DAR File No. 38642

Administrative Services, Records Committee

Rule R35-2

Declining Appeal Hearings

Notice of Proposed Rule

(Amendment)

DAR File No.: 38642
Filed: 06/23/2014 03:28:14 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes in the rule more accurately define the procedures for declining a request to the Committee for a hearing.

Summary of the rule or change:

The Chair and one other member of the Committee shall be consulted in order to decline a hearing request. A hearing may be declined if the petitioner does not provide sufficient proof that the governmental entity has at one time maintained the requested record. To file an appeal, a petitioner must submit a copy of the initial records request or a statement of the specific records requested, as well as any denial of the records requested. A hearing may be declined if pursuant to Subsection 63G-2-403(4)(b)(ii), it was found that the records at issue are appropriately classified. A notice to the petitioner shall include a copy of the previous order. A possible public interest claim may be a reason to not decline a hearing. The committee may reverse the decision to decline a hearing by a majority vote of members present. The annual report shall include a complete documented list of hearings held, withdrawn, and declined.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

The state budget is not affected by this change in the rule. The procedures outlined in this rule have no fiscal impact. They are outlined to facilitate the way the Committee operates when it answers appeals. The Committee members work with Archives staff and the procedures that are followed do not have a fiscal component that is affected by any hearings that are denied or scheduled.

local governments:

Local government is not affected by this change in the rule. The rule changes do not include any increased financial obligation or savings that would affect the state budget.

small businesses:

Small business is not affected by this change in the rule. Small businesses are not affected by the way hearings are scheduled or denied. No fiscal impact would be attached to hearings scheduled or denied.

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

No person is affected by this change in the rule. Since this rule is procedural within the State Records Committee, it has no fiscal impact on persons.

Compliance costs for affected persons:

There are no compliance costs associated with this change in the rule. The rule addresses procedures for denying hearings and how the Committee answers appeals. There is no cost associated with this change.

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

Businesses are not affected and no cost is entailed in this change to the rule.

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 smumford@utah.gov

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.

R35-2. 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 C[c]hair [of the Committee ]and at least one other member of the Committee as selected by the C[c]hair.

(2) In any appeal to the Committee of a governmental entity's denial of access to records for the reason that the record [does]is not [exist]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 [did exist]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 C[c]hair [of the Committee ]shall determine whether or not the petitioner has provided sufficient evidence. If the Committee C[c]hair [of the Committee ]determines that sufficient evidence has been provided, the C[c]hair shall direct the Executive Secretary to schedule a hearing as otherwise provided in these rules. If the Committee C[c]hair [of the Committee ]determines that sufficient evidence has not been provided, the C[c]hair 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 C[c]hair 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[their] 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 C[c]hair [of the Committee ]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 [signed and ]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), Utah Code, shall include a copy of the previous order of the Committee holding that the records [series ]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[s] to decline a hearing, the Committee may, after discussion and by a majority vote, choose to reverse the decision [of the Executive Secretary ]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 [all hearings ]declined.

 

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

Date of Enactment or Last Substantive Amendment: [January 5, 2007]2014

Notice of Continuation: June 3, 2014

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