Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                             S.B. 262
Approved for Filing: R.H. Rees 6
          6 02-17-23 2:38 PM 6
                        GOVERNMENT RECORDS AMENDMENTS
                                         2023 GENERAL SESSION
                                            STATE OF UTAH
                              Chief Sponsor: Michael K. McKell
                                  House Sponsor: ____________
 6
 LONG TITLE
 General Description:
        This bill modifies provisions relating to government records.
 Highlighted Provisions:
        This bill:
        < 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 a 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;
        < authorizes the legislative branch and judicial branch to establish a process for
 obtaining relief against a vexatious requester; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
                                                                                                    S.B. 262
 Utah Code Sections Affected:
 AMENDS:
     *SB0262*
       S.B. 262                                                                     02-17-23 2:38 PM
        63G-2-201, as last amended by Laws of Utah 2019, Chapter 334
        63G-2-404, as last amended by Laws of Utah 2021, Chapter 325
        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 and 428
 ENACTS:
        63G-2-209, Utah Code Annotated 1953
35
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 63G-2-201 is amended to read:
        63G-2-201. Provisions relating to records -- Public records -- Private, controlled,
 protected, and other restricted records -- Disclosure and nondisclosure of records --
 Certified copy of record -- Limits on obligation to respond to record request.
        (1) (a) Except as provided in Subsection (1)(b), a person has the right to inspect a
 public record free of charge, and the right to take a copy of a public record during normal
 working hours, subject to Sections 63G-2-203 and 63G-2-204.
        (b) A right under Subsection (1)(a) does not apply with respect to a record:
        (i) a copy of which the governmental entity has already provided to the person;
        (ii) that is the subject of a records request that the governmental entity is not required
 to fill under Subsection (8)(e); or
        (iii) (A) that is accessible only by a computer or other electronic device owned or
 controlled by the governmental entity;
        (B) that is part of an electronic file that also contains a record that is private,
 controlled, or protected; and
        (C) that the governmental entity cannot readily segregate from the part of the electronic
 file that contains a private, controlled, or protected record.
        (2) A record is public unless otherwise expressly provided by statute.
        (3) The following records are not public:
        (a) a record that is private, controlled, or protected under Sections 63G-2-302,
 63G-2-303, 63G-2-304, and 63G-2-305; and
        (b) a record to which access is restricted pursuant to court rule, another state statute,
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       02-17-23 2:38 PM                                                                           S.B. 262
 federal statute, or federal regulation, including records for which access is governed or
 restricted as a condition of participation in a state or federal program or for receiving state or
 federal funds.
         (4) Only a record specified in Section 63G-2-302, 63G-2-303, 63G-2-304, or
 63G-2-305 may be classified private, controlled, or protected.
         (5) (a) A governmental entity may not disclose a record that is private, controlled, or
 protected to any person except as provided in Subsection (5)(b), Subsection (5)(c), Section
 63G-2-202, 63G-2-206, or 63G-2-303.
         (b) A governmental entity may disclose a record that is private under Subsection
 63G-2-302(2) or protected under Section 63G-2-305 to persons other than those specified in
 Section 63G-2-202 or 63G-2-206 if the head of a governmental entity, or a designee,
 determines that:
         (i) there is no interest in restricting access to the record; or
         (ii) the interests favoring access are greater than or equal to the interest favoring
 restriction of access.
         (c) In addition to the disclosure under Subsection (5)(b), a governmental entity may
 disclose a record that is protected under Subsection 63G-2-305(51) if:
         (i) the head of the governmental entity, or a designee, determines that the disclosure:
         (A) is mutually beneficial to:
         (I) the subject of the record;
         (II) the governmental entity; and
         (III) the public; and
         (B) serves a public purpose related to:
         (I) public safety; or
         (II) consumer protection; and
         (ii) the person who receives the record from the governmental entity agrees not to use
 or allow the use of the record for advertising or solicitation purposes.
         (6) (a) The disclosure of a record to which access is governed or limited pursuant to
 court rule, another state statute, federal statute, or federal regulation, including a record for
 which access is governed or limited as a condition of participation in a state or federal program
 or for receiving state or federal funds, is governed by the specific provisions of that statute,
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        S.B. 262                                                                    02-17-23 2:38 PM
 rule, or regulation.
