DAR File No. 38640

Administrative Services, Records Committee

Rule R35-1

State Records Committee Appeal Hearing Procedures

Notice of Proposed Rule

(Amendment)

DAR File No.: 38640
Filed: 06/23/2014 03:24:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Changes in the rules reflect legislative changes creating the Public Notice Website and the Government Records Ombudsman position. Proposed changes in this rule are to expedite hearings and to accommodate parties who may be participating in a hearing electronically or telephonically. Procedures for conducting a hearing, Third party participation, postponing a hearing, the distribution of the decision and order, the recording of the meeting, and the minutes of the meetings are covered in this section.

Summary of the rule or change:

Changes include shortening the time for testimony of the parties from thirty to twenty minutes. third party participants shall notify the Executive Secretary prior to a hearing and are limited to five minutes. Parties may participate electronically or telephonically. A petitioner may postpone a hearing by notifying the Committee in writing no later than two days prior to a hearing. Recordings of meetings are posted on the Public Notice Website within three days of the meeting. Written minutes shall be made available one week prior to the scheduled meeting and shall be marked as "Draft". Minutes shall be amended and/or approved with individual votes recorded in the minutes. Approved written minutes shall be made available on the Public Notice Website.

State statutory or constitutional authorization for this rule:

• Subsection 63G-2-502(2)(a)
• Section 63G-3-402
• Subsection 63G-3-601(3)
• Article IV

Anticipated cost or savings to:

the state budget:

Amendments to the rule deal primarily with procedural issues in Records Committee hearings. There is also some clarification of language. As a consequence, there are no costs or savings for state budget.

local governments:

Amendments to the rule deal primarily with procedural issues in Records Committee hearings. There is also some clarification of language. As a consequence, there are no costs or savings for local governments.

small businesses:

Amendments to the rule deal primarily with procedural issues in Records Committee hearings. There is also some clarification of language. As a consequence, there are no costs or savings for small businesses.

persons other than small businesses, businesses, or local governmental entities:

Amendments to the rule deal primarily with procedural issues in Records Committee hearings. There is also some clarification of language. As a consequence, there are no costs or savings for persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Amendments to the rule deal primarily with procedural issues in Records Committee hearings. There is also some clarification of language. As a consequence, there are no costs or savings for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no impact on businesses.

Kimberly K. Hood, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Administrative Services
Records Committee
ARCHIVES BUILDING
346 S RIO GRANDE
SALT LAKE CITY, UT 84101-1106

Direct questions regarding this rule to:

• Susan Mumford at the above address, by phone at 801-531-3861, by FAX at 801-531-3867, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/16/2014

This rule may become effective on:

08/25/2014

Authorized by:

Lex Hemphill, Chair, State Records Committee

R35. Administrative Services, Records Committee.

R35-1. State Records Committee Appeal Hearing Procedures.

R35-1-1. Scheduling Committee Meetings.

(1) The Executive Secretary shall respond in writing to the notice of appeal within five business days.

(2) Two weeks prior to the Committee meeting or appeal hearing , the Executive Secretary shall post a notice of the meeting on the Utah Public [Meeting ]Notice Web[ ]site.

(3) One week prior to the Committee meeting or appeal hearing , the Executive Secretary shall post a notice of the meeting , indicating the agenda, date, time , and place of the meeting at the building where the meeting is to be held and at the Utah State Archives.

 

R35-1-2. Procedures for Appeal Hearings.

(1) The meeting shall be called to order by the Committee Chair.

(2) Opening statements [will]shall be presented by the petitioner and the governmental entity. Each party shall be allowed five minutes to present their opening statements before the Committee.

(3) Testimony shall be presented by the petitioner and the governmental entity. Each party shall be allowed [thirty]twenty minutes to present testimony and evidence,[ and] to call witnesses, and to respond to questions from Committee members.

(4) Witnesses providing testimony shall be sworn in by the Committee Chair.

(5) Questioning of the witnesses and parties by Committee members is permitted.

(6) The governmental entity must bring the disputed records to the hearing to allow the Committee to view records in camera if it deems an in camera inspection necessary. If the records withheld are voluminous or the governmental entity contends they have not been identified with reasonable specificity, the governmental entity shall notify the Committee and the adverse party at least two days before the hearing and obtain approval from the Committee Chair to bring a representative sample of the potentially responsive records to the hearing, if it is possible to do so.

(7) Third party presentations [shall]may be permitted. [At the conclusion of the testimony presented, the Committee Chair shall ask for statements from any third party.]Prior to the hearing, the third party shall notify the Executive Secretrary of intent to present. Third party presentations shall be limited to [ten]five minutes.

(8) Closing arguments may be presented by the petitioner and the governmental entity. Each party shall be allowed five minutes to present a closing argument and make rebuttal statements.

