DAR File No. 27625

Administrative Services, Records Committee

R35-2

Declining Appeal Hearings

NOTICE OF PROPOSED RULE

DAR File No.: 27625
Filed: 12/29/2004, 02:52
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

After conducting a five-year review, the State Records Committee determined that amendments were required.

Summary of the rule or change:

The Committee proposed the following amendments to the rule: 1) in Section R35-2-1, changed the wording to be more consistent with the title of the rule; 2) the definitions in Section R35-2-2 will be moved to the newly created Rule R35-1a; 3) Section R35-2-3 will be renumbered to Section R35-2-2; and 4) the new Section R35-2-2 will include the procedures for dealing with the claim that a record does not exist and clarifies what must be submitted for an appeal before the Committee. (DAR NOTE: The proposed new rule of R35-1a is under DAR No. 27621 in this issue.)

State statutory or constitutional authorization for this rule:

Subsection 63-2-403(4)

Anticipated cost or savings to:

the state budget:

There will be a cost savings of $87 in staff time per appeal that involves a record which the governmental entity claims does not exist. There will also be a savings in the time the governmental entity would have spent in preparation and attendance of a hearing.

local governments:

There will be a savings in the time the local governmental entity would have spent in preparation and attendance of a hearing before the State Records Committee.

other persons:

There is a possible cost of attorney fees if the appealant decides to pursue the records issue in district court.

Compliance costs for affected persons:

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

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

This rule change contains amendments to save time and money on a government level, but no fiscal impact on businesses is foreseen. Camille Anthony, Executive Director

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

Direct questions regarding this rule to:

Janell Tuttle at the above address, by phone at 801-538-3052, by FAX at 801-538-3354, or by Internet E-mail at jtuttle@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2005

This rule may become effective on:

02/15/2005

Authorized by:

Patricia Smith-Mansfield, Director

RULE TEXT

R35. Administrative Services, Records Committee.

R35-2. Declining Appeal Hearings.

R35-2-1. Authority and Purpose.

In accordance with Section 63-2-502 and Subsection 63-2-403(4), Utah Code, this rule establishes the procedure [for denial of claims]declining to schedule hearings by the [e]Executive [s]Secretary of the Records Committee.

[R35-2-2. Definitions.

In addition to terms defined in Section 63-2-102, Utah Code, the following apply to this rule:

(a) "Executive Secretary" means the individual appointed annually as required in Subsection 63-2-502(3), Utah Code.

(b) "Committee" means the State Records Committee in accordance with Section 63-2-501, Utah Code.

(c) "Hearing" means a meeting by the committee to hear an appeal of a records decision by a government entity in accordance with Section 63-2-403, Utah Code.

]

R35-2-[3]2. Declining Requests for Hearings.

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

[(b) The Executive Secretary shall organize and disseminate all relevant information and documents to members of the entire committee, including a copy of the appeal and the previous order of the Committee holding the records series at issue appropriately classified.](b) The claim that a record does not exist does not constitute a denial unless the petitioner can provide sufficient evidence in his or her statement of facts, reasons, and legal authority in support of appeal that record did exist at one time. A determination that sufficient facts have or have not been alleged shall be made by the chair of the Committee. In the circumstance that sufficient facts have not been alleged, the Executive Secretary shall be instructed not to schedule an appeal hearing, and shall inform the petitioner appropriately.

(c) In order to file an appeal the petitioner must submit a copy of their initial records requests, as well as any denial of the records request. The Executive Secretary shall notify the petitioner that a hearing cannot be scheduled until the proper information is submitted.

[(c)](d) The [two members]chair of the Committee and one other member of the Committee must both agree with the Executive Secretary's recommendation to decline to schedule a hearing. Such a decision shall consider the potential for a public interest claim as may be put forward by the petitioner under the provisions of Subsection 63-2-402(11)(b), Utah Code. A copy of each decision to deny a hearing shall be signed and retained in the file.

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

(e) The Executive Secretary shall notify the members of the entire Committee each time an appeal hearing is denied. Such notices shall include a copy of the petitioner's appeal and the previous order of the Committee holding the records series at issue appropriately classified. Any Committee member may request that a discussion of the Executive Secretary's decision be placed on the agenda for the next regularly scheduled Committee meeting.]

(f) The Executive Secretary shall report on each of the hearings declined at each regularly scheduled meeting of the Committee in order to provide a public record of the actions taken.

(g) If a Committee member has requested a discussion to reconsider the decisions to decline a hearing, the Committee may, after discussion and by a majority vote, choose to reverse the decision of the Executive Secretary and hold a hearing. Any discussion of reconsideration shall be limited to those Committee members then present, and shall be based only on two questions: (1) whether the records being requested were covered by a previous order of the Committee, and/or (2) whether the petitioner has, or is likely to, put forth a public interest claim. Neither the petitioner nor the agency whose records are requested shall be heard at this time. If the Committee votes to hold a hearing, the Executive Secretary shall schedule it on the agenda of the next regularly scheduled Committee meeting.

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

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

[July 16, 1999]2005

Notice of Continuation July 2, 2004

63-2-403(4)

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Janell Tuttle at the above address, by phone at 801-538-3052, by FAX at 801-538-3354, or by Internet E-mail at jtuttle@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.