Chapter 8
GOVERNMENT RECORDS AND ACCESS MANAGEMENTlinklink

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1-8-1: GENERAL PROVISIONS:
1-8-2: DEFINITIONS:
1-8-3: PUBLIC RIGHT TO RECORDS:
1-8-4: DESIGNATION, CLASSIFICATION AND RETENTION:
1-8-5: PUBLIC, PRIVATE, CONTROLLED AND PROTECTED RECORDS:
1-8-6: PROCEDURES FOR RECORDS REQUEST:
1-8-7: FEES:
1-8-8: PRIVACY RIGHTS:
1-8-9: REASONABLE ACCOMMODATION:
1-8-10: AMENDMENTS TO RECORDS:
1-8-11: MAINTENANCE OF RECORDS:
1-8-12: APPEAL PROCESS:
1-8-13: PENALTY:

1-8-1: GENERAL PROVISIONS:linklink


A. General Purpose: The City Council adopts this Chapter to establish guidelines for open government information, recognizing the need to maintain and preserve accurate records, provide public access to public records and preserve the right of privacy of personal data collected or received by the City.


B. City Policy: In adopting this Chapter, the City recognizes the enactment of the Government Records Access and Management Act, Utah Code Annotated section 63-2-101 et seq., and the application of that Act to the City records. The purpose of these policies is to conform to section 63-2-701, which provides that each political subdivision may adopt an ordinance or a policy relating to information practices, including classification, designation, access, denials, segregation, appeals, management, retention and amendment of records. The intent of this Chapter is to provide modifications to the general provision of State law, where allowed, to best meet the public needs, operation, management capabilities and resources of the City.


C. Compliance With State Law: In adopting this Chapter, the City recognizes the following sections of the Government Records Access and Management Act apply to the City and adopt by reference these provisions as part of this Chapter. Any inconsistency or conflict between this Chapter and the following reference statutes shall be governed by the statute:

1. General Provisions:

Section   Title  
   
63-2-101   Short title  
63-2-102   Legislative intent  
63-2-103   Definitions  
63-2-104   Administrative procedures act not applicable  
63-2-105   Confidentiality agreements  

2. Access To Records:

Section   Title  
   
63-2-201   Right to inspect records and receive copies of records  
63-2-202   Access to private, controlled and protected documents  
63-2-205   Denials  
63-2-206   Sharing records  

3. Classification:

Section   Title  
   
63-2-301   Records that must be disclosed  
63-2-302   Private records  
63-2-303   Controlled records  
63-2-304   Protected records  
63-2-305   Procedure to determine classification  
63-2-306   Duty to evaluate records and make designations and classifications  
63-2-307   Segregation of records  
63-2-308   Business confidentiality claims  

4. Accuracy Of Records:

Section   Title  
   
63-2-601   Rights of individuals on whom data is maintained  
63-2-602   Disclosure to subject of records-context of use  
63-2-602   Request to amend  

5. Applicability To Political Subdivisions: The judiciary and the legislature:

Section   Title  
   
63-2-701   Political subdivisions may adopt ordinances in compliance with chapter  

6. Remedies:

Section   Title  
   
63-2-801   Criminal penalties  
63-2-802   Injunction-attorneys' fees  
63-2-803   No liability for certain decisions of a governmental entity  
63-2-804   Disciplinary action  

7. Archives And Records Service:

Section   Title  
   
63-2-905   Records declared property of the State-disposition  
63-2-907   Right to replevin  

8. Other:

Section   Title  
   
63-30-10.6   Attorneys' fees for records request  

(1998 Code § 3-650; amd. 2000 Code)

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1-8-2: DEFINITIONS:linklink

As used in this Chapter, the following definitions shall be applicable:

ACT: The Government Records Access and Management Act, Utah Code Annotated section 63-2-101 et seq., as amended.

CITY: The City of Hurricane, Utah, and the various departments of said City which maintain public records.

COMPUTER SOFTWARE PROGRAM: The 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 any associated documentation, manuals or other source material explaining how to operate the software program. "Software" does not include the original data or record which is manipulated by the software.

CONTROLLED RECORDS: Those records deemed as controlled under the provisions of the Act.

