No. 29081 (Amendment): R35-2-2. Declining Requests for Hearings

DAR File No.: 29081
Filed: 09/26/2006, 09:16
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Committee decided that the rule needed to account for records that had been destroyed according to an approved retention schedule.

Summary of the rule or change:

In Subsection R35-2-2(b), the wording has been changed to allow for a record to be disposed of according to a retention schedule.

State statutory or constitutional authorization for this rule:

Subsection 63-2-403(4)

Anticipated cost or savings to:

the state budget:

There may be a savings in legal fees since the rule allows for records to be destroyed and therefore, the petitioner would not appeal to district court.

local governments:

There may be a savings in legal fees since the rule allows for records to be destroyed and therefore, the petitioner would not appeal to district court.

other persons:

There may be a savings in legal fees since the rule allows for records to be destroyed and therefore, the petitioner would not appeal to district court.

Compliance costs for affected persons:

Since the appeal for records that the governmental entity claims do not exist would not come before the Committee, there is no cost impact for compliance with the Committee's order.

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

Since this is a clarification of the rule there is no fiscal impact on businesses. Richard Ellis, 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:

Janell Tuttle at the above address, by phone at 801-531-3862, by FAX at 801-531-3867, or by Internet E-mail at [e-mail]

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:

11/14/2006

This rule may become effective on:

11/21/2006

Authorized by:

Patricia Smith-Mansfield, Director

RULE TEXT

R35. Administrative Services, Records Committee.

R35-2. Declining Appeal Hearings.

R35-2-2. Declining Requests for Hearings.

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

(b) [The claim that a record does not exist does not constitute a denial unless the petitioner can provide sufficient evidence in his or her statement of facts, reasons, and legal authority in support of appeal that record did exist at one time. A determination that sufficient facts have or have not been alleged shall be made by the chair of the Committee. In the circumstance that sufficient facts have not been alleged, the Executive Secretary shall be instructed not to schedule an appeal hearing, and shall inform the petitioner appropriately.]In any appeal to the Committee of a governmental entity's denial of access to records for the reason that the record does not exist, 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 at one time, or that the governmental entity has concealed, or not sufficiently or improperly searched for the record. The chair of the Committee shall determine whether or not the petitioner has provided sufficient evidence. If the chair of the Committee 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 chair of the Committee 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.

(c) In order to file an appeal the petitioner must submit a copy of their initial records requests, 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.

(d) The chair 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 63-2-402(11)(b), Utah Code. A copy of each decision to deny a hearing shall be signed and retained in the file.

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

(f) 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.

(g) If a Committee member has requested a discussion to reconsider the decisions 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: (1) whether the records being requested were covered by a previous order of the Committee, and/or (2) 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.

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

 

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

Date of Enactment or Last Substantive Amendment: [March 4, 2005]2006

Notice of Continuation: July 2, 2004

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