63G-2-401. Appeal to chief administrative officer — Notice of the decision of the appeal.
(1)
Terms Used In Utah Code 63G-2-401
Access denial: means a governmental entity's denial, under Subsection 63G-2-204(9) or Section 63G-2-205, in whole or in part, of a record request. See Utah Code 63G-2-400.5
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
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 Office, the State Board of Education, the Utah Board of Higher Education, 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 Administrative Office of the Courts, 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 63G-2-701, this chapter shall apply to the political subdivision to the extent specified in Section 63G-2-701 or as specified in any other section of this chapter that specifically refers to political subdivisions. See Utah Code 63G-2-103
Interested party: means a person, other than a requester, who is aggrieved by an access denial or an appellate affirmation, whether or not the person participated in proceedings leading to the access denial or appellate affirmation. See Utah Code 63G-2-400.5
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, 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. See Utah Code 63G-2-103
Requester: means a person who submits a record request to a governmental entity. See Utah Code 63G-2-400.5
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
State Records Committee: means the State Records Committee created in Section 63G-2-501. See Utah Code 63G-2-103
(a)
A requester or interested party may appeal an access denial to the chief administrative officer of the governmental entity by filing a notice of appeal with the chief administrative officer within 30 days after:
(i)
the governmental entity sends a notice of denial under Section 63G-2-205, if the governmental entity denies a record request under Subsection 63G-2-205(1); or
(ii)
the record request is considered denied under Subsection 63G-2-204(9), if that subsection applies.
(b)
If a governmental entity claims extraordinary circumstances and specifies the date when the records will be available under Subsection 63G-2-204(4), and, if the requester believes the extraordinary circumstances do not exist or that the date specified is unreasonable, the requester may appeal the governmental entity’s claim of extraordinary circumstances or date for compliance to the chief administrative officer by filing a notice of appeal with the chief administrative officer within 30 days after notification of a claim of extraordinary circumstances by the governmental entity, despite the lack of a “determination” or its equivalent under Subsection 63G-2-204(9).
(2)
A notice of appeal shall contain:
(a)
the name, mailing address, and daytime telephone number of the requester or interested party; and
(b)
the relief sought.
(3)
The requester or interested party may file a short statement of facts, reasons, and legal authority in support of the appeal.
(4)
(a)
If the appeal involves a record that is the subject of a business confidentiality claim under Section 63G-2-309, the chief administrative officer shall:
(i)
send notice of the appeal to the business confidentiality claimant within three business days after receiving notice, except that if notice under this section must be given to more than 35 persons, it shall be given as soon as reasonably possible; and
(ii)
send notice of the business confidentiality claim and the schedule for the chief administrative officer’s determination to the requester or interested party within three business days after receiving notice of the appeal.
(b)
The business confidentiality claimant shall have seven business days after notice is sent by the administrative officer to submit further support for the claim of business confidentiality.
(5)
(a)
The chief administrative officer shall make a decision on the appeal within:
(i)
(A)
10 business days after the chief administrative officer’s receipt of the notice of appeal; or
(B)
five business days after the chief administrative officer’s receipt of the notice of appeal, if the requester or interested party demonstrates that an expedited decision benefits the public rather than the requester or interested party; or
(ii)
12 business days after the governmental entity sends the notice of appeal to a person who submitted a claim of business confidentiality.
(b)
(i)
If the chief administrative officer fails to make a decision on an appeal of an access denial within the time specified in Subsection (5)(a), the failure is the equivalent of a decision affirming the access denial.
(ii)
If the chief administrative officer fails to make a decision on an appeal under Subsection (1)(b) within the time specified in Subsection (5)(a), the failure is the equivalent of a decision affirming the claim of extraordinary circumstances or the reasonableness of the date specified when the records will be available.
(c)
The provisions of this section notwithstanding, the parties participating in the proceeding may, by agreement, extend the time periods specified in this section.
(6)
Except as provided in Section 63G-2-406, the chief administrative officer 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 under Subsection 63G-2-302(2) or protected under Section 63G-2-305 if the interests favoring access are greater than or equal to the interests favoring restriction of access.
(7)
(a)
The governmental entity shall send written notice of the chief administrative officer’s decision to all participants.
(b)
If the chief administrative officer’s decision is to affirm the access denial in whole or in part, the notice under Subsection (7)(a) shall include:
(i)
a statement that the requester or interested party has the right to appeal the decision, as provided in Section 63G-2-402, to:
(A)
the State Records Committee or district court; or
(B)
the local appeals board, if the governmental entity is a political subdivision and the governmental entity has established a local appeals board;
(ii)
the time limits for filing an appeal; and
(iii)
the name and business address of:
(A)
the executive secretary of the State Records Committee; and
(B)
the individual designated as the contact individual for the appeals board, if the governmental entity is a political subdivision that has established an appeals board under Subsection 63G-2-701(5)(c).
(8)
A person aggrieved by a governmental entity’s classification or designation determination under this chapter, but who is not requesting access to the records, may appeal that determination using the procedures provided in this section. If a nonrequester is the only appellant, the procedures provided in this section shall apply, except that the decision on the appeal shall be made within 30 days after receiving the notice of appeal.
(9)
The duties of the chief administrative officer under this section may be delegated.
Amended by Chapter 254, 2019 General Session Amended by Chapter 334, 2019 General Session
