PROCEDURES GOVERNING RECORDS PRACTICES
The section below has been affected by a recently passed ordinance, 16-17 - MISC CODE AMENDMENTS. Go to new ordinance.2.65.010: PURPOSE:
A. The purpose of this chapter is to provide, consistent with the Utah government records access and management act (the "act"), and other state and federal law, criteria and procedures relating to the records practices of the city including:
1. Classification and designation of city records pursuant to the act;
2. Procedures to access public city records;
3. Procedures to deny requests for access to nonpublic city records;
4. Process to appeal decisions regarding city records;
5. Management and retention of city records; and
6. Amendment to city records.
B. It is the intent of the city to:
1. Maintain and preserve accurate records;
2. Upon request, provide access to city records, which are defined by law as open to the public, within a reasonable time and at a reasonable cost; and
3. Retain the security of city records which are "private", "protected", or "controlled"; and records to which access is "restricted" pursuant to a state or federal statute, a state or federal regulation or a court rule. (Ord. 05-21 § 2)
The section below has been affected by a recently passed ordinance, 16-17 - MISC CODE AMENDMENTS. Go to new ordinance.2.65.020: DEFINITIONS:
A. The original data, including numbers, text, voice, graphics and images;
B. Analysis, compilation and other manipulated forms of the original data produced by use of the program; or
C. 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.
A. Any person who contracts with the city to provide goods or services directly to the city; or
B. Any private nonprofit organization that receives funds from the city.
"Contractor" does not mean a private provider. "Private provider" is any person or entity who contracts with the city to provide services directly to the public.
CONTROLLED RECORDS: Records containing data on individuals that are controlled as provided by this chapter and the act.
DATA: Refers to individual entries in the records.
DEPARTMENT OR DEPARTMENTS: The separate administrative departments in the city as defined in this chapter.
DESIGNATE OR DESIGNATION: To give an initial or primary classification to a record or record series indicating the likely classification that a majority of such records or record series would be given if classified.
GOVERNMENTAL AUDIT AGENCY: Any governmental entity that conducts an audit.
GOVERNMENTAL ENTITY: The state of Utah and its political subdivisions including every office, agency, board, bureau, committee, department, advisory board, advisory committee or commission of an entity that is funded or established by the government to carry out the public's business.
GROSS COMPENSATION: 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.
INITIAL CONTACT REPORT: An initial written or recorded report, however titled, prepared by police officers engaged in law enforcement 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:
A. The date, time, location, and nature of the complaint, the incident, or offense;
B. Names of victims;
C. The nature or general scope of the agency's initial actions taken in response to the incident;
D. The general nature of any injuries or estimate of damages sustained in the incident;
E. The name, address, and other identifying information about any person arrested or charged in connection with the incident; or
F. The identity of the public safety personnel, except undercover personnel or prosecuting attorney involved in responding to the initial incident.
"Initial contact reports" do not include followup or investigative reports prepared after the initial contact report. However, if the information specified in subsection A of this definition appears in followup or investigative reports, it may only be treated confidentially if it is private, controlled, protected, or restricted from disclosure.
NONPUBLIC RECORD: A record defined as "private", "controlled", "protected", or those records restricted by a state and federal statute, federal and state regulations or court rules.
NOTICE OF COMPLIANCE: A statement confirming that a government entity has complied with a records committee order.
PRIVATE RECORD: A record classified as "private" under the provisions of this chapter and the act.
PROTECTED RECORD: A record classified as "protected" under the provisions of this chapter and the act.
PUBLIC RECORD: A record that is not private, controlled, or protected under the act and this chapter and is not restricted from disclosure by a state and federal statute, federal and state regulation or court rule.
