Utah SB 179 - Protection of Government Records
S.B. 179 Enrolled
Chief Sponsor: Gregory S. Bell
House Sponsor: Fred R. Hunsaker
LONG TITLE
General Description:
This bill addresses the treatment of records including those related to institutions within
the state system of higher education.
Highlighted Provisions:
This bill:
. defines terms;
. addresses what information must be disclosed upon receipt of a written request for a
reasonably identifiable record;
. addresses protected records related to an institution within the state system of higher
education;
. provides a process for a sponsor of research at an institution within the state system
of higher education to file a written claim of business confidentiality including
providing certain notice requirements;
. addresses how business confidentiality claims are treated; and
. makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
53B-16-301, as enacted by Chapter 280, Laws of Utah 1992
53B-16-302, as enacted by Chapter 280, Laws of Utah 1992
53B-16-304, as enacted by Chapter 280, Laws of Utah 1992
63-2-103, as last amended by Chapter 78, Laws of Utah 2002
63-2-202, as last amended by Chapter 298, Laws of Utah 2003
63-2-304, as last amended by Chapters 223, 299 and 358, Laws of Utah 2004
63-2-308, as last amended by Chapter 280, Laws of Utah 1992
63-2-403, as last amended by Chapter 245, Laws of Utah 1999
Be it enacted by the Legislature of the state of Utah:
Section 1.
Section
53B-16-301
is amended to read:
53B-16-301. Definitions.
As used in this part:
(1) “Person” means:
(a) a federal, state, or local governmental entity:
(i) that sponsors sponsored research; or
(ii) participates in a technology transfer;
(b) an individual;
(c) a nonprofit or profit corporation;
(d) a partnership;
(e) a sole proprietorship; or
(f) other type of business organization.
(2) “Public institution of higher education” means an institution within the state system
of higher education defined in Section
53B-1-102
.
[(1)] (3) “Restricted record” means a record that is restricted as provided by Section
53B-16-303
.
[(2)] (4) “Sponsored research” refers to [basic or applied] research, training, and other
sponsored activities as defined by the federal Executive Office of the President, Office of
Management and Budget:
(a) conducted by a public institution of higher education through an office responsible for
sponsored projects or programs; and
(b) funded or otherwise supported by an external [persons or entities] person that is not
created or controlled by the public institution of higher education.
[(3)] (5) “Technology transfer” refers to transferring information, commercializing
research, or providing technical assistance between a public institution of higher education and
external persons [or entities] for the purpose of economic development.
Section 2.
Section
53B-16-302
is amended to read:
53B-16-302. Records that may be classified as restricted.
A public institution of higher education may classify only the following records as
restricted:
(1) that portion of a technology transfer record or sponsored research record to which
access must be restricted for the purpose of securing and maintaining proprietary protection of
intellectual property rights, including but not limited to patents, copyrights, trademarks, and trade
secrets; or
(2) that portion of a technology transfer record or sponsored research record to which
access is restricted for competitive or proprietary purposes, as a condition of actual or potential
participation in a sponsored research or technology transfer agreement; provided, however, that
upon receipt of a written request for a reasonably identifiable record, the public institution of
higher education shall disclose:
(a) prior to a memorandum of intent to contract or an agreement in principle between the
parties:
(i) the names of the parties, or, if the disclosure of names would cause competitive harm,
a general description of the type of parties negotiating the technology transfer or sponsored
research agreement; and
(ii) a general description of the nature of the technology transfer or sponsored research
under consideration, excluding proprietary or competitive information; or
(b) after a memorandum of intent to contract or an agreement in principle between the
parties:
(i) the names of the parties involved in the technology transfer or sponsored research;
[and]
(ii) a general description of the nature of the technology transfer or sponsored research to
be conducted, excluding proprietary or competitive information; and
[(ii)] (iii) records of the technology transfer or sponsored research to be conducted,
excluding those portions of records to which access is limited under this part or Title 63, Chapter
2, Government Records Access and Management Act.
Section 3.
Section
53B-16-304
is amended to read:
53B-16-304. Business confidentiality claims.
