H.B. 443
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: R.H. Rees 6
6 02-10-23 3:22 PM 6
H.B. 443
1 GOVERNMENT RECORDS OMBUDSMAN AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Anthony E. Loubet
5 Senate Sponsor: ____________
6
7LONG TITLE
8General Description:
9 This bill modifies provisions relating to government records.
10Highlighted Provisions:
11 This bill:
12 <modifies a provision relating to government records ombudsman mediation of
13disputes between requesters and responders;
14 <requires the government records ombudsman to certify the conclusion of certain
15mediations;
16 <requires a notice of access denial to include a statement relating to the requester's
17right to request mediation; and
18 <suspends a requester's time to file a notice of appeal for a specified period of time if
19the requester has requested mediation.
20Money Appropriated in this Bill:
21 None
22Other Special Clauses:
23 None
24Utah Code Sections Affected:
25AMENDS:
26 63A-12-111, as last amended by Laws of Utah 2019, Chapter 254
27 63G-2-203, as last amended by Laws of Utah 2022, Chapter 128
*HB0443* H.B. 443 02-10-23 3:22 PM
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28 63G-2-205, as renumbered and amended by Laws of Utah 2008, Chapter 382
29 63G-2-401, as last amended by Laws of Utah 2019, Chapters 254 and 334
30 63G-2-403, as last amended by Laws of Utah 2019, Chapter 254
31
32Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 63A-12-111 is amended to read:
34 63A-12-111. Government records ombudsman.
35 (1) (a) The director of the division shall appoint a government records ombudsman.
36 (b) The government records ombudsman may not be a member of the State Records
37Committee created in Section 63G-2-501.
38 (2) The government records ombudsman shall:
39 (a) be familiar with the provisions of Title 63G, Chapter 2, Government Records
40Access and Management Act;
41 (b) serve as a resource for a person who is making or responding to a records request or
42filing an appeal relating to a records request;
43 [(c) upon request, attempt to mediate disputes between requestors and responders; and]
44 (c) upon a request from a requester or responder, and with the consent of both the
45requester and responder, mediate a dispute between a requester and responder, including a
46dispute between a requester and a governmental entity regarding the governmental entity's
47access denial, as defined in Section 63G-2-400.5; and
48 (d) on an annual basis, electronically transmit a written report to the Government
49Operations Interim Committee on the work performed by the government records ombudsman
50during the previous year.
51 (3) The government records ombudsman may not testify, or be compelled to testify,
52before the State Records Committee created in Section 63G-2-501, another administrative
53body, or a court regarding a matter that the government records ombudsman provided services
54in relation to under this section.
55 (4) Upon the conclusion of a mediation under Subsection (2)(c) or when the
56government records ombudsman concludes that the required consent for the mediation is
57lacking, the government records ombudsman shall:
58 (a) certify in writing that the mediation: 02-10-23 3:22 PM H.B. 443
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59 (i) did not take place because of a lack of the required consent; or
60 (ii) is concluded; and
61 (b) provide a copy of the written certification to the requester and the responder.
62 Section 2. Section 63G-2-203 is amended to read:
63 63G-2-203. Fees.
64 (1) (a) Subject to Subsection (5), a governmental entity may charge a reasonable fee to
65cover the governmental entity's actual cost of providing a record.
66 (b) A fee under Subsection (1)(a) shall be approved by the governmental entity's
67executive officer.
68 (2) (a) When a governmental entity compiles a record in a form other than that
69normally maintained by the governmental entity, the actual costs under this section may include
70the following:
71 (i) the cost of staff time for compiling, formatting, manipulating, packaging,
72summarizing, or tailoring the record either into an organization or media to meet the person's
73request;
74 (ii) the cost of staff time for search, retrieval, and other direct administrative costs for
75complying with a request; and
76 (iii) in the case of fees for a record that is the result of computer output other than word
77processing, the actual incremental cost of providing the electronic services and products
78together with a reasonable portion of the costs associated with formatting or interfacing the
79information for particular users, and the administrative costs as set forth in Subsections
80(2)(a)(i) and (ii).