(9) After presentation of the evidence, the Committee shall commence deliberations. A Committee Member shall make a motion to grant or to deny the petitioner's request in whole or in part. Following discussion of the motion, the Committee Chair shall call for the question. The motion shall serve as the basis for the Committee Decision and Order. The Committee shall vote and make public the decision of the Committee during the hearing.

(10) The Committee may adjourn, reschedule, continue, or reopen a hearing on the motion of a member.

(11) Except as expressly authorized by law, there shall be no communication between the parties and the members of the Committee concerning the subject matter of the appeal before the hearing or prior to the issuance of a final Decision And Order. Any other oral or written communication from the parties to the members of the Committee, or from the members of the Committee to the parties, shall be directed to the Executive Secretary for transmittal.

(12) The following provisions govern any meeting at which one or more members of the Committee or a party appears telephonically or electronically , pursuant to Utah Code Section 52-4-207.

(a) The anchor location is the physical location from which the electronic meeting originates or from which the participants are connected. The anchor location, unless otherwise designated in the notice, shall be at the offices of the Division of State Archives, Salt Lake City, Utah.

(b) If one or more [members of the ]Committee members or [a party]parties may be [participate]participating electronically or telephonically, public notices of the meeting shall so indicate. In addition, the notice shall specify the anchor location where the members of the Committee not participating electronically or telephonically will be meeting and where interested persons and the public may attend and monitor the open portions of the meeting.

(c) When notice is given of the possibility of a member of the Committee appearing electronically or telephonically, any member of the Committee may do so and shall be counted as present for purposes of a quorum and may fully participate and vote on any matter coming before the Committee. At the commencement of the meeting, or at such time as any member of the Committee initially appears electronically or telephonically, the Committee Chair shall identify for the record all those who are appearing telephonically or electronically. Votes by members of the Committee who are not at the physical location of the meeting shall be confirmed by the Committee Chair.

(13)(a) If the petitioner wishes to postpone the hearing or withdraw the appeal, the petitioner shall notify the Committee and the governmental entity in writing no later than two days prior to the scheduled hearing date.[  Failure to comply with this provision may result in a Committee order requiring that the petitioner pay the governmental entity's reasonable costs and expenses. The Committee will ordinarily deny a governmental entity's request to postpone the hearing, unless the governmental entity has obtained the petitioner's prior consent to reschedule the hearing date.]

(b) The Committee Chair has the discretion to grant or deny a petitioner's request to postpone a hearing based upon: (i) the reasons given by the petitioner in his or her request,[;] (ii) the timeliness of the request,[;] (iii) whether petitioner has previously requested and received a postponement ,[;] (iv) any other factor determined to protect the equitable interests of the parties.

(c) The Committee will ordinarily deny a governmental entity's request to postpone the hearing, unless the governmental entity has obtained the petitioner's prior consent to reschedule the hearing date.

 

R35-1-3. Issuing the Committee Decision and Order.

(1) The Decision and Order shall be signed by the Committee Chair and distributed by the Executive Secretary within seven business days after the hearing. Copies of [the]each Decision and Order [will]shall be distributed to the petitioner, the governmental entity and all other interested parties. The original order shall be maintained by the Executive Secretary. A copy of the order shall be made available for public access at the Utah State Archives website.

 

R35-1-4. Committee Minutes.

(1) Purpose. Utah Code Section 52-4-203 requires any public body to establish and implement procedures for the public body's approval of the written minutes of each meeting. This rule establishes procedures for the State Records Committee to approve the written minutes of each meeting.

(2) Authority. This rule is enacted under the authority of Utah Code Sections 52-4-203, 63G-3-201, and 63A-12-101 et seq.

(3) All meetings of the Committee shall be recorded. The recording of the open meeting shall be made available to the public within [3]three business days. Access to the audio recordings shall be provided by the Executive Secretary [at the Utah State Archives, Research Center]on the Utah Public Notice Website.

(4) Approved written minutes shall be the official record of the meetings and appeal hearings and shall be maintained by the Executive Secretary.

(a) Written minutes shall be read by members prior to the next scheduled meeting, including electronic meetings.

(b) Written minutes from meetings [will ]shall be made available no later than one week prior to the date of the next regularly scheduled Committee meeting.

(c) When minutes are complete but awaiting official approval, they are a public record and must be marked as "Draft["]. "

(d) At the next meeting, at the direction of the Committee [c]Chair, minutes shall be amended and/or approved with individual votes recorded in the minutes. The minutes [will]shall be then marked as "Approved["]. "

(e) When the minutes are "Approved" they will be so noted in the printed and online versions. A copy of the approved minutes shall be made available for public access [at the Utah State Archives]on the Utah Public Notice Website.

 

KEY: government documents, state records committee, records appeal hearings

Date of Enactment or Last Substantive Amendment: [August 30, 2013]2014

Notice of Continuation: June 3, 2014

Authorizing, and Implemented or Interpreted Law: 63G-2-502(2)(a)