Bill Summary – FastDemocracy

Enrolled Copy                                                                         S.B. 231
          GOVERNMENT RECORDS ACCESS AND MANAGEMENT ACT
                                             AMENDMENTS
                                         2023 GENERAL SESSION
                                            STATE OF UTAH
                                Chief Sponsor: Curtis S. Bramble
                                House Sponsor: Anthony E. Loubet
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 LONG TITLE
 General Description:
         This bill makes changes related to the Government Records Access and Management
 Act (act).
 Highlighted Provisions:
         This bill:
         < provides that a governmental entity is not required to create a document indicating
 that a requested record does not exist;
         < requires a governmental entity to conduct a reasonable search for a record;
         < enacts a provision establishing a process for a governmental entity to petition for
 relief against a vexatious requester;
         < provides for a hearing before the State Records Committee;
         < allows for judicial review of the State Records Committee's decision;
         < allows the court to award reasonable attorney fees to a responder for a vexatious
 requester petition found to be without merit and waives governmental immunity for
 a claim of attorney fees;
         < requires a person outside of a governmental entity who makes a claim of business
 confidentiality for a record the person provided to a governmental entity to
 indemnify the governmental entity in an action arising from the governmental
 entity's denial of access to the record;
         < limits judicial review of an appeal to the issues raised in the underlying appeal and
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 order, except in exceptional circumstances;
        < authorizes the legislative branch, the judicial branch, and the governor and
 lieutenant governor to establish a process for obtaining relief against a vexatious
 requester;
        < amends the act's applicability to the governor and lieutenant governor;
        < clarifies the Utah Supreme Court's jurisdiction over appeals under the act;
        < defines terms; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        63G-2-103, as last amended by Laws of Utah 2021, Chapters 211, 283
        63G-2-201, as last amended by Laws of Utah 2019, Chapter 334
        63G-2-309, as last amended by Laws of Utah 2019, Chapter 254
        63G-2-404, as last amended by Laws of Utah 2021, Chapter 325
        63G-2-604, as last amended by Laws of Utah 2019, Chapter 254
        63G-2-702, as last amended by Laws of Utah 2012, Chapter 369
        63G-2-703, as last amended by Laws of Utah 2015, Chapter 258
        63G-7-301, as last amended by Laws of Utah 2022, Chapters 388, 428
        78A-4-103, as last amended by Laws of Utah 2022, Chapter 388
 ENACTS:
        63G-2-209, Utah Code Annotated 1953
        63G-2-704, Utah Code Annotated 1953
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       Enrolled Copy                                                                            S.B. 231
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 63G-2-103 is amended to read:
        63G-2-103. Definitions.
        As used in this chapter:
        (1) "Audit" means:
        (a) a systematic examination of financial, management, program, and related records
 for the purpose of determining the fair presentation of financial statements, adequacy of
 internal controls, or compliance with laws and regulations; or
        (b) a systematic examination of program procedures and operations for the purpose of
 determining their effectiveness, economy, efficiency, and compliance with statutes and
 regulations.
        (2) "Chronological logs" mean the regular and customary summary records of law
 enforcement agencies and other public safety agencies that show:
        (a) the time and general nature of police, fire, and paramedic calls made to the agency;
 and
        (b) any arrests or jail bookings made by the agency.
        (3) "Classification," "classify," and their derivative forms mean determining whether a
 record series, record, or information within a record is public, private, controlled, protected, or
 exempt from disclosure under Subsection 63G-2-201(3)(b).
        (4) (a) "Computer program" means:
        (i) a series of instructions or statements that permit the functioning of a computer
 system in a manner designed to provide storage, retrieval, and manipulation of data from the
 computer system; and
        (ii) any associated documentation and source material that explain how to operate the
 computer program.
        (b) "Computer program" does not mean:
        (i) the original data, including numbers, text, voice, graphics, and images;
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        (ii) analysis, compilation, and other manipulated forms of the original data produced by
 use of the program; or
        (iii) the mathematical or statistical formulas, excluding the underlying mathematical
 algorithms contained in the program, that would be used if the manipulated forms of the
 original data were to be produced manually.
