Utah

Open Government Guide

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Author

Jeffrey J. Hunt, Esq.
Austin J. Riter, Esq.

Michael S. Anderson, Esq.

April M. Medley, Esq.
PARR BROWN GEE & LOVELESS
185 South State Street, Suite 800
Salt Lake City, Utah 84111
jhunt@parrbrown.com
ariter@parrbrown.com

manderson@parrbrown.com

amedley@parrbrown.com
(801) 532-7840

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Foreword

Utah’s statutory scheme guarantees public access to government records and meetings subject to certain exceptions discussed below.

Access to Government Records. Utah’s Government Records Access and Management Act (“GRAMA”) states that “[e]very person has the right to inspect a public record free of charge, and the right to take a copy of a public record . . . .” Utah Code § 63G-2-201(1). Under GRAMA, “a record is public unless otherwise expressly provided by statute.” Id. § 63G-2-201(2). For example, records classified as “private,” “controlled,” or “protected” are not public records. Id. § 63G-2-201(3)(a).

Enacted in 1991 and effective July 1, 1992, GRAMA replaced the “Information Practices Act” and the “Public and Private Writings Act,” both of which previously governed access to government records in Utah.

In enacting GRAMA, “the Legislature recognize[d] two constitutional rights: (a) the public’s right of access to information concerning the conduct of the public’s business; and (b) the right of privacy in relation to personal data gathered by governmental entities.” Id. § 63G-2-102(1). In addition, the Legislature “recognize[d] a public policy interest in allowing a government to restrict access to certain records . . . for the public good.” Id. § 63G-2-102(2). The Legislature also stated that GRAMA’s purpose was to:

(a) promote the public’s right of easy and reasonable access to unrestricted public records;
(b) specify those conditions under which the public interest in allowing restrictions on access to records may outweigh the public’s interest in access;
(c) prevent abuse of confidentiality by governmental entities by permitting confidential treatment of records only as provided in this chapter;
(d) provide guidelines for both disclosure and restrictions on access to government records, which are based on the equitable weighing of the pertinent interests and which are consistent with nationwide standards of information practices;
(e) favor public access when, in the application of this act, countervailing interests are of equal weight; and
(f) establish fair and reasonable records management practices.

Id. § 63G-2-102(3).

These public policies are consistent with a leading pre-GRAMA Utah Supreme Court decision, in which the court stated that “it is the policy of this state that public records be kept open for public inspection in order to prevent secrecy in public affairs.” KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357, 1361 (Utah 1984). Therefore, “[t]he presumption . . . has always been [in favor of] public access, subject only to specific statutory restrictions, personal privacy rights, and countervailing public policy,” and an agency seeking to withhold information from the public bears the burden to justify its actions. Id. at 1361-62.

The Utah Supreme Court has held that courts reviewing GRAMA requests should apply the Legislature’s “clear and preeminent intent” to favor public disclosure when “countervailing interests are of equal weight.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26,¶ 24 n.3, 182 P.2d 372.

Access to Government Meetings. Although the Utah Legislature first enacted a rudimentary open meetings law in 1955, that law allowed public officials to hold closed “executive sessions” as long as the officials took no official action during those sessions. Not surprisingly, this provision was used to exclude the public and the press from many government meetings.

Upon submission of Utah’s current open meetings act to the Legislature in 1977 (after three earlier efforts to pass the bill had failed), one of the bill’s sponsors noted that nearly every other state had enacted open meetings laws that were stronger than Utah’s, and that in Utah many government meetings were conducted in secret or held in so-called “executive sessions.”

Utah’s Open and Public Meetings Act (“Open Meetings Act”) is designed not only to protect the public’s right to attend government meetings, but also to give the public adequate notice of when and where such meetings will be held. The need for adequate notice was illustrated dramatically during the 1977 legislative debates, when one representative explained that in his small town in rural Utah most of the citizens met at the Mormon meeting house on Sunday and discussed political matters. If the town citizens felt that an additional meeting was necessary, an announcement was made in church and the townspeople would reconvene at the schoolhouse after the church meeting. The legislator acknowledged that in recent years “outsiders” who “were not of the faith” had moved into his town, but he was reluctant to require his town officials to post notices of government meetings or to give notice of the meeting to a newspaper, because such notice had never been required before. The sentiments expressed by this particular legislator may have been atypical, but they illustrate why many observers felt that a better open meetings law was needed desperately in Utah.

The Open Meetings Act states that the “Legislature finds and declares that the state, its agencies and political subdivisions, exist to aid in the conduct of the people’s business,” and that “[i]t is the intent of the Legislature that the state, its agencies, and its political subdivisions . . . take their actions openly[] and . . . conduct their deliberations openly.” Utah Code § 52-4-102(1)-(2). The Open Meetings Act requires state and local government entities and their advisory bodies to give notice of their meetings and to conduct their meetings in public, subject to certain exceptions discussed below. See id. §§ 52-4-201, -202.

Are Agencies Complying With Utah’s Public Access Laws? Since passage of Utah’s open records and open meeting statutes, the media and various public interest groups have lobbied aggressively to protect the public’s right of access to government meetings and government records. Although most government agencies favor openness in government and are willing to comply with the access statutes, there are some notable exceptions.

- In 2007, the television station KSL-TV requested mug shots of a man and a woman who had been booked into the San Juan County Jail and who were convicted subsequently of crimes against a minor. The station requested the photographs in connection with a news story. The county denied the station’s request, arguing that the mug shots were private because public disclosure would constitute an invasion of the convicted individuals’ privacy, and the station appealed to the district court. In May 2009, the district court issued an oral ruling from the bench that the mug shots constituted public records under GRAMA. Bonneville Int’l Corp. d/b/a KSL-TV v. San Juan County Comm’r, No. 070700046 (Utah 7th Dist.).

- In 2004, the Deseret News requested a copy of an independent investigative report concerning allegations that the Chief Deputy County Clerk had sexually harassed and retaliated against a subordinate employee and that county officials knew of the misconduct but refused to address it. The county denied the request and the newspaper appealed to the district court. The district court ruled in favor of the county, determining that release of the report would invade the alleged harasser’s personal privacy rights and could interfere with future sexual harassment investigations. The newspaper appealed to the Utah Supreme Court, which reversed the district court’s decision and held that the investigative report was a public record under GRAMA. In a sharply worded opinion, the Utah Supreme Court observed that “GRAMA does not contemplate adversarial combat over record requests. It instead envisions an impartial, rational balancing of competing interests.” Deseret News Publ’g Co. v. Salt Lake County, 2008 UT 26, ¶ 25, 182 P.2d 372.

- In 1996, the Utah Senate held a secret meeting to discuss the politically controversial issue of gay student clubs in public schools. The Senate issued no public notice or agenda for the meeting, nor did the Senate take a vote to convene in closed session for any of the purposes authorized under the Open Meetings Act. In denying the Senate’s motion to dismiss the lawsuit challenging the secret meeting, the Utah Third District Court determined that the Senate’s action “ignores and overlooks the textual limits of the Utah Constitution, and the Open and Public Meetings Act on the issue of public meetings.” See Memorandum Decision, Jolley v. Utah State Senate, No. 960901127 (Utah 3d Dist. July 12, 1996). Pursuant to the parties’ stipulation, the court entered judgment against the Senate finding that “to the extent that the Senate is required to comply with Utah’s open and public meetings law . . . the Senate violated that law” by holding the secret meeting. See Judgment & Order, Jolley v. Utah State Senate, No. 960901127 (Utah 3d Dist. Feb. 19, 1997).

- In 1994, the Davis County Sheriff’s Office refused to release an audio tape of a 911 telephone call and Sheriff’s reports concerning a double murder-suicide. The 911 calls were placed by a woman as she was being shot by her estranged husband. The Sheriff’s Office refused to release the 911 tape on the ground that it was “too graphic” for public consumption. A local television station filed suit seeking access to the tape and police reports. After a sixteen-month legal battle, a district court judge ruled that the 911 tape and Sheriff’s reports were public records under Utah law and ordered the County to release them. The County agreed to pay more than $27,000 in attorneys’ fees and costs incurred by the television station in filing the lawsuit. Fox Television Stations Inc. v. Clary, No. 940700284 (Utah 2d Dist. Feb. 23, 1996).

- In 1994, the City of Orem refused to release the names, resumes, and professional qualifications of the six finalists for the position of Orem City Manager. The City claimed public disclosure would invade the finalists’ privacy and deter qualified applicants from applying in the future. The local newspaper and other open government advocates argued that public disclosure of the finalists’ names and professional qualifications was critical for the public to make informed judgments about the search and selection process and the quality and diversity of the candidate pool. The newspaper filed a lawsuit seeking the finalists’ names and, following a two-year legal battle, a district court judge ruled that the public interest favored release of the finalist’ names, resumes, and application records. Scripps League Newspapers v. City of Orem, No. 940400646 (Utah 4th Dist. Sept. 23, 1996).

A disturbing recent development has been the practice of state and local governments to use their information monopolies as revenue generators. Although GRAMA limits government copying charges to the “actual cost of providing” a record, some state and local government agencies have interpreted this language to include various overhead, labor, and other indirect costs. The result has been unreasonably high copying or “compilation” charges for some government records. For example, in Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136, ¶ 29, 979 P.2d 373, the Utah Court of Appeals held that the defendant had not violated GRAMA by charging $280.00 in compilation fees where the defendant “had to take files, documents and data from several sources and organize them in order to respond to Mr. Graham’s request.” And, although GRAMA expressly states that “[e]very person has the right to inspect a public record free of charge,” Utah Code § 63G-2-201(1) (emphasis added), the State Records Committee has ruled that persons wishing to inspect public driving records must pay a fee of $3 per record to the Utah Drivers License Division. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Public Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992). These and other access issues likely will continue to arise in Utah until resolved by legislative amendment or by judicial decision.

Anticipated Changes in Utah’s Access Laws. The provisions of the Utah access statutes as of February 2018 are summarized below. GRAMA is likely to undergo more legislative tinkering and some litigation as government, the news media, and members of the public continue to apply the statute and to explore its contours. Open government advocates likely will continue lobbying for enforcement and penalty provisions in the Open Meetings Act and for more clearly defined access under GRAMA to electronic records, including e-mail and electronic databases. Government interests likely will continue seeking expansion of exemptions to public access under GRAMA and the Open Meetings Act. In light of these continuing efforts to revise Utah’s access statutes, the reader should examine the Utah Code and determine whether the Legislature has enacted any subsequent amendments to Utah’s access laws before relying on the information contained in this outline.

Any questions concerning the statutory provisions or regulations governing state meetings or state records may be directed to the Utah Freedom of Information Hotline (1-800-574-4546), the Utah Headliners Chapter of the Society of Professional Journalists, the Utah Attorney General’s Office, or the Utah State Division of Archives.

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

In Utah, the Government Records Access and Management Act (“GRAMA”) governs access to public records. GRAMA states that “[e]very person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours . . . .” Utah Code § 63G-2-201(1).

Under GRAMA, “a record is public unless otherwise expressly provided by statute.” Id. § 63G-2-201(2).

GRAMA restricts access to all records that are classified as “private,” “controlled,” or “protected.” Id. § 63G-2-201(3)(a).

GRAMA also restricts access to all records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds.” Id. § 63G-2-201(3)(b).

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2. Purpose of request

Under GRAMA, a requester’s purpose is irrelevant to his or her right to inspect and receive copies of records.

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3. Use of records

GRAMA imposes no restrictions on the public’s use of the information disclosed by the government; however, a court may “limit the requester’s use and further disclosure” to safeguard certain interests in the case of private, protected, or controlled records. Utah Code § 63G-2-404(8)(b).

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

GRAMA applies to all “governmental entities,” which include the following:

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1. Executive branch

Executive branch entities subject to GRAMA include the “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 State Board of Regents, and the State Archives.” Utah Code § 63G-2-103(11)(a)(i). GRAMA also extends to any “office, agency, board, bureau, committee, department, advisory board, or commission” of the above-named entities if the office, agency, board, etc. “is funded or established by the government to carry out the public’s business.” Id. § 63G-2-103(11)(b).

GRAMA does not exempt any executive branch records from its scope, although it does restrict access to specific categories of records. For example, access is restricted to “records of the governor’s office, including budget recommendations, legislative proposals, and policy statements, that if disclosed would reveal the governor’s contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public.” Utah Code § 63G-2-305(29).

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2. Legislative bodies

Legislative bodies subject to GRAMA include “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.” Utah Code § 63G-2-103(11)(a)(ii). GRAMA also extends to any “office, agency, board, bureau, committee, department, advisory board, or commission” of the above-named entities if the office, agency, board, etc. “is funded or established by the government to carry out the public’s business.” Id. § 63G-2-103(11)(b). GRAMA does not apply to “any political party, group, caucus, or rules or sifting committee of the Legislature.” Id. § 63G-2-103(11)(a)(ii). However, the Legislature and its staff offices are not subject to GRAMA’s fees or appeals provisions. See id. § 63G-2-703(2)(a). In addition, all letters of inquiry submitted by any judge at the request of any judicial nominating committee shall be classified as private under GRAMA. See id. § 67-1-2(4)(a).

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3. Courts

GRAMA applies to the judicial branch of government, including the “courts, the Judicial Council, Office of the Court Administrator and similar administrative units in the judicial branch.” Utah Code § 63G-2-103(11)(a)(iii). However, the judiciary is not subject to GRAMA’s appeals provisions. See id. § 63G-2-702(2)(a). Judicial records also may be subject to other statutes, regulations, judicial rules, or court orders that are beyond the scope of this outline. See, e.g., Utah Code Jud. Admin. R4-201 to R4-206.

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4. Nongovernmental bodies

GRAMA does not apply expressly to nongovernment bodies receiving public funds or benefits. However, certain records created and maintained by private entities that enter into contracts with government entities may be available for public inspection under GRAMA. For example, the following records normally are public: “documentation of the compensation that a governmental entity pays to a contractor or private provider,” Utah Code § 63G-2-301(2)(j); “records documenting a contractor’s or private provider’s compliance with the terms of a contract with a governmental entity,” id. § 63G-2-301(3)(b); “records documenting the services provided by a contractor or a private provider to the extent the records would be public if prepared by the governmental entity,” id. § 63G-2-301(3)(c); and “contracts entered into by a governmental entity.” Id. § 63G-2-301(3)(d).

Similarly, GRAMA does not expressly apply to nongovernment groups whose members include government officials.

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5. Multi-state or regional bodies

It is unclear, based on Utah’s current statutory provisions, how these laws would apply to multistate or regional bodies (such as planning authorities).

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6. Advisory boards and commissions, quasi-governmental entities

GRAMA applies to “every office, agency, board, bureau, committee, department, advisory board, or commission” of any executive, legislative, or judicial branch entity described above that is “funded or established by the government to carry out the public’s business.” Utah Code § 63G-2-103(11)(b).

In addition, the budget documents and financial statements of “public associations,” such as the Utah Association of Counties, are public records if fifty percent or more of the public association’s members are elected or appointed public officials from Utah and membership dues or other financial support come from public funds. Id. § 63G-2-901.

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7. Others

GRAMA also applies to “any state-funded institution of higher education or public education,” Utah Code § 63G-2-103(11)(a)(iv), and to any political subdivision of the state that has not adopted its own information access rules by policy or by ordinance. See id. § 63G-2-103(11)(a)(v). It should be noted, however, that those political subdivisions that do adopt information access policies or ordinances must ensure that such policies or ordinances comply with GRAMA’s substantive classification and access provisions. See id. § 63G-2-701(2)(b).

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

GRAMA states that “[e]very person has the right to inspect a public record free of charge . . . .” Utah Code § 63G-2-201(1). “Public records” include all records that are not “private,” “controlled,” “protected,” or otherwise exempt from disclosure by statute. See id. § 63G-2-201(3). GRAMA states that certain records are public and must be disclosed, except to the extent that they contain information expressly exempted by court order or by statute. Id. § 63G-2-301(2). The list of public records, which is illustrative rather than exhaustive, see id. § 63G-2-301(4), includes:

(a) laws;

(b) names, gender, gross compensation, job titles, job descriptions, business addresses, business telephone numbers, number of hours worked per pay period, dates of employment, and relevant education, previous employment, and similar job qualifications of the government entity’s former and present employees and officers excluding: (i) undercover law enforcement personnel, and (ii) investigative personnel if disclosure reasonably could be expected to impair the effectiveness of investigations or endanger any individual’s safety;

(c) final opinions that are made by a government entity in a judicial, administrative, or adjudicative proceeding, unless the proceeding was properly closed to the public or the opinion contains information which is controlled, private, or protected;

(d) final interpretations of statutes or rules, unless otherwise protected;

(e) information contained in the records of the open portion of the meetings of government entities, including the records of all votes of each member of the government entity;

(f) judicial records, unless otherwise protected;

(g) records held by government entities concerning real property titles, encumbrances, restrictions on use, or tax status;

(h) Department of Commerce records concerning incorporation and uniform commercial code filings;

(i) data on individuals, otherwise private, but the individual who is the subject of the record has given the government entity written permission to make the record available to the public;

(j) records of compensation paid by a government entity to a “contractor” (a person who provides goods or services directly to the government entity or an entity funded by the government entity) or a “private provider” (a person who contracts with the government entity to provide services to the public);

(k) summary data collected from records that are classified as private, controlled, or protected that do not disclose the classified information;

(l) voter registration records, including an individual’s voting history, except for those parts of the record classified as private;

(m) contact information of elected officials, including telephone number and email address;

(n) contact information of school community council members, including telephone number and email address;

(o) annual audited financial statements of the Utah Educational Savings Plan; and

(p) initiative packets and referendum packets that have been submitted to a county clerk.

See id. § 63G-2-301(2).

In addition, the following records are “normally public,” but to the extent that a record is expressly exempt from disclosure, access may be restricted under section 63G-2-201(3)(b) or under sections 63G-2-302, -304, or -305:

(a) administrative staff manuals, instructions to staff, and statements of policy;

(b) records documenting a contractor’s or private provider’s compliance with the terms of a contract with a government entity;

(c) records documenting the services provided by a contractor or private provider to the extent that the records would be public if prepared by the government entity;

(d) contracts entered into by a government entity;

(e) any account, voucher, or contract that deals with a government entity’s receipt or expenditure of funds;

(f) records relating to government assistance or incentives publicly disclosed, contracted for, or given by a government entity, encouraging a person to expand or relocate a business in Utah, except as provided in subsection 63G-2-305(35);

(g) chronological logs and initial contact reports;

(h) correspondence by and with a government entity in which the government entity determines or states an opinion upon the rights of the state, a political subdivision, the public, or any person;

(i) empirical data contained in drafts if (1) the empirical data is not reasonably available to the requester elsewhere in similar form, and (2) the government entity is given a reasonable opportunity to correct any errors or to make nonsubstantive changes before release;

(j) drafts that are circulated to anyone other than: (1) a government entity; (2) a political subdivision; (3) a federal agency if the government entity and the federal agency are jointly responsible for implementation of a program or project that has been legislatively approved; (4) a government-managed corporation; or (5) a contractor or a private provider;

(k) drafts that have never been finalized but were relied upon by the government entity in carrying out action or policy;

(l) original data in a computer program if the government entity chooses not to disclose the program;

(m) arrest warrants after issuance, except that, for good cause, a court may order restricted access to arrest warrants before service;

(n) search warrants after execution and filing of the return, except that a court, for good cause, may order restricted access to search warrants before trial;

(o) records that would disclose information relating to formal charges or disciplinary actions against a past or present government entity employee if: (1) the disciplinary action has been completed and all time periods for administrative appeal have expired, and (2) the charges on which the disciplinary action was based were sustained;

(p) records maintained by the Division of State Lands and Forestry or the Division of Oil, Gas and Mining that evidence mineral production on government lands;

(q) final audit reports;

(r) occupational and professional licenses;

(s) business licenses; and

(t) a notice of violation, a notice of agency action under section 63G-4-201, or similar records used to initiate proceedings for discipline or sanctions against persons regulated by a government entity, but not including records that initiate employee discipline.