RECORD: A book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics:
A. That is prepared, owned, received, or retained by a governmental entity or political subdivision; and
B. Where all of the information in the original is reproducible by photocopy or other mechanical or electronic means.
"Record" does not mean:
A. A temporary draft or similar material prepared for the originator's personal use or prepared by the originator for the personal use of an individual for whom the originator is working;
B. Material 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;
C. Proprietary software;
D. Junk mail or a commercial publication received by a governmental entity or an official or employee of a governmental entity;
E. A book that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public;
F. Material that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public, regardless of physical form or characteristics of the material;
G. A daily calendar or other personal note prepared by the originator for the originator's personal use or for the personal use of an individual for whom the originator is working;
H. A computer program that is developed or purchased by or for any governmental entity for its own use; or
I. A note or internal memorandum prepared as part of the deliberative process by:
1. A member of the judiciary; or
2. A member of any other body charged by law with performing a quasi-judicial function.
RECORD SERIES: A group of records that may be treated as a unit for purposes of designation, description, management, or disposition.
RECORDS COMMITTEE: The state records committee created in section 63G-2-501 of the act.
RECORDS OFFICER: The city recorder.
RESTRICTED RECORD: Records whose access is restricted by a specific state or federal statute, court rule or federal regulation.
SUMMARY DATA: Statistical records and compilations that contain data derived from private, controlled, and protected information as defined in the act and this chapter but that do not disclose private, controlled or protected information. (Ord. 10-01 § 2: Ord. 05-21 § 2)
The section below has been affected by a recently passed ordinance, 16-17 - MISC CODE AMENDMENTS. Go to new ordinance.2.65.030: ACCESS TO PUBLIC RECORDS:
A. Every person shall have the right, during normal business hours, to inspect, review, examine and take copies of city records designated as "public", under this chapter and the act, upon compliance with the procedures provided in this chapter.
B. The city has no obligation to create a new record or record series in response to a request if the record requested is not otherwise regularly maintained or kept. (Ord. 05-21 § 2)
A. All city records are considered public unless they are designated or classified otherwise in accordance with procedures established by this chapter consistent with the act, or made nonpublic by other applicable law. Public records are those records defined in section 63G-2-301 of the act and shall be made available to any person.
B. The city, through its employees, may not use the physical form, electronic or otherwise, in which a record is stored to deny, or unreasonably hinder the rights of persons to inspect and receive copies of a record under this chapter. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. "Private" records shall include the following:
1. City records defined as "private" in section 63G-2-302 of the act;
2. As provided in section 63G-2-303 of the act, city records that contain private information concerning certain at risk city employees such as the city employee's or the employee's family members' home address, home telephone number, social security number, insurance coverage, marital status or payroll deductions;
3. City records classified or designated as private in accordance with procedures established in this chapter and the act;
4. As provided in section 63G-2-302 of the act, private records include records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.
B. Private records shall be made available to the following persons:
1. The subject of the record;
2. The parent or legal guardian of an unemancipated minor who is the subject of a record;
3. The legal guardian of a legally incapacitated individual who is the subject of the record;
4. Any person who has a power of attorney or notarized release, dated not more than ninety (90) days prior to the request, from the subject of the record or the subject's legal representative;
5. If the record is a medical record prepared by a healthcare provider, release of the record is consistent with normal professional practice and medical ethics; or
6. Any person presenting an order issued by a court of competent jurisdiction. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. "Controlled" records shall be those city records defined as "controlled" in section 63G-2-304 of the act or as classified or designated as "controlled" pursuant to procedures established in this chapter consistent with the act.