        (5) (a) "Contractor" means:
        (i) any person who contracts with a governmental entity to provide goods or services
 directly to a governmental entity; or
        (ii) any private, nonprofit organization that receives funds from a governmental entity.
        (b) "Contractor" does not mean a private provider.
        (6) "Controlled record" means a record containing data on individuals that is controlled
 as provided by Section 63G-2-304.
        (7) "Designation," "designate," and their derivative forms mean indicating, based on a
 governmental entity's familiarity with a record series or based on a governmental entity's
 review of a reasonable sample of a record series, the primary classification that a majority of
 records in a record series would be given if classified and the classification that other records
 typically present in the record series would be given if classified.
        (8) "Elected official" means each person elected to a state office, county office,
 municipal office, school board or school district office, local district office, or special service
 district office, but does not include judges.
        (9) "Explosive" means a chemical compound, device, or mixture:
        (a) commonly used or intended for the purpose of producing an explosion; and
        (b) that contains oxidizing or combustive units or other ingredients in proportions,
 quantities, or packing so that:
        (i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the
 compound or mixture may cause a sudden generation of highly heated gases; and
        (ii) the resultant gaseous pressures are capable of:
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        Enrolled Copy                                                                              S.B. 231
         (A) producing destructive effects on contiguous objects; or
         (B) causing death or serious bodily injury.
         (10) "Government audit agency" means any governmental entity that conducts an audit.
         (11) (a) "Governmental entity" means:
         (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;
         (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;
         (iii) courts, the Judicial Council, the Administrative Office of the Courts, and similar
 administrative units in the judicial branch;
         (iv) any state-funded institution of higher education or public education; or
         (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.
         (b) "Governmental entity" also means:
         (i) every office, agency, board, bureau, committee, department, advisory board, or
 commission of an entity listed in Subsection (11)(a) that is funded or established by the
 government to carry out the public's business;
         (ii) as defined in Section 11-13-103, an interlocal entity or joint or cooperative
 undertaking;
         (iii) as defined in Section 11-13a-102, a governmental nonprofit corporation;
         (iv) an association as defined in Section 53G-7-1101;
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        (v) the Utah Independent Redistricting Commission; and
        (vi) a law enforcement agency, as defined in Section 53-1-102, that employs one or
 more law enforcement officers, as defined in Section 53-13-103.
        (c) "Governmental entity" does not include the Utah Educational Savings Plan created
 in Section 53B-8a-103.
        (12) "Gross compensation" means every form of remuneration payable for a given
 period to an individual for services provided including salaries, commissions, vacation pay,
 severance pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any
 similar benefit received from the individual's employer.
        (13) "Individual" means a human being.
        (14) (a) "Initial contact report" means an initial written or recorded report, however
 titled, prepared by peace officers engaged in public patrol or response duties describing official
 actions initially taken in response to either a public complaint about or the discovery of an
 apparent violation of law, which report may describe:
        (i) the date, time, location, and nature of the complaint, the incident, or offense;
        (ii) names of victims;
        (iii) the nature or general scope of the agency's initial actions taken in response to the
 incident;
        (iv) the general nature of any injuries or estimate of damages sustained in the incident;
        (v) the name, address, and other identifying information about any person arrested or
 charged in connection with the incident; or
        (vi) the identity of the public safety personnel, except undercover personnel, or
 prosecuting attorney involved in responding to the initial incident.
        (b) Initial contact reports do not include follow-up or investigative reports prepared
 after the initial contact report. However, if the information specified in Subsection (14)(a)
 appears in follow-up or investigative reports, it may only be treated confidentially if it is
 private, controlled, protected, or exempt from disclosure under Subsection 63G-2-201(3)(b).