(1) (a) Any person who provides to [an] a public institution of higher education a record
that [he] the person believes should be protected under [Subsections] a
63-2-304
(1) or (2) or
provision listed in Subsection
63-2-308
(1)(b)(i), restricted under Section
53B-16-302
, or both
protected under a provision listed in Subsection
63-2-308
(1)(b)(i) and restricted under Section
53B-16-302
, shall provide [with the record] the public institution of higher education:
(i) a written claim of business confidentiality; and
(ii) a concise statement of reasons supporting the claim[, provided that] of business
confidentiality.
(b) The person described in Subsection (1)(a) shall make the filing at the commencement
of:
(i) the sponsored research project; or
(ii) the technology transfer process.
(c) A claim of business confidentiality submitted under this Subsection (1) shall cover all
protected and restricted records exchanged during the:
(i) sponsored research project; or
(ii) technology transfer process.
(2) The inadvertent failure to make a legally adequate claim of business confidentiality at
the time [the record is provided to the institution shall] required by Subsection (1) does not
prejudice the claimant’s right to make a legally adequate claim at a [later] different time before
disclosure of the record.
Section 4.
Section
63-2-103
is amended to read:
63-2-103. Definitions.
As used in this chapter:
(1) “Audit” means:
(a) a systematic examination of financial, management, program, and related records for
the purpose of determining the fair presentation of financial statements, adequacy of internal
controls, or compliance with laws and regulations; or
(b) a systematic examination of program procedures and operations for the purpose of
determining their effectiveness, economy, efficiency, and compliance with statutes and
regulations.
(2) “Chronological logs” mean the regular and customary summary records of law
enforcement agencies and other public safety agencies that show:
(a) the time and general nature of police, fire, and paramedic calls made to the agency;
and
(b) any arrests or jail bookings made by the agency.
(3) “Classification,” “classify,” and their derivative forms mean determining whether a
record series, record, or information within a record is public, private, controlled, protected, or
exempt from disclosure under Subsection
63-2-201
(3)(b).
(4) (a) “Computer program” means:
(i) a series of instructions or statements that permit the functioning of a computer system
in a manner designed to provide storage, retrieval, and manipulation of data from the computer
system[,]; and
(ii) any associated documentation and source material that explain how to operate the
computer program.
(b) “Computer program” does not mean:
(i) the original data, including numbers, text, voice, graphics, and images;
(ii) analysis, compilation, and other manipulated forms of the original data produced by
use of the program; or
(iii) the mathematical or statistical formulas, [(]excluding the underlying mathematical
algorithms contained in the program[)], that would be used if the manipulated forms of the
original data were to be produced manually.
(5) (a) “Contractor” means:
(i) any person who contracts with a governmental entity to provide goods or services
directly to a governmental entity; or
(ii) any private, nonprofit organization that receives funds from a governmental entity.
(b) “Contractor” does not mean a private provider.
(6) “Controlled record” means a record containing data on individuals that is controlled
as provided by Section
63-2-303
.
(7) “Designation,” “designate,” and their derivative forms mean indicating, based on a
governmental entity’s familiarity with a record series or based on a governmental entity’s review
of a reasonable sample of a record series, the primary classification that a majority of records in a
record series would be given if classified and the classification that other records typically
present in the record series would be given if classified.
(8) “Explosive” means a chemical compound, device, or mixture:
(a) commonly used or intended for the purpose of producing an explosion; and
(b) that contains oxidizing or combustive units or other ingredients in proportions,
quantities, or packing so that:
(i) an ignition by fire, friction, concussion, percussion, or detonator of any part of the
compound or mixture may cause a sudden generation of highly heated gases; and
(ii) the resultant gaseous pressures are capable of:
(A) producing destructive effects on contiguous objects; or
(B) causing death or serious bodily injury.
(9) “Government audit agency” means any governmental entity that conducts audits.