81 (b) An hourly charge under Subsection (2)(a) may not exceed the salary of the lowest
82paid employee who, in the discretion of the custodian of records, has the necessary skill and
83training to perform the request.
84 (3) (a) Fees shall be established as provided in this Subsection (3).
85 (b) A governmental entity with fees established by the Legislature:
86 (i) shall establish the fees defined in Subsection (2), or other actual costs associated
87with this section through the budget process; and
88 (ii) may use the procedures of Section 63J-1-504 to set fees until the Legislature
89establishes fees through the budget process. H.B. 443 02-10-23 3:22 PM
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90 (c) Political subdivisions shall establish fees by ordinance or written formal policy
91adopted by the governing body.
92 (d) The judiciary shall establish fees by rules of the judicial council.
93 (4) A governmental entity may fulfill a record request without charge and is
94encouraged to do so if it determines that:
95 (a) releasing the record primarily benefits the public rather than a person;
96 (b) the individual requesting the record is the subject of the record, or an individual
97specified in Subsection 63G-2-202(1) or (2); or
98 (c) the requester's legal rights are directly implicated by the information in the record,
99and the requester is impecunious.
100 (5) (a) As used in this Subsection (5), "media representative":
101 (i) means a person who requests a record to obtain information for a story or report for
102publication or broadcast to the general public; and
103 (ii) does not include a person who requests a record to obtain information for a blog,
104podcast, social media account, or other means of mass communication generally available to a
105member of the public.
106 (b) A governmental entity may not charge a fee for:
107 (i) reviewing a record to determine whether it is subject to disclosure, except as
108permitted by Subsection (2)(a)(ii);
109 (ii) inspecting a record; or
110 (iii) the first quarter hour of staff time spent in responding to a request under Section
11163G-2-204.
112 (c) Notwithstanding Subsection (5)(b)(iii), a governmental entity is not prevented from
113charging a fee for the first quarter hour of staff time spent in responding to a request under
114Section 63G-2-204 if the person who submits the request:
115 (i) is not a Utah media representative; and
116 (ii) previously submitted a separate request within the 10-day period immediately
117before the date of the request to which the governmental entity is responding.
118 (6) (a) A person who believes that there has been an unreasonable denial of a fee
119waiver under Subsection (4) may:
120 (i) seek mediation of the fee dispute under Subsection 63A-12-111(2)(c); and 02-10-23 3:22 PM H.B. 443
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121 (ii) appeal the denial in the same manner as a person appeals when inspection of a
122public record is denied under Section 63G-2-205.
123 (b) The adjudicative body hearing [the] an appeal under Subsection (6)(a)(ii):
124 (i) shall review the fee waiver de novo, but shall review and consider the governmental
125entity's denial of the fee waiver and any determination under Subsection (4); and
126 (ii) has the same authority when a fee waiver or reduction is denied as it has when the
127inspection of a public record is denied.
128 (7) (a) All fees received under this section by a governmental entity subject to
129Subsection (3)(b) shall be retained by the governmental entity as a dedicated credit.
130 (b) Those funds shall be used to recover the actual cost and expenses incurred by the
131governmental entity in providing the requested record or record series.
132 (8) (a) A governmental entity may require payment of past fees and future estimated
133fees before beginning to process a request if:
134 (i) fees are expected to exceed $50; or
135 (ii) the requester has not paid fees from previous requests.
136 (b) Any prepaid amount in excess of fees due shall be returned to the requester.
137 (9) This section does not alter, repeal, or reduce fees established by other statutes or
138legislative acts.
139 (10) (a) Notwithstanding Subsection (3)(c), fees for voter registration records shall be
140set as provided in this Subsection (10).
141 (b) The lieutenant governor shall:
142 (i) after consultation with county clerks, establish uniform fees for voter registration
143and voter history records that meet the requirements of this section; and
144 (ii) obtain legislative approval of those fees by following the procedures and
145requirements of Section 63J-1-504.
146 Section 3. Section 63G-2-205 is amended to read:
147 63G-2-205. Denials.