B. Controlled records shall be made available to:
1. A physician, psychologist, certified social worker, insurance provider or producer, or a government public health agency upon submission of a release from the subject of the record that is dated no more than ninety (90) days prior to the date the request is made and a signed acknowledgment of the terms of disclosure of controlled information; or
2. Any person presenting an order issued by a court of competent jurisdiction. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. Protected records shall be:
1. City records defined as "protected" in section 63G-2-305 of the act;
2. City records designated or classified as "protected" according to the procedures established in this chapter consistent with the act;
3. "Drafts", as provided in section 63G-2-305(22) of the act, which may include records relating to budget analysis and fiscal notes of proposed budgets before issuance of their final recommendations;
4. As provided in section 63G-2-305(9) of the act, records which, if released, could reasonably be expected to interfere with investigations undertaken for discipline purposes including city records pertaining to internal investigation of city employees such as investigations by the internal affairs division of the city's police department;
5. a. As provided in section 63G-2-305(9) of the act, records created or maintained for discipline purposes against city employees unless:
(1) All available remedies have been exhausted by the employee, including the internal grievance procedures and proceedings before administrative agencies,
(2) All time periods for appeal have expired, and
(3) The disciplinary action was sustained,
b. Notwithstanding subsections A5a(1), A5a(2), and A5a(3) of this section, a record or parts of a record maintained for discipline purposes shall not be disclosed if the release of the record or part of the record:
(1) Reasonably could be expected to interfere with investigations undertaken for discipline or enforcement purposes;
(2) Reasonably could be expected to disclose the identity of a source who is not generally known outside of government or disclose information furnished by a source not generally known outside of government if disclosure would compromise the source;
(3) Reasonably could be expected to disclose investigative techniques, procedures, policies or orders not generally known outside of government if disclosure would interfere with enforcement or audit efforts; or
(4) Reasonably could be expected to jeopardize the life or safety of an individual;
(5) Constitutes a clearly unwarranted invasion of personal privacy.
B. Protected records shall be made available to:
1. The person who submitted the information in the record;
2. A person who has a power of attorney or notarized release, dated not more than ninety (90) days prior to the request, from all persons or governmental entities whose interests were sought to be protected by the protected classification.
3. Any person presenting an order issued by a court of competent jurisdiction. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. Under section 41-6a-404 of the Utah code, accident reports are protected and for the confidential use of the city and other state, local, or federal agencies having use for the records for official governmental statistical, investigative, and accident prevention purposes and may be disclosed only in a statistical form that protects the privacy of any person involved in the accident.
B. Subject to the provisions of this chapter, the city shall disclose accident reports to:
1. A person involved in the accident, excluding a witness to the accident;
2. A person suffering loss or injury in the accident;
3. An agent, parent, or legal guardian of a person involved in an accident including the person's attorney, insurer, or any other individual or entity with signed permission from the person;
4. Subject to subsection D of this section, a member of the press or broadcast news media;
5. A state, local, or federal agency that uses the records for official governmental investigative or accident prevention purposes;
6. Law enforcement personnel when acting in their official governmental capacity; and
7. A licensed private investigator.
C. The city may withhold an accident report, and any of its accompanying data, if disclosure would jeopardize an ongoing criminal investigation or criminal prosecution.
D. Information provided to a member of the press or broadcast news media may only include:
1. The name, age, sex and city of residence of each person involved in the accident;
2. The make and model year of each vehicle involved in the accident;
3. The location of the accident; and
4. A description of the accident that excludes personal identifying information. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. The city recognizes and upholds the personal right of privacy retained by persons who may be the subject of government records. The city also recognizes that the act establishes a presumption that governmental records will generally be considered open and public with certain exceptions. The city may, at its discretion, disclose records that are "private" or "protected" as defined in the act and this chapter to persons other than those specified in sections 2.65.050 and 2.65.070 of this chapter, if the city determines that there is no interest in restricting access to the record, or that the interest favoring access outweighs the interest favoring restriction of access. Public access is favored when countervailing interests are of equal weight. The city shall not release any record when to do so would constitute a clearly unwarranted invasion of privacy in accordance with the act and procedures established in this chapter. Under circumstances and procedures established by this chapter, certain data in a record may be rendered nonpublic, although the record itself may be classified or designated as "public".
B. If the city receives a request for access to a record that contains both information that the requester is entitled to inspect and information the requester is not entitled to inspect under this chapter and the act, the city shall allow access to information in the record that the requester is entitled to inspect under this chapter and the act. The city may deny access to information in the record if the information is not subject to disclosure under this chapter and the act.