See id. § 63G-2-301(3).

If a record was subject to a confidentiality agreement before GRAMA’s effective date, April 1, 1992, the prior law and judicial interpretations are controlling, unless all parties to the agreement agree otherwise. See id. § 63G-2-105.

What records are excluded: “Records of a governmental entity or political subdivision regarding security measures designed for the protection of persons or property, public or private,” are not subject to GRAMA, including security plans, security codes, combinations or passwords, passes and keys, security procedures, and building and public works designs, to the extent the records or information relate to a public entity’s ongoing security measures. Id. § 63G-2-106. Also, records controlled or maintained by any government entity subject to the Standards for Privacy of Individually Identifiable Health Information are not subject to GRAMA. See id. § 63G-2-107.

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2. What physical form of records are covered

“Record” includes “a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics . . . that is prepared, owned, received, or retained by a governmental entity or political subdivision.” Utah Code § 63G-2-103(22)(a). “Record” does not include: (i) a personal note or communication prepared or received by an employee or an officer of a governmental entity: (A) in nongovernmental capacity; or (B) that is unrelated to the conduct of the public’s business; (ii) temporary drafts prepared for the originator’s personal use or for the personal use of the originator’s supervisor; (iii) materials that are legally owned by an individual; (iv) copyrighted or patented material, where the patent or copyright is owned by someone other than the government; (v) proprietary software; (vi) junk mail; (vii-viii) books or other materials contained in public libraries; (ix) daily calendars or personal notes; (x) computer programs purchased or developed for the use of the government entity; (xi) notes or internal memoranda prepared as a part of the deliberative process by a member of the judiciary, by an administrative law judge, by a member of the Board of Pardons, or by a member of any other body charged by law with performing a quasi-judicial function; (xii) government employees’ mobile telephone numbers, provided the employee has designated at least one public business telephone number; (xiii) certain information provided by the Public Employee’s Benefit and Insurance Program to a county; (xiv) certain information that an owner of unimproved property provides to a local entity; and (xv) video or audio recordings, or transcripts, of interviews conducted at the Children’s Justice Center. See id. § 63G-2-103(22)(b).

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3. Are certain records available for inspection but not copying?

Some statutes provide that specific records are available for inspection but not for copying.

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4. Telephone call logs

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5. Electronic records (e.g., databases, metadata)

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a. Can the requester choose a format for receiving records?

“In response to a request, a governmental entity is not required to . . . provide a record in a particular format, medium, or program not currently maintained by the governmental entity.” Utah Code § 63G-2-201(8)(a)(iii). “Upon request, a governmental entity may provide a record in a particular form . . . if: (i) the governmental entity determines it is able to do so without unreasonably interfering with the governmental entity’s duties and responsibilities; and (ii) the requester agrees to pay the governmental entity for providing the record in the requested form in accordance with Section 63G-2-203.” Id. § 63G-2-201(8)(b).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Although GRAMA does not specifically address this issue, it is likely that a requester could obtain a customized search of computer databases as long as the requester identifies the records sought with reasonable specificity and pays for the search costs. See Utah Code § 63G-2-201(7); see also Maese v. Davis Cty., 273 P.3d 949, 952 (Utah 2012) (concluding that county met GRAMA obligations by providing requester access to database to search and copy requested property records).

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c. Does the existence of information in electronic format affect its openness?

Under GRAMA, “[a] governmental entity 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.” Utah Code § 63G-2-201(11). Original data in a computer program is normally public. See id. § 63G-2-301(3)(l).

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d. Online dissemination

The availability of online transmission of records varies between government entities. The requester should inquire with the government entity that maintains the record to determine if online dissemination is available. In 2005, GRAMA was amended to allow a government entity to provide access to an electronic record in lieu of providing access to its paper equivalent. Utah Code § 63G-2-201(12) (2005) (current version at id. § 63G–2–201(13)).

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6. Email

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer software

Proprietary software and computer programs are not subject to GRAMA. Utah Code § 63G-2-103(22)(b)(v), (x). While Utah courts have not had the opportunity to decide the issue, software and file metadata arguably are exempt from disclosure as well. See Maese v. Davis Cty., 273 P.3d 949, 952 (Utah 2012) (declining to determine whether the database file, its metadata, or other hidden variables constitute public records under GRAMA).

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

GRAMA states that a government entity may charge a “reasonable fee” to cover the “actual cost of providing a record.” Utah Code § 63G-2-203(1). The government entity also may charge for certain costs incurred in compiling a record in a form other than that maintained by the government entity. See id. § 63G-2-203(2). Fees may be established by the Legislature, by political subdivisions, or by the Judicial Council. See id. § 63G-2-203(3). GRAMA’s fee provisions do “not alter, repeal or reduce fees” established by other state statutes. Id. § 63G-2-203(9).

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2. Particular fee specifications or provisions

A government entity may charge for the cost of staff time for search and retrieval of records if the request is for records compiled in a form other than that normally maintained by the government entity. Utah Code § 63G-2-203(2)(a)-(b). However, a government entity may not charge a fee for (a) “reviewing a record to determine whether it is subject to disclosure,” or (b) “inspecting a record.” Id. § 63G-2-203(5). In Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136, 979 P.2d 363, the Utah Court of Appeals held that “a governmental agency may assess compilation fees in conjunction with a request for records only if: (1) a request specifies that the documents be compiled in a form other than that used by the agency and the requester consents to the imposition of compilation fees; or (2) the request, without specifying that the records be compiled in a form other than that maintained by the agency, nonetheless requires the agency to extract materials from a larger document or source and it is not feasible or reasonable to allow the requester to compile the records.” Id. ¶ 28. If a requester appeals a compilation fee, the government entity bears the burden of proving that either of these two conditions applies. See id.

The fee that a government entity may charge for providing records is limited to the “actual cost,” and the fee must be “reasonable” and approved by the entity’s executive officer. Utah Code § 63G-2-203(1). GRAMA further states that a government entity “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.” Id. § 63G-2-201(11).

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3. Provisions for fee waivers

Government entities are encouraged to grant fee waivers when release of the record “primarily benefits the public rather than a person” (news media requests are presumed to benefit the public); “the individual requesting the record is the subject of the record” or the subject’s legal guardian; or the “requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious.” Utah Code § 63G-2-203(4)(a).

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4. Requirements or prohibitions regarding advance payment

“A governmental entity may require payment of past fees and future estimated fees before beginning to process a records request if: (i) the fees are expected to exceed $50; or (ii) the requester has not paid fees from previous requests.” Utah Code § 63G-2-203(8)(a). “Any prepaid amount in excess of fees due shall be returned to the requester.” Id. § 63G-2-203(8)(b).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Some state agencies and political subdivisions have interpreted GRAMA’s authorization to collect the “actual cost of duplication” as a license to charge for various overhead, labor, and other indirect costs. This interpretation has resulted in imposition of unreasonably high copying charges for some records. And, although GRAMA states expressly that a government entity may not charge a fee for inspecting a record, the State Records Committee has ruled that persons wishing to inspect public driving records must pay a fee of $3 per record to the Utah Drivers License Division. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Pub. Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992). The Records Committee’s cramped reading of GRAMA’s free inspection provision has been criticized.

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6. Fees for electronic records

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E. Who enforces the Act?

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1. Attorney General's role

“The Office of the Attorney General shall provide counsel to the records committee and shall review proposed retention schedules.” Utah Code § 63G-2-502(7).

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2. Availability of an ombudsman

GRAMA makes no allowance for an ombudsman.

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3. Commission or agency enforcement

The State Records Committee consists of seven individuals, including “(a) an individual in the private sector whose profession requires the individual to create or manage records that if created by a governmental entity would be private or controlled; (b) the director of the Division of History or the director’s designee; (c) the governor or the governor’s designee; (e) two citizen members; (f) one person representing political subdivisions, as recommended by the Utah League of Cities and Towns; and (g) one individual representing the news media.” Utah Code § 63G-2-501(1). The Records Committee’s duties include meeting at least once every three months; reviewing and approving retention and disposal of records; hearing appeals from determinations of access as provided by GRAMA; determine disputes submitted by the state auditor; and appointing a chairperson from among its members. See id. § 63G-2-502(1). The Records Committee also may “make rules to govern its own proceedings as provided by . . . the Utah Administrative Rulemaking Act,” and “by order, after notice and hearing, reassign classification and designation for any record series by a governmental entity if the governmental entity’s classification or designation is inconsistent with [GRAMA].” Id. § 63G-2-502(2).

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F. Are there sanctions for noncompliance?

A district court may enjoin any government entity or political subdivision that violates or proposes to violate GRAMA. See Utah Code § 63-2-802(1). A district court also may “assess against any governmental entity or political subdivision reasonable attorney fees and other litigation costs reasonably incurred in connection with a judicial appeal of a denial of a records request if the requester substantially prevails.” Id. § 63G-2-802(2)(a). However, any claims for attorneys’ fees or for damages are subject to the Governmental Immunity Act. See id. § 63G-2-802(5). Criminal penalties also exist for certain GRAMA violations. See id. § 63G-2-801. “A public employee or other person who has lawful access to any private, controlled, or protected record” and “intentionally discloses, provides a copy of, or improperly uses” such record, with the knowledge that disclosure or use is prohibited, except as provided in Subsection 53-5-708(1)(c), is “guilty of a class B misdemeanor.” See id. § 63G-2-801(1)(a). “A person who by false pretenses, bribery, or theft, gains access to or obtains a copy of any private, controlled or protected record to which the person is not legally entitled is guilty of class B misdemeanor.” Id. § 63G-2-801(2)(a). “A public employee who intentionally refuses to release a record, the disclosure of which the employee knows is required by law, is guilty of a class B misdemeanor.” Id. § 63G-2-801(3)(a).

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

Open meeting pending minutes must be available to the public within 30 days of holding the meeting. Id. § 52-4-203(4)(e)(i). Approved minutes must be available within three business days of approval by posting to the website and making minutes available at the public body’s primary office along with any public materials distributed at the meeting. Id. § 52-4-203(4)(e)(ii).  An audio recording of the open meeting, or a link to the recording, must be posted on the website within three business days as well.  Id. § 52-4-203(4)(e)(iii).

The Legislature must post on its website a publicly accessible repository containing email that legislators transferred. Id. § 63G-2-208. A legislator’s failure to transfer an email to the repository does not alone mean that the email is a private, protected, or controlled record. Id. § 63G-2-208(5).

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3. Records retention requirements

The Division of Archives and Records Service within the Department of Administrative Services shall “establish standards for the preparation of schedules providing for the retention of records of continuing value and for the prompt and orderly disposal of state records no longer possessing sufficient administrative, historical, legal, or fiscal value to warrant further retention.” Id. § 63A-12-101(1)-(2).

Each government entity shall file with the State Records Committee a proposed schedule for the retention and disposition of each type of record. Id. § 63G-2-604(1)(a). After a retention schedule is reviewed and approved by the State Records Committee, the governmental entity shall maintain and destroy records in accordance with the retention schedule. Id. § 63G-2-604(1)(b). If a governmental entity has not received an approved retention schedule for a specific type of material, the model retention schedule maintained by the state archivist shall govern the retention and destruction of that type of material. Id. § 63G-2-604(1)(c). A retention schedule is a public record. Id. § 63G-2-604(2).

The written minutes or recording of an open meeting that are required to be retained permanently shall be maintained in or converted to a format that meets long-term records storage requirements. Id. § 52-4-203(4)(e).

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4. Provisions for broad, vague, or burdensome requests

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

GRAMA’s exemptions to public access are specific. See Utah Code § 63G-2-201(2)-(3). Under GRAMA, all “public records” are available for inspection. Id. § 63G-2-201(1). In addition to the list of records expressly made public by GRAMA, all other government records are presumed to be public unless classified as “private,” “controlled,” or “protected,” or unless access to such records is restricted by court rule or by state or federal statute. Id. § 63G-2-201(2)-(3).

Government entities cannot publicly disclose records that are classified as private, controlled, or protected, except as set forth expressly in Utah Code sections 63G-2-201(5)(b)-(c), -202, -206, or -303. Id. § 63G-2-201(5)(a) If access to a record is restricted by court rule or by state or federal statute, the specific provisions of those rules or statutes govern disclosure. Id. § 63G-2-201(6)(a).

How records are classified. Each government entity evaluates and designates each record series (a collection of individual records, grouped for designation purposes) according to GRAMA’s provisions. The designation is reported to the state archives. See id. § 63G-2-307(1).

i. The government entity is not required to classify a specific record until access to the particular record is requested. See id. § 63G-2-307(2).

ii. A government entity may reclassify a record at any time. See id. § 63G-2-307(3).

iii. Any person who submits a record to a government entity that contains a trade secret or commercial or nonindividual financial information that the person believes should be protected from disclosure, shall provide with the record a written claim of business confidentiality and a concise statement of reasons supporting the claim of business confidentiality. See id. § 63G-2-309(1)(a)(i)(A)-(B).

iv. Records classified as “private,” “controlled,” or “protected” must satisfy the statutory requirements for each classification.

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2. Discussion of each exemption

Private records. The following records are private and therefore exempt from public disclosure under GRAMA:

a. “records concerning an individual’s eligibility for unemployment insurance benefits, social services, welfare benefits, or the determination of benefit levels”;

b. records containing an individual’s medical history;

c. records of publicly funded libraries used to identify a patron;

d. records received or generated by or for: (i) the Independent Ethics Commission, except for the summary data report and other documents classified as public under legislative rule; and (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints, unless record is classified as public under legislative rule;

e. records received by, or generated by or for, the Independent Executive Branch Ethics Commission, except as expressly provided in Title 63A, Chapter 14;

f. records of a Senate confirmation committee “concerning character, professional competence, or physical or mental health of an individual: (i) if, prior to the meeting, the chair of the committee determines release of the records” will interfere with the committee’s investigation or could deprive the individual of a fair hearing and (ii) “after the meeting, if the meeting was closed to the public”;

g. records concerning a current or former employee of, or applicant for employment with, a government entity “that would disclose that individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions”;

h. records or parts of records that a current or former employee identifies as private according to the requirements of Section 63G-2-303;

i. that part of a record indicating a person’s Social Security number or federal employer identification number if provided under Section 31A-23a-104, 31A-25-202, 31A-26-202, 58-1-301, 58-55-302, 61-1-4, or 61-2f-203;

j. that part of a voter registration record identifying a voter’s driver license or identification card number, Social Security number, or last four digits of the Social Security number, email address, or date of birth;

k. a voter registration record that is classified as a private record by the lieutenant governor or a county clerk under Subsection 20A-2-104(4)(f) or 20A-1-101.1(5)(a);

l. a record that contains information about an individual; is voluntarily provided by the individual; and goes into an electronic database that: is designated by and administered under the authority of the Chief Information Officer; and acts as a repository of information about the individual that can be electronically retrieved and used to facilitate the individual’s online interaction with a state agency;

m. information provided to the Commissioner of Insurance under: Subsection 31A-23a-115(3)(a); Subsection 31A-23a-302(4); or Subsection 31A-26-210(4);

n. information obtained through a criminal background check under Title 11, Chapter 40;

o. information provided by an offender that is: required by the registration requirements of Title 77, Chapter 41, Sex and Kidnap Offender Registry; and not required to be made available to the public under Subsection 77-41-110(4);

p. a statement and any supporting documentation filed with the attorney general in accordance with Section 34-45-107, if the federal law or action supporting the filing involves homeland security;

q. electronic toll collection customer account information received or collected under Section 72-6-118 and customer information described in Section 17B-2a-815 received or collected by a public transit district, including contact and payment information and customer travel data;

r. an email address provided by a military or overseas voter;

s. a completed military-overseas ballot that is electronically transmitted;

t. records received by or generated by or for the Political Subdivisions Ethics Review Commission established in Section 11-49-201, except for; the commission’s summary data report that is required in Section 11-49-202; and any other document that is classified as public in accordance with Title 11, Chapter 49, Political Subdivisions Ethics Review Commission;

u. a record described in Subsection 53A-11a-203(3) that verifies that a parent was notified of an incident or threat; and

v. a criminal background check or credit history report conducted in accordance with Section 63A-3-201.

Utah Code § 63G-2-302(1).

The following records are private if properly classified as such by a government entity:

a. “records concerning a current or former employee of, or applicant for employment with a governmental entity, including performance evaluations and personal status information”;

b. “records describing an individual’s finances, except those that are expressly classified as public”;

c. “records of independent state agencies if the disclosure of those records would conflict with fiduciary obligations of the agency”;

d. other records containing information on an individual, the disclosure of which constitutes a clearly unwarranted invasion of personal privacy;

e. records provided by the United States government or a government entity outside the state, that are provided with the requirement that the records be classified as private; and

f. any portion of a record in the custody of the Division of Aging and Adult Services that may disclose, or lead to the discovery of, the identity of a person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult; and

g. audio and video recordings created by a body-worn camera “except for recordings that: (i) depict the commission of an alleged crime; (ii) record any encounter between a law enforcement officer and a person that results in death or bodily injury, or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency; (iv) contain an officer involved critical incident as defined in Section 76-2-408(1)(d); or (v) have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording”; and

h. medical records unless the records are in the possession of the University of Utah Hospital and are sought (i) “in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense,” or (ii) “after a patient's death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense.”

Id. § 63G-2-302(2)-(3).

A government entity shall disclose a private record to the following individuals: “(a) the subject of the record; (b) the parent or legal guardian of an unemancipated minor who is the subject of the record; (c) the legal guardian of a legally incapacitated individual who is the subject of the record”; (d) an individual who “has a power of attorney from the subject of the record”; (e) an individual who submits a notarized release from the subject of the record; (f) a health care provider if the record is a medical record and releasing the record is consistent with normal professional practice and medical ethics; and (g) “any individual to whom the record must be provided pursuant to court order or legislative subpoena.” Id. § 63G-2-202(1).

A government entity may, in its discretion, disclose records that are classified properly as private to persons other than those specified above if the head of the government entity, or a designee, determines that the interests favoring access to the record outweigh the interests favoring restriction of access. See id. § 63G-2-201(5)(b).

If more than one subject is included in the private record, the record shall be segregated. See id. § 63G-2-202(3).

Private Information on Certain Government Employees. At-risk government employees—meaning former or current (i) peace officers, (ii) federal, state, and military judges, (iii) United States Attorneys and Assistant United States Attorneys, (iv) armed forces and military prosecutors, and (v) law enforcement personnel—may request that a government entity “holding a record or part of a record that would disclose the employee’s or the employee’s family member’s home address, home telephone number, Social Security number, insurance coverage, marital status, or payroll deductions” identify and classify such records as private. See Utah Code § 63G-2-303(1)-(2).

Controlled records. The following records are controlled and therefore exempt from public disclosure under GRAMA if:

a. “the record contains medical, psychiatric, or psychological data about an individual” (unless the record is in the possession of the University of Utah Hospital and is sought “(i) in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense; or (ii) after a patient’s death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense”);

b. the government entity reasonably believes that releasing the information would (i) be “detrimental to the subject’s mental health or to the safety of any individual; or (ii) releasing the information would constitute a violation of normal professional practice and medical ethics;” and

c. “the government entity has properly classified the record.”