(10) (a) “Governmental entity” means:
(i) executive department agencies of the state, the offices of the governor, lieutenant
governor, state auditor, attorney general, and state treasurer, the Board of Pardons and Parole, the
Board of Examiners, the National Guard, the Career Service Review Board, the State Board of
Education, the State Board of Regents, and the State Archives;
(ii) the Office of the Legislative Auditor General, Office of the Legislative Fiscal
Analyst, Office of Legislative Research and General Counsel, the Legislature, and legislative
committees, except any political party, group, caucus, or rules or sifting committee of the
Legislature;
(iii) courts, the Judicial Council, the Office of the Court Administrator, and similar
administrative units in the judicial branch;
(iv) any state-funded institution of higher education or public education; or
(v) any political subdivision of the state, but, if a political subdivision has adopted an
ordinance or a policy relating to information practices pursuant to Section
63-2-701
, this chapter
shall apply to the political subdivision to the extent specified in Section
63-2-701
or as specified
in any other section of this chapter that specifically refers to political subdivisions.
(b) “Governmental entity” also means every office, agency, board, bureau, committee,
department, advisory board, or commission of the entities listed in Subsection (10)(a) that is
funded or established by the government to carry out the public’s business.
(11) “Gross compensation” means every form of remuneration payable for a given period
to an individual for services provided including salaries, commissions, vacation pay, severance
pay, bonuses, and any board, rent, housing, lodging, payments in kind, and any similar benefit
received from the individual’s employer.
(12) “Individual” means a human being.
(13) (a) “Initial contact report” means an initial written or recorded report, however
titled, prepared by peace officers engaged in public patrol or response duties describing official
actions initially taken in response to either a public complaint about or the discovery of an
apparent violation of law, which report may describe:
(i) the date, time, location, and nature of the complaint, the incident, or offense;
(ii) names of victims;
(iii) the nature or general scope of the agency’s initial actions taken in response to the
incident;
(iv) the general nature of any injuries or estimate of damages sustained in the incident;
(v) the name, address, and other identifying information about any person arrested or
charged in connection with the incident; or
(vi) the identity of the public safety personnel, except undercover personnel, or
prosecuting attorney involved in responding to the initial incident.
(b) Initial contact reports do not include follow-up or investigative reports prepared after
the initial contact report. However, if the information specified in Subsection (13)(a) appears in
follow-up or investigative reports, it may only be treated confidentially if it is private, controlled,
protected, or exempt from disclosure under Subsection
63-2-201
(3)(b).
(14) “Person” means [any]:
(a) an individual[,];
(b) a nonprofit or profit corporation[,];
(c) a partnership[,];
(d) a sole proprietorship[,]; or
(e) other type of business organization.
(15) “Private provider” means any person who contracts with a governmental entity to
provide services directly to the public.
(16) “Private record” means a record containing data on individuals that is private as
provided by Section
63-2-302
.
(17) “Protected record” means a record that is classified protected as provided by Section
63-2-304
.
(18) “Public record” means a record that is not private, controlled, or protected and that
is not exempt from disclosure as provided in Subsection
63-2-201
(3)(b).
(19) (a) “Record” means all books, letters, documents, papers, maps, plans, photographs,
films, cards, tapes, recordings, electronic data, or other documentary materials regardless of
physical form or characteristics:
(i) which are prepared, owned, 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.
(b) “Record” does not mean:
(i) temporary drafts or similar materials prepared for the originator’s personal use or
prepared by the originator for the personal use of an individual for whom [he] the originator is
working;
(ii) materials that are legally owned by an individual in [his] the individual’s private
capacity;
(iii) materials to which access is limited by the laws of copyright or patent unless the
copyright or patent is owned by a governmental entity or political subdivision;
(iv) proprietary software;
(v) junk mail or commercial publications received by a governmental entity or an official
or employee of a governmental entity;
(vi) books and other materials that are cataloged, indexed, or inventoried and contained
in the collections of libraries open to the public, regardless of physical form or characteristics of
the material;
(vii) daily calendars and other personal notes prepared by the originator for the
originator’s personal use or for the personal use of an individual for whom [he] the originator is
working;
(viii) computer programs as defined in Subsection (4) that are developed or purchased by
or for any governmental entity for its own use; or
(ix) notes or internal memoranda prepared as part of the deliberative process by a
member of the judiciary, an administrative law judge, a member of the Board of Pardons and
Parole, or a member of any other body charged by law with performing a quasi-judicial function.
(20) “Record series” means a group of records that may be treated as a unit for purposes
of designation, description, management, or disposition.