C. The city may require that the requester of the private and controlled records provide a written release dated not more than ninety (90) days prior to the date of the request, from the subject of the record in question before access to such record is provided. (Ord. 05-21 § 2)
A. Requests, either verbal or written, for a city record shall be made to the city department maintaining the record in question. The city department may respond to a verbal request consistent with the provisions of this chapter. The city department may require the requester to fill out and present a written request. The written request shall include the name, mailing address, daytime telephone number, if available, of the requester, and a description of the records requested that identifies the record with reasonable specificity. Requesters of nonpublic records shall adequately identify themselves and, if applicable, their status when requesting access to nonpublic records. The date and time of the request shall be included on the written request and all time frames provided under this chapter shall commence from that time and date. Request for records shall, to the extent possible, be responded to within ten (10) business days after receipt of the written request or within five (5) business days after receiving a written request if the requester demonstrates that an expedited response benefits the public rather than the person. Any person who requests a record to obtain information for a story or report for publication or broadcast to the general public is presumed to be acting to benefit of the public rather than a person. If the city department does not have custody of the record, it shall request the appropriate city department to respond.
B. In response to a request, the city is not required to:
1. Create a record;
2. Compile, format, manipulate, package, summarize or tailor information;
3. Provide a record in a particular format, medium, or program not currently maintained by the governmental entity;
4. Fulfill a person's records request if the request unreasonably duplicates prior records requests from that person; or
5. Fill a person's records request if:
a. The record requested is accessible in the identical physical form and content in a public publication or product produced by the city;
b. The city provides the person requesting the record with the public publication or product; and
c. The city specifies where the record can be found in the public publication or product.
C. Upon request, the city shall provide a record in a particular format if the city is able to do so without unreasonably interfering with the city's duties and responsibilities and the requester agrees to pay the city for its costs incurred in providing the record in the requested format.
D. The city is not required to fulfill a request if the request unreasonably duplicates prior records requests from that person.
E. The city may allow a person requesting records to copy the records if the requester requests copies of more than fifty (50) pages of records from the city; the records are contained in files that do not contain records that are nonpublic or the records may be segregated to remove the nonpublic information from disclosure; and the city supervises the copying process to protect the public from the potential for loss of a public record.
F. If the requirements in subsection E of this section are met, the city may require that the requester make the copies or allow the requester to provide the requester's own copying facilities and personnel to make the copies at the city's offices and waive the fees for copying the records.
G. The city may provide access to an electronic copy of a record in lieu of providing access to its paper equivalent.
H. The appropriate city department shall respond to a request for a record by:
1. Approving the request and providing copies or inspection of the records;
2. Denying the request;
3. Notifying the requester that the city does not maintain the record;
4. Notifying the requester that it cannot respond to the request within the period of time specified in subsection A of this section stating the reason or reasons for the delay as provided in this section; or
5. Such other appropriate response as may be established in the act or this chapter.
I. 1. In most circumstances and excepting those eventualities set out in subsection I2 of this section, the appropriate city department or the city attorney's office shall respond to a written request for a public record within the time period specified in subsection A of this section.
2. The following extraordinary circumstances shall justify the city's failure to respond to a written request for a record within the specified time period and shall extend the time for response thereto to that time reasonably necessary to respond to the request:
a. Another governmental entity is currently and actively using the record requested;
b. The record is being used as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit;
c. The request is for a record series containing a substantial number of records; the requester seeks a substantial number of records or records series; or the requester seeks a substantial number of records or records series in requests filed within five (5) working days of each other;
d. The request requires the city to review a large number of records to locate the records requested;
e. The appropriate city department is currently processing either a large number of records requests or is subject to extraordinary seasonal workloads;
f. The request involves legal issues that require an analysis by legal counsel to determine the proper response to the request;
g. The request involves extensive editing to separate public information in a record from that which is nonpublic; or
h. Segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires computer programming.
J. If the time limits are extended based on extraordinary circumstances provided in this chapter and the act, the response to the request shall be made within the following time limits:
1. For the extraordinary circumstance provided in subsection I2b of this section, the city shall provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request and complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible.