Utah Code §§ 63G-2-302(3), -304.

A government entity shall disclose a controlled record to the following individuals: (a) a physician, psychologist, certified social worker, insurance provider or agent, or a government public health agency that submits a notarized release and a signed acknowledgment from the subject of the record; and (b) any person to whom the record must be disclosed pursuant to a court order. See id. § 63G-2-202(2).

If more than one subject is included in the controlled record, the record shall be segregated. See id. § 63-2-202(3).

Protected records. The following records are protected if classified properly by the government entity:

a. trade secrets;

b. commercial information or nonindividual financial information if: (i) disclosure of the information could result in an unfair competitive injury to the person submitting the information or would impair the government from obtaining necessary future information; (ii) the person submitting the information has a greater interest in prohibiting access than the public does in obtaining access; and (iii) the person submitting the information has been properly approved for a business confidentiality claim;

c. commercial or financial information to the extent that disclosure would lead to financial speculations in currencies, securities, or commodities that will interfere with a planned government transaction or cause financial injury to the state economy;

d. “records the disclosure of which could cause commercial injury to, or confer a competitive advantage upon a potential or actual competitor of, a commercial project entity”;

e. “test questions and answers to be used in future license, certification, registration, employment, or academic examinations”;

f. records the disclosure of which would give an unfair advantage to a person proposing to enter into a contract with the government, although a person can see the contract bids after the bidding has been closed;

g. information submitted to or by a governmental entity in response to a request for information, except after a contract directly relating to the subject of the request for information has been awarded and signed by all parties, or a final determination is made not to enter into a contract that relates to the subject of the request for information and at least two years have passed after the day on which the request for information is issued;

h. records that would identify real property or the appraised value of personal or real property under consideration for public acquisition, unless: (i) the public’s interest in the information outweighs the government’s interest in acquiring the property on the best possible terms; (ii) the information has already been disclosed to those not required to keep the information confidential; (iii) potential sellers of the property already have learned of the government’s plans to acquire the property; (iv) the potential seller of the property already has learned of the government’s estimated value of the property; or (v) if the property in consideration is a single family residence, the government entity seeking to acquire the property has initiated negotiations to acquire the property as required by law;

i. records prepared in contemplation of sale, exchange, lease, rental, or other compensated real or personal property transaction that, if disclosed, would reveal the estimated or appraised value of the property, unless: (i) the public’s interest in the information outweighs the government’s interest in acquiring the property on the best possible terms; or (ii) the information already has been disclosed to those not required to keep the information confidential;

j. “records created or maintained for civil, criminal, or administrative enforcement purposes or audit purposes, or for discipline, licensing, certification, or registration purposes,” if release of the records: (i) reasonably could be expected to interfere with the investigations; (ii) reasonably could be expected to interfere with the audit, disciplinary, or enforcement proceedings; (iii) would create a danger of depriving a person of a right to a fair trial or an impartial hearing; (iv) reasonably could be expected to disclose a confidential source’s identity; or (v) reasonably could be expected to disclose audit or investigative techniques, procedures, policies, or orders not generally known outside the government entity if disclosure would interfere with enforcement or audit efforts;

k. “records the disclosure of which would jeopardize the life or safety of an individual”;

l. records the disclosure of which would jeopardize the security of government property, programs, or recordkeeping systems;

m. records the disclosure of which would jeopardize the security or safety of a correctional facility or that would interfere with the control and supervision of the offender;

n. records the disclosure of which would reveal recommendations made to the Board of Pardons and Parole by its employees or related entities;

o. records of the State Tax Commission the disclosure of which would interfere with the audits and collections performed by the State Tax Commission;

p. “records of a governmental audit agency relating to an ongoing or planned audit” before release of the final audit;

q. “records of a governmental audit agency relating to an ongoing or planned audit until the final audit is released”;

r. “records that are subject to the attorney client privilege”;

s. records prepared for or by an attorney, consultant, insurer, employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial, quasi-judicial, or administrative proceeding;

t. a legislator’s personal files, unless they include notice of legislative action or policy;

u. records in the custody or control of the Office of Legislative Research and General Counsel that, if disclosed, would reveal a legislator’s contemplated course of action before the legislator’s final decision;

v. research requests from a legislator to the Office of Legislative Research and General Counsel or to the Office of the Legislative Fiscal Analyst and the responses to such requests;

w. “drafts, unless otherwise classified as public”;

x. “records concerning a governmental entity’s strategy about collective bargaining or imminent or pending litigation”;

y. “records of investigations of loss occurrences and analyses of loss occurrences that may be covered by the Risk Management Fund, the Employers’ Reinsurance Fund, the Uninsured Employers’ Fund, or similar divisions in other governmental entities”;

z. records, other than personnel evaluations, that contain a personal recommendation if disclosure would constitute a clearly unwarranted invasion of personal privacy or is not in the public interest;

aa. records that reveal the location of historic, prehistoric, paleontological, or biological resources that, if known, would jeopardize the security of those resources;

bb. records of independent state agencies if their disclosure would violate a fiduciary duty;

cc. records of a public institution of higher education regarding tenure evaluations, appointments, applications for admissions, retention decisions, and promotions that could be discussed properly in a legally closed meeting; however, final decision on these matters may not be classified as protected;

dd. records of the governor’s office that would reveal the governor’s contemplated policies or actions before the governor has implemented or rejected those policies or courses of action or made them public;

ee. “records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in these areas”;

ff. records provided by the United States government or by another state that are given to the government entity with the requirement that they be maintained as protected;

gg. “transcripts, minutes or reports of the closed portion of a meeting,” except as otherwise provided by law;

hh. records that reveal the contents of settlement negotiations, except for final settlements or empirical data to the extent that such settlements or data are not otherwise exempt from disclosure;

ii. staff memoranda used in the decision-making function of any quasi-judicial body;

jj. “records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract”;

kk. materials to which access must be limited for purposes of securing or maintaining the government entity’s proprietary protection of intellectual property rights;

ll. the name or other information that may reveal the identity of a donor or potential donor to a government entity, provided that: (i) the donor requests anonymity in writing; (ii) terms or conditions relating to the donation may not be classified as protected; and (iii) except for public institutions of higher education, the government unit to which the donation is made is engaged primarily in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority over the donor, a member of his immediate family, or any entity owned or controlled by the donor or his immediate family;

mm. accident reports, except as provided by law;

nn. notification of workers’ compensation insurance coverage as described by law;

oo. the following records of a public institution of education that have been developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the institution: unpublished lecture notes, unpublished research notes and data, unpublished manuscripts, creative works in process, scholarly correspondence, and confidential information contained in research proposals;

pp. “records in the custody or control of the Office of Legislative Auditor General that would reveal the name of a particular legislator who requests a legislative audit prior to the date that audit is completed and made public” (although a submitted request for a legislative audit “is a public document” unless the legislator asks that the records revealing the name “be maintained as public records until the audit is completed and made public”);

qq. records, including maps, that detail the location of an explosive or production facility;

rr. information contained in the Division of Aging and Adult Services database or information received or maintained relating to the Identity Theft Reporting Information System;

ss. “information contained in the Management Information System and Licensing Information System”;

tt. information pertaining to the National Guard’s operations or activities;

uu. records that a pawn or secondhand business provides to law enforcement or to the central database;

vv. “information regarding food security, risk, and vulnerability assessments performed by the Department of Agriculture and Food” and Department of Agriculture and Food records relating to the National Animal Identification System or relating to livestock diseases;

ww. records related to emergency plans prepared or maintained by the Division of Emergency Management if disclosure of the records would endanger public safety or the security of government property, government programs, or a private person’s property if that person provides information to the Division;

xx. unsubstantiated or anonymous complaints held by the Department of Health regarding child care programs;

yy. unless otherwise classified as public under the law, an individual’s personal contact information if the individual is required to produce such information by law or by government order and the individual has a reasonable expectation that such information will be kept confidential;

zz. the personal and business contact information of an individual who performs or is involved in medical or scientific research involving animals if that research is conducted within the state system of higher education;

aaa. unless otherwise made public, initial proposals under the Government Procurement Private Proposal Program;

bbb. unless otherwise made public under the law, information collected and prepared by the Judicial Performance Evaluation Commission concerning a judge;

ccc. “records contained in the Management Information System created in Section 62A-4a-1003”;

ddd. records of the Public Land Policy Coordinating Office in furtherance of certain agreements;

eee. “information requested by and provided to the 911 Division under Section 63H-7a-302”;

fff. a management plan for water conveyance facility in the possession of the Division of Water Resources or the Board of Water Resources; or an outline of an emergency response plan possessed by state or local government;

ggg. The following records in the custody or control of the Office of Inspector General of Medicaid services: (i) records disclosing allegations of personal misconduct which cannot be corroborated through other evidence, and the records are not relied upon in preparing a final investigation or audit report; (ii) records disclosing the identity of a person who communicated the existence of any Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or regulation, if the information was disclosed on the condition the person’s identity be protected; (iii) before the time that an investigation or audit is completed and the final investigation or final audit report is released, records or drafts circulated to a person who is not an employee or head of a governmental entity for the person’s response or information; (iv) records that would disclose an outline or part of any investigation, audit survey plan, or audit program; or (v) requests for an investigation or audit, if disclosure would risk circumvention of an investigation or audit;

hhh. records that reveal methods used by the Office of Inspector General of Medicaid Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or abuse;

iii. information provided to the Department of Health or the Division of Occupational and Professional Licensing by law;

jjj. a record described in Section 63G-12-210;

kkk. captured plate data that is obtained through an automatic license plate reader system used by a governmental entity as authorized by law;

lll. Any record in the custody of the Utah Office for Victims of Crime relating to a victim, including: (i) a victim’s application or request for benefits; (ii) a victim’s receipt or denial of benefits; and (iii) any administrative note or records created to evaluate or communicate a victim’s eligibility for or denial of benefits form the Crime Victim Reparations Fund.

mmm. an audio or video recording created by a body-worn camera that records sound or images inside a hospital or health care facility, inside a clinic of a health care provider, or inside a human service program, except for recordings that: (i) depict the commission of an alleged crime; (ii) record any encounter between law enforcement and a person that results in death or bodily injury or includes an instance when an officer fires a weapon; (iii) record any encounter that is the subject of a legal proceeding against a law enforcement officer or agency; (iv) contains an officer involved critical incident; (v) have been requested for reclassification as a public record by a subject featured in recording, or the subject’s authorized agent; and

nnn. records pertaining to the search process for a president of an institution of higher education, except for application materials for publicly announced finalists.

Utah Code § 63G-2-305.

A government entity shall disclose a protected record to the following: (a) the person who submitted the record; (b) any individual who has a power of attorney or submits a notarized release from all persons, government entities, and political subdivisions whose interests were sought to be protected by the protected classification; or (c) any person to whom the record must be disclosed pursuant to a court order or legislative subpoena. Id. § 63G-2-202(4).

A government entity may, in its discretion, disclose records that are protected to persons other than those specified above if the head of the government entity, or a designee, determines that the interests favoring access to the record outweigh the interests favoring restriction of access. Id. § 63G-2-201(5)(b). A governmental entity may also disclose protected records if: (i) the disclosure is determined to be mutually beneficial to the subject of the record, the governmental entity, and the public; (ii) the disclosure serves a public safety or consumer protection purpose; and (iii) the record will not be used for advertising or solicitation purposes. Id. § 63G-2-201(5)(c).

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B. Other statutory exclusions

GRAMA states that records may be exempt from disclosure if access is otherwise restricted by statute, by federal regulation, or by court rule. See Utah Code § 63G-2-201(3)(b). Examples of records to which access is restricted include the following:

1. Health and human service records.

a. Records concerning an individual’s eligibility for certain welfare benefits are private. Id. § 63G-2-302(1)(a).

b. Health Department records may be provided to such authorized persons as local health departments, the Divisions of Substance Abuse and Mental Health, the Utah Medical Association, peer review committees, etc., but otherwise are not subject to GRAMA. Id. § 26-25-1(2).

c. Communicable disease information relating to an individual is confidential and may be released only in accordance with enumerated requirements. Id. § 26-6-27.

d. Health Care Facility License Department information is available to the public, except that information shall not be disclosed if disclosure would constitute an unwarranted invasion of privacy or if it identifies any individual other than the owner or operator of a health care facility. Id. § 26-21-9(2). Information received by the department from a health care facility pertaining to the facility’s accreditation by a voluntary accrediting organization shall be private. Id. § 26-21-9(3).

e. Child abuse reports are not subject to GRAMA but may be available to authorized persons. Id. § 62A-4a-412(1).

f. Inquiries made regarding missing persons are confidential and are only available to law enforcement agencies, agencies responsible for the child, the courts, the office of the public prosecutor, a person engaged in bona fide research when approved by the director of the division, or other authorized persons. Id. § 53-10-204.

g. The Department of Health may not disclose any identifiable health data unless the individual, his next of kin if deceased, his parent or guardian, or a person holding a power of attorney on his behalf has consented to the disclosure, or unless the disclosure is to a state or government entity or to an individual or organization for certain confidential research or statistical purposes, or to a government entity for the purpose of conducting an audit or evaluation. Id. § 26-3-7; see also id. § 26-3-10 (requiring that the Department of Health protect the security of its identifiable health data).

h. The Utah Health Advisory Council shall observe confidential requirements placed on the Department of Health in the use of provided information. Id. § 26-1-7.5(7).

i. An individual who desires to examine a payment for services offered by the Division of Family Services shall sign a statement using a form prescribed by the division and shall indicate that the individual is a taxpayer and a resident, and that the individual will not use the information for commercial or political purposes. Id. § 62A-4a-112(1). In addition, the Division of Family Services “shall establish policies and rules to govern the custody and disclosure of confidential information, as well as to provide access to information regarding payments for services offered by the division.” Id. § 62A-4a-112(2). The statute does not prohibit the Division of Family Services and its agencies from “making special studies or from issuing or publishing statistical material and reports of a general character.” Id. § 62A-4a-112(3). The Division also may release information to local, state, and federal agencies. The statute states that access to the Division of Family Services records shall be governed by GRAMA. Id. § 62A-4a-112.

j. A pharmacist may not release any information contained in a prescription or patient’s medication profile to anyone except federal or state drug enforcement officers and their agencies, the patient himself, the patient’s legal representatives, a third-party payment program, a pharmacist or physician providing professional services to the patient, or a pharmacy patient’s attorney upon written authorization. Id. § 58-17b-604(2), (4).

k. A mental health therapist may not disclose any confidential communications with a patient without the express consent of the patient, of the patient’s parent or legal guardian, or of the patient’s authorized representative. Id. § 58-60-114(1). A therapist may disclose confidential communications if permitted or required to do so under a state or federal law, rule, regulation, or order, under an exemption from evidentiary privilege, or under a generally recognized professional or ethical standard. Id. § 58-60-114(2).

l. Information obtained, or complaints reviewed by, an ombudsman under the Long-term Care Ombudsman Program shall be kept confidential unless the complainant or elderly resident, or a legal representative of either, consents in writing to the disclosure; a court orders the disclosure; or the disclosure is made to an authorized agency. Id. § 62A-3-207. Unauthorized disclosure of any confidential information submitted pursuant to the Long-term Care Ombudsman Program is a Class B misdemeanor. Id. § 62A-3-208.

m. In any proceeding to commit involuntarily a mentally retarded individual to a mental retardation facility, the court may exclude from the hearing all persons not necessary to conduct the proceeding, but the individual's attorney shall have access to all documented information gathered on the individual at the time of and prior to the hearing. Id. § 62A-5-312(11), (12).

n. A physician or a surgeon cannot, without the patient’s consent, be examined in a civil action as to information acquired by the doctor while attending a patient and that was necessary to enable the doctor to prescribe or act for the patient. Id. § 78B-1-137(4); see also Utah R. Evid. 506.

o. A patient or a patient’s personal representative may inspect or receive a copy of the patient’s records from a health care provider when the health care provider is governed by the Standards for Privacy of Individually Identifiable Health Information. When the health care provider is not governed by Standards for Privacy of Individually Identifiable Health Information, “a patient or a patient’s personal representative may inspect or receive a copy of the patient’s records unless access to the records is restricted by law or judicial order.” Id. § 78B-5-618.

p. A person who discloses or uses personally identifiable information obtained from state sources concerning individuals applying for vocational rehabilitation services is guilty of a misdemeanor, unless the individual consents to such disclosure. Id. § 35A-13-106.

2. Health insurance records.

a. Auditors performing state-ordered insurance audits of an organization shall have access to patients’ medical records, but such information shall remain confidential. See Utah Code § 31A-8-404.

b. Medical records of enrollees of an organization and annual audits are to be kept confidential, unless otherwise ordered by a court. See id. § 31A-8-405.

c. Health insurance enrollees’ medical records are confidential. See id. § 31A-22-617(4)(c).

d. Third Party Administrators’ records, which include trade secrets or the identity of policyholders, are confidential, except that the insurance commissioner may use such information in any proceeding against the administrator. See id. § 31A-25-302(3).

e. All records pertaining to a hearing under the Delinquency Administrative Action Provisions are confidential, with some exceptions. See id. §§ 31A-27-503, -504.

3. State and local miscellaneous records.

a. Alternative Dispute Resolution records are confidential. See Utah Code § 78B-6-208(5).

b. Every appointed or elected officer or municipal employee who is also an officer, director, agent, employee, or owner of a substantial interest in any business entity that is subject to the regulation of the municipality must disclose the position held by the officer and the nature and value of his interest upon first becoming appointed, elected, or employed, and at any time thereafter if his position in the business entity changes significantly or if the value of his interest increases significantly. The municipality’s mayor shall report the substance of all such disclosure statements to the members of the municipality’s governing body or may provide to the members of the governing body copies of the disclosure statements within 30 days after the mayor receives the statement. See id. § 10-3-1306.

c. A public officer may not be examined as a witness about communications made to him or her in official confidence when the public interests would suffer by the disclosure. See id. § 78B-1-137(5).

d. No elected or appointed county officer shall disclose confidential information acquired by reason of his or her official position. See id. § 17-16a-4(1)(a).

e. The governor shall deliver a “confidential draft copy” of his proposed budget recommendations to the Office of the Legislative Fiscal Analyst. Id. § 63J-1-201(1).

f. “The governing body of each municipality shall keep a journal of its proceedings. The books, records, accounts and documents of each municipality . . . shall be open and available to the public during regular business hours for examination and copying.” Id. § 10-3-603.

g. The governing body of each city having 65,000 or more inhabitants must provide the results of an annual examination of the city’s finances to the city newspapers and to any person upon request. See id. § 10-3-604; see also id. § 10-2-301 (describing the classifications of municipalities based on population numbers of inhabitants).

h. Unless otherwise classified as a private record, “all instruments of record and all indexes [in the county recorder’s office] are open to public inspection during office hours.” Id. § 17-21-19(1). “Upon payment of the applicable fee, a person may obtain copies of a public record.” Id. § 17-21-19(2).

i. Maps of boundary surveys in the county surveyor’s office are public records. See id. § 17-23-17(2)(c).

