Enrolled Copy S.B. 171
1 NONPROFIT ENTITIES AMENDMENTS
2 2020 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Daniel McCay
5 House Sponsor: Mark A. Strong
6
7 LONG TITLE
8 General Description:
9 This bill amends provisions relating to nonprofit entities.
10 Highlighted Provisions:
11 This bill:
12 < prohibits a public entity from, subject to certain exceptions, disclosing or taking
13 certain other action regarding information that identifies a person as a donor to an
14 entity exempt from federal income tax under Section 501(c) of the Internal Revenue
15 Code;
16 < places limitations on the regulation of a nonprofit entity by a public agency; and
17 < classifies a record protected from disclosure under this bill as a protected record
18 under the Government Records Access and Management Act.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 63G-2-305, as last amended by Laws of Utah 2019, Chapters 128, 193, 244, and 277
26 ENACTS:
27 63G-24-101, Utah Code Annotated 1953
28 63G-24-102, Utah Code Annotated 1953
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29 63G-24-103, Utah Code Annotated 1953
30 63G-24-104, Utah Code Annotated 1953
31 63G-24-105, Utah Code Annotated 1953
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 63G-2-305 is amended to read:
35 63G-2-305. Protected records.
36 The following records are protected if properly classified by a governmental entity:
37 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
38 has provided the governmental entity with the information specified in Section 63G-2-309;
39 (2) commercial information or nonindividual financial information obtained from a
40 person if:
41 (a) disclosure of the information could reasonably be expected to result in unfair
42 competitive injury to the person submitting the information or would impair the ability of the
43 governmental entity to obtain necessary information in the future;
44 (b) the person submitting the information has a greater interest in prohibiting access
45 than the public in obtaining access; and
46 (c) the person submitting the information has provided the governmental entity with
47 the information specified in Section 63G-2-309;
48 (3) commercial or financial information acquired or prepared by a governmental entity
49 to the extent that disclosure would lead to financial speculations in currencies, securities, or
50 commodities that will interfere with a planned transaction by the governmental entity or cause
51 substantial financial injury to the governmental entity or state economy;
52 (4) records, the disclosure of which could cause commercial injury to, or confer a
53 competitive advantage upon a potential or actual competitor of, a commercial project entity as
54 defined in Subsection 11-13-103(4);
55 (5) test questions and answers to be used in future license, certification, registration,
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56 employment, or academic examinations;
57 (6) records, the disclosure of which would impair governmental procurement
58 proceedings or give an unfair advantage to any person proposing to enter into a contract or
59 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
60 Subsection (6) does not restrict the right of a person to have access to, after the contract or
61 grant has been awarded and signed by all parties:
62 (a) a bid, proposal, application, or other information submitted to or by a governmental
63 entity in response to:
64 (i) an invitation for bids;
65 (ii) a request for proposals;
66 (iii) a request for quotes;
67 (iv) a grant; or
68 (v) other similar document; or
69 (b) an unsolicited proposal, as defined in Section 63G-6a-712;
70 (7) information submitted to or by a governmental entity in response to a request for
71 information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict
72 the right of a person to have access to the information, after:
73 (a) a contract directly relating to the subject of the request for information has been
74 awarded and signed by all parties; or
75 (b) (i) a final determination is made not to enter into a contract that relates to the
76 subject of the request for information; and
77 (ii) at least two years have passed after the day on which the request for information is
78 issued;
79 (8) records that would identify real property or the appraisal or estimated value of real
80 or personal property, including intellectual property, under consideration for public acquisition
81 before any rights to the property are acquired unless:
82 (a) public interest in obtaining access to the information is greater than or equal to the
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83 governmental entity's need to acquire the property on the best terms possible;
84 (b) the information has already been disclosed to persons not employed by or under a
85 duty of confidentiality to the entity;
86 (c) in the case of records that would identify property, potential sellers of the described
87 property have already learned of the governmental entity's plans to acquire the property;
88 (d) in the case of records that would identify the appraisal or estimated value of
89 property, the potential sellers have already learned of the governmental entity's estimated value
90 of the property; or
91 (e) the property under consideration for public acquisition is a single family residence
92 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
93 the property as required under Section 78B-6-505;
94 (9) records prepared in contemplation of sale, exchange, lease, rental, or other
95 compensated transaction of real or personal property including intellectual property, which, if
96 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
97 of the subject property, unless:
98 (a) the public interest in access is greater than or equal to the interests in restricting
99 access, including the governmental entity's interest in maximizing the financial benefit of the
100 transaction; or
101 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
102 the value of the subject property have already been disclosed to persons not employed by or
103 under a duty of confidentiality to the entity;
104 (10) records created or maintained for civil, criminal, or administrative enforcement
105 purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
106 release of the records:
107 (a) reasonably could be expected to interfere with investigations undertaken for
108 enforcement, discipline, licensing, certification, or registration purposes;
109 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
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110 proceedings;
111 (c) would create a danger of depriving a person of a right to a fair trial or impartial
112 hearing;
113 (d) reasonably could be expected to disclose the identity of a source who is not
114 generally known outside of government and, in the case of a record compiled in the course of
115 an investigation, disclose information furnished by a source not generally known outside of
116 government if disclosure would compromise the source; or
117 (e) reasonably could be expected to disclose investigative or audit techniques,
118 procedures, policies, or orders not generally known outside of government if disclosure would
119 interfere with enforcement or audit efforts;
120 (11) records the disclosure of which would jeopardize the life or safety of an
121 individual;
122 (12) records the disclosure of which would jeopardize the security of governmental
