence.

(10)(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.

(10)(c)

(10)(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:

(10)(c)(i)(A) issued under Section 63G-2-401; or

(10)(c)(i)(B) issued by a chief administrative officer of a political subdivision that has not established a local appeals board.

(10)(c)(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)

(11)(a) No later than seven business days after the hearing, the State Records Committee shall issue a signed order:

(11)(a)(i) granting the relief sought, in whole or in part; or

(11)(a)(ii) upholding the governmental entity’s access denial, in whole or in part.

(11)(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.

(11)(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:

(11)(c)(i) privacy interests in the case of a private or controlled record;

(11)(c)(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

(11)(c)(iii) privacy interests or the public interest in the case of other protected records.

(12) The order of the State Records Committee shall include:

(12)(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;

(12)(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);

(12)(c) a statement that any party to the proceeding before the State Records Committee may appeal the committee’s decision to district court; and

(12)(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)

(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.

(15)(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.

(15)(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:

(15)(c)(i) produce the record; and

(15)(c)(ii) file a notice of compliance with the committee.

(15)(d)

(15)(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:

(15)(d)(i)(A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or

(15)(d)(i)(B) send written notice of the governmental entity’s noncompliance to the governor.

(15)(d)(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.

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