4. Taxation and revenue records.

a. State tax returns are to be kept confidential, except by court order or in other official proceedings. See Utah Code § 59-1-403. For all taxes except individual income tax and corporate franchise tax, the commission may, by rule, provide the identity and other information of taxpayers who failed to file tax returns or to pay the tax due. Id. § 59-1-403(3)(c).

b. Under the Multistate Tax Compact, information obtained in an audit is to be kept confidential and available only to party states, their subdivisions, or the United States. See id. § 59-1-801.5 (Art. VIII, sec. 6).

c. Property tax audit reports are confidential, although the statistical information based on the audits may be public. See id. § 59-2-705(1).

d. Sales and Use tax returns and other information are confidential under Utah Code section 59-1-403. See id. § 59-12-109.

e. The records of ownership, registration, transfer, and exchange of most Revenue Bonds, and of persons to whom payment is made with respect to such obligations, generally are classified as private or protected under GRAMA. See id. § 63B-1b-402(8)(b).

5. Records of other governmental agencies.

a. All records of the Utah Horse Racing Commission are subject to GRAMA. Utah Code § 4-38-106.

b. Financial reports filed with the lieutenant governor pursuant to the Lobbyist Disclosure and Regulation Act are public. Id. § 36-11-106(2).

c. Records of the Division of Motor Vehicles that identify nonconforming vehicles are public. Id. § 41-1a-522(2).

d. Abstracts of judgment received by the Driver License Division for violations of motor vehicle laws shall be classified and disclosed by the division pursuant to Utah Code Section 53-3-109. Id. § 77-7-25(6).

e. Notices of a juvenile court’s decision regarding a minor charged with a violent felony may be provided to a district superintendent or to the school or transferee school “for purposes of the minor’s supervision and student safety.” Id. § 78A-6-113(4)(e)(ii).

f. Records provided by any pawnbroker or pawnshop to a law enforcement agency in accordance with Utah law are classified as protected under GRAMA. See id. § 63G-2-305(46).

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

1. Access to Addresses of Licensed Dog Owners. In Mr. Pooper Scooper Inc. v. Murray City and Sandy City, No. 02-06 (Utah State Rec. Comm. May 13, 2002), the State Records Committee ruled that disclosure of the home addresses of persons who were licensed dog owners would constitute an unwarranted invasion of personal privacy. Although other government entities had classified the addresses of licensed dog owners as public, the Records Committee upheld each city’s denial of access based on Utah Code section 63-2-302(2)(d) (renumbered as section 63G-2-302), which allows a government entity to classify records as private if disclosure would constitute a “clearly unwarranted invasion of personal privacy.” See Decision & Order, Mr. Pooper Scooper Inc. v. Murray City & Sandy City, No. 02-06 (Utah State Rec. Comm. May 13, 2002).

2. Access to State Computerized Traffic Accident Database. In The Salt Lake Tribune v. Utah Dep’t of Transp., No. 92-01 (Utah State Rec. Comm. Oct. 9, 1992), the State Records Committee ruled that the computerized traffic accident database created and maintained by the Utah Department of Transportation (“UDOT”) was a public record and that The Salt Lake Tribune was entitled to a copy of the database on 9-track computer tape. The Records Committee also ruled, however, that certain personal information in the database had to be redacted before release of the database. On appeal, the Third District Court ruled that the entire traffic accident database was a public record and ordered UDOT to provide the entire unredacted database to The Salt Lake Tribune. Utah Dep’t of Transp. v. Kearns-Tribune Corp., No. 920906153AA (Utah 3d Dist. Nov. 29, 1993).

3. Inspection of Driver’s License Records. In Deseret News Publ’g Co. v. Utah Dep’t of Public Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992), the State Records Committee ruled that persons wishing to inspect public driver’s license records must pay a fee of $3 per record despite GRAMA’s express language barring fees for inspection of public records. The Records Committee reasoned that the fee was permissible under another state statute allowing a charge for “furnish[ing] a report on the driving record of any person.” See Decision & Order, Deseret News Publ’g Co. v. Utah Dep’t of Pub. Safety, No. 92-02 (Utah State Rec. Comm. Nov. 12, 1992).

4. Records of Delinquent Child Support Payments. In Jones v. U.S. Child Support Recovery, 961 F. Supp. 1518, 1520 (D. Utah 1997), defendants sent a poster to plaintiff’s employer and family members that referred to plaintiff “as a ‘Dead Beat Parent’ with a ‘well-paying job’ whose ‘own flesh and blood’ ‘wishes his mother cared about him to send the child support which the court ordered her to contribute to his care.’” The federal district court rejected defendants’ public record defense to plaintiff’s invasion of privacy claim, holding that Utah Code section 63-2-302(2)(b) (renumbered as section 63G-2-302), which classifies “records describing an individual’s finances” as private, prohibits the disclosure of records of delinquent child support payments to the general public. Id. at 1522.

5. The following cases were decided under Utah’s old open records statutes; namely, the Public and Private Writings Act, Utah Code § 78-26-1 to -3 (repealed 1992), and the Information Practices Act, Utah Code § 63-2-59 to -91 (repealed 1991). Consequently, these cases are now limited by GRAMA. However, the rules set forth in KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357 (Utah 1984), regarding the presumption of openness and official promises of confidentiality retain vitality and have been codified substantially by GRAMA.

a. No absolute right of access. In Redding v. Jacobsen, 638 P.2d 503 (Utah 1981), the Utah Supreme Court upheld the constitutionality of a Utah statute stating that salary data about state college professors is confidential. The court reasoned that even if there were a constitutional right of access (which the court doubted), “the public has no absolute constitutional right to immediate access to everything its government officials are doing or everything their records contain.” Id. at 507.

b. Presumption of Openness. In KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357 (Utah 1984), a television station sought to obtain “confidential” questionnaires in which students and teachers answered questions about sex discrimination and religious discrimination at a public high school. The Utah Supreme Court ordered the Board of Education to edit the questionnaires to delete personally identifying data, and then to release the edited questionnaires. The court noted, however, that the public’s “right to know” is not absolute; it is subject to an “implied rule of reason.” Id. at 1361. There is a presumption that government records are open to inspection, and an agency that seeks to keep a record secret bears the burden to justify its decision. See id. at 1361-62.

c. Promises of Confidentiality. In KUTV Inc. v. Utah State Bd. of Educ., 689 P.2d 1357 (Utah 1984), the Utah Supreme Court held that a state agency’s promise of confidentiality is insufficient, by itself, to preclude disclosure of a public record. “The promise [of confidentiality] would have to coincide with reasonable justification based on public policy for refusing to release the records.” Id. at 1361.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

The following list is not exhaustive, but it identifies several Utah statutory provisions, including those outside of GRAMA, which govern access to particular record categories. To determine whether a particular record is open to inspection, requesters should consult the Division of State Archives and the agency that actually maintains the record. In addition, the State General Retention Schedule, available from the Division of State Archives, contains a summary of the classifications assigned to common records.

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A. Autopsy and coroners reports

Copies of all autopsy reports, findings, and records gathered or compiled in the investigation of a death may be obtained by the decedent’s next-of-kin, legal representative, or physicians who attended the decedent during the year before death upon written request for release of such documents by the medical examiner. In addition, the county attorney, the district attorney, the attorney general, or other law enforcement officials having jurisdiction may, upon written request, secure copies of the original records where necessary for the performance of their duties. Otherwise, the medical examiner shall maintain the confidentiality of the records. See Utah Code § 26-4-17.

1. Medical examiner records are confidential and may be released to such authorized persons as the county attorney, the attorney general, the decedent’s next of kin, a legal representative, physicians, etc. See Utah Code § 26-4-17.

2. Medical examiners’ reports are admissible as evidence at civil trials. See id. § 26-4-18. To the extent that a report is used at trial, that report is generally open to the public.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Administrative enforcement records are protected, and therefore not subject to disclosure under GRAMA, if their release:

a. reasonably could be anticipated to interfere with enforcement investigations;

b. reasonably could be anticipated to interfere with enforcement proceedings;

c. would endanger a person’s right to an impartial hearing;

d. “reasonably could be expected to disclose the identity of a source who is not generally known outside of government and, in the case of a record compiled in the course of an investigation, disclose information furnished by a source not generally known outside of government if disclosure would compromise the source”; or

e. “reasonably could be expected to disclose investigative . . . techniques, procedures, policies, or orders not generally known outside of government if disclosure would interfere with enforcement . . . efforts.”

Utah Code 63G-2-305(10).

GRAMA does not distinguish between active and closed administrative enforcement investigations.

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C. Bank records

1. The Department of Financial Institutions’ orders, reports, and other information are confidential, are not public records, and are not open to public inspection. See Utah Code § 7-1-802(2). Exceptions to this rule are set forth in the statute. See id. § 7-1-802(3).

2. All notices, records, and other information regarding possession of an institution by the Commissioner of the Department of Financial Institutions may be kept confidential, and all court records relating to the commissioner’s possession may be sealed from the public under certain enumerated circumstances. See id. § 7-2-6(1)(b).

3. Every shareholder of a bank has the right to inspect a bank’s books and records. See id. § 7-3-39. A shareholder may be allowed access to “records pertaining solely to the deposits, borrowings, or other financial transaction of a particular customer” under certain enumerated conditions. Id.

4. Communications and writings which relate to trust business conducted by banks, savings and loan companies, and other trust companies shall be kept “inviolate.” Id. § 7-5-6.

5. Upon application by any person, the Department of Financial Institutions may exercise its regulatory powers. The information furnished by the applicant and the findings of the Department’s investigations are open to the public, except those portions designated as confidential to prevent “a clearly unwarranted invasion of privacy.” Id. § 7-1-706(3)(b).

6. Meetings of the Board of Financial Institutions and records of its proceedings are open to the public, except for discussions of confidential information pertaining to a particular financial institution. See id. § 7-1-203(5)(e).

7. Except for a select group of government entities, “an individual acting on behalf of a governmental entity may not request, obtain by subpoena, or otherwise obtain information from a state or federally chartered financial institution that constitutes a record reflecting the financial condition of any person without first obtaining: (a) written permission from all account holders of the account referenced in the record to be examined; or (b) an order from a court of competent jurisdiction permitting access to the record.” Id. § 7-1-1001(2).

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D. Budgets

Budget recommendations of the governor’s office are not public if their disclosure “would reveal the governor’s contemplated policies or contemplated courses of action before the governor has implemented or rejected those policies or courses of action or made them public.” Utah Code § 63G-2-305(29). Also confidential are “records of the Office of the Legislative Fiscal Analyst relating to budget analysis, revenue estimates, and fiscal notes of proposed legislation before issuance of the final recommendations in these areas.” Id. § 63G-2-305(30). Budget documents and financial statements of “public associations,” however, are public records if fifty percent or more of the public association’s members are elected or appointed public officials from Utah and membership dues or other financial support come from public funds. Id. § 63G-2-901.

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E. Business records, financial data, trade secrets

1. Department of Commerce records concerning “incorporations, mergers, name changes, and uniform commercial code fillings” are generally public. Utah Code § 63G-2-301(2)(h).

2. If properly classified by the government, commercial or nonindividual financial information is protected if disclosure of such information could reasonably result in unfair competitive injury to the person or entity submitting the information or would result in the government’s impaired ability to obtain necessary information in the future; “the person submitting the information has a greater interest in prohibiting access than the public in obtaining access;” and the person submitting the information has provided the government with certain requisite information. Id. § 63G-2-305(2).

3. Trade secrets are generally protected. See id. § 63G-2-305(1). In DataLister Inc. v. Utah Labor Comm’n, No. 00-01 (Utah State Rec. Comm. Jan. 14, 2000), the State Records Committee determined that records regarding employers’ insurance coverage are protected as trade secrets under Utah Code sections 63-2-304(1) (renumbered as section 63G-2-305), 13-24-2(4), and 63-2-308(1) (renumbered as section 63G-2-309).

4. Materials to which access must be limited to secure or maintain the government entity’s proprietary interest in patents, copyrights, and trade secrets are classified as protected. Utah Code § 63G-2-305(36).

5. Civil antitrust investigations by the attorney general will be kept confidential unless waived; such information, however, may be disclosed to a grand jury and to officers of federal and state law enforcement agencies. See id. § 76-10-3107(9).

6. The identity of a person being investigated under the Consumer Sales Practices Act may not be disclosed publicly unless the person’s name has become a matter of public record or he or she has consented. See id. § 13-11-7(2). Final judgments rendered under the Act are public records. See id. § 13-11-7(1).

7. Credit reports and financial statements submitted by a person wanting to be licensed in the construction trades are confidential, and are therefore not subject to GRAMA. See id. § 58-55-307(1)(a).

8. Shareholders of business corporations have the right to examine the corporation’s books and records at a reasonable time for a proper purpose. See id. § 16-10a-1602.

9. A director or a member of a nonprofit corporation is entitled to inspect and copy certain records of the corporation including its articles and bylaws, resolutions adopted by the board of directors, minutes of all members’ meetings for a period of three years, records of all action taken by members without a meeting for a period of three years, a list of the names and addresses of the nonprofit’s members and directors, financial statements for the preceding three years, and a copy of the nonprofit’s most recent annual report. See id. §§ 16-6a-1601, -1602.

10. The Department of Financial Institutions may not disclose the names or identities of persons or the facts it investigates under the Utah Consumer Credit Code. See id. § 70C-8-103(5). This restriction does not apply to disclosures made during an enforcement proceeding. See id. § 70C-8-103(6).

11. Unless waived by the entity, books and records of an agricultural cooperative association may be inspected only by a member or by a member’s agent or attorney. See id. § 3-1-43(1). The information contained in the records may not be disclosed to third parties without the association’s prior consent. See id. § 3-1-43(3).

12. All registrations and bonds filed with the Division of Corporations and Commercial Code by collection agencies are open to public inspection. See id. § 12-1-5.

13. Records relating to the ownership of security interests in registered public obligations are not subject to public inspection or copying. See id. § 15-7-11(1).

14. The Securities Division’s register of all applications for registration and registration statements is open for public inspection. See id. § 61-1-25(2).

15. Records of all trademarks or service marks registered with the Division of Corporations and Commercial Code are open for public examination. See id. § 70-3a-202.

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F. Contracts, proposals and bids

1. Documentation of compensation that a government entity pays to a contractor or private provider is generally public. See Utah Code § 63G-2-301(2)(j).

2. Contracts entered into by a government entity are “normally public.” Id. § 63G-2-301(3)(d).

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G. Collective bargaining records

Records concerning a government entity’s strategy about collective bargaining are classified generally as protected. See Utah Code § 63G-2-305(23).

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H. Economic development records

GRAMA exempts from disclosure “records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage, but this section may not be used to restrict access to a record evidencing a final contract.” Utah Code § 63G-2-305(35).

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I. Election Records

Voter registration records, including a person’s voting history, are public except for those parts “identifying a voter’s (i) driver license or identification card number; (ii) Social Security number, or last four digits of the Social Security number; (iii) email address; or (iv) date of birth.” Utah Code §§ 63G-2-301(l), -302(j).

a. After paper ballots have been read and tallied, the judges “shall . . . string the counted, excess, and spoiled ballots on separate strings,” Utah Code § 20A-4-106(1)(a)(i), and “shall carefully seal all of the strung ballots in a strong envelope.” Id. § 20A-4-106(1)(b). The strung ballots may not be examined by anyone, except during an authorized recount. Id. § 20A-4-106(1)(a)(ii).

b. The official register, pollbook, tally sheets, etc. shall be sealed in a “strong envelope or pouch” before the judges adjourn. Id. § 20A-4-106(4)(a). All challenges to an individual’s right to cast a ballot must be recorded in the official register and on the challenge sheets in the pollbook. Id. § 20A-3-202(2); -202.5(2). “All documents pertaining to a voter challenge are public records.” Id. § 20A-3-202.3(8).

c. The election officer shall preserve ballots and all other official election returns for 22 months, after which time if no election contest is commenced, he must “destroy them without opening or examining them.” Id. § 20A-4-202(2).

d. “The board of canvassers shall canvass the election returns by publicly opening the returns and determining from them the votes of each voting precinct for: (i) each person voted for; and (ii) for and against each ballot proposition voted upon at the election.” Id. § 20A-4-303(1)(a).

e. In the case of a contested election, where an inspection of the ballots is necessary for the determination of the election contest, the judge may require the election officials to deliver the unopened ballots to the court, where the “judge shall: (i) open and inspect the ballots in open court in the presence of the parties or their attorneys; and immediately after the inspection, seal them in an envelope and return them . . . to their legal custodian.” Id. § 20A-4-404(3)(b).

f. Campaign finance statements filed by candidates for municipal office must be made available for public inspection and copying no later than one business day after the statement is filed. Id. § 10-3-208(7).

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J. Emergency Medical Services records

GRAMA classifies as private “records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data.” Utah Code § 63G-2-302(1)(b).

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K. Gun permits

When a concealed weapons permit is issued, a record shall be maintained by the office of the licensing authority, but the names, addresses, telephone numbers, dates of birth, and Social Security numbers of persons receiving such permits are classified as protected records under GRAMA. Utah Code § 53-5-708(1).

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L. Homeland security and anti-terrorism measures

In its 2002 General Session, the Utah Legislature passed House Bill 283, which enacted and amended GRAMA’s provisions. The amendments responded to the terrorist attacks of September 11, 2001, on the World Trade Center in New York City and the Pentagon in Washington, D.C. amid growing concerns regarding the inability of existing law to deal with terrorist-type crimes. GRAMA now excludes from its coverage records of a government entity or political subdivision regarding security measures designed for the protection of persons or property, public or private, including security plans, security codes and combinations, passes and keys, security procedures, and building and public works designs, to the extent that the records relate to a public entity’s ongoing security measures. See Utah Code § 63G-2-106. In addition, information regarding food security, risk, and vulnerability assessments performed by the Department of Agriculture and Food is excluded from GRAMA’s scope. See id. § 63G-2-305(47).

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M. Hospital reports

1. All certificates, applications, records, and reports that directly or indirectly identify a patient or former patient at Utah State Hospital and other mental institutions shall be kept confidential and may be disclosed only if: (a) “the individual identified or his legal guardian, if any, or, if a minor, his parent or legal guardian shall consent”; (b) disclosure is necessary to comply with other laws, including completion of information forms by a court clerk to be supplied to the Bureau of Criminal Identification; or (c) a court directs “upon its determination that disclosure is necessary for the conduct of the proceedings before it, and that failure to make the disclosure would be contrary to public interest.” Utah Code § 62A-15-643(1).

2. Records containing medical, psychiatric, or psychological data about an individual are generally controlled if properly classified as such. See id. § 63G-2-304(1).

3. Records containing an individual’s medical history, diagnosis, condition, treatment, etc. are classified as private. See id. § 63G-2-302(1)(b).

In Carter v. Univ. of Utah, No. 95-02 (Utah State Rec. Comm. April 21, 1995), the State Records Committee ordered the University of Utah Hospital to release private patient records to a hemodialysis nurse who was terminated from her position with the hospital. The nurse, who had commenced a grievance proceeding against the hospital for wrongful termination, sought access to portions of the records that related to her conduct as an employee. The Records Committee determined that, even though the records were classified properly as private, the interest in disclosure outweighed the interest favoring restriction of access and ordered the hospital to release the records with information on individual patients redacted.

4. Medical records in the possession of the University of Utah Hospital, its clinics, doctors, or affiliated entities are not private records or controlled records when the records are sought “(i) in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense; or (ii) after a patient’s death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense.” Utah Code § 63G-2-302(3)(b).

5. Physicians’ abortion reports submitted to the Department of Health are “confidential and privileged.” Id. §§ 26-25-4, 76-7-313.