148 (1) If [the] a governmental entity denies [the] a record request, in whole or part, [it] the
149governmental entity shall provide a notice of denial to the requester either in person or by
150sending the notice to the requester's address.
151 (2) The notice of denial shall contain the following information: H.B. 443 02-10-23 3:22 PM
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152 (a) a description of the record or portions of the record to which access was denied,
153provided that the description does not disclose private, controlled, or protected information or
154information exempt from disclosure under Subsection 63G-2-201(3)(b);
155 (b) citations to the provisions of this chapter, court rule or order, another state statute,
156federal statute, or federal regulation that exempt the record or portions of the record from
157disclosure, provided that the citations do not disclose private, controlled, or protected
158information or information exempt from disclosure under Subsection 63G-2-201(3)(b);
159 (c) (i) a statement that the requester has the right to appeal the denial to the chief
160administrative officer of the governmental entity; and
161 [(d)] (ii) the time limits for filing an appeal, and the name and business address of the
162chief administrative officer of the governmental entity[.]; and
163 (d) a statement that the requester has a right under Section 63A-12-111 to request the
164government records ombudsman to mediate the dispute between the requester and the
165governmental entity.
166 (3) Unless otherwise required by a court or agency of competent jurisdiction, a
167governmental entity may not destroy or give up custody of any record to which access was
168denied until the period for an appeal has expired or the end of the appeals process, including
169judicial appeal.
170 Section 4. Section 63G-2-401 is amended to read:
171 63G-2-401. Appeal to chief administrative officer -- Notice of the decision of the
172appeal.
173 (1) (a) A requester or interested party may appeal an access denial or the denial of a fee
174waiver under Subsection 63G-2-203(4) to the chief administrative officer of the governmental
175entity by filing a notice of appeal with the chief administrative officer within 30 days after:
176 (i) for an access denial:
177 (A) the governmental entity sends a notice of denial under Section 63G-2-205, if the
178governmental entity denies a record request under Subsection 63G-2-205(1); or
179 [(ii)] (B) the record request is considered denied under Subsection 63G-2-204(9), if
180that subsection applies[.]; or
181 (ii) for a denial of a fee waiver, the date the governmental entity notifies the requester
182that the fee waiver is denied. 02-10-23 3:22 PM H.B. 443
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183 (b) The time for a requester to file a notice of appeal under Subsection (1)(a) is
184suspended for the period of time that:
185 (i) begins the date the requester submits a request under Section 63A-12-111 for the
186government records ombudsman to mediate the dispute between the requester and the
187governmental entity; and
188 (ii) ends the earliest of the following dates:
189 (A) the date that the government records ombudsman certifies in writing that the
190mediation did not occur because of a lack of consent to the mediation;
191 (B) the date that the government records ombudsman certifies in writing that the
192mediation is concluded; and
193 (C) the date that is 30 days after the date described in Subsection (1)(b)(i).
194 [(b)] (c) If a governmental entity claims extraordinary circumstances and specifies the
195date when the records will be available under Subsection 63G-2-204(4), and, if the requester
196believes the extraordinary circumstances do not exist or that the date specified is unreasonable,
197the requester may appeal the governmental entity's claim of extraordinary circumstances or date
198for compliance to the chief administrative officer by filing a notice of appeal with the chief
199administrative officer within 30 days after notification of a claim of extraordinary
200circumstances by the governmental entity, despite the lack of a "determination" or its
201equivalent under Subsection 63G-2-204(9).
202 (2) A notice of appeal shall contain:
203 (a) the name, mailing address, and daytime telephone number of the requester or
204interested party; and
205 (b) the relief sought.
206 (3) The requester or interested party may file a short statement of facts, reasons, and
207legal authority in support of the appeal.
208 (4) (a) If the appeal involves a record that is the subject of a business confidentiality
209claim under Section 63G-2-309, the chief administrative officer shall:
210 (i) send notice of the appeal to the business confidentiality claimant within three
211business days after receiving notice, except that if notice under this section must be given to
212more than 35 persons, it shall be given as soon as reasonably possible; and
213 (ii) send notice of the business confidentiality claim and the schedule for the chief H.B. 443 02-10-23 3:22 PM
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214administrative officer's determination to the requester or interested party within three business
215days after receiving notice of the appeal.
