DAR File No. 28462

Administrative Services, Records Committee

R35-1

State Records Committee Appeal Hearing Procedures

NOTICE OF PROPOSED RULE

DAR File No.: 28462
Filed: 01/17/2006, 01:59
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

During a recent hearing, the Committee saw the need to expand and clarify this rule.

Summary of the rule or change:

Under Subsection R35-1-1(1), the number three is spelled out rather than in numerical form. Section R35-1-2 provides an option for the governmental entity to bring a representative sample of the records involved in the appeal and clarifies some of the language of the rule. Section R35-1-2 also adds a rule about the procedure and time frame for postponing or withdrawing an appeal before the State Records Committee.

State statutory or constitutional authorization for this rule:

Subsection 63-2-502(2)(a)

Anticipated cost or savings to:

the state budget:

There may be a cost savings if the petitioner does not comply with the rule for postponement or withdrawal and the Committee orders the petitioner to pay the government entity's reasonable costs and expenses.

local governments:

There may be a cost savings if the petitioner does not comply with the rule for postponement or withdrawal and the Committee orders the petitioner to pay the government entity's reasonable costs and expenses.

other persons:

There may be a cost to the petitioner if he does not comply with the rule for postponement or withdrawal and is ordered to pay for the government entity's reasonable costs and expenses.

Compliance costs for affected persons:

If the petitioner does not comply with the rule for postponement or withdrawal there may be a cost for paying the government entity's reasonable costs and expenses.

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

There may be a cost to businesses if they are the petitioner and they do not comply with the rule for postponement or withdrawal. D'Arcy Dixon Pignanelli, 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 801-531-3862, by FAX at 801-531-3867, 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:

03/03/2006

This rule may become effective on:

03/04/2006

Authorized by:

Patricia Smith-Mansfield, Director

RULE TEXT

R35. Administrative Services, Records Committee.

R35-1. State Records Committee Appeal Hearing Procedures.

R35-1-1. Scheduling Committee Meetings.

(1) The Executive Secretary shall respond in writing to the notice of appeal within [3]three business days.

(2) Two weeks prior to the Committee meeting or appeal hearing the Executive Secretary shall send a notice of the meeting to at least one newspaper of general circulation within the geographic jurisdiction.

(3) One week prior to the Committee meeting or appeal hearing the Executive Secretary shall post a notice of the meeting indicating the agenda, date, time and place of the meeting at the building where the meeting is to be held and at the Utah State Archives.

R35-1-2. Procedures for Appeal Hearings.

(1) The meeting shall be called to order by the Committee Chair.

(2) Opening statements will be presented by the petitioner and the governmental entity. Each party shall be allowed five minutes to present their opening statements before the Committee.

(3) Testimony shall be presented by the petitioner and the governmental entity. Each party shall be allowed thirty minutes to present testimony and evidence and to call witnesses.

(4) Witnesses providing testimony shall be sworn in by the Committee Chair.

(5) Questioning of [the evidence presented and ]the witnesses and parties by Committee members [shall be]is permitted.

(6) The government entity must bring the disputed records to the hearing to allow [T]the Committee [may]to view [documents]records in camera if it deems an in camera inspection necessary. If the records withheld are voluminous or the government entity contends they have not been identified with reasonable specificity, the government entity shall notify the Committee and the adverse party at least two days before the hearing and obtain approval from the Committee Chair to bring a representative sample of the potentially responsive records to the hearing, if it is possible to do so.

(7) Third party presentations shall be permitted. At the conclusion of the testimony presented, the Committee Chair shall ask for statements from any third party. Third party presentations shall be limited to ten minutes.

(8) Closing arguments may be presented by the petitioner and the governmental entity. Each party shall be allowed five minutes to present a closing argument and make rebuttal statements.

(9) [Committee deliberations.

(a) Following deliberations,]After presentation of the evidence, the Committee shall commence deliberations. A Committee Member shall make a motion to grant [in whole or part ]or to deny the petitioner's request in whole or in part.[shall be made by a member.] Following discussion of the motion, the Chair shall call for the question. The motion shall serve as the basis for the Committee Decision and Order. The Committee shall vote and make public the decision of the Committee during the hearing.

(10) [Adjournment.

(a) ]The Committee may adjourn, reschedule, continue, or reopen a hearing on the motion of a member.

(11) [Ex Parte Communication between the Parties and the Committee Members.

(a) ]Except as expressly authorized by law, there shall be no communication between the parties and the members of the Committee concerning the subject matter of the appeal before the hearing or prior to the issuance of a final Decision And Order. Any other oral or written communication from the parties to the members of the Committee, or from the members of the Committee to the parties, shall be directed to the Executive Secretary for transmittal.

(12) [Electronic participation at meetings. ]The following provisions govern any meeting at which one or more members of the Committee or a party appears telephonically or electronically pursuant to Utah Code Section 52-4-7.8.

(a) The anchor location is the physical location from which the electronic meeting originates or from which the participants are connected. The anchor location, unless otherwise designated in the notice, shall be at the offices of the Division of State Archives, Salt Lake City, Utah.

(b) If one or more members of the Committee or a party may participate electronically or telephonically, public notices of the meeting shall so indicate. In addition, the notice shall specify the anchor location where the members of the Committee not participating electronically or telephonically will be meeting and where interested persons and the public may attend and monitor the open portions of the meeting.

(c) When notice is given of the possibility of a member of the Committee appearing electronically or telephonically, any member of the Committee may do so and shall be counted as present for purposes of a quorum and may fully participate and vote on any matter coming before the Committee. At the commencement of the meeting, or at such time as any member of the Committee initially appears electronically or telephonically, the Chair shall identify for the record all those who are appearing telephonically or electronically. Votes by members of the Committee who are not at the physical location of the meeting shall be confirmed by the Chair.

(13) If the petitioner wishes to postpone the hearing or withdraw the appeal, the petitioner shall notify the Committee and the government entity in writing no later than two days prior to the scheduled hearing date. Failure to comply with this provision may result in a Committee order requiring that the petitioner pay the government entity's reasonable costs and expenses. The Committee will ordinarily deny a government entity's request to postpone the hearing, unless the government entity has obtained the petitioner's prior consent to reschedule the hearing date.

R35-1-3. Issuing the Committee Decision and Order.

(1) The Decision and Order shall be signed by the Committee Chair and distributed by the Executive Secretary within three business days after the hearing. Copies of the Decision and Order will be distributed to the petitioner, the governmental entity and all other interested parties. The original order shall be maintained by the Executive Secretary. A copy of the order shall be made available for public access at the Utah State Archives website.

R35-1-4. Committee Minutes.

(1) All meetings of the Committee shall be recorded. Access to the audio recordings shall be provided by the Executive Secretary at the Utah State Archives, Research Center.

(2) Written minutes of the meetings and appeal hearings shall be maintained by the Executive Secretary. A copy of the approved minutes shall be made available for public access at the Utah State Archives.

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

Date of Enactment or Last Substantive Amendment: [July 14, 2005]2006

Notice of Continuation: July 2, 2004

Authorizing, and Implemented or Interpreted Law: 63-2-502(2)(a)

ADDITIONAL INFORMATION

PLEASE NOTE:

• Text to be deleted is struck through and surrounded by brackets (e.g., [example]). Text to be added is underlined (e.g., example). Some browsers may not depict some or any of these attributes on the screen or when the document is printed.
• Please see the DISCLAIMER regarding information available from state web pages.

For questions regarding the content or application of this rule, please contact Janell Tuttle at the above address, by phone at 801-531-3862, by FAX at 801-531-3867, 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.