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N. Personnel records

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1. Salary

Records containing the gross compensation of a government entity’s former and present employees and officers are public, excluding “(i) undercover law enforcement personnel, and (ii) investigative personnel if disclosure could reasonably be expected to impair the effectiveness of investigations or endanger any individual’s safety.” Utah Code § 63G-2-301(2)(b).

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2. Disciplinary records

Records relating to formal charges or disciplinary actions against a past or present government employee are generally public if the disciplinary action has been completed and the charges have been sustained. Utah Code § 63G-2-301(3)(o); see also Atkinson v. City of West Jordan, No. 99-13 (Utah State Rec. Comm. Nov. 15, 1999) (determining that an investigative report “regarding allegations of impropriety brought against Mr. Atkinson by a co-employee” was public). Judicial disciplinary records are closed to the public until the Utah Supreme Court has entered its final order, except: (a) “upon order of the [Utah] Supreme Court”; (b) “upon the request of the judge who is the subject of the complaint”; (c) upon the request of the Senate Judicial Confirmation Committee for the purpose of evaluating a candidate’s fitness for office; (d) “to aid in a criminal investigation or prosecution”; or (e) upon the request of the Office of Legislative Auditor General, with certain exceptions. Utah Code § 78A-11-112(3).

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3. Applications

a. “[E]mployment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose that individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions” are private. Utah Code § 63G-2-302(1)(g).

b. In 1994, The Daily Herald filed a lawsuit against Orem City for refusing to release the names, resumes, and professional qualifications of the four finalists for the position of Orem City manager. On September 23, 1996, a Fourth District judge ruled that “the records for which disclosure was sought, though private, are records as to which there is a greater public interest in disclosure than Orem’s interest in protecting them from disclosure.” Scripps League Newspapers v. City of Orem, No. 940400646 CN, at 17 (Utah 4th Dist. Sept. 23, 1996).

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4. Personally identifying information

a. The names, business addresses, business telephone numbers, gross compensation, job description, gender, etc. of former and present government entity employees are generally public. Utah Code § 63G-2-301(2)(b).

b. “[E]mployment records concerning a current or former employee of, or applicant for employment with, a governmental entity that would disclose that individual’s home address, home telephone number, social security number, insurance coverage, marital status, or payroll deductions” are private. Id. § 63G-2-302(1)(g).

c. “[T]hat part of a record indicating a person’s social security number or federal employer identification number” is private. Id. § 63G-2-302(1)(i).

d. That part of a voter registration record identifying a voter’s driver license or identification card number; Social Security number, or last four digits of the Social Security number; email address; or date of birth. Id. § 63G-2-302(1)(j).

e. Also exempt from disclosure are (1) “an individual’s home address, home telephone number, or personal mobile phone number, if: (a) the individual is required to provide the information in order to comply with a law, ordinance, rule, or order of a government entity; and (b) the subject of the record has a reasonable expectation that this information will be kept confidential due to: (i) the nature of the law, ordinance, rule, or order; and (ii) the individual complying with the law, ordinance, rule, or order”; and (2) “the name, home address, work addresses, and telephone numbers of an individual that is engaged in, or that provides goods or services for, medical or scientific research that is: (a) conducted within the state system of higher education . . . ; and (b) conducted using animals.” Id. § 63G-2-305(51), (52).

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5. Expense reports

Not addressed.

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

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1. Accident reports

a. Automobile and watercraft accident reports prepared by operators of vehicles involved in an accident, by witnesses to an accident, or by police officers investigating an accident, may be disclosed to the following: (1) a person involved in the accident or that person’s agent, parent, or legal guardian; (2) a person suffering loss in the accident or that person’s agent, parent, or legal guardian; (3) a member of the press or broadcast news media; (4) government agencies that will use the record for official government, investigative, or accident prevention purposes; (5) law enforcement personnel; and (6) licensed private investigators. Utah Code §§ 41-6a-404(3)(a), 73-18-13(3). Information provided to a member of the press or broadcast news media, however, may include only the name, age, sex, and city of residence of each person involved in the accident, the make and model year of each vehicle involved in the accident, whether each person involved in the accident had insurance coverage, the location of the accident, and a description of the accident. Id. § 41-6a-404(3)(d).

b. Motor Vehicle Division records are public, unless the division determines that the record is protected based upon a written request by the record’s subject. Id. § 41-1a-116(1). Certified copies of records of the Department of Motor Vehicles, other than those declared by law to be confidential for the department’s use, are available upon request and payment of search and copying fees. Id.

c. Information provided to the Driver’s License Division of the Department of Public Safety relating to the physical, mental, or emotional impairment of “impaired” motor vehicle operators is confidential under GRAMA. Id. § 53-3-304(4).

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2. Police blotter

Law enforcement agencies’ chronological logs and initial contact reports are generally public records. Utah Code § 63G-2-301(3)(g).

a. In Utah Dep’t of Pub. Safety v. State Records Comm., No. 100904439, at 3 (Utah 3d Dist. June 17, 2010), the court upheld the State Record Committee’s determination that the dash camera video and the DUI report form pertaining to former Utah Senator Sheldon Killpack’s traffic stop and arrest were initial contact reports under GRAMA and therefore public. In doing so, the court stated that GRAMA’s definition of “initial contact report” includes written as well as recorded records, and that a DUI report form is “prepared immediately following the incident and while the information is fresh in the reporting officer’s experience.” Id.

b. In Weibel v. Logan City, No. 94-06 (Utah State Rec. Comm. May 9, 1994), the State Records Committee held that the portion of police reports pertaining to persons against whom Logan City contemplated no further action was public, but that the portion pertaining to persons against whom criminal action was contemplated or pending was protected.

c. In Fox Television Stations v. Clary, No. 940700284 (Utah 2d Dist. Dec. 5, 1995), the court held that Sheriff Department reports containing information on sexual abuse of minor children were public records. Because the county had released another report that identified the victims and the person making the initial sexual abuse report, the court determined that the county was estopped from asserting confidential protection for the requested reports. In addition, the redaction of the victims’ names and other identifying information adequately protected any privacy interests.

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3. 911 tapes

In Fox Television Stations v. Clary, No. 940700284 (Utah 2d Dist. Dec. 5, 1995), the court also held that two tape recordings of 911 telephone calls placed by a woman as she was being shot by her estranged husband were public records and ordered the Sheriff’s Department to release complete, unredacted copies of the 911 tapes. The court concluded that the interests favoring restriction of access, if any, did not clearly outweigh the interests favoring access. Since no other statutory or constitutional exemptions applied, the 911 tapes were presumed public.

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4. Investigatory records

Access to investigatory records may be restricted if release of such records (1) reasonably could be expected to interfere with the investigation; (2) reasonably could be expected to interfere with audits, disciplinary, or enforcement proceedings; (3) would create a danger of depriving a person of a right to a fair trial or impartial hearing; (4) reasonably could be expected to disclose a confidential source’s identity; or (5) reasonably could be expected to disclose confidential investigative or audit techniques. Utah Code § 63G-2-305(10). In The Salt Lake Tribune & Matthew D. LaPlante v. Salt Lake City Police Dep’t, No. 04-16 (Utah State Rec. Comm. Nov. 23, 2004), the State Records Committee held that the initial reports from a missing person case involving Lori Kay Hacking were protected because information in the documents identified individuals not generally known to the public who could reasonably aid in the investigation. The Records Committee also determined that disclosure of the information sought could interfere with the investigation or influence a potential trier of fact, thus creating a danger of depriving the defendant of his right to a fair and impartial hearing. Id.

Investigatory records concerning police officers are presumptively public under Section 63G-2-201(2).  See Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748 (Utah 3d Dist. Ct. Aug. 21, 2013) (noting that the list of public records in Section 63-2-301 is not exhaustive).  Where disclosure of such records will not constitute an unwarranted invasion of the officer’s privacy, and a compelling public interest in the record substantially exceeds any governmental interest in restricting release, the investigatory records will be subject to disclosure.  See e.g., Lawrence v. Utah Dept. of Pub. Safety, Case No. 120907748 (Utah 3d Dist. Ct. Aug. 21, 2013) (holding that disclosure of Internal Affairs investigative records concerning investigation of requester’s complaints against Utah Highway Patrol Trooper did not constitute an unwarranted invasion of privacy and that, even if it did, the public interest is best served by releasing the records); Carlisle v. Utah Cnty. Sheriff’s Office, State Records Comm. Case No. 16-49 (Dec. 19, 2016) (finding “that the public interest in having access to investigative records of police officers alleging violations of the public trust, outweighs the interest favoring restriction of these records, even though the police officer has not received formal charges or disciplinary action or the charges have not been sustained”).

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5. Arrest records

a. Arrest warrants after issuance are public records, although a court may restrict access to the warrant before service. Utah Code § 63G-2-301(3)(m).

b. Search warrants after execution are public records, although a court may restrict access before trial. Id. § 63G-2-301(3)(n).

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6. Compilations of criminal histories

a. Criminal history records and warrant arrest information are available to criminal justice agencies and to some noncriminal justice agencies and individuals for specific purposes. Other agencies are entitled to the information either by specific agreement or by authorization of the commissioner. The information “may be used only for the purposes for which it was provided and may not be further disseminated.” Utah Code § 53-10-108(5)(a).

b. Access to presentence investigation reports is restricted by statute. Id. § 77-18-1(5).

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7. Victims

a. Victims’ names are presumed public, although access may be restricted if release would constitute a clearly unwarranted invasion of personal privacy. See Utah Code §§ 63G-2-103(14)(a)(ii), -302(2)(d).

b. Information given to a sexual assault counselor by a victim and reports prepared by the counselor are confidential and may be disclosed only to authorized persons or as required by law to report child abuse or neglect. Id. § 77-38-204.

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8. Confessions

There appears to be no Utah statute governing access to confessions, although law enforcement agencies may withhold confessions if release would interfere with an ongoing investigation. See Utah Code § 63G-2-305(10)(a).

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9. Confidential informants

Records that reasonably could be expected to disclose a confidential police informant’s identity are protected from public disclosure. Utah Code § 63G-2-305(10)(d).

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10. Police techniques

Records that reasonably could be expected to disclose investigative techniques that are not generally known outside of government are protected from public disclosure. Utah Code § 63G-2-305(10)(e).

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11. Mugshots

A jail booking photograph is a record under GRAMA. See KSL-TV v. Juab County Sheriff’s Office, No. 98-01 (Utah State Rec. Comm. Feb. 20, 1998). Because such records are not specifically exempted under GRAMA, they are presumed public. See id.

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12. Sex offender records

Information regarding sex offender registration is generally public. See Utah Code § 77-41-103(1)(b). However, GRAMA classifies such information as private to the extent that the information is both required by the registration provisions of Utah Code section 77-41-108 and expressly exempted from public disclosure under Utah Code section 77-41-103(1). Id. § 63G-2-302(o)(i)-(ii).

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13. Emergency medical services records

GRAMA classifies as private “records containing data on individuals describing medical history, diagnosis, condition, treatment, evaluation, or similar medical data.” Utah Code § 63G-2-302(1)(b).

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14. Police video (e.g, body camera footage, dashcam videos)

Pursuant to Utah Code § 77-7a-107(2)(a), body-worn camera records may be released to the public in accordance with the Utah Government Records Access and Management Act (“GRAMA”).  Those recordings of incidents “between an officer and an individual that results in death or serious bodily injury, or during which an officer fires a weapon,” must be released within ten days of (1) a prosecuting agency declining to file a criminal action, (2) filing of a criminal action, or (3) the day on which the agency received the request, whichever comes first.  Utah Code § 77-7a-107(3)(c).  The agency may not release such a recording, however, if “an individual injured in the incident” or the individual’s family member “has requested that the recording not be publicly distributed.”  Utah Code § 77-7a-107(3)(d).  

Under the GRAMA, body-worn camera recordings that “record[] sound or images inside a hospital or health care facility …, inside a clinic of a health care provider, … or inside a human service program” are exempt from disclosure unless they (1) “depict the commission of an alleged crime,” (2) “record any encounter between a law enforcement officer and a person that results in death or bodily injury,” including where an officer fires a weapon, (3) “record any encounter that is the subject of a complaint or a legal proceeding against a law enforcement officer or law enforcement agency,” (4) “contain an officer involved critical incident,” or (5) “have been requested for reclassification as a public record by a subject or authorized agent of a subject featured in the recording.”  Utah Code Ann. § 63G-2-305(65).  

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

1. Expunged and sealed criminal records may not be divulged except under court order, with some exceptions. Utah Code § 77-40-108(5).

2. Information regarding sex offender registration is public except as otherwise stated in Utah Code section 77-41-108. See id. § 63G-2-302(o).

3. “[M]emoranda prepared by staff and used in the decision-making process by . . . a member of the Board of Pardons and Parole” is classified as protected. Id. § 63G-2-305(34).

4. Utah Code section 77-8-4 states that the record of a line-up procedure shall be available to the suspect. No mention is made of disclosure to the public.

5. Utah Code section 76-8-806 prohibits disclosure of any evidence concerning violations of the sabotage prevention statute until a formal complaint has been filed with the court.

6. Records of grand jury proceedings shall be kept “under seal.” Id. § 77-10a-13(8).

7. Upon request, the victim of any offense committed by a minor “shall have the right to inspect and duplicate juvenile court legal records that have not been expunged concerning: (i) the scheduling of any court hearings on the petition; (ii) any findings made by the court; and (iii) any sentence or decree imposed by the court.” Id. § 78A-6-114(1)(e).

8. Juvenile court records are open to inspection by parents or guardians, other parties in the case, the attorneys, agencies to which custody of the child has been transferred, the Division of Criminal Investigations and Technical Services, the Division of Child and Family Services, the Office of Licensing, and the Department of Health under certain circumstances. Id. § 78A-6-209(2). With the judge’s consent, the records may be inspected by the minor, by persons having a legitimate interest in the proceedings, and by persons conducting pertinent research studies. Id. § 78A-6-209(3). If a juvenile 14 years of age or older is charged with an offense that would be a felony if committed by an adult, the court shall make the petition, any adjudication or disposition orders, and the juvenile’s delinquency history summary available upon request. Id. § 78A-6-209(4). Probation officers’ records and reports of social and clinical studies are not open to inspection, except by consent of the judge under the rules of the Board of Juvenile Court Judges. Id. § 78A-6-209(5). “Any juvenile delinquency adjudication or disposition orders and the delinquency history summary of any person charged as an adult with a felony offense shall be made available to any person upon request.” Id. § 78A-6-209(6).

9. In abuse, neglect, and dependency cases, the court shall admit any person to a hearing, unless the court makes a finding upon the record that the person’s presence at the hearing would: (i) be detrimental to the best interest of a child who is a party to the proceeding; (ii) impair the fact-finding process; or (iii) be otherwise contrary to the interests of justice. Id. § 78A-6-114(1)(a)(i). In delinquency cases where the minor charged is 13 years of age or younger, the court shall admit all persons who have a direct interest in the case and may admit persons requested by the parent or legal guardian to be present. Id. § 78A-6-114(1)(b). In delinquency cases in which the minor charged is 14 years of age or older, the court shall admit any person unless the hearing is closed by the court for good cause if: (i) the minor has been charged with an offense which would be a felony if committed by an adult; or (ii) the minor is charged with an offense that would be a class A or B misdemeanor if committed by an adult, and the minor has been previously charged with an offense which would be a misdemeanor of felony if committed by an adult. Id. § 78A-6-114(1)(c).

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Q. Professional licensing records

Occupational and professional licenses are normally public, but access may be restricted to the extent that a record is expressly exempt from disclosure. Id. § 63G-2-301(3)(r).

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R. Public utility records

1. Records of well logs, etc. are generally public, unless the well owner or operator requests confidentiality in writing. Such confidentiality, however, cannot exceed five years. See Utah Code § 73-22-6(1)(c).

2. Information provided to a geological survey, by any source, is to remain at the level of confidentiality assigned by the source. See id. § 79-3-202(2)(c).

3. Information obtained for state energy reports is confidential if the information provider so designates. See id. § 53-2a-1005(1).

4. The Board of Oil, Gas and Mining shall not disclose data obtained from mining companies, except in some specified circumstances. See id. § 40-8-8(2).

5. Information provided in the notice of intent by a mining operator relating to a mineral deposit shall, with limited exceptions, be kept confidential, if the operator designates the information as such. See id. § 40-8-13(3).

6. Information submitted to the Division by a coal mine operator in a notice of intention to explore for coal, and designated as “confidential concerning trade secrets or privileged commercial or financial information which relates to the competitive rights” of the coal company, shall not be available for public inspection. Id. § 40-10-8(2).

7. Oil well logs marked “confidential” shall be kept confidential for one year after the date on which the log is required to be filed with the Board, unless the well operator consents to earlier disclosure. Id. § 40-6-5(2)(b).

8. Information supplied to the Board about coal seams, test bearings, core sampling, or soil samples shall be made available to any person with an interest which is or may be adversely affected; but information that pertains only to the analysis of the chemical and physical properties of the coal (excepting information about hazards to the environment) shall be kept confidential and shall not be made a matter of public record. See id. § 40-10-10(4).

9. Copies of coal mining and reclamation inspection records and reports “shall be made immediately available to the public.” Id. § 40-10-19(6).

10. State Engineer’s records, maps, or papers shall be open to the public during business hours. See id. § 73-2-11.

11. Records, reports, or information obtained by the Water Quality Board from a waste disposal permit holder are public, unless otherwise provided by GRAMA. See id. § 19-5-113(2)(b).

12. Records of all hearings before the Public Service Commission are public, but information furnished to the PSC by a public utility may be withheld from the public “whenever and during such time as the [PSC] may determine that it is for the best interests of the public to withhold such information.” Id. § 54-3-21(4).

13. The Public Service Commission has the right to inspect a public utility’s accounts, books, papers, and documents. Persons other than a PSC official may inspect such records only if the PSC authorizes them to do so. See id. § 54-7-7.

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S. Real estate appraisals, negotiations

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1. Appraisals

Records that identify the appraisal or estimated value of real property under consideration for public acquisition generally are classified as protected, with certain specified exceptions. Utah Code § 63G-2-305(8).

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2. Negotiations

“[R]ecords prepared in contemplation of sale, exchange, lease, rental, or other compensated transaction of real . . . property . . . which, if disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of the subject property” are classified as protected, with certain specified exceptions. Id. § 63G-2-305(9).

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3. Transactions

“[R]ecords prepared in contemplation of sale, exchange, lease, rental, or other compensated transaction of real . . . property . . . which, if disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of the subject property” are classified as protected, with certain specified exceptions. Id. § 63G-2-305(9).

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4. Deeds, liens, foreclosures, title history

Not addressed.

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5. Zoning records

Not addressed.

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T. School and university records

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1. Athletic records

In The Herald Journal v. Utah State Univ., No. 95-06 (Utah State Rec. Comm. July 30, 1995), Utah State University provided The Herald Journal with information regarding the gross compensation of the University’s athletic coaches but refused to release copies of the written contracts between the University and its head football and basketball coaches. Because the records were contracts entered into by a government entity and involved government expenditure of funds, the State Records Committee held that the contracts were public, and the University promptly released the contracts.

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2. Trustee records

Trustee records are subject to GRAMA. See Utah Code § 63G-2-103(11)(a)(iv).

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3. Student records

a. Records regarding student admission applications are protected, but final admissions decisions are not. Utah Code § 63G-2-305(28).

b. The following records “which have been developed, discovered, disclosed to, or received by or on behalf of . . . students of the institution” are protected: unpublished lecture and research notes, unpublished manuscripts, creative works in progress, scholarly correspondence, and confidential information contained in research proposal. Id. § 63G-2-305(40).