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        Enrolled Copy                                                                           S.B. 231
        (c) Initial contact reports do not include accident reports, as that term is described in
 Title 41, Chapter 6a, Part 4, Accident Responsibilities.
        (15) "Legislative body" means the Legislature.
        (16) "Notice of compliance" means a statement confirming that a governmental entity
 has complied with an order of the State Records Committee.
        (17) "Person" means:
        (a) an individual;
        (b) a nonprofit or profit corporation;
        (c) a partnership;
        (d) a sole proprietorship;
        (e) other type of business organization; or
        (f) any combination acting in concert with one another.
        (18) "Private provider" means any person who contracts with a governmental entity to
 provide services directly to the public.
        (19) "Private record" means a record containing data on individuals that is private as
 provided by Section 63G-2-302.
        (20) "Protected record" means a record that is classified protected as provided by
 Section 63G-2-305.
        (21) "Public record" means a record that is not private, controlled, or protected and that
 is not exempt from disclosure as provided in Subsection 63G-2-201(3)(b).
        (22) "Reasonable search" means a search that is:
        (a) reasonable in scope and intensity; and
        (b) not unreasonably burdensome for the government entity.
        [(22)] (23) (a) "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:
        (i) that is prepared, owned, received, or retained by a governmental entity or political
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 subdivision; and
        (ii) where all of the information in the original is reproducible by photocopy or other
 mechanical or electronic means.
        (b) "Record" does not mean:
        (i) a personal note or personal communication prepared or received by an employee or
 officer of a governmental entity:
        (A) in a capacity other than the employee's or officer's governmental capacity; or
        (B) that is unrelated to the conduct of the public's business;
        (ii) a temporary draft or similar material prepared for the originator's personal use or
 prepared by the originator for the personal use of an individual for whom the originator is
 working;
        (iii) material that is legally owned by an individual in the individual's private capacity;
        (iv) material to which access is limited by the laws of copyright or patent unless the
 copyright or patent is owned by a governmental entity or political subdivision;
        (v) proprietary software;
        (vi) junk mail or a commercial publication received by a governmental entity or an
 official or employee of a governmental entity;
        (vii) a book that is cataloged, indexed, or inventoried and contained in the collections
 of a library open to the public;
        (viii) material that is cataloged, indexed, or inventoried and contained in the collections
 of a library open to the public, regardless of physical form or characteristics of the material;
        (ix) a daily calendar or other personal note prepared by the originator for the
 originator's personal use or for the personal use of an individual for whom the originator is
 working;
        (x) a computer program that is developed or purchased by or for any governmental
 entity for its own use;
        (xi) a note or internal memorandum prepared as part of the deliberative process by:
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       Enrolled Copy                                                                          S.B. 231
        (A) a member of the judiciary;
        (B) an administrative law judge;
        (C) a member of the Board of Pardons and Parole; or
        (D) a member of any other body, other than an association or appeals panel as defined
 in Section 53G-7-1101, charged by law with performing a quasi-judicial function;
        (xii) a telephone number or similar code used to access a mobile communication
 device that is used by an employee or officer of a governmental entity, provided that the
 employee or officer of the governmental entity has designated at least one business telephone
 number that is a public record as provided in Section 63G-2-301;
        (xiii) information provided by the Public Employees' Benefit and Insurance Program,
 created in Section 49-20-103, to a county to enable the county to calculate the amount to be
 paid to a health care provider under Subsection 17-50-319(2)(e)(ii);
        (xiv) information that an owner of unimproved property provides to a local entity as
 provided in Section 11-42-205;
        (xv) a video or audio recording of an interview, or a transcript of the video or audio
 recording, that is conducted at a Children's Justice Center established under Section 67-5b-102;
        (xvi) child pornography, as defined by Section 76-5b-103;
        (xvii) before final disposition of an ethics complaint occurs, a video or audio recording
 of the closed portion of a meeting or hearing of:
        (A) a Senate or House Ethics Committee;
        (B) the Independent Legislative Ethics Commission;