(21) “Records committee” means the State Records Committee created in Section
63-2-501
.
(22) “Records officer” means the individual appointed by the chief administrative officer
of each governmental entity, or the political subdivision to work with state archives in the care,
maintenance, scheduling, designation, classification, disposal, and preservation of records.
(23) “Schedule,” “scheduling,” and their derivative forms mean the process of specifying
the length of time each record series should be retained by a governmental entity for
administrative, legal, fiscal, or historical purposes and when each record series should be
transferred to the state archives or destroyed.
(24) “Sponsored research” means research, training, and other sponsored activities as
defined by the federal Executive Office of the President, Office of Management and Budget:
(a) conducted:
(i) by an institution within the state system of higher education defined in Section
53B-1-102
; and
(ii) through an office responsible for sponsored projects or programs; and
(b) funded or otherwise supported by an external:
(i) person that is not created or controlled by the institution within the state system of
higher education; or
(ii) federal, state, or local governmental entity.
[(24)] (25) “State archives” means the Division of Archives and Records Service created
in Section
63-2-901
.
[(25)] (26) “State archivist” means the director of the state archives.
[(26)] (27) “Summary data” means statistical records and compilations that contain data
derived from private, controlled, or protected information but that do not disclose private,
controlled, or protected information.
Section 5.
Section
63-2-202
is amended to read:
63-2-202. Access to private, controlled, and protected documents.
(1) Upon request, a governmental entity shall disclose a private record to:
(a) the subject of the record;
(b) the parent or legal guardian of an unemancipated minor who is the subject of the
record;
(c) the legal guardian of a legally incapacitated individual who is the subject of the
record;
(d) any other individual who:
(i) has a power of attorney from the subject of the record;
(ii) submits a notarized release from the subject of the record or his legal representative
dated no more than 90 days before the date the request is made; or
(iii) if the record is a medical record described in Subsection
63-2-302
(1)(b), is a health
care provider, as defined in Section
26-33a-102
, if releasing the record or information in the
record is consistent with normal professional practice and medical ethics; or
(e) any person to whom the record must be provided pursuant to:
(i) court order as provided in Subsection (7); or
(ii) a legislative subpoena as provided in Title 36, Chapter 14.
(2) (a) Upon request, a governmental entity shall disclose a controlled record to:
(i) a physician, psychologist, certified social worker, insurance provider or producer, or a
government public health agency upon submission of:
(A) a release from the subject of the record that is dated no more than 90 days prior to the
date the request is made; and
(B) a signed acknowledgment of the terms of disclosure of controlled information as
provided by Subsection (2)(b); and
(ii) any person to whom the record must be disclosed pursuant to:
(A) a court order as provided in Subsection (7); or
(B) a legislative subpoena as provided in Title 36, Chapter 14.
(b) A person who receives a record from a governmental entity in accordance with
Subsection (2)(a)(i) may not disclose controlled information from that record to any person,
including the subject of the record.
(3) If there is more than one subject of a private or controlled record, the portion of the
record that pertains to another subject shall be segregated from the portion that the requester is
entitled to inspect.
(4) Upon request, a governmental entity shall disclose a protected record to:
(a) the person who submitted the record;
(b) any other individual who:
(i) has a power of attorney from all persons, governmental entities, or political
subdivisions whose interests were sought to be protected by the protected classification; or
(ii) submits a notarized release from all persons, governmental entities, or political
subdivisions whose interests were sought to be protected by the protected classification or from
their legal representatives dated no more than 90 days prior to the date the request is made;
(c) any person to whom the record must be provided pursuant to:
(i) a court order as provided in Subsection (7); or
(ii) a legislative subpoena as provided in Title 36, Chapter 14; or
(d) the owner of a mobile home park, subject to the conditions of Subsection
41-1a-116
(5).
(5) A governmental entity may disclose a private, controlled, or protected record to
another governmental entity, political subdivision, another state, the United States, or a foreign
government only as provided by Section
63-2-206
.
(6) Before releasing a private, controlled, or protected record, the governmental entity
shall obtain evidence of the requester’s identity.