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

a. Employment records that contain performance evaluations and personal status information are private if properly classified by the government entity. Utah Code § 63G-2-302(2)(a).

b. Records other than performance evaluations containing personal recommendations are private if so classified by the government entity and if disclosure would constitute a clearly unwarranted invasion of personal privacy. Id. § 63G-2-302(2)(d).

c. Rules regarding the confidentiality of records pertaining to drug tests are subject to GRAMA. Id. § 67-18-5.

d. Data within pension records concerning service credits is confidential. Id. § 49-11-618(2).

e. All information, reports, and test results received by an employer through a drug or alcohol testing program are confidential, and may not be disclosed except in authorized disciplinary or rehabilitative proceedings, or in an authorized action by the employee for libel or slander. Id. § 34-38-13.

f. “Employing units” are required to keep certain records prescribed by the Department of Workforce Services and to allow the Division of Employment Development to inspect those records. The information contained in the records “may not be published or open to public inspection in a manner revealing the employing unit’s or the individual’s identity.” Id. § 35A-4-312(3). The information shall be disclosed to “a party to an unemployment insurance hearing before an administrative law judge of the department or a review by the Workforce Appeals Board to the extent necessary for the proper presentation of the party’s case”; or “an employer, upon request in writing for information concerning a claim for a benefit with respect to a former employee of the employer.” Id. § 35A-4-312(4)(b).

g. A grand jury report concerning a public officer’s or employee’s noncriminal misconduct shall be sealed by the managing judge and not be filed as a public record until at least 31 days after a copy of the order is served on the public officer or employee and an answer has been filed, or until the time for filing an answer has expired, an appeal has been taken, or the officer’s or employee’s rights of review have expired. Id. § 77-10a-17(3). The managing judge shall order the report sealed if filing the report as a public record may prejudice fair consideration of a pending criminal matter. Id. § 77-10a-17(6).

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U. State guard records

The Utah National Guard is an executive branch entity subject to GRAMA. Id. § 63G-2-103(11)(a)(i). However, information pertaining to the National Guard’s operations or activities in support of the National Guard’s federal mission are protected if properly classified by a governmental entity. Id. § 63G-2-305(45).

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V. Tax records

State tax returns are to be kept confidential, except by court order or in other official proceedings. For all taxes except individual income tax and corporate franchise tax, the commission may, by rule, provide the identity and other information of taxpayers who failed to file tax returns or to pay the tax due. See Utah Code § 59-1-403.

Under the Multistate Tax Compact, information obtained in an audit is to be kept confidential and available only to party states, their subdivisions, or the United States. See id. § 59-1-801.5(Art. VIII, sec. 6).

Property tax audit reports are confidential, although the statistical information based on the audits may be public. See id. § 59-2-705(1). Sales and Use tax returns and other information are confidential under Utah Code section 59-1-403. See id. § 59-12-109.

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W. Vital Statistics

“Vital records” (birth, death, abortion, marriage, divorce, annulments, adoptions) may be disclosed only where the Bureau of Vital Statistics determines that the applicant has a “direct, tangible, and legitimate interest” in the record, because: (a) the request is from the subject, a member of the subject’s immediate family, the subject’s guardian, or a designated legal representative; (b) a personal or property right of the person whose record is on file is involved; (c) the request is for official purposes of a state, local, or federal government agency; (d) the request is for a statistical or medical research program and prior consent has been obtained from the state registrar; or (e) the request is a certified copy of a court order, specifying the record to be examined. See Utah Code § 26-2-22(2). In addition, a vital record that is not a birth or death certificate will be available to the public if 75 years or more have passed since the date of the event on which the record is based. See id. § 26-2-22(4)(c).

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1. Birth certificates

Birth records may be disclosed only where the Bureau of Vital Statistics determines that the applicant has a “direct, tangible, and legitimate interest” in the record. Utah Code § 26-2-22. Subject to certain exceptions, “a birth record, excluding confidential information collected for medical and health use” also will be made available to the public “if 100 years or more have passed since the date of birth.” Id. § 26-2-22(4)(a).

Supplementary birth certificates. If a person is legitimized by the subsequent marriage of his or her natural parents, he or she may request the state registrar to issue a supplementary birth certificate, indicating his or her legitimate status. After this supplementary certificate is registered, the original birth certificate is not open to inspection, except upon an order of a Utah district court, or upon the mutual consent of the person and his or her parents. See id. § 26-2-10(4).

Adoption records. The Bureau of Vital Statistics may not release adoption reports (which include detailed health histories and genetic and social histories, but which do not identify the adoptees’ birth parents or families) to the general public. See id. § 78B-6-143(4). Subject to several exceptions, adoption records are open to inspection  y the public only upon express court order for good cause or “on the one hundredth anniversary of the date the final decree of adoption was entered.” Id. § 78B-6-141(3)(e), (f).

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2. Marriage and divorce

Except for the information required to be shown on the marriage license application form, any information given by a marriage license applicant to comply with the statute “shall be confidential information and may not be released by any person, board, commission, or other entity.” Utah Code § 30-1-37. The statute also provides, however, that statistical data based on the information provided by a marriage license applicant may be used, without identifying specific individuals, by the premarital counseling boards appointed by the county boards of commissioners. See id.

The court file in a divorce proceeding may be sealed by the court upon the motion of either party to the divorce court. The sealed file is available to the public only by court order, but the divorce decree itself is open to public inspection. See id. § 30-3-4(2). In 1995, United States Congresswoman Enid Greene Waldholtz successfully moved to seal the court file in her divorce action against Joseph Waldholtz. The Congresswoman filed for divorce after she and her husband became embroiled in a controversy involving financial misconduct. After several news organizations intervened, the court vacated its order sealing the records and held that the Waldholtzs’ divorce records were public. Waldholtz v. Waldholtz, No. 954904704 (Utah 3d Dist. January 16, 1996).

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3. Death certificates

Death records may be disclosed only where the Bureau of Vital Statistics determines that the applicant has a “direct, tangible, and legitimate interest” in the record, unless 50 years or more have passed since the date of the death. Utah Code § 26-2-22(4)(b).

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4. Infectious disease and health epidemics

Communicable disease information relating to an individual is confidential and may be released only in accordance with enumerated requirements. See Utah Code § 26-6-27.

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

A government entity may make rules designating where and to whom a record request shall be directed. See Utah Code § 63G-2-204(2)(d).

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2. Does the law cover oral requests?

A person wanting access to a record must provide the government entity with a written request. See Utah Code § 63G-2-204(1).

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

The government entity must respond to a written request no later than ten business days after receiving the request. If the request is entitled to expedited treatment, the government entity must respond within five business days after receiving the request. See Utah Code § 63G-2-204(3)(a)

To obtain an expedited response, the requester must demonstrate that the record request benefits the public rather than the individual requester. See id. § 63G-2-204(3)(a). Journalists requesting records for publication or broadcast are presumed to be acting to benefit the public. See id. § 63G-2-204(4).

The government entity shall respond to a person’s written request, within the prescribed time limits, in the following manner:

(i) approving the request and providing the record;

(ii) denying the request;

(iii) notifying the requester that the entity does not maintain the record and providing, if known, the name and address of the government entity that does maintain the record; or

(iv) notifying the requester that because of the extraordinary circumstances listed [in that section of the statute], it cannot immediately approve or deny the request.

Id. § 63G-2-204(3)(a).

A notice of denial shall include (a) a description of the record; (b) citations to the GRAMA provisions that exempt the record from disclosure; (c) a statement that the requester has a right to appeal the denial; and (d) the time limits for filing an appeal and the name and address of the chief administrative officer of the government entity to which the appeal should be made. See id. § 63G-2-205(2).

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2. Informal telephone inquiry as to status

Not addressed.

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3. Is delay recognized as a denial for appeal purposes?

If an entity fails to provide the requested records or notification of denial within the specified time period, the failure is equivalent to denial of access. See Utah Code § 63G-2-204(8).

The following is a list of “extraordinary circumstances” that allow a government entity additional time in which to comply with a record request, including the additional time allowed for each circumstance listed:

(i) “[A]nother governmental entity is using the record, in which case the originating governmental entity shall promptly request that the governmental entity currently in possession return the record.” Id. § 63G-2-204(5)(a). In such a case, the entity currently in possession of the record shall return the record within five business days, unless it would impair the holder's work. See id. § 63G-2-204(6)(a).

(ii) “[A]nother governmental entity is using the record as part of an audit, and returning the record before the completion of the audit would impair the conduct of the audit.” Id. § 63G-2-204(5)(b). In this case, the originating entity shall notify the requester when the record is available. See id. § 63G-2-204(6)(b).

(iii) The request is for a large quantity of records, the government entity possesses a large number of requests at the current time, or the request requires the government entity to review a large number of records. See id. § 63G-2-204(5)(c)-(e). In these cases, the government entity shall: (a) disclose the records that it has located and the requester is entitled to inspect; (b) provide the requester with a time estimate of when the additional records will be available; and (c) complete the work and disclose the records as soon as reasonably possible. See id. § 63-2-204(6)(c).

(iv) The request involves unresolved legal issues “that require the governmental entity to seek legal counsel for the analysis.” Id. § 63G-2-204(5)(f). In this case, the government entity shall have an additional five business days to either approve or deny the request. See id. § 63G-2-204(6)(d).

(v) The segregation of records requires extensive editing. See id. § 63G-2-204(5)(g). In this case, the government entity is allowed 15 business days from the original request to comply. See id. § 63G-2-204(6)(e).

(vi) The segregation of records requires computer programming. See id. § 63G-2-204(5)(h). In this case, the government entity must respond as soon as reasonably possible. See id. § 63G-2-204(6)(f).

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4. Any other recourse to encourage a response

Not addressed.

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C. Administrative appeal

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

A person aggrieved by a government entity’s access determination can file a notice of appeal with the government entity’s chief administrative officer. See Utah Code § 63G-2-401(1).

A political subdivision is entitled to establish a separate appeals process. See id. § 63G-2-701(4)(a). A political subdivision that adopts an appeals process must submit a copy and a summary description to the state archives. See id. § 63G-2-701(7). The political subdivision must provide for an appeals board composed of three members, one of whom is an employee of the political subdivision and two of whom shall be members of the public with at least one having professional experience with requesting or managing records. See id. § 63G-2-701(5)(c). Political subdivisions can provide for an additional level of administrative review by the State Records Committee. See id. § 63G-2-701(6).

Decisions of the appeals boards of the political subdivisions can be appealed to the district court. See id. § 63G-2-701(6).

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3. Fee issues

Presumably the chief administrative officer could determine the reasonableness of duplication fees.

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4. Contents of appeal

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5. Waiting for a response

The chief administrative officer must make a determination on the appeal within five business days of receiving the notice of appeal or, if a business confidentiality claim is at issue, within twelve business days of receiving the notice of appeal. See Utah Code § 63G-2-401(5). If no determination is made within the specified time period, the failure to make a determination shall be considered an order denying the appeal. See id. In Young v. Salt Lake County, 52 P.3d 1240, 1243 (Utah 2002), the Utah Supreme Court concluded that the chief administrative officer’s belated response to an appeal was the determinative date in evaluating the timeliness of an appeal. The court held that the chief administrative officer’s eventual response to the appeal enabled the petitioner to file a petition for judicial review within 30 days from the response. If the chief administrative officer had not responded at all, however, the petitioner’s appeal would have been deemed untimely, as it was outside the 35-day period provided by Utah Code section 63G-2-404(2)(b)(ii). See id. at 1244.

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6. Subsequent remedies

An individual may appeal the chief administrative officer’s determination to the State Records Committee. The notice of appeal must be filed with the executive secretary within 30 days of the chief administrative officer’s final determination, or within 45 days of the original record request if the chief administrative officer failed to make a determination or if the appeal is of the government entity’s claimed extraordinary circumstances. See Utah Code § 63G-2-403(1).

The Records Committee, within three days after receiving the notice of appeal, must schedule a hearing to take place no sooner than 16 days and no later than 64 calendar days after the filing date. See id. § 63G-2-403(4)(a).

The Records Committee must make a final determination and issue a signed order within seven business days of the hearing. See id. § 63G-2-403(11)(a).

If the Records Committee fails to issue a decision within 73 calendar days of the filing of the notice of appeal, the failure shall be considered a denial. See id. § 63G-2-403(13).

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

Any individual may appeal the State Records Committee’s or the government entity’s decision by filing a petition with the district court. See Utah Code § 63G-2-404(5).

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2. Priority

The court shall decide the appeal at the “earliest practical opportunity.” Utah Code § 63G-2-404(6)(a)(ii).

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3. Pro se

Although it certainly is possible for individuals to represent themselves in a pro se lawsuit challenging the denial of records access, it is not always advisable. The statutory law governing records access in Utah is complex and ever-changing. As a result, it is usually beneficial to seek legal advice.

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4. Issues the court will address

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a. Denial

The court shall rule on the propriety of any denial of access and may order the disclosure of records properly classified as private, controlled, or protected if the interest favoring access outweighs the interest against access. See Utah Code § 63G-2-404(7)(a).

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b. Fees for records

Presumably, the court could rule on the reasonableness of duplication fees charged by government entities.

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c. Delays

If the government entity fails to provide the requested records or to issue a denial within the specified time period, such failure is equivalent to a denial of access and may be appealed as such. See Utah Code § 63G-2-204(8). In addition, a requester may judicially challenge the government entity’s use of the “extraordinary circumstances” provision in Utah Code section 63-2-204(5).

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d. Patterns for future access (declaratory judgment)

The court can order the disclosure of a record with restrictions on future access. See Utah Code § 63G-2-404(7)(b).

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5. Pleading format

The petition is a complaint, the format and the contents of which are governed by the Utah Rules of Civil Procedure. See Utah Code § 63G-2-404(2).

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6. Time limit for filing suit

The petition must be filed within 30 days after the order or decision. See Utah Code § 63G-2-404(1)(b), (2)(b).

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7. What court?

The appeal must be filed with the district court for the State of Utah.

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

The court may assess against the government entity the reasonable attorneys’ fees incurred by the requester if the requester substantially prevails on appeal. See Utah Code § 63G-2-802(2). The court shall award attorneys’ fees and costs to prevailing records requesters if the government entity asserts the records are confidential under Utah Code section 63-2-405 and the court denies confidential treatment under that section and determines that no statutory or constitutional exemption from disclosure “could reasonably apply to the record in question.” Id. § 63G-2-405(2). The court will consider the following factors when making the determination of attorney’s fees: (i) the public benefit derived from the case; (ii) the nature of the requester's interest in the records; and (iii) whether the defending party's actions had a reasonable basis. Attorney fees and costs shall not ordinarily be awarded if the purpose of the litigation is primarily to benefit the requester's financial or commercial interest.

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b. Court and litigation costs

The court shall award attorneys’ fees and costs to prevailing records requesters if the government entity asserts the records are confidential under Utah Code section 63-2-405 and the court denies confidential treatment under that section and determines that no statutory or constitutional exemption from disclosure “could reasonably apply to the record in question.” Utah Code § 63G-2-405(2).

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

Depending on the identity of the agency or court that entered the order from which appeal is taken, the appeal will be either to the Utah Court of Appeals or to the Utah Supreme Court. See Utah Code §§ 78A-3-102, 78A-4-103.

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2. Time limits for filing appeals

A notice of appeal must be filed within 30 days after entry of judgment. See Utah R. App. P. 4(a).

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3. Contact of interested amici

If you are filing an appeal with an appellate court, you should contact other interested groups who may want to file amicus briefs or to assist with the legal research needed to support your arguments. In Utah, the following groups have participated actively in record-access issues: Society of Professional Journalists, Reporters Committee for Freedom of the Press, Utah Common Cause, American Civil Liberties Union, Utah Issues, Utah Legal Services, and Utah League of Women’s Voters.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

In Utah, any person may attend an open government meeting. See Utah Code § 52-4-303(3).

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B. What governments are subject to the law?

All “public bodies” are subject to the Utah Open and Public Meetings Act (“Open Meetings Act”). “Public body” includes “any administrative, advisory, executive, or legislative body of the state or its political subdivisions that: (i) is created by the Utah Constitution, statute, rule, ordinance, or resolution; (ii) consists of two or more persons; (iii) expends, disburses, or is supported in whole or in part by tax revenue; and (iv) is vested with the authority to make decisions regarding the public’s business.” Utah Code § 52-4-103(9)(a). “‘Public body’ does not include a: (i) political party, political group, or political caucus; or (ii) conference committee, rules committee, or sitting committee of the Legislature.” Id. § 52-4-103(9)(c)(emphasis added).

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1. State

State governments and their advisory committees are subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a).

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2. County

County governments and their advisory committees are subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a).

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3. Local or municipal

Local and municipal governments and their advisory committees are subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a).

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C. What bodies are covered by the law?

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1. Executive branch agencies

All executive branch agencies are subject to the Open Meetings Act, unless they consist of less than two people. Utah Code § 52-4-103(9)(a).

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a. What officials are covered?

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b. Are certain executive functions covered?

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c. Are only certain agencies subject to the act?

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2. Legislative bodies

All legislative branch entities are subject to the Open Meetings Act, except political parties, groups, or caucuses; or conference, rules or sifting committees, or those legislative bodies consisting of less than two persons. See Utah Code § 52-4-103(9)(a)-(c).

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3. Courts

The judicial branch is not expressly subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a)-(b). Further, in Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312 (Utah 1979), the Utah Supreme Court determined that although the information-gathering phase of an agency’s quasi-judicial proceedings had to be conducted in public, the deliberations of quasi-judicial agencies could be conducted in secret (even though the Open Meetings Act provides for no such exemption). Id. at 1315. This decision has been severely criticized. See, e.g., Comment, Common Cause v. Utah Public Service Commission-The Applicability of Open-Meeting Legislation to Quasi-Judicial Bodies, 1980 Utah L. Rev. 829. Nonetheless, the Utah Supreme Court reaffirmed the exemption for quasi-judicial deliberations in Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 793-94 (Utah 1992), holding that the Board of Pardons’s deliberations were exempt from the statute, and in Dairy Prod. Serv. Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581, holding that the Wellsville City Council did not violate the statute by conducting closed deliberations regarding renewal of a business license.

Although the Open Meetings Act does not apply to the courts, judicial proceedings are traditionally open to the public and the courts have recognized a qualified constitutional right to attend such proceedings. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7-15 (1986) (public and press have first amendment right to attend criminal preliminary hearings); Publicker Indus. Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984) (public and press have first amendment right to attend civil proceedings); Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 518-20 (Utah 1984) (public has constitutional right of access to criminal trials and preliminary hearings, subject to certain limited exceptions to protect defendants’ sixth amendment rights); see generally Note, Society of Professional Journalists v. Briggs: Toward a Deferential Balancing Test for the Right of Access, 1989 Utah L. Rev. 787 (discussing first amendment right of access to judicial proceedings and records).

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4. Nongovernmental bodies receiving public funds or benefits

Nongovernment bodies receiving public funds or benefits are not subject to the Open Meetings Act, unless such bodies are advisory bodies for the government. See Utah Code § 52-4-103(9).

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5. Nongovernmental groups whose members include governmental officials

Nongovernment groups whose members include government officials are not subject to the Open Meetings Act, unless such groups are advisory bodies for the government. See Utah Code § 52-4-103(9).

