No. 41479 (Amendment): Section R35-2-2. Declining Requests for Hearings

(Amendment)

DAR File No.: 41479
Filed: 04/14/2017 01:35:11 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In Subsection 63G-2-403(2)(b), it states the notice of appeal shall be accompanied by a copy of the decision being appealed, not a copy of any denial. This change reflects a more accurate description of what is required to file a notice of appeal.

Summary of the rule or change:

The omission of the word denial corrects the language between the statute and the administrative rule. Substituting the word "decision" for the word "denial" is a more accurate description of what is required for an appellant to file a notice of appeal to the State Records Committee (Committee). The appellant may not have received a denial but must submit documentation of any decision to complete on appeal.

Statutory or constitutional authorization for this rule:

• Subsection 63G-2-502(2)(a)

Anticipated cost or savings to:

the state budget:

This change in no way affects the state budget. It is a change in wording which clarifies the appeal process. The Archives provides staffing and a venue for the meetings and business of the Committee. The effort to make the hearing process more efficient will not affect the commitment of time and staffing already provided. The state budget will not be affected.

local governments:

Local government budget will not be affected. A response to a government records request, whether it is a denial, partial denial, or some other decision must be included in the appellant's documentation. If this is communicated to a person requesting records, it will clarify what an appellant to the Committee must include in the documentation.

small businesses:

Small businesses will not be affected by this change in wording. Small businesses are not respondents to Government Records Access and Management Act (GRAMA).

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

Any person or citizen filing a notice of appeal to the Committee will be affected by this and be instructed to include any decision in the appeal documentation.

Compliance costs for affected persons:

There is no cost related to this amendment. The amendment simply changes wording to clarify the appeal process.

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

Small businesses are not fiscally impacted by the amendment or changes.

David Fleming, Chair

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Administrative Services
Records Committee
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 [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:

05/31/2017

This rule may become effective on:

06/12/2017

Authorized by:

David Fleming, Chair, State Records Committee

RULE TEXT

R35. Administrative Services, Records Committee.

R35-2. Declining Appeal Hearings.

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]decision 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: [July 31, 2015]2017

Notice of Continuation: June 3, 2014

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

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