DATA: Shall refer to individual entries (for example, birth date, address, etc.) in records.

DISPOSE: To destroy, or render irretrievable or illegible, a record, or the information contained in it, by any physical electronic, or other means, including unauthorized deletion or erasure of electronically-recorded audio, visual, nonwritten formats, data processing or other records.

NONPUBLIC: Shall refer to those records defined as private, controlled or protected under the provisions of the Act.

PRIVATE RECORDS: Shall refer to those records classified as private under the provisions of the Act.

PROTECTED RECORDS: Shall refer to those records classified as protected under the provisions of the Act.

PUBLIC RECORDS: Shall refer to those records which have not been classified as nonpublic in accordance with the provisions of the Act.

RECORD: A. All books, letters, documents, papers, maps, plans, photographs, films, cards, tapes, recordings or other documentary materials and electronic data, regardless of physical form or characteristics, prepared, owned, used, received or retained by the City where all the information in the original is reproducible by some mechanical electronic, photographic or other means.

B. Record does not mean:

   1. Temporary drafts or similar materials prepared for the originator's personal use or prepared by the originator for the personal use of a person for whom he is working;

   2. Materials that are legally owned by an individual in his private capacity;

   3. Materials to which access is limited by the laws of copyright or patent;

   4. Junk mail or commercial publications received by the City or any of its employees;

   5. Personal notes or daily calendars prepared by any City employee for personal use or the personal use of a supervisor, or such notes, calendars or internal memoranda prepared for the use of an officer or agency acting in a quasi-judicial or deliberative process or pursuant to matters discussed in a meeting closed pursuant to Utah Open Meetings Act; or

   6. Proprietary "computer software programs", as defined in this Section, that are developed or purchased by or for the City for its own use. (1998 Code § 3-650; amd. 2000 Code)

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1-8-3: PUBLIC RIGHT TO RECORDS:linklink


A. Public Records: Members of the public shall have the right to see, review, examine and take copies, in any format maintained by the City, of all City governmental records defined as "public" under the provisions of this Chapter, upon the payment of the lawful fee and pursuant to the provisions of this Chapter and the Act.


B. No Obligation To Create Record: The City has no obligation to create a record or record series in response to a request from a member of the public if the record requested is not otherwise regularly maintained or kept.


C. Custodial Agency: When a record is temporarily held by a custodial City agency, pursuant to that custodial agency's statutory functions, such as records storage, investigation, litigation or audit, the record shall not be considered a record of the custodial agency for the purposes of this Chapter. The record shall be considered a record of the City and any requests for access to such records shall be directed to the City, rather than the custodial agency, pursuant to these procedures. (1998 Code § 3-650)

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1-8-4: DESIGNATION, CLASSIFICATION AND RETENTION:linklink

All City records and record series of any format shall be designated, classified and scheduled for retention according to the provisions of the Act and this Chapter. Any records or record series generated in the future shall also be so designated, classified and scheduled for retention. Records designation classification and scheduling for retention shall be conducted under the supervision of the City Manager/Recorder. (1998 Code § 3-650)
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1-8-5: PUBLIC, PRIVATE, CONTROLLED AND PROTECTED RECORDS:linklink


A. Public Records: Public records shall be those City records as defined in the Act, Utah Code Annotated section 63-2-301, as amended. Public records shall be made available to any person. All City records are considered public unless they are: 1) expressly designated classified or defined otherwise by the City in accordance with policies and procedures established by this Chapter; 2) are so designated, classified or defined by the Act; or 3) are made nonpublic by other applicable law.


B. Private Records: Private records shall be those City records classified as "private", as defined in the Act, Utah Code Annotated section 63-2-302, as amended, and as designated, classified or defined in procedures established pursuant to this Chapter. Private records shall be made available to the following persons: the subject of the record, the parent or legal guardian of a minor who is the subject of the record, the legal guardian of an incapacitated individual who is the subject of the record, any person who has a power of attorney or a notarized release from the subject of the record or his legal representative, or any person possessed of and serving a legislative subpoena or a court order issued by a court of competent jurisdiction.