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6. Multi-state or regional bodies

The Open Meetings Act does not state whether multistate or regional bodies (such as planning authorities) fall within its scope. However, if a quorum of a public body meets at a multistate or regional meeting, and discusses or takes action on a subject over which the public body has jurisdiction, the Open Meetings Act arguably should apply. See Utah Code § 52-4-103(9).

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7. Advisory boards and commissions, quasi-governmental entities

Advisory boards and commissions and other quasi-government entities are subject to the Open Meetings Act. See Utah Code § 52-4-103(9)(a).

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8. Other bodies to which governmental or public functions are delegated

Other bodies to which government or public functions are delegated are subject to the Open Meetings Act if such bodies fall within the definition of “public body.” See Utah Code § 52-4-103(9).

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9. Appointed as well as elected bodies

The Open Meetings Act applies to appointed as well as elected bodies. See Utah Code § 52-4-103(9).

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D. What constitutes a meeting subject to the law

“Meeting” is defined in the Open Meetings Act as “the convening of a public body or a specified body, with a quorum present, including a workshop or an executive session, whether in person or by means of electronic communications, for the purpose of discussing, receiving comments from the public about, or acting upon a matter over which the public body or specific body has jurisdiction or advisory power.” Utah Code § 52-4-103(6)(a). “Meeting” does not mean a chance meeting, a social meeting, or the convening of a public body that has both legislative and executive responsibilities (such as most county commissions) where no public funds are appropriated for expenditure during the time in which the public body is convened and: (i) the public body is convened solely for the discussion or implementation of administrative or operational matters for which no formal action by the public body is required; or (ii) the public body is convened solely for the discussion or implementation of administrative or operational matters that would not come before the public body for discussion or action. Id. § 52-4-103(6)(b)-(c).

“Convening” is defined in the Open Meetings Act as “the calling of a meeting of a public body by a person authorized to do so for the express purpose of discussing or acting upon a subject over which that public body has jurisdiction or advisory power.” Id. § 52-4-103(3). In other words, so-called “informal” or “executive” meetings are subject to the Open Meetings Act, unless they are exempt from the definition of a “meeting” under Utah Code section 52-4-103(6)(b).

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1. Number that must be present

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a. Must a minimum number be present to constitute a "meeting"?

For a meeting to convene, a quorum must be present. See Utah Code § 52-4-103(6)(a). “Quorum” is defined in the Open Meetings Act as “a simple majority of the membership of a public body, unless otherwise defined by applicable law.” Id. § 52-4-103(11)(a). “‘Quorum’ does not include a meeting of two elected officials by themselves when no action, either formal or informal, is taken on a subject over which these elected officials have advisory power.” Id. § 52-4-103(11)(b).

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b. What effect does absence of a quorum have?

If a quorum is not present, the meeting is not subject to the Open Meetings Act unless the sub-quorum group constitutes an advisory body. See Utah Code § 52-4-103(9)(a).

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2. Nature of business subject to the law

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a. "Information gathering" and "fact-finding" sessions

“Information-gathering” and “fact-finding” sessions are subject to the Open Meetings Act. See Utah Code § 52-4-103(3), (6)(a); id. § 52-4-201.

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b. Deliberation toward decisions

Deliberations toward decisions are subject to the Open Meetings Act. See Utah Code § 52-4-102(b), -103(3), (6)(a), -205(m).

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3. Electronic meetings

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a. Conference calls and video/Internet conferencing

An “electronic meeting,” defined as “a public meeting convened or conducted by means of a conference using electronic communications,” is subject to the Open Meetings Act. Utah Code § 52-4-103(5). The Act’s definition of “meeting” also indicates that a meeting can be “by means of electronic communications.” See id. § 52-4-103(6)(a).

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b. E-mail

E-mail may qualify as an “electronic meeting” that is “convened or conducted by means of a conference using electronic communications.” See Utah Code § 52-4-103(4)-(5).

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c. Text messages

Text messages may qualify as an “electronic meeting” that is “convened or conducted by means of a conference using electronic communications.” See Utah Code § 52-4-103(4)-(5).

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d. Instant messaging

Instant messaging may qualify as an “electronic meeting” that is “convened or conducted by means of a conference using electronic communications.” See Utah Code § 52-4-103(4)-(5).

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e. Social media and online discussion boards

Social media and online discussion boards may qualify as an “electronic meeting” that is “convened or conducted by means of a conference using electronic communications.” See Utah Code § 52-4-103(4)-(5).

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

All government meetings must be open to the public unless they are closed pursuant to an express exemption in the Open Meetings Act. Utah Code § 52-4-201.

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b. Notice

A public body must give “not less than 24 hours’ public notice” of the agenda, date, time, and place of each of its meetings. Utah Code § 52-4-202(1). In addition, “a public body which holds regular meetings that are scheduled in advance over the course of a year shall give public notice at least once each year of its annual meeting schedule,” which notice must “specify the date, time, and place of the scheduled meetings.” Id. § 52-4-202(2).

Public notice must be provided by posting written notice at its principal office or, if no such office exists, at the building where the meeting is to be held and on the Utah Public Notice Website and by providing notice to at least one newspaper of general circulation within the geographic jurisdiction, or to a local media correspondent. Utah Code § 52-4-202(3)(a).

Although “[t]he absence of an item of business on the Agenda does not preclude its consideration, it would clearly violate the public policy behind the Act to strategically hide sensitive public issues behind the rubric of other business.” Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990) (quotations omitted).

Any final action taken by a public body in violation of the Open Meetings Act is “voidable by a court of competent jurisdiction.” Utah Code § 52-4-302(1)(a) (emphasis added). “Voidable” means that the court may overturn the action; it does not mean that the action is automatically void. The court may award court costs and reasonable attorneys’ fees to a successful plaintiff. Id. § 52-4-303(4).

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c. Minutes

The Open Meetings Act requires that written minutes be kept of all open meetings and that such minutes include:

(a) the date, time, and place of the meeting;

(b) the names of members present and absent;

(c) the substance of all matters proposed, discussed, or decided by the public body which may include a summary of comments made by members of the public body;

(d) a record, by individual member, of each vote taken by the public body;

(e) the name of each person who:

(i) is not a member of the public body; and

(ii) after being recognized by the presiding member of the public body, provided testimony or comments to the public body;

(f) the substance, in brief, of the testimony or comments provided by the public under Subsection (2)(e); and

(g) any other information that is a record of the proceedings of the meeting that any member requests be entered in the minutes or recording.

Utah Code § 52-4-203(2).

The Open Meetings Act states that these minutes are public records and shall be available within a reasonable time after the meeting. Utah Code § 52-4-203(4)(b), (g). “A recording of an open meeting shall be available to the public for listening within three business days after the end of the meeting.” Id. § 52-4-203(4)(e).

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2. Special or emergency meetings

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a. Definition

An “emergency meeting” may be held by a public body if “because of unforeseen circumstances it is necessary for a public body to hold an emergency meeting to consider matters of an emergency or urgent nature.” Utah Code § 52-4-202(5)(a)(i). A public body may not hold an emergency meeting unless “(i) an attempt has been made to notify all the members of the public body; and (ii) a majority of the members of the public body approve the meeting.” Id. § 52-4-202(5)(b).

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b. Notice requirements

If the statutory prerequisites for an emergency meeting are satisfied, the usual notice requirements “may be disregarded if . . . the public body gives the best practicable notice of . . . the time and place of the emergency meeting; and . . . the topics to be considered at the emergency meeting.” Utah Code § 52-4-202(5)(a)(ii).

Because the public body must provide the best notice practicable, presumably a public body may violate the notice requirement. In such a case, the same penalties and remedies set forth above may be available. Specifically, any final action taken by the public body in violation of the Open Meetings Act may be “voidable by a court of competent jurisdiction.” Utah Code § 52-4-302(1)(a) (emphasis added). The court also may award court costs and reasonable attorneys’ fees to a successful plaintiff. Id. § 52-4-303(4).

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c. Minutes

Unless an emergency meeting is “closed,” the same minutes must be kept as for an open non-emergency meeting. See Utah Code § 52-4-203. The Open Meetings Act states that these minutes are public records and shall be available within a reasonable time after the meeting. See Utah Code § 52-4-203(4)(b).

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3. Closed meetings or executive sessions

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a. Definition

The Open Meetings Act states that closed meetings may be held for discussion of an individual’s character, professional competence, or physical or mental health; strategy sessions to discuss collective bargaining and pending or reasonably imminent litigation; strategy sessions to discuss the purchase, exchange, lease, or sale of real property under specified conditions; discussions regarding deployment of security personnel, devices, or systems; investigative proceedings regarding criminal misconduct allegations; certain discussions by the Independent Legislative Ethics Committee, an ethics committee of the Legislature, or a county legislative body; certain business of the Independent Executive Branch Ethics Commission; and a purpose for which a meeting must be closed under Utah Code section 52-4-205(2). Utah Code § 52-4-205(1). In contrast, meetings of the Health and Human Services Interim Committee and of the Child Welfare Legislative Oversight Panel to review fatality review reports, and their responses to such reports, must be closed. Id. § 52-4-205(2). Likewise, “a meeting of a conservation district as defined in Section 17D-3-102 for the purpose of advising the Natural Resource Conservation Service of the United States Department of Agriculture on a farm improvement project if the discussed information is protected information under federal law” must also be closed. Id.

Despite the Open Meetings Act’s literal prohibition against holding a closed meeting for any purpose other than those set forth in Utah Code section 52-4-205, it appears likely that a public body also could close a meeting if such closure were authorized expressly by another state statute. The Utah Supreme Court has held that the deliberations of an agency acting in a quasi-judicial capacity may be conducted in secret, even though no statutory authorization exists for such secret deliberations. See Dairy Prod. Serv. Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581; Andrews v. Utah Bd. of Pardons, 836 P.2d 790 (Utah 1992); Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979).

A meeting held by the city to discuss the circumstances surrounding a lawsuit, possible outcomes, and suggested actions that should be taken in light of the lawsuit constituted a “strategy session” within the meaning of Utah Code section 52-4-5(1) (renumbered as section 52-4-205(1)(c)) and therefore was closed properly. Poll v. South Weber City, No. 20040888-CA, 2005 WL 1177231, at *2 (Utah Ct. App. May 19, 2005).

“An ordinance, resolution, rule, regulation, contract, or appointment may not be approved at a closed meeting.” Utah Code § 52-4-204(3). This means that a public body may not take any final action at a closed meeting, even for those matters that are exempt under Utah Code section 52-4-205(1).

“A public body may not … interview a person applying to fill an elected position in a closed meeting…discuss filling a midterm vacancy or temporary absence …; or discuss the character, professional competence, or physical or mental health of the person whose name was submitted for consideration to fill a midterm vacancy or temporary absence.” Id. § 52-4-205(3).

A meeting generally may be closed only if “a quorum is present,” if “the meeting is an open meeting for which notice has been given,” and if “two-thirds of the members of the public body present at the open meeting vote to approve closing the meeting.” Id. § 52-4-204(1). In other words, a decision to close a meeting must be made in public, at an open meeting.

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b. Notice requirements

A public body must give “not less than 24 hours’ public notice” of the agenda, date, time, and place of each of its meetings. Utah Code § 52-4-202(1). In addition, “a public body which holds regular meetings that are scheduled in advance over the course of a year shall give public notice at least once each year of its annual meeting schedule,” which notice must “specify the date, time, and place of the scheduled meetings.” Id. § 52-4-202(2). Notice must be provided by posting written notice at its principal office or, if no such office exists, at the building where the meeting is to be held and on the Utah Public Notice Website and by providing notice to at least one newspaper of general circulation within the geographic jurisdiction, or to a local media correspondent. Utah Code § 52-4-202(3)(a).

Public notice must include the meeting agenda. Id. § 52-4-202(1)(b).  Although “[t]he absence of an item of business on the Agenda does not preclude its consideration, it would clearly violate the public policy behind the Act to strategically hide sensitive public issues behind the rubric of other business.” Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990) (quotations omitted). Notices also must specify the date, time, and place of the meeting. Utah Code § 52-4-202(1)(b)-(d).

Any final action taken by a public body in violation of the Open Meetings Act is “voidable by a court of competent jurisdiction.” Utah Code § 52-4-302(1)(a) (emphasis added). “Voidable” means that the court may overturn the action; it does not mean that the action is automatically void. The court may award court costs and reasonable attorneys’ fees to a successful plaintiff. Id. § 52-4-303(4).

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c. Minutes

Written minutes must be kept of all closed meetings and shall include: (a) the date, time, and place of the meeting; (b) the names of all members present and absent; (c) the names of all others present except where such disclosure would infringe on the confidence necessary to fulfill the original purpose of closing the meeting. Utah Code § 52-4-206(3).

The minutes of a closed meeting are protected records under Title 63G, Chapter 2 and may be disclosed only under a court order as provided under Utah Code § 52-4-304. Id. § 52-4-206(5).

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d. Requirement to meet in public before closing meeting

The public body must hold “an open meeting for which notice has been given under [Utah Code section 52-4-202]” and in which two-thirds of the members present must vote to close the meeting. Utah Code § 52-4-204(1).

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e. Requirement to state statutory authority for closing meetings before closure

The reasons for holding the closed meeting, the location where the closed meeting will be held, and the members’ votes on whether to close the meeting must be recorded in the minutes. Utah Code § 52-4-204(4).

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f. Tape recording requirements

If a public body holds a closed meeting for purposes other than those set forth in Utah Code sections 52-4-205(1)(a) , (1)(f), or (2), the public body “shall make a recording of the closed portion of the meeting,” and “may keep detailed written minutes that disclose the content of the closed portion of the meeting.” Utah Code § 52-4-206(1), (6). Tape recordings and written minutes of closed meetings are protected records. Id. § 52-4-206(5). In an action challenging the legality of a closed meeting, the court shall review the tape recording or written minutes in camera. Id. § 52-4-304(1)(a). “If the judge determines that the public body violated [the provisions] regarding closed meetings, the judge shall publicly disclose or reveal from the recordings or minutes . . . all information about the portion of the meeting that was illegally closed.” Id. § 52-4-304(2)(b).

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F. Recording/broadcast of meetings

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1. Sound recordings allowed

Utah Code section 52-4-203(5) states that “[a]ll or any part of an open meeting may be independently recorded by any person in attendance if the recording does not interfere with the conduct of the meeting.”

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2. Photographic recordings allowed

Utah Code section 52-4-203(5) does not distinguish between sound recordings and photographic recordings, and it appears that either is permissible as long as no disruption of the proceedings results.

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G. Access to meeting materials, reports and agendas

Written minutes shall include the substance of all matters proposed, discussed, or decided. Utah Code § 52-4-203(2)(a)(iii). A state public body and a specified local public body shall require an individual who, at an open meeting of the public body, publicly presents or provides electronic information, relating to an item on the public body’s meeting agenda, to provide the public body, at the time of the meeting, an electronic or hard copy of the electronic information for inclusion in the public record. Id. § 52-4-203(4)(d).

Pending minutes must be available to the public within 30 days after holding the open meeting. Approved minutes must be available within three business days of approval by posting to the website and making minutes available at the public body’s primary office along with any public materials distributed at the meeting. Id. § 52-4-203(4)(e).

Public notice must include the meeting agenda. Id. § 52-4-202(1)(b). Although “[t]he absence of an item of business on the Agenda does not preclude its consideration, it would clearly violate the public policy behind the Act to strategically hide sensitive public issues behind the rubric of other business.” Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990) (quotations omitted).

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H. Are there sanctions for noncompliance?

A person denied any right under the Open Meetings Act may commence suit in a court of competent jurisdiction to compel compliance with or enjoin violations of this chapter, or to determine this chapter’s applicability to a public body’s discussions or decisions. Utah Code § 52-4-303(3). In addition, the court may award reasonable attorney fees’ and court costs to a successful plaintiff. Id. § 52-4-303(4).

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The exemptions are specific. “A closed meeting is not allowed unless each matter discussed in the closed meeting is permitted under [Utah Code section] 52-4-205.” Utah Code § 52-4-204(2). “Except as provided in [Utah Code section] 52-4-205(2), nothing in this chapter shall be construed to require any meeting to be closed to the public.” Id. § 52-4-204(5).

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2. Description of each exemption

A closed meeting may be held for any of the following purposes:

a. discussion of an individual’s character, professional competence, or physical or mental health;

b. strategy sessions to discuss collective bargaining;

c. strategy sessions to discuss pending or reasonably imminent litigation;

d. strategy sessions to discuss purchase, exchange, or lease of real property if public discussion would disclose the appraisal or estimated value of the property under consideration or prevent the public body from completing the transaction on best possible terms;

e. strategy sessions to discuss the sale of real property if public discussion would disclose the appraisal or estimated value of the property under consideration or prevent the public body from completing the transaction on best possible terms, as long as the body has previously given notice of the sale and the terms of the sale are disclosed publicly before approval;

f. discussion regarding deployment of security personnel, devices, or systems;

g. investigative proceedings regarding criminal misconduct allegations.

h. business conducted by the Independent Legislative Ethics Commission regarding the receipt or review of ethics complaints;

i. a purpose of an ethics committee of the Legislature permitted under Utah Code section 52-4-204(1)(a)(iii)(C);

j. as relates to the Independent Executive Branch Ethics Commission created in Section 63A-14-202, conducting business relating to an ethics complaint;

k. discussion of commercial information by a county legislative body; or

l. as relates to the Utah Higher Education Assistance Authority and its appointed board of directors, discussing fiduciary or commercial information as defined in Section 53B-12-102;

m. deliberations, not including any information gathering activities, of a public body acting in the capacity of: (i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code, during the process of evaluating responses to a solicitation, as defined in Section 63G-6a-103; (ii) a protest officer, defined in Section 63G-6a-103, during the process of making a decision on a protest under Title 63G, Chapter 6a, Part 16, Controversies and Protests; or (iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 17, Procurement Appeals Board;

n. the purpose of considering information that is designated as a trade secret if the public body’s consideration is necessary in order to properly conduct procurement;

o. the purpose of discussing information provided to the public body during the procurement process if certain circumstances are met; or

p. a purpose for which a meeting must be closed under Utah Code section 52-4-202(2).

Utah Code § 52-4-205(1).

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B. Any other statutory requirements for closed or open meetings

1. Meetings of the Health and Human Services Interim Committee and of the Child Welfare Legislative Oversight Panel to review fatality review reports, and their responses to such reports, must be closed. Utah Code § 52-4-205(2)(a)-(b). A meeting of a conservation district as defined in Section 17D-3-102 for the purpose of advising the Natural Resource Conservation Service of the United States Department of Agriculture on a farm improvement project must be closed if the discussed information is protected information under federal law. Id. 52-4-205(2)(c).

2. The following meetings also are exempt from the Open Meetings Act:

a. portions of meetings of the Board of Financial Institutions which concern confidential information pertaining to a particular financial institution, Utah Code § 7-1-203(5); and

b. meetings of judicial nomination commissions. Id. § 78A-10-103(7).

3. The following government entities are required specifically by statute to comply with the Open Meetings Act:

a. the Uintah Basin Revitalization Fund Board, id. § 35A-8-1605(2);

b. governing bodies of municipalities, id. § 10-3-601;

c. the House, Senate, and Legislative Management Committee, subcommittee, or interim committee, id. § 36-12-10;

d. the Department of Public Safety, id. § 53-1-105; and

e. the State Building Board. Id. § 63A-5-102.

