DAR File No. 39401

Administrative Services, Records Committee

Rule R35-2

Declining Appeal Hearings

Notice of Proposed Rule

(Amendment)

DAR File No.: 39401
Filed: 05/15/2015 03:11:09 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Changes to this rule were made in order to comply with S.B. 157 from the 2015 General Session.

Summary of the rule or change:

Subsection 63G-2-403(4)(b)(ii)(A) was amended to include (A).

State statutory or constitutional authorization for this rule:

• Subsection 63G-2-403(4)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings that are expected. The changes made to this rule were made in order to comply with S.B. 157 (2015) regarding government records amendments.

local governments:

There are no anticipated costs or savings that are expected. The changes made to this rule were made in order to comply with S.B. 157 (2015) regarding government records amendments.

small businesses:

There are no anticipated costs or savings that are expected. The changes made to this rule were made in order to comply with S.B. 157 (2015) regarding government records amendments.

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

There are no anticipated costs or savings that are expected. The changes made to this rule were made in order to comply with S.B. 157 (2015) regarding government records amendments.

Compliance costs for affected persons:

There will be no compliance costs because the changes made to this rule simply comply with S.B. 157 (2015) regarding government records amendments.

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

There are no anticipated affects that this rule will have on businesses. The changes made to this rule simply comply with S.B. 157 (2015) regarding government records amendments.

Kimberly 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:

• Patricia Smith-Mansfield at the above address, by phone at 801-531-3850, by FAX at 801-538-3354, or by Internet E-mail at [email protected]
• Nicole Alder at the above address, by phone at 801-538-3240, by FAX at , 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:

07/01/2015

This rule may become effective on:

07/08/2015

Authorized by:

Patricia Smith-Mansfield, Director

R35. Administrative Services, Records Committee.

R35-2. Declining Appeal Hearings.

R35-2-1. Authority and Purpose.

In accordance with Section 63G-2-502 and Subsection 63G-2-403(4), Utah Code, this rule establishes the procedure declining to schedule hearings by the Executive Secretary of the State Records Committee.

 

R35-2-2. Declining Requests for Hearings.

(1) In order to decline a request for a hearing under Subsection 63G-2-403(4), the Executive Secretary shall consult with the Committee Chair and at least one other member of the Committee as selected by the Chair.

(2) In any appeal to the Committee of a governmental entity's denial of access to records for the reason that the record is not maintained by the governmental entity, the petitioner shall provide sufficient evidence in the petitioner's statement of facts, reasons, and legal authority in support of the appeal, that the record was maintained by the governmental entity at one time, or that the governmental entity has concealed, or not sufficiently or improperly searched for the record. The Committee Chair shall determine whether or not the petitioner has provided sufficient evidence. If the Committee Chair determines that sufficient evidence has been provided, the Chair shall direct the Executive Secretary to schedule a hearing as otherwise provided in these rules. If the Committee Chair determines that sufficient evidence has not been provided, the Chair shall direct the Executive Secretary to not schedule a hearing and to inform the petitioner of the determination. Evidence that a governmental entity has disposed of the record according to retention schedules is sufficient basis for the Chair to direct the Executive Secretary to not schedule a hearing.

(3) In order to file an appeal, the petitioner must submit a copy of his or her initial records requests or a statement of the specific records requested if a copy is unavailable to the petitioner, as well as any denial of the records request. The Executive Secretary shall notify the petitioner that a hearing cannot be scheduled until the proper information is submitted.

(4) The Committee Chair and one other member of the Committee must both agree with the Executive Secretary's recommendation to decline to schedule a hearing. Such a decision shall consider the potential for a public interest claim as may be put forward by the petitioner under the provisions of Subsection 63G-2-403(11)(b), Utah Code. A copy of each decision to deny a hearing shall be retained in the file.

(5) The Executive Secretary's notice to the petitioner indicating that the request for a hearing has been denied, as provided for in Subsection 63G-2-403(4)(b)(ii) (A), Utah Code, shall include a copy of the previous order of the Committee holding that the records at issue are appropriately classified.

(6) The Executive Secretary shall report on each of the hearings declined at each regularly scheduled meeting of the Committee in order to provide a public record of the actions taken.

(7) If a Committee member has requested a discussion to reconsider the decision to decline a hearing, the Committee may, after discussion and by a majority vote, choose to reverse the decision and hold a hearing. Any discussion of reconsideration shall be limited to those Committee members then present, and shall be based only on two questions: whether the records being requested were covered by a previous order of the Committee, and/or whether the petitioner has, or is likely to, put forth a public interest claim. Neither the petitioner nor the agency whose records are requested shall be heard at this time. If the Committee votes to hold a hearing, the Executive Secretary shall schedule it on the agenda of the next regularly scheduled Committee meeting.

(8) The Executive Secretary shall compile and include in an annual report to the Committee a complete documented list of all hearings held, withdrawn, and declined.

 

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

Date of Enactment or Last Substantive Amendment: [September 16, 2014]2015

Notice of Continuation: June 3, 2014

Authorizing, and Implemented or Interpreted Law: 63G-2-403(4)