216 (b) The business confidentiality claimant shall have seven business days after notice is
217sent by the administrative officer to submit further support for the claim of business
218confidentiality.
219 (5) (a) The chief administrative officer shall make a decision on the appeal within:
220 (i) (A) 10 business days after the chief administrative officer's receipt of the notice of
221appeal; or
222 (B) five business days after the chief administrative officer's receipt of the notice of
223appeal, if the requester or interested party demonstrates that an expedited decision benefits the
224public rather than the requester or interested party; or
225 (ii) 12 business days after the governmental entity sends the notice of appeal to a person
226who submitted a claim of business confidentiality.
227 (b) (i) If the chief administrative officer fails to make a decision on an appeal of an
228access denial within the time specified in Subsection (5)(a), the failure is the equivalent of a
229decision affirming the access denial.
230 (ii) If the chief administrative officer fails to make a decision on an appeal under
231Subsection (1)(b) within the time specified in Subsection (5)(a), the failure is the equivalent of
232a decision affirming the claim of extraordinary circumstances or the reasonableness of the date
233specified when the records will be available.
234 (c) The provisions of this section notwithstanding, the parties participating in the
235proceeding may, by agreement, extend the time periods specified in this section.
236 (6) Except as provided in Section 63G-2-406, the chief administrative officer may,
237upon consideration and weighing of the various interests and public policies pertinent to the
238classification and disclosure or nondisclosure, order the disclosure of information properly
239classified as private under Subsection 63G-2-302(2) or protected under Section 63G-2-305 if
240the interests favoring access are greater than or equal to the interests favoring restriction of
241access.
242 (7) (a) The governmental entity shall send written notice of the chief administrative
243officer's decision to all participants.
244 (b) If the chief administrative officer's decision is to affirm the access denial in whole 02-10-23 3:22 PM H.B. 443
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245or in part, the notice under Subsection (7)(a) shall include:
246 (i) a statement that the requester or interested party has the right to appeal the decision,
247as provided in Section 63G-2-402, to:
248 (A) the State Records Committee or district court; or
249 (B) the local appeals board, if the governmental entity is a political subdivision and the
250governmental entity has established a local appeals board;
251 (ii) the time limits for filing an appeal; and
252 (iii) the name and business address of:
253 (A) the executive secretary of the State Records Committee; and
254 (B) the individual designated as the contact individual for the appeals board, if the
255governmental entity is a political subdivision that has established an appeals board under
256Subsection 63G-2-701(5)(c).
257 (8) A person aggrieved by a governmental entity's classification or designation
258determination under this chapter, but who is not requesting access to the records, may appeal
259that determination using the procedures provided in this section. If a nonrequester is the only
260appellant, the procedures provided in this section shall apply, except that the decision on the
261appeal shall be made within 30 days after receiving the notice of appeal.
262 (9) The duties of the chief administrative officer under this section may be delegated.
263 Section 5. Section 63G-2-403 is amended to read:
264 63G-2-403. Appeals to the State Records Committee.
265 (1) (a) A records committee appellant appeals to the State Records Committee by filing
266a notice of appeal with the executive secretary of the State Records Committee no later than 30
267days after the date of issuance of the decision being appealed.
268 (b) Notwithstanding Subsection (1)(a), a requester may file a notice of appeal with the
269executive secretary of the State Records Committee no later than 45 days after the day on
270which the record request is made if:
271 (i) the circumstances described in Subsection 63G-2-401(1)[(b)](c) occur; and
272 (ii) the chief administrative officer fails to make a decision under Section 63G-2-401.
273 (2) The notice of appeal shall:
274 (a) contain the name, mailing address, and daytime telephone number of the records
275committee appellant; H.B. 443 02-10-23 3:22 PM
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276 (b) be accompanied by a copy of the decision being appealed; and
277 (c) state the relief sought.