C. Controlled Records: Controlled records shall be those City records classified as "controlled", as defined in the Act, Utah Code Annotated section 63-2-303, as amended, and as designated, classified or defined in procedures established in this Chapter. Controlled records shall be made available to a physician, psychologist or licensed social worker who submits a notarized release from the subject of the record or any person presenting a legislative subpoena or a court order signed by a judge of competent jurisdiction.


D. Protected Records: Protected records shall be those City records classified as "protected", as defined in the Act, Utah Code Annotated section 63-2-304, as amended, and as designated, classified or defined in procedures established in this Chapter. Protected records shall be made available to the person who submitted the information in the record, to a person who has power of attorney or notarized release from any persons or governmental entities whose interests are protected by the classification of the record, or to any person presenting a legislative subpoena or a court order regarding the release of the information and signed by a judge of competent jurisdiction. (1998 Code § 3-650)

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1-8-6: PROCEDURES FOR RECORDS REQUEST:linklink


A. Request In Writing: Under circumstances in which the City is not able to immediately respond to a records request, the requester shall fill out and present to the City a written request on forms provided by the City. The written request shall include the name, address and daytime phone number of the requester, the date and time of the request, and a reasonably specific description of the records sought. The time as noted on the request shall govern all time frames provided under this Chapter. Requesters of nonpublic information shall adequately identify themselves and their status prior to receiving access to nonpublic records.


B. Response Of City: The City may respond to a request for a record by approving the request and providing the records, denying the request, or such other appropriate response as may be established by policies and procedures.


C. Time Limit For Response; Exceptions:

1. In most circumstances and excepting the eventualities set out below, the City shall respond to a written request for a public record within ten (10) business days after that request. (1998 Code § 3-650)

2. Extraordinary circumstances shall justify the City's failure to respond to a written request for a public record within ten (10) business days and shall extend the time reasonably necessary to respond to the request, as determined by the City Manager/Recorder. Extraordinary circumstances shall include, but not be limited to, the following: (1998 Code § 3-650; amd. 2000 Code)

a. Some other governmental entity is currently and actively using the record requested;

b. The record requested is for either a voluminous quantity of records or requires the City to view a large number of records or perform extensive research to locate the materials requested;

c. The City is currently processing either a large number of records requests or is subject to extraordinary seasonal work loads in the processing of other work;

d. The request involves an analysis of legal issues to determine the proper response to the request;

e. The request involves extensive editing to separate public data in a record from that which is not public; or

f. Providing the information requested requires computer programming or other format manipulation.

3. When a record request cannot be responded to within ten (10) days, the City Manager/Recorder shall give the requester an estimate of the time required to respond to the request.


D. Failure To Respond; Appeal: The failure or inability of the City to respond to a request for a record within the time frames set out herein or the City's denial of such a request, shall give the requester the right to appeal as provided in Section 1-8-12 of this Chapter. (1998 Code § 3-650)

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1-8-7: FEES:linklink

Applicable fees for the processing of information requests under this Chapter shall generally be set at actual cost or as otherwise established by policies adopted under this Chapter. The City will charge the following fees for requests relating to the Government Records Access and Management Act:

A.   Reviewing a record to determine whether it
is subject to disclosure  
no charge  
B.   Inspection of record by requesting person   no charge  
C.   Copy fees
(for City-prepared copies)  
$0.25 cents per page  
D.   Computer disk
(including overhead and time of staff in
preparation of information request)  
actual costs  
E.   Other forms
(same as subsection D of this Section)  
actual costs  
F.   Miscellaneous fees
(same as subsection D of this Section)  
actual costs  
G.   Research by City staff   $25.00 per hour  

(1998 Code § 3-650)
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1-8-8: PRIVACY RIGHTS:linklink


A. Recognition Of Right: The City recognizes and upholds the personal right of privacy retained by persons who may be the subject of governmental records.


B. Notification: The City may, as determined appropriate by the City Manager/Recorder, notify the subject of a record that a request for access to the subject's record has been made.