4. Statutory requirements for public hearings.

a. A city must hold a public hearing on budgets tentatively adopted. Id. § 10-6-114.

b. A city must hold a public hearing before designating any street as a “mall.” Id. § 10-15-6.

c. The governing body of a special district must hold a public hearing on budgets tentatively adopted. Id. § 17B-1-610.

d. The governing body of a county must hold a public hearing on budgets tentatively adopted. Id. § 17-36-13.

e. The local school board must hold a public meeting to discuss its proposed budget. Id. § 53A-19-102.

f. The Board of Child and Family Services and the Child Abuse Advisory Council must conduct public hearings before purchasing or contracting for any child abuse or neglect prevention or treatment program or service. Id. § 62A-4a-306.

g. The Division of Parks and Recreation must conduct a public hearing before establishing any recreational trail. Id. § 79-5-304.

h. A county must hold a public hearing to discuss a proposed agricultural protection area. Id. § 17-41-304.

i. Before approving a plan for underground conversion of public utilities, the governing body of the county, city, or town must hold a public meeting to discuss the proposed improvements. Id. § 54-8-9. Notice must be published in a newspaper of general circulation, published on the Utah Public Notice Website, posted in at least three public places, and mailed to each property owner within the district. Id. § 54-8-10.

j. The governing body of a municipality that wishes to consolidate must hold a public hearing on the proposed consolidation. Id. § 10-2-606.

k. The Utah Constitutional Revision Commission may hold public hearings “that it considers advisable.” Id. § 63I-3-205.

l. The Utah Tax Review Commission “may hold public hearings it considers advisable.” Id. § 59-1-904.

m. “The county board of equalization shall meet and hold public hearings each year to examine the assessment roll and equalize the assessment of property in the county.” Id. § 59-2-1001(2).

5. Other statutory requirements.

a. All meetings of county legislative bodies shall be open to the public. Id. § 17-53-206.

b. Upon the filing of a formal complaint in a discipline matter, the filing of a petition for reinstatement, or the filing of a motion or petition for interim suspension, an attorney discipline proceeding is public, except as otherwise provided by a protective order. Utah R. Prof’l Prac. 15.

c. Meetings of the Property and Casualty Guaranty Association are open upon a majority vote of the Association’s board of directors. Id. § 31A-28-205(3).

d. Meetings of the Utah Health Data Committee are public, with some exceptions. Id. § 26-33a-103(10).

e. Meetings of the Alcoholic Beverages Control Commission are open, with some exceptions. Id. § 32B-2-201(10)(b).

f. All meetings of the State Money Management Council are open, with some exceptions. Id. § 51-7-16(4)(d).

g. Meetings of the Board of Financial Institutions are subject to the Open Meetings Act, except for discussion of confidential information pertaining to a particular financial institution. Id. § 7-1-203(5)(e).

h. Meetings of the Judicial Council are open to the public unless closed in accordance with the Code of Judicial Administration. Utah R. Jud. Admin. 2-103.

i. All state legislature sessions shall be public, except for Senate executive sessions. Utah JR-13.12.

j. News media representatives shall be admitted to the Senate and House chambers, halls, lounges, and committee rooms. With permission, the news media may conduct interviews in the lounges, halls, available committee rooms, or in the House chamber or gallery. Utah SR-33.06, Utah HR-33.06.

l. If a House committee chooses to hold a public hearing in addition to, or instead of, a regular committee meeting, the committee chair shall give notice of the meeting in accordance with the Open Meetings Act. Utah HR-24.14.

m. Visitors may attend House committee meetings so long as the number of people present does not exceed the maximum occupancy of the committee room. Utah HR-24.22. Visitors may not sit in legislators’ chairs and may not speak unless called upon by the chairman. Id.

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C. Court mandated opening, closing

The Utah Supreme Court has held that the deliberation phase of quasi-judicial proceedings conducted by state agencies may be conducted in secret. Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979). The court ruled, however, that the fact-finding portion of the agency’s quasi-judicial proceeding must be conducted in public. Id.; see also Dairy Prod. Serv. Inc. v. City of Wellsville, 2000 UT 81, ¶ 61, 13 P.3d 581 (City Council deliberations on business license renewal could be closed where the information-gathering procedure and the final decision were conducted in public); Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 792-93 (Utah 1992) (Board of Pardons’ deliberations on commutation petition may be conducted in secret, but information-gathering proceedings must be open).

The Open Meetings Act is not applicable to meetings held by the Utah State Retirement Board. Ellis v. Utah State Retirement Bd., 757 P.2d 882, 888 (Utah Ct. App. 1988). Also, the issuance of certificates of zoning compliance and building permits is an administrative action to be performed by a zoning administrator (or his or her representative) and by the building inspector, respectively. Because this issuance is merely an administrative action, the topic is not one required to be discussed in an open meeting and thus does not fall under the Open Meetings Act. Harper v. Summit County, 2001 UT 10, ¶ 38, 26 P.3d 193.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

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1. Deliberations closed, but not fact-finding

Deliberations of administrative bodies acting in a quasi-judicial capacity are closed, but the fact-finding portion of the quasi-judicial proceeding is open. See Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 792-93 (Utah 1992); Common Cause of Utah v. Utah Pub. Serv. Comm’n, 598 P.2d 1312, 1315 (Utah 1979).

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2. Only certain adjudications closed, i.e. under certain statutes

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B. Budget sessions

Budget sessions are open to the public.

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C. Business and industry relations

This topic (including discussions for attracting business to the state) is open to the public, but discussions may be closed to the extent they touch upon matters designated as exempt in the Open Meetings Act.

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D. Federal programs

Meetings concerning federal programs are open to the public.

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E. Financial data of public bodies

Meetings concerning financial data are open to the public.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

The Open Meetings Act contains no exemption for these topics, but there are a number of statutes (summarized in the Open Records portion of this outline) that state that records containing such data shall be confidential. It is possible that a court would allow a government entity to close that portion of a meeting that relates to topics classified as protected by statute. However, no express judicial decision on this point exists.

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G. Gifts, trusts and honorary degrees

The Open Meetings Act contains no provision that would allow meetings concerning these topics to be closed. However, the Government Records Access and Management Act (discussed in the Open Records portion of this outline) classifies as protected the names of the donors to public institutions of higher education, if so requested. Utah Code § 63G-2-305(37).

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H. Grand jury testimony by public employees

Although the Open Meetings Act contains no specific exemption for grand jury testimony by public employees, grand jury proceedings are secret. See Utah Code § 77-10a-13.

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I. Licensing examinations

There is no express provision in the Open Meetings Act that licensing examinations may be closed to the public, but the exemption concerning the “discussion of the character, professional competence, or physical or mental health of an individual” probably would be held to cover this situation. Utah Code § 52-4-205(1)(a).

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J. Litigation, pending litigation or other attorney-client privileges

Strategy sessions concerning pending or reasonably imminent litigation are exempt from the open meetings requirement. Utah Code § 52-4-205(1)(c).

In Kearns-Tribune Corp. v. Salt Lake County Comm’n, 2001 UT 55, ¶ 29, 28 P.3d 686, the Utah Supreme Court determined that county boundary commission proceedings held to discuss annexation disputes constituted litigation under the litigation exception to the Open Meetings Act, thereby justifying a closed meeting.

Attorney work product involved in litigation involving public entities probably would be exempt from disclosure under the judicially created work-product exemption and under the Utah Rules of Civil Procedure. See also Utah Code § 63G-2-305(18) (protecting records disclosing attorney’s work product).

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K. Negotiations and collective bargaining of public employees

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1. Any sessions regarding collective bargaining

Strategy sessions concerning collective bargaining are exempt from the Open Meetings Act. Utah Code § 52-4-205(1)(b). Given the specific exemption for “strategy sessions” set forth in the Open Meetings Act, it appears that all other elements of the negotiations and collective bargaining are subject to the open meetings requirement.

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2. Only those between the public employees and the public body

The exemption for collective bargaining sessions is not limited to those between the public employees and the public body. See Utah Code § 52-4-205(1)(b).

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L. Parole board meetings, or meetings involving parole board decisions

Proceedings of the Utah Board of Pardons and Parole are subject to the Open Meetings Act. Andrews v. Utah Bd. of Pardons, 836 P.2d 790, 792-93 (Utah 1992). Although Board hearings, during which information is gathered, are open to the public, deliberations may be closed. Id.

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M. Patients, discussions on individual patients

Discussions about an individual’s physical and mental health are exempt from the Open Meetings Act. Utah Code § 52-4-205(1)(a).

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N. Personnel matters

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1. Interviews for public employment

The interviews themselves appear to be subject to the Open Meetings Act, because it exempts only the “discussion” of an individual’s professional competence. See Utah Code § 52-4-205(1)(a).

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2. Disciplinary matters, performance or ethics of public employees

These discussions would appear to be exempt under the Open Meetings Act because they involve “discussion of the character, professional competence, or physical or mental health of an individual.” Utah Code § 52-4-205(1)(a). However, an agency’s final decision about a disciplinary matter must be made in public. Id. § 52-4-204(3).

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3. Dismissal, considering dismissal of public employees

These discussions would appear to be exempt under the Open Meetings Act because they involve “discussion of the character, professional competence, or physical or mental health of an individual.” Utah Code § 52-4-205(1)(a). However, an agency’s final decision about a disciplinary matter must be made in public. Id. § 52-4-204(3).

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O. Real estate negotiations

Strategy sessions relating to the purchase, exchange, lease, or sale of real property are exempt from the Open Meetings Act under certain conditions. Utah Code § 52-4-205(1)(d).

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P. Security, national and/or state, of buildings, personnel or other

Discussions concerning the “deployment of security personnel, devices, or systems” are exempt from the Open Meetings Act. Utah Code § 52-4-205(1)(f).

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Q. Students, discussions on individual students

Discussions about a student’s character or physical or mental health would be exempt from the Open Meetings Act. See Utah Code § 52-4-205(1)(a).

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IV. Procedure for asserting right of access

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A. When to challenge

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The Open Meetings Act does not require any expedited judicial review of requests to attend upcoming meetings. However, expedited remedies are available under the Utah Rules of Civil Procedure. See Utah R. Civ. P. 65A (temporary restraining orders).

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2. When barred from attending

Any person denied access to a public meeting may commence suit to compel compliance with, or enjoin violations of, the Open Meetings Act. Utah Code § 52-4-303(3)(a).

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3. To set aside decision

Any final action taken in violation of the Open Meetings Act is “voidable” rather than automatically void. Utah Code § 52-4-302(1)(a). In other words, a court may hold that the action is void, but the action is not void until the court so holds.

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4. For ruling on future meetings

Any person denied a right under the Open Meetings Act may bring an action to compel compliance with the Act, to enjoin an agency’s violation of the Act, or to determine the applicability of the Act to discussions or decisions by a public body. Utah Code § 52-4-303(3).

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5. Other

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B. How to start

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1. Where to ask for ruling

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a. Administrative forum

The Open Meetings Act does not provide for an administrative forum.

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b. State attorney general

The Open Meetings Act states that the “attorney general and county attorneys of the state shall enforce this chapter.” Utah Code § 52-4-303(1). Historically, however, enforcement of the Open Meetings Act has been an extremely low priority of the Attorney General’s Office and of the County Attorneys. To date, the Attorney General has not brought a single enforcement action.

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c. Court

Any person denied access to a meeting in violation of the Open Meetings Act may commence suit “to compel compliance with or enjoin violations of this chapter” or to “determine the chapter’s applicability to discussions or decisions of a public body.” Utah Code § 52-4-303(3).

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2. Applicable time limits

Not applicable.

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3. Contents of request for ruling

Not applicable.

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4. How long should you wait for a response

Not applicable.

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5. Are subsequent or concurrent measures (formal or informal) available?

Not applicable.

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C. Court review of administrative decision

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1. Who may sue?

The Open Meetings Act states that any “person denied any right under this chapter may commence suit . . . to compel compliance with or enjoin violations of this chapter or . . . determine the chapter’s applicability to discussions or decisions of a public body.” Utah Code § 52-4-303(3).

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2. Will the court give priority to the pleading?

There is no provision under Utah law which gives open meetings issues any priority on the courts’ dockets. Expedited relief is available, however, under the Utah Rules of Civil Procedure. See Utah R. Civ. P. 65A. (temporary restraining orders).

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3. Pro se possibility, advisability

Although it is certainly possible for individuals to represent themselves in a pro se lawsuit challenging a violation of the Open Meetings Act, this is not always advisable. The laws relating to open meetings in Utah are somewhat complex, and it is usually beneficial to seek legal advice.

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4. What issues will the court address?

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a. Open the meeting

A court may compel compliance with the Open Meetings Act. Utah Code § 52-4-303(3)(a).

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b. Invalidate the decision

A court may void final action taken in an illegally closed meeting. Utah Code § 52-4-302(1)(a).

The violation of a temporary restraining order does not void an action taken at an open meeting, unless the trial court abused its discretion. Ward v. Richfield City, 798 P.2d 757, 759-60 (Utah 1990). In Ward, the petitioner obtained a temporary restraining order to stop the city council from conducting further hearings regarding his dismissal as police chief. The council violated the temporary restraining order by proceeding with a public hearing on the matter and by ratifying Ward’s termination. The Utah Supreme Court held that the appropriate remedy for violation of an injunction rests in the trial court’s sound discretion, and that the trial court’s decision not to void the city council’s action was not an abuse of discretion. Id.

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c. Order future meetings open

A court may enjoin violations of the Open Meetings Act. Utah Code § 52-4-303(3)(a).

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5. Pleading format

The complaint filed with the district court should be captioned as required by Rule 10 of the Utah Rules of Civil Procedure. (For example, the caption should include the plaintiff’s name, address, and telephone number or the name, address, and telephone number of the plaintiff’s attorney; should indicate the names of the plaintiffs and the defendant (i.e., the agency or the public body being sued); and should indicate that the pleading is a complaint). The allegations in the complaint should, at a minimum, include the following:

(1) the name of the person or organization challenging the violation of the Open Meetings Act;

(2) the name of the public body that allegedly violated or proposes to violate the Open Meetings Act;

(3) a statement of the court’s jurisdiction over the matter (e.g., the meeting occurred in the county over which the court has jurisdiction);

(4) the date, time, and location of the challenged meeting;

(5) the members of the public body who attended the meeting, if known;

(6) the matters discussed at the meeting, if known;

(7) the reasons, if any, given for the public body’s closure of the meeting;

(8) the facts indicating that the entity holding the meeting is a “public body” as defined in the Open Meetings Act;

(9) the facts indicating that the meeting to which the plaintiff was denied access was a “meeting” as defined by the Open Meetings Act;

(10) the facts indicating that there was a quorum of the public body present at the meeting;

(11) a statement that the meeting was not a “chance meeting” or “social meeting”;

(12) a statement, if applicable, that the public body failed to approve the closing of the meeting by a two-thirds vote of the members of the public body;

(13) a statement that the topics discussed at the meeting were not included in the list of exempt topics set forth in Utah Code section 52-4-205;

(14) a statement, if applicable, that the public body failed to give adequate notice of the meeting;

(15) a statement, if applicable, that the public body failed to keep adequate minutes of the meeting;

(16) a statement of the relief sought from the court (e.g., an order declaring that action taken at the meeting is void; an order to compel compliance with, or to enjoin violations of, the Open Meetings Act; or a declaratory judgment on the applicability of the Open Meetings Act to the discussions or decisions of the public body at the meeting);

(17) a statement of the plaintiff’s efforts to obtain access to the meetings; and

(18) a request for reasonable attorneys’ fees and court costs and such other just and equitable relief as the court deems appropriate.

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6. Time limit for filing suit

Suits to void final action. A suit to void a final agency action taken at a closed meeting “shall be commenced within 90 days after the date of the action,” unless the final agency action concerns “issuance of bonds, notes, or other evidences of indebtedness,” in which case the suit “shall be commenced within 30 days after the date of the action.” Utah Code § 52-4-302(2), (3). A suit to void final action that is brought after these statutory periods have expired will be barred.

Other actions. Because the 90- and 30-day limitations periods expressly govern suits to void final actions taken in closed sessions, these time periods presumably do not apply to other enforcement actions such as suits brought challenging the legality of a discussion held in closed session.

Exhaustion of remedies. It appears that plaintiffs need not exhaust administrative remedies before filing an action in district court. Cf. id. § 63G-4-401(2) (requiring exhaustion of all administrative remedies in most cases).

Under the Utah Rules of Civil Procedure, a defendant has 21 days to answer a complaint. Utah R. Civ. P. 12(a).

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7. What court?

Utah Code sections 52-4-303(3) states that suits to challenge violations of the Open Meetings Act or to seek an injunction of a violation of or a declaratory judgment about the applicability of the Act shall be brought in “a court of competent jurisdiction.” Generally, this refers to a district court in the county in which the alleged violation occurred.

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8. Judicial remedies available

A court may (a) compel compliance with the Open Meetings Act; (b) enjoin an agency’s violation of the Act; (c) determine the Act’s applicability to a public body’s discussions or decisions; or (d) order the public disclosure of a tape recording or minutes containing information about a meeting, or a portion thereof, that was closed illegally. Utah Code §§ 52-4-303(3), -304(2)(b).

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9. Availability of court costs and attorney's fees

The Open Meetings Act allows a court to “award reasonable attorney fees and court costs to a successful plaintiff.” Utah Code § 52-4-303(4). The award of fees and costs is discretionary, not mandatory.

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10. Fines

The Open Meetings Act does not establish any fines or penalties for violating the chapter.

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11. Other penalties

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D. Appealing initial court decisions

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1. Appeal routes

The Utah Supreme Court has jurisdiction to review all “orders, judgments, and decrees of any court of record over which the [Utah] Court of Appeals does not have original appellate jurisdiction.” Utah Code § 78A-3-102(3)(j). Although the Utah Court of Appeals has jurisdiction to review the final orders and decrees resulting from formal adjudicative proceedings of state agencies or a special adjudicative proceeding; or appeals from the district court review of informal adjudicative proceedings of the agencies,” except in the case of a few designated agencies, it would appear that a challenge under the Open Meetings Act is not a “final order” or “decree” of a state agency. See id. § 78A-4-103(2)(a). It seems, therefore, that appellate jurisdiction rests initially with the Utah Supreme Court rather than with the Utah Court of Appeals. However, the Utah Supreme Court may transfer to the Court of Appeals most matters over which the Utah Supreme Court has original appellate jurisdiction, including challenges under the Open Meetings Act. See id. § 78A-4-103(2)(j); see also generally, e.g., Poll v. South Weber City, No. 20040888-CA, 2005 WL 1177231 (Utah Ct. App. May 19, 2005).

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2. Time limits for filing appeals

An appeal must be filed with the appellate court within 30 days after entry of the district court’s judgment or order. See Utah R. App. P. 4(a).

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3. Contact of interested amici

If you are filing an appeal with an appellate court, you should contact other interested groups who may want to file amicus briefs or assist with the legal research needed to support your arguments to the court. In Utah, the following groups have been actively involved in open meetings issues: (a) the Utah Headliners Chapter of the Society of Professional Journalists and local media representatives; (b) the Reporters Committee for Freedom of the Press; (c) the American Civil Liberties Union; and (d) public interest groups such as Utah Common Cause, Utah Issues, Utah Legal Services, and Utah League of Women Voters.

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V. Asserting a right to comment

There is no provision in Utah law that provides an affirmative right to comment.

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A. Is there a right to participate in public meetings?

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B. Must a commenter give notice of intentions to comment?

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C. Can a public body limit comment?

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D. How can a participant assert rights to comment?

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E. Are there sanctions for unapproved comment?

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Appendix

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