PART IGovernment Records Access and Management

Act

63G-2-101 et seq.

Legislative Intent63G-2-102

• (1) In enacting this Act, the Legislature recognizes two constitutional rights:

• (a) the public’s right of access to information concerning the conduct of the public’s business; and

• (b) the right of privacy in relation to personal data gathered by governmental entities.

Legislative Intent Cont’d

• (3) It is the intent of the Legislature to:• …• (e) favor public access when, in the application

of this act, countervailing interests are of equal weight….

Definitions63G-2-103

• 22(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, owner, received, or retained by a governmental entity or political subdivision; and

• (ii) where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.

Definitions cont’d

• 22(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.

Definitions cont’d

• 22(b)(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.

Definitions cont’d

• 22(b) “Record” does not mean:• (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.

Public Records63G-2-301

• (2) The following records are public…:• (b) the name, gender, gross compensation, job

title, job description, business address, business email address, business telephone number, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualification of a current or former employee or officer of the governmental entity….

Private Records63G-2-302

• (1) The following records are private:• …• (l) a record that:• (i) contains information about an individual; • (ii) is voluntarily provided by the individual; and • (iii) goes into an electronic database that:• (A) is designated by and administered under the authority of

the Chief Information Officer; and • (B) acts as a repository of information about the individual

that can be electronically retrieved and used to facilitate the individual’s online interaction with a state agency.

Private Records cont’d

(2)The following records are private if properly classified by a governmental entity:…(d) Other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.

Controlled Records63G-2-304

• A record is controlled if:• (1) the record contains medical, psychiatric, or

psychological data about anindividual;• (2) the governmental entity reasonably believes that:• (a) releasing the information in the record to the subject

of the record would be detrimental to the subject’s mental health or to the safety of any individual; or

• (b) releasing the information would constitute a violation of normal professional practice….

Protected Records63G-2-305

• The following records are protected if properly classified by a governmental entity:

• …• (2) commercial information or nonindividual financial information

obtained from a person if:• (a) disclosure of the information reasonably could be expected to result in

unfair competitive injury to the person submitting the information or would impair the ability of the governmental entity to obtain necessary information in the future;

• (b) the person submitting the information has a greater interest in prohibiting access than the public in obtaining access; and

• (c) the person submitting the information has provided the governmental entity with the information specified in Section 63G-2-309.

63G-2-309

• (1)(a)(i) Any person who provides to a governmental entity a record that the person believes should be protected under Subsection 63G-2-305(1) or (2)…shall provide with the record:

• (A) a written claim of business confidentiality; and

• (B) a concise statement of reasons supporting the claim of business confidentiality

Protected Records Cont’d• (10) records created or maintained for civil, criminal, or administrative

enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if release of the records:

• (a) reasonably could be expected to interfere with investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes;

• (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings;

• (c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;

• (d) reasonably could be expected to disclose the identity of a source who is not generally known outside of government…or

• (e) reasonably could be expected to disclose investigative or audit techniques…if disclosure would interfere with enforcement….

Protected Records Cont’d

• (25) records, other than personnel evaluations, that contain a personal recommendation concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal privacy, or disclosure is not in the public interest.

Weighing Provision63G-2-403(11)(b)

• Except as provided in Section 63G-2-406, the 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.

PART IIGRAMA Hot Topics: 2014

FEESAmount of the fees:• Can be illegally used as way to deny access (Ferguson, Mo.)• Fee waiver discretionary, but denial must be “reasonable”• Hourly rate must be reasonable• Govt’l entity may charge to redact a record

ELECTRONIC RECORDS

GRAMA AND LITIGATION

PART IIIState Records Committee ‘R Us

The Request:• Newspaper requests records regarding Roger

Reid’s employment as the men’s basketball coach at SUU, specifically requesting memoranda, letters, emails, voicemails, and text messages received of sent by University personnel…after Nov. 1, 2010, that pertain to the men’s basketball program and Reid’s continued employment as coach, and letters of support or opposition for Coach Reid.

The Request Cont’d

• SUU denies the request, indicating the records are confidential and protected pursuant to 63G-2-305 (25), arguing the correspondence in particular was “in the nature of personal recommendations concerning or advising my ultimate decision, and further would be an unwarranted invasion of Coach Reid’s personal privacy.”