278 (3) The records committee appellant:
279 (a) shall, on the day on which the notice of appeal is filed with the State Records
280Committee, serve a copy of the notice of appeal on:
281 (i) the governmental entity whose access denial is the subject of the appeal, if the
282records committee appellant is a requester or interested party; or
283 (ii) the requester or interested party who is a party to the local appeals board
284proceeding that resulted in the decision that the political subdivision is appealing to the
285committee, if the records committee appellant is a political subdivision; and
286 (b) may file a short statement of facts, reasons, and legal authority in support of the
287appeal.
288 (4) (a) Except as provided in Subsections (4)(b) and (c), no later than seven business
289days after receiving a notice of appeal, the executive secretary of the State Records Committee
290shall:
291 (i) schedule a hearing for the State Records Committee to discuss the appeal at the next
292regularly scheduled committee meeting falling at least 16 days after the date the notice of
293appeal is filed but no longer than 64 calendar days after the date the notice of appeal was filed
294except that the committee may schedule an expedited hearing upon application of the records
295committee appellant and good cause shown;
296 (ii) send a copy of the notice of hearing to the records committee appellant; and
297 (iii) send a copy of the notice of appeal, supporting statement, and a notice of hearing
298to:
299 (A) each member of the State Records Committee;
300 (B) the records officer and the chief administrative officer of the governmental entity
301whose access denial is the subject of the appeal, if the records committee appellant is a
302requester or interested party;
303 (C) any person who made a business confidentiality claim under Section 63G-2-309 for
304a record that is the subject of the appeal; and
305 (D) all persons who participated in the proceedings before the governmental entity's
306chief administrative officer, if the appeal is of the chief administrative officer's decision 02-10-23 3:22 PM H.B. 443
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307affirming an access denial.
308 (b) (i) The executive secretary of the State Records Committee may decline to schedule
309a hearing if the record series that is the subject of the appeal has been found by the committee
310in a previous hearing involving the same governmental entity to be appropriately classified as
311private, controlled, or protected.
312 (ii) (A) If the executive secretary of the State Records Committee declines to schedule
313a hearing, the executive secretary shall send a notice to the records committee appellant
314indicating that the request for hearing has been denied and the reason for the denial.
315 (B) The State Records Committee shall make rules to implement this section as
316provided by Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
317 (c) The executive secretary of the State Records Committee may schedule a hearing on
318an appeal to the State Records Committee at a regularly scheduled State Records Committee
319meeting that is later than the period described in Subsection (4)(a)(i) if that committee meeting
320is the first regularly scheduled State Records Committee meeting at which there are fewer than
32110 appeals scheduled to be heard.
322 (5) (a) No later than five business days before the hearing, a governmental entity shall
323submit to the executive secretary of the State Records Committee a written statement of facts,
324reasons, and legal authority in support of the governmental entity's position.
325 (b) The governmental entity shall send a copy of the written statement by first class
326mail, postage prepaid, to the requester or interested party involved in the appeal. The executive
327secretary shall forward a copy of the written statement to each member of the State Records
328Committee.
329 (6) (a) No later than 10 business days after the day on which the executive secretary
330sends the notice of appeal, a person whose legal interests may be substantially affected by the
331proceeding may file a request for intervention with the State Records Committee.
332 (b) Any written statement of facts, reasons, and legal authority in support of the
333intervener's position shall be filed with the request for intervention.
334 (c) The person seeking intervention shall provide copies of the statement described in
335Subsection (6)(b) to all parties to the proceedings before the State Records Committee.
336 (7) The State Records Committee shall hold a hearing within the period of time
337described in Subsection (4). H.B. 443 02-10-23 3:22 PM
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338 (8) At the hearing, the State Records Committee shall allow the parties to testify,
339present evidence, and comment on the issues. The committee may allow other interested
340persons to comment on the issues.
341 (9) (a) (i) The State Records Committee:
342 (A) may review the disputed records; and
343 (B) shall review the disputed records, if the committee is weighing the various interests
344under Subsection (11).
345 (ii) A review of the disputed records under Subsection (9)(a)(i) shall be in camera.
346 (b) Members of the State Records Committee may not disclose any information or
347record reviewed by the committee in camera unless the disclosure is otherwise authorized by
348this chapter.