C. Release: The City may require that the requester of records provide a written release notarized within thirty (30) days before the request, from the subject of the records in question before access to such records is provided. (1998 Code § 3-650)

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1-8-9: REASONABLE ACCOMMODATION:linklink

Reasonable accommodations regarding access to governmental records shall be provided to persons with disabilities in accordance with the Americans with Disabilities Act upon request of the applicant. (1998 Code § 3-650)
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1-8-10: AMENDMENTS TO RECORDS:linklink

Government records held by the City may be amended or corrected as needed. Requests for amendments, corrections or other changes shall be made in writing to the City or agency having custody of the records and setting forth, with specificity, the amendment or correction requested. When an amendment or correction of a government record is made, both the original record and the amended or corrected record shall be retained, unless provided otherwise by the Act or other State or Federal law. (1998 Code § 3-650)
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1-8-11: MAINTENANCE OF RECORDS:linklink


A. Procedures Developed: Records maintenance procedures shall be developed to ensure that due care is taken to maintain and preserve City records safely and accurately over the long term. The City Recorder/Clerk shall be responsible for monitoring the application and use of technical processes in the creation, duplication and disposal of City records. He/she shall monitor compliance with required standards of quality, permanence and admissibility pertaining to the creation, use and maintenance of records.


B. Property Of City: All City records shall remain the property of the City unless Federal or State legal authority provides otherwise. Property rights to City records may not be permanently transferred from the City to any private individual or entity, including those legally disposable obsolete City records. This prohibition does not include the providing of copies of City records otherwise produced for release or distribution under this Chapter.


C. Custodians; Deliver To Successor: Custodians of any City records shall, at the expiration of their terms of office, appointment or employment, deliver custody and control of all records kept or received by them to their successors, supervisors or to the City Manager/Recorder. (1998 Code § 3-650)

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1-8-12: APPEAL PROCESS:linklink


A. Authority; Time Limit: Any person aggrieved by the City's denial or claim of extraordinary circumstances may appeal the determination within thirty (30) days after notice of the City's action to the City Manager/Recorder by filing a written notice of appeal. The notice of appeal shall contain the petitioner's name, address, phone number, relief sought and if petitioner desires, a short statement of the facts, reasons and legal authority for the appeal.


B. Records Subject To Business Confidentiality; Privacy Rights: If the appeal involves a record that is subject to business confidentiality or affects the privacy rights of an individual, the City Manager/Recorder shall send a notice of the requester's appeal to the affected person.


C. Determination; Hearing: The City Manager/Recorder shall make a determination on the appeal within thirty (30) days after receipt of the appeal. During this thirty (30) day period, the City Manager/Recorder may schedule an informal hearing or request any additional information deemed necessary to make a determination. The City Manager/Recorder shall send written notice to all participants providing the reasons for the City Manager/Recorder's determination.


D. Denial; Appeal To City Council:

1. In addition, if the City Manager/Recorder affirms the denial in whole or in part, the denial shall include a statement that the requester has a right to appeal the denial to the City Council within thirty (30) days at the next scheduled meeting.

2. The person may file a written notice of appeal to the City Council to be heard at the next scheduled meeting of the City Council. If there is no meeting scheduled in the next thirty (30) days, the City Council shall schedule a meeting for the purpose of hearing the appeal. The final decision of City Council shall be by majority vote of a quorum of the City Council. The City Council shall prepare a written decision outlining their final determination and reasons for the final determination.


E. Appeal To District Court: If the City Council affirms the denial in whole or in part, the person may petition for judicial review in District Court as provided in Utah Code Annotated section 63-2-404. (1998 Code § 3-650)

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1-8-13: PENALTY:linklink


A. Violation By City Employees: City employees who knowingly refuse to permit access to records in accordance with the Act and this Chapter, who knowingly permit access to nonpublic records, or who knowingly, without authorization or legal authority, dispose of, alter or remove records or allow other persons to do so in violation of the provisions of the Act, this Chapter or other law or regulation, may be subject to criminal prosecution and disciplinary action, including termination.


B. Liability Of City: In accordance with the Act, neither the City nor any of its officers or employees shall be liable for damages resulting from the release of a record where the requester presented evidence of authority to obtain the record, even if it may be subsequently determined that the requester has no such authority. (1998 Code § 3-650)


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