         (b) This chapter applies to records described in Subsection (6)(a) insofar as this chapter
 is not inconsistent with the statute, rule, or regulation.
         (7) A governmental entity shall provide a person with a certified copy of a record if:
         (a) the person requesting the record has a right to inspect it;
         (b) the person identifies the record with reasonable specificity; and
         (c) the person pays the lawful fees.
         (8) In response to a request, a governmental entity is not required to:
         (a) create a record;
         (b) compile, format, manipulate, package, summarize, or tailor information;
         (c) provide a record in a particular format, medium, or program not currently
 maintained by the governmental entity;
         (d) fulfill a person's records request if the request unreasonably duplicates prior records
 requests from that person; [or]
         (e) fill a person's records request if:
         (i) the record requested is:
         (A) publicly accessible online; or
         (B) included in a public publication or product produced by the governmental entity
 receiving the request; and
         (ii) the governmental entity:
         (A) specifies to the person requesting the record where the record is accessible online;
 or
         (B) provides the person requesting the record with the public publication or product
 and specifies where the record can be found in the public publication or product[.]; or
         (f) fulfill a person's records request if:
         (i) the person has been determined under Section 63G-2-209 to be a vexatious
 requester;
         (ii) the State Records Committee order determining the person to be a vexatious
 requester provides that the governmental entity is not required to fulfill a request from the
 person for a period of time; and
         (iii) the period of time described in Subsection (8)(f)(ii) has not expired.
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        02-17-23 2:38 PM                                                                         S.B. 262
        (9) (a) Although not required to do so, a governmental entity may, upon request from
 the person who submitted the records request, compile, format, manipulate, package,
 summarize, or tailor information or provide a record in a format, medium, or program not
 currently maintained by the governmental entity.
        (b) In determining whether to fulfill a request described in Subsection (9)(a), a
 governmental entity may consider whether the governmental entity is able to fulfill the request
 without unreasonably interfering with the governmental entity's duties and responsibilities.
        (c) A governmental entity may require a person who makes a request under Subsection
 (9)(a) to pay the governmental entity, in accordance with Section 63G-2-203, for providing the
 information or record as requested.
        (10) (a) Notwithstanding any other provision of this chapter, and subject to Subsection
 (10)(b), a governmental entity is not required to respond to, or provide a record in response to,
 a record request if the request is submitted by or in behalf of an individual who is confined in a
 jail or other correctional facility following the individual's conviction.
        (b) Subsection (10)(a) does not apply to:
        (i) the first five record requests submitted to the governmental entity by or in behalf of
 an individual described in Subsection (10)(a) during any calendar year requesting only a record
 that contains a specific reference to the individual; or
        (ii) a record request that is submitted by an attorney of an individual described in
 Subsection (10)(a).
        (11) (a) A governmental entity may allow a person requesting more than 50 pages of
 records to copy the records if:
        (i) the records are contained in files that do not contain records that are exempt from
 disclosure, or the records may be segregated to remove private, protected, or controlled
 information from disclosure; and
        (ii) the governmental entity provides reasonable safeguards to protect the public from
 the potential for loss of a public record.
        (b) If the requirements of Subsection (11)(a) are met, the governmental entity may:
        (i) provide the requester with the facilities for copying the requested records and
 require that the requester make the copies; or
        (ii) allow the requester to provide the requester's own copying facilities and personnel
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        S.B. 262                                                                    02-17-23 2:38 PM
 to make the copies at the governmental entity's offices and waive the fees for copying the
 records.
         (12) (a) A governmental entity that owns an intellectual property right and that offers
 the intellectual property right for sale or license may control by ordinance or policy the
 duplication and distribution of the material based on terms the governmental entity considers to
 be in the public interest.
         (b) Nothing in this chapter shall be construed to limit or impair the rights or protections
 granted to the governmental entity under federal copyright or patent law as a result of its
 ownership of the intellectual property right.
         (13) A governmental entity may not use the physical form, electronic or otherwise, in
 which a record is stored to deny, or unreasonably hinder the rights of a person to inspect and
 receive a copy of a record under this chapter.