(7) A governmental entity shall disclose a record pursuant to the terms of a court order
signed by a judge from a court of competent jurisdiction, provided that:
(a) the record deals with a matter in controversy over which the court has jurisdiction;
(b) the court has considered the merits of the request for access to the record; and
(c) the court has considered and, where appropriate, limited the requester’s use and
further disclosure of the record in order to protect:
(i) privacy interests in the case of private or controlled records[,];
(ii) business confidentiality interests in the case of records protected under [Subsections]
Subsection
63-2-304
(1) [and], (2), (40)(a)(ii), or (40)(a)(vi); and
(iii) privacy interests or the public interest in the case of other protected records;
(d) to the extent the record is properly classified private, controlled, or protected, the
interests favoring access, considering limitations thereon, outweigh the interests favoring
restriction of access; and
(e) where access is restricted by a rule, statute, or regulation referred to in Subsection
63-2-201
(3)(b), the court has authority independent of this chapter to order disclosure.
(8) (a) A governmental entity may disclose or authorize disclosure of private or
controlled records for research purposes if the governmental entity:
(i) determines that the research purpose cannot reasonably be accomplished without use
or disclosure of the information to the researcher in individually identifiable form;
(ii) determines that:
(A) the proposed research is bona fide[,]; and [that]
(B) the value of the research outweighs the infringement upon personal privacy;
(iii) (A) requires the researcher to assure the integrity, confidentiality, and security of the
records; and
(B) requires the removal or destruction of the individual identifiers associated with the
records as soon as the purpose of the research project has been accomplished;
(iv) prohibits the researcher from:
(A) disclosing the record in individually identifiable form, except as provided in
Subsection (8)(b)[,]; or [from]
(B) using the record for purposes other than the research approved by the governmental
entity; and
(v) secures from the researcher a written statement of [his] the researcher’s understanding
of and agreement to the conditions of this Subsection (8) and [his] the researcher’s understanding
that violation of the terms of this Subsection (8) may subject [him] the researcher to criminal
prosecution under Section
63-2-801
.
(b) A researcher may disclose a record in individually identifiable form if the record is
disclosed for the purpose of auditing or evaluating the research program and no subsequent use
or disclosure of the record in individually identifiable form will be made by the auditor or
evaluator except as provided by this section.
(c) A governmental entity may require indemnification as a condition of permitting
research under this Subsection (8).
(9) (a) Under Subsections
63-2-201
(5)(b) and
63-2-401
(6), a governmental entity may
disclose to persons other than those specified in this section records that are:
(i) private under Section
63-2-302
[,]; or
(ii) protected under Section
63-2-304
[to persons other than those specified in this
section] subject to Section
63-2-308
if a claim for business confidentiality has been made under
Section
63-2-308
.
(b) Under Subsection
63-2-403
(11)(b), the [Records Committee] records committee may
require the disclosure to persons other than those specified in this section of records that are:
(i) private under Section
63-2-302
[,];
(ii) controlled under Section
63-2-303
[,]; or
(iii) protected under Section
63-2-304
[to persons other than those specified in this
section] subject to Section
63-2-308
if a claim for business confidentiality has been made under
Section
63-2-308
.
(c) Under Subsection
63-2-404
(8), the court may require the disclosure of records that
are private under Section
63-2-302
, controlled under Section
63-2-303
, or protected under
Section
63-2-304
to persons other than those specified in this section.
Section 6.
Section
63-2-304
is amended to read:
63-2-304. Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret
has provided the governmental entity with the information specified in Section
63-2-308
;
(2) commercial information or nonindividual financial information obtained from a
person if:
(a) disclosure of the information could reasonably 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
63-2-308
;
(3) commercial or financial information acquired or prepared by a governmental entity to
the extent that disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the governmental entity or cause
substantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, a commercial project entity as
defined in Subsection
11-13-103
(4);
(5) test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;
(6) records the disclosure of which would impair governmental procurement proceedings
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
governmental entity, except that this Subsection (6) does not restrict the right of a person to see
bids submitted to or by a governmental entity after bidding has closed;
(7) records that would identify real property or the appraisal or estimated value of real or
personal property, including intellectual property, under consideration for public acquisition
before any