123 property, governmental programs, or governmental recordkeeping systems from damage, theft,
124 or other appropriation or use contrary to law or public policy;
125 (13) records that, if disclosed, would jeopardize the security or safety of a correctional
126 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
127 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
128 (14) records that, if disclosed, would reveal recommendations made to the Board of
129 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
130 Board of Pardons and Parole, or the Department of Human Services that are based on the
131 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
132 jurisdiction;
133 (15) records and audit workpapers that identify audit, collection, and operational
134 procedures and methods used by the State Tax Commission, if disclosure would interfere with
135 audits or collections;
136 (16) records of a governmental audit agency relating to an ongoing or planned audit
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137 until the final audit is released;
138 (17) records that are subject to the attorney client privilege;
139 (18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer,
140 employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial,
141 quasi-judicial, or administrative proceeding;
142 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
143 from a member of the Legislature; and
144 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
145 legislative action or policy may not be classified as protected under this section; and
146 (b) (i) an internal communication that is part of the deliberative process in connection
147 with the preparation of legislation between:
148 (A) members of a legislative body;
149 (B) a member of a legislative body and a member of the legislative body's staff; or
150 (C) members of a legislative body's staff; and
151 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
152 legislative action or policy may not be classified as protected under this section;
153 (20) (a) records in the custody or control of the Office of Legislative Research and
154 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
155 legislation or contemplated course of action before the legislator has elected to support the
156 legislation or course of action, or made the legislation or course of action public; and
157 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
158 Office of Legislative Research and General Counsel is a public document unless a legislator
159 asks that the records requesting the legislation be maintained as protected records until such
160 time as the legislator elects to make the legislation or course of action public;
161 (21) research requests from legislators to the Office of Legislative Research and
162 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
163 in response to these requests;
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164 (22) drafts, unless otherwise classified as public;
165 (23) records concerning a governmental entity's strategy about:
166 (a) collective bargaining; or
167 (b) imminent or pending litigation;
168 (24) records of investigations of loss occurrences and analyses of loss occurrences that
169 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
170 Uninsured Employers' Fund, or similar divisions in other governmental entities;
171 (25) records, other than personnel evaluations, that contain a personal recommendation
172 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
173 personal privacy, or disclosure is not in the public interest;
174 (26) records that reveal the location of historic, prehistoric, paleontological, or
175 biological resources that if known would jeopardize the security of those resources or of
176 valuable historic, scientific, educational, or cultural information;
177 (27) records of independent state agencies if the disclosure of the records would
178 conflict with the fiduciary obligations of the agency;
179 (28) records of an institution within the state system of higher education defined in
180 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
181 retention decisions, and promotions, which could be properly discussed in a meeting closed in
182 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
183 the final decisions about tenure, appointments, retention, promotions, or those students
184 admitted, may not be classified as protected under this section;
185 (29) records of the governor's office, including budget recommendations, legislative
186 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
187 policies or contemplated courses of action before the governor has implemented or rejected
188 those policies or courses of action or made them public;
189 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
190 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
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191 recommendations in these areas;
192 (31) records provided by the United States or by a government entity outside the state
193 that are given to the governmental entity with a requirement that they be managed as protected
194 records if the providing entity certifies that the record would not be subject to public disclosure
195 if retained by it;
196 (32) transcripts, minutes, recordings, or reports of the closed portion of a meeting of a
197 public body except as provided in Section 52-4-206;
198 (33) records that would reveal the contents of settlement negotiations but not including
199 final settlements or empirical data to the extent that they are not otherwise exempt from
200 disclosure;
201 (34) memoranda prepared by staff and used in the decision-making process by an
202 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
203 other body charged by law with performing a quasi-judicial function;
204 (35) records that would reveal negotiations regarding assistance or incentives offered
205 by or requested from a governmental entity for the purpose of encouraging a person to expand
206 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
207 person or place the governmental entity at a competitive disadvantage, but this section may not
208 be used to restrict access to a record evidencing a final contract;
209 (36) materials to which access must be limited for purposes of securing or maintaining
210 the governmental entity's proprietary protection of intellectual property rights including patents,
211 copyrights, and trade secrets;
212 (37) the name of a donor or a prospective donor to a governmental entity, including an
213 institution within the state system of higher education defined in Section 53B-1-102, and other
214 information concerning the donation that could reasonably be expected to reveal the identity of
215 the donor, provided that:
216 (a) the donor requests anonymity in writing;
217 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
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218 classified protected by the governmental entity under this Subsection (37); and
219 (c) except for an institution within the state system of higher education defined in
220 Section 53B-1-102, the governmental unit to which the donation is made is primarily engaged
221 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
222 over the donor, a member of the donor's immediate family, or any entity owned or controlled
223 by the donor or the donor's immedia