         (14) Subject to the requirements of Subsection (8), a governmental entity shall provide
 access to an electronic copy of a record in lieu of providing access to its paper equivalent if:
         (a) the person making the request requests or states a preference for an electronic copy;
         (b) the governmental entity currently maintains the record in an electronic format that
 is reproducible and may be provided without reformatting or conversion; and
         (c) the electronic copy of the record:
         (i) does not disclose other records that are exempt from disclosure; or
         (ii) may be segregated to protect private, protected, or controlled information from
 disclosure without the undue expenditure of public resources or funds.
         (15) In determining whether a record is properly classified as private under Subsection
 63G-2-302(2)(d), the governmental entity, State Records Committee, local appeals board, or
 court shall consider and weigh:
         (a) any personal privacy interests, including those in images, that would be affected by
 disclosure of the records in question; and
         (b) any public interests served by disclosure.
         Section 2. Section 63G-2-209 is enacted to read:
         63G-2-209. Vexatious requester.
         (1) As used in this section:
         (a) "Committee" means the State Records Committee created in Section 63G-2-501.
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        02-17-23 2:38 PM                                                                           S.B. 262
           (b) "Executive secretary" means an individual appointed as executive secretary under
 Subsection 63G-2-502(3).
           (c) "Respondent" means a person that a governmental entity claims is a vexatious
 requester under this section.
           (2) (a) A governmental entity may file a petition with the committee to request relief
 from a person that the governmental entity claims is a vexatious requester.
           (b) A petition under Subsection (2)(a) shall:
           (i) be filed with the committee by submitting the petition to the executive secretary;
 and
           (ii) contain:
           (A) the name, phone number, mailing address, and email address that the respondent
 submitted to the governmental entity;
           (B) a description of the conduct that the government entity claims demonstrates that
 the respondent is a vexatious requester;
           (C) a statement of the relief the governmental entity seeks; and
           (D) a sworn declaration or an unsworn declaration, as those terms are defined in
 Section 78B-18a-102.
           (c) On the day the governmental entity files a petition under Subsection (2)(a), the
 governmental entity shall send a copy of the petition to the respondent.
           (3) (a) Except as provided in Subsection (3)(c), no later than seven business days after
 receiving the petition the executive secretary shall schedule a hearing for the committee to
 consider the petition, to be held:
           (i) (A) at the next regularly scheduled committee meeting falling at least 16 calendar
 days after the date the petition is filed but no later than 64 calendar days after the date the
 petition is filed; or
           (B) at a regularly scheduled committee meeting that is later than the period described
 in Subsection (3)(a)(i)(A) if the later committee meeting is the first regularly scheduled
 committee meeting at which there are fewer than 10 appeals scheduled to be heard; or
           (ii) at a date sooner than a period described in Subsection (3)(a)(i) if the governmental
 entity:
           (A) requests an expedited hearing; and
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        S.B. 262                                                                   02-17-23 2:38 PM
         (B) shows good cause for the expedited hearing.
         (b) If the executive secretary schedules a hearing under Subsection (3)(a), the executive
 secretary shall:
         (i) send a copy of the petition to each member of the committee;
         (ii) send a copy of the notice of hearing to the governmental entity, the respondent, and
 each member of the committee; and
         (iii) if applicable, send a copy of the respondent's statement under Subsection (3)(c)(ii)
 to the governmental entity and each member of the committee.
         (c) (i) The executive secretary may decline to schedule a hearing if:
         (A) the executive secretary recommends that the committee deny the petition without a
 hearing because the petition does not warrant a hearing;
         (B) the executive secretary consults with the chair of the committee and at least one
 other member of the committee; and
         (C) the chair of the committee and all committee members with whom the executive
 secretary consults under this Subsection (3)(c)(i) agree with the executive secretary's
 recommendation to deny the petition without a hearing.
         (ii) The executive secretary may, in making the determination described in Subsection
 (3)(c)(i)(A), request that the respondent submit a written response to the petition.
         (d) If the executive secretary declines to schedule a hearing in accordance with
 Subsection (3)(c):
         (i) the executive secretary shall send a notice to the governmental entity and the
 respondent indicating that the request for a hearing has been denied and the reasons for the
 denial; and
         (ii) the committee shall:
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