2. For the extraordinary circumstances provided in subsections I2c, I2d and I2e of this section, the city shall disclose the records that it has located which the requester is entitled to inspect; provide the requester with an estimate of the amount of time it will take to finish the work required to respond to the request; and complete the work and disclose those records that the requester is entitled to inspect as soon as reasonably possible.
3. For the extraordinary circumstance provided in subsection I2f of this section, the city shall either approve or deny the request within five (5) business days from the date of the original request.
4. For the extraordinary circumstance provided in subsection I2g of this section, the city shall fulfill the request within fifteen (15) business days from the date of the original request.
5. For the extraordinary circumstance provided in subsection I2h of this section, the city shall complete its programming and disclose the requested records as soon as reasonably possible.
6. For any requester that does not establish a right to an expedited response, the city may choose to require the requester to provide for copying the records or treat a request for multiple records as separate records requests and respond sequentially to each request.
K. If the city fails to provide the requested records or issue a denial within the specified time period, that failure is considered the equivalent of a determination denying access to the records.
L. The city and requester may, by agreement, extend the time periods specified in this section.
M. In response to a request for access, the city may redesignate or reclassify the record or segregate data in the requested record in accordance with this chapter and the act. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. The city retains and reserves to itself the right to use any type of nonverbal or nonwritten formats to store, maintain or retrieve city records which are not prohibited by state statute, and does not compromise legal requirements for record storage, retrieval, security and maintenance. All computerized and nonwritten format records and data which are properly designated and classified as "public" in accordance with the act and this chapter shall be made available to a requester as provided in this chapter and the act.
B. The public shall have the right to access records, in accordance with the act and this chapter, contained in nonwritten formats or data processing systems. The method of access to such public records shall be as determined appropriate by the city. Access may include, but not be limited to, the following:
1. By using a city computer terminal or other viewing or listening device to retrieve data directly from the terminal screen; provided, however, that due regard shall be exercised to ensure that any nonpublic records will not be accessed, retrieved or displayed on the device and that records are not erased or damaged;
2. By providing paper or "hard" copies of record printouts or by providing magnetic tapes, disks or other means of electronic storage containing the computer, data processing or other electronic information system records; or
3. By the use, where appropriate, of remote terminals which have access to city computer, data processing or electronic information systems permitting such remote terminal access and provided that due regard shall be exercised to ensure that nonpublic records will not be available by remote terminal access.
C. All data retained on computer, data processing or electronic information systems shall be kept and maintained with due diligence to protect the security of any record which is considered nonpublic under the act and this chapter. (Ord. 05-21 § 2)
A. If the request for records is denied in whole or part, the city shall provide a notice of denial to the requester either in person or by sending the notice to the requester's address.
1. The notice of denial shall contain the following information:
a. A description of the record or portions of the record to which access was denied; provided, that the description does not disclose private, controlled, protected, limited or other nonpublic information as defined in the act and this chapter;
b. Citations to the provisions of the act, this chapter, ordinance, state statute, federal statute, federal regulation or court rule that restricts the record or portions of the record from disclosure; provided, that the citations do not disclose private, controlled, protected, restricted or other nonpublic information; and
c. A statement that the requester has the right to appeal according to the provisions of this chapter, the time limits for filing an appeal, and the business address of the mayor's office.
2. Unless otherwise required by a court of competent jurisdiction, the city may not, during the appeal process, destroy or give up custody of any record to which access was denied until the period of an appeal has expired or the end of the appeals process, including judicial appeal. (Ord. 05-21 § 2)
A. A fee may be charged, pursuant to the schedule determined by the mayor in a written policy, to cover the actual cost of duplicating a record.
B. When the city compiles a record in a form other than that normally maintained by the city, the actual costs under this section may include:
1. The cost of staff time for summarizing, compiling, or tailoring the record either into an organization or media to meet the requester's request.