349 (10) (a) Discovery is prohibited, but the State Records Committee may issue subpoenas
350or other orders to compel production of necessary evidence.
351 (b) When the subject of a State Records Committee subpoena disobeys or fails to
352comply with the subpoena, the committee may file a motion for an order to compel obedience
353to the subpoena with the district court.
354 (c) (i) The State Records Committee's review shall be de novo, if the appeal is an
355appeal from a decision of a chief administrative officer:
356 (A) issued under Section 63G-2-401; or
357 (B) issued by a chief administrative officer of a political subdivision that has not
358established a local appeals board.
359 (ii) For an appeal from a decision of a local appeals board, the State Records
360Committee shall review and consider the decision of the local appeals board.
361 (11) (a) No later than seven business days after the hearing, the State Records
362Committee shall issue a signed order:
363 (i) granting the relief sought, in whole or in part; or
364 (ii) upholding the governmental entity's access denial, in whole or in part.
365 (b) Except as provided in Section 63G-2-406, the State Records Committee may, upon
366consideration and weighing of the various interests and public policies pertinent to the
367classification and disclosure or nondisclosure, order the disclosure of information properly
368classified as private, controlled, or protected if the public interest favoring access is greater 02-10-23 3:22 PM H.B. 443
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369than or equal to the interest favoring restriction of access.
370 (c) In making a determination under Subsection (11)(b), the State Records Committee
371shall consider and, where appropriate, limit the requester's or interested party's use and further
372disclosure of the record in order to protect:
373 (i) privacy interests in the case of a private or controlled record;
374 (ii) business confidentiality interests in the case of a record protected under Subsection
37563G-2-305(1), (2), (40)(a)(ii), or (40)(a)(vi); and
376 (iii) privacy interests or the public interest in the case of other protected records.
377 (12) The order of the State Records Committee shall include:
378 (a) a statement of reasons for the decision, including citations to this chapter, court rule
379or order, another state statute, federal statute, or federal regulation that governs disclosure of
380the record, if the citations do not disclose private, controlled, or protected information;
381 (b) a description of the record or portions of the record to which access was ordered or
382denied, if the description does not disclose private, controlled, or protected information or
383information exempt from disclosure under Subsection 63G-2-201(3)(b);
384 (c) a statement that any party to the proceeding before the State Records Committee
385may appeal the committee's decision to district court; and
386 (d) a brief summary of the appeals process, the time limits for filing an appeal, and a
387notice that in order to protect its rights on appeal, the party may wish to seek advice from an
388attorney.
389 (13) If the State Records Committee fails to issue a decision within 73 calendar days of
390the filing of the notice of appeal, that failure is the equivalent of an order denying the appeal. A
391records committee appellant shall notify the State Records Committee in writing if the records
392committee appellant considers the appeal denied.
393 (14) A party to a proceeding before the State Records Committee may seek judicial
394review in district court of a State Records Committee order by filing a petition for review of the
395order as provided in Section 63G-2-404.
396 (15) (a) Unless a notice of intent to appeal is filed under Subsection (15)(b), each party
397to the proceeding shall comply with the order of the State Records Committee.
398 (b) If a party disagrees with the order of the State Records Committee, that party may
399file a notice of intent to appeal the order. H.B. 443 02-10-23 3:22 PM
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400 (c) If the State Records Committee orders the governmental entity to produce a record
401and no appeal is filed, or if, as a result of the appeal, the governmental entity is required to
402produce a record, the governmental entity shall:
403 (i) produce the record; and
404 (ii) file a notice of compliance with the committee.
405 (d) (i) If the governmental entity that is ordered to produce a record fails to file a notice
406of compliance or a notice of intent to appeal, the State Records Committee may do either or
407both of the following:
408 (A) impose a civil penalty of up to $500 for each day of continuing noncompliance; or
409 (B) send written notice of the governmental entity's noncompliance to the governor.
410 (ii) In imposing a civil penalty, the State Records Committee shall consider the gravity
411and circumstances of the violation, including whether the failure to comply was due to neglect
412or was willful or intentional.