2. The cost of staff time for search, retrieval, and other direct administrative costs for complying with a request.
3. In case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users and the related administrative costs.
4. An hourly charge under this subsection B may not exceed the salary of the lowest paid employee who, in the discretion of the city recorder, has the necessary skill and training to perform the request.
5. No charge may be made for the first quarter hour of staff time.
6. The judiciary shall establish fees by rules of the state judicial council.
C. The city may fulfill a request, without charge, if it determines that:
1. Releasing the record primarily benefits the public rather than a person;
2. The person requesting the record is the subject of the record, or an individual specified in subsection 2.65.050B of this chapter.
3. The rights of persons requesting the records are directly implicated by the information in the record, and the requester is impecunious.
D. A person who believes that there has been an unreasonable denial of a fee waiver may appeal the denial in the same manner as a person appeals when inspection of a public record is denied under this chapter.
E. If a person requesting a record does not establish a right to an expedited response, the city may charge a person for the actual cost of any city supervision provided under section 2.65.120 of this chapter and for the actual cost of segregating nonpublic information from public information.
F. The city may not charge a fee for:
1. Reviewing a record to determine whether it is subject to disclosure; or
2. Inspecting a record.
G. All fees received under this section shall be retained as a dedicated credit to recover the actual costs and expenses incurred by the city in providing the requested record or record series.
H. The city may require payment of past fees and future estimated fees before beginning to process a request if the fees are expected to exceed fifty dollars ($50.00) or the requester has not paid fees from previous requests. (Ord. 05-21 § 2)
A. Persons aggrieved by the city's classification of a record or by a response to a records request, including a determination that extraordinary circumstances exist under section 2.65.140 of this chapter, may appeal the determination within thirty (30) days to the office of the mayor by filing a notice of appeal. The notice of appeal must be in writing and shall set forth the relief sought, the nature and date of the request, if applicable, attaching a copy of the request form, if available, and stating the basis and legal authority to support the relief sought.
B. After receiving notice of appeal, the mayor shall schedule a hearing to hear the appeal which shall be held within fifteen (15) business days from the date of the filing of the appeal. The mayor may hear the appeal or the mayor may appoint a person to hear the appeal and prepare recommended findings and conclusions to the mayor. The mayor shall make the final decision. If the mayor or his designee fails to hear the appeal within the time limits described herein, the appeal shall be deemed denied.
C. The mayor's office shall send a written notice of the date and location of the hearing to the requester. The hearing shall be conducted in accordance with policies adopted by the city and the Utah public and open meetings act.
D. At the hearing, the parties shall be allowed to testify, present evidence and comment on the issues. If the appeal involves a record that is claimed to be a nonpublic record, the review shall be in camera. No later than five (5) business days after the hearing, the mayor shall issue a decision.
1. The decision of the mayor shall include:
a. A statement of the reason for the decision including citations to this chapter and the act that govern disclosure of the record, provided, that the citations do not disclose private, controlled, protected, restricted or other nonpublic information;
b. A description of the record or portions of the record to which access was ordered or denied, provided, that the description does not disclose private, controlled, protected, restricted or other nonpublic information; and
c. A statement that any party to the appeal may appeal the mayor's decision to the state district court under section 63G-2-404 of the act or the state records committee, under section 63G-2-403 of the act, within thirty (30) calendar days after the date of the mayor's written decision.
2. If the mayor fails to issue a written decision and forward it to the requester within five (5) business days after the hearing, the appeal shall be deemed to be denied.
3. The mayor may, upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure of records, order the disclosure of information properly classified as "private" or "protected" if the interests favoring access outweigh the interests favoring restrictions of access. (Ord. 10-01 § 2: Ord. 05-21 § 2)
A. The city recorder shall oversee and coordinate the city's records access and management activities.
B. Property rights to city records may not be permanently transferred from the city to any private individual or entity, including those legally disposable as obsolete city records. This prohibition does not include the providing of copies of city records otherwise produced for release or distribution under this chapter. (Ord. 05-21 § 2)