Chapter 2.75
GOVERNMENT RECORDS ACCESS AND MANAGEMENT

Sections:

2.75.010    General purpose.

2.75.020    City policy.

2.75.030    Compliance with state law.

2.75.040    Definitions.

2.75.050    Public right to records.

2.75.060    Public, private, controlled and protected records.

2.75.070    Privacy rights.

2.75.080    Designation, classification and retention.

2.75.090    Procedures for records request.

2.75.100    Fees.

2.75.110    Appeal process.

2.75.120    Reasonable accommodation.

2.75.130    Records amendments.

2.75.140    Penalties.

2.75.150    Records officer.

2.75.160    Records maintenance.

2.75.010 General purpose.

The city adopts this policy to establish guidelines for open government information recognizing the need to maintain and preserve accurate records, provide public access to public records and preserve the right of privacy of personal data collected or received by the city. [Code 2000 § 4-3-1].

2.75.020 City policy.

In adopting this policy, the city recognizes the enactment of Government Records Access and Management Act by the Utah State Legislature (Sections 63-2-101 et seq., Utah Code Annotated 1953) and the application of that Act to city records. The purpose of this chapter is to conform to Section 63-2-701 which provides that each political subdivision may adopt an ordinance or a policy relating to information practices including classification, designation, access, denials, segregation, appeals, management, retention and amendment of records. The intent of this policy is to provide modifications to the general provisions of state law, where allowed, to meet the public needs, operation, management capabilities and resources of the city. [Code 2000 § 4-3-2].

2.75.030 Compliance with state law.

In adopting this policy, the city recognizes the following sections of the Government Records Access and Management Act apply to the city and adopts by reference such provisions and any amendments thereto as part of this chapter. Any inconsistency or conflict between this chapter and the following referenced statutes shall be governed by the state statute.

Part 1 General Provisions

63-2-101    Short title

63-2-102    Legislative intent

63-2-103    Definitions

63-2-104    Administrative Procedures Act not applicable

63-2-105    Confidentiality agreements

Part 2 Access to Records

63-2-201    Right to inspect records and receive copies of

63-2-202    Access to private, controlled and protected documents

63-2-205    Denials

63-2-206    Sharing records

Part 3 Classification

63-2-301    Records that must be disclosed

63-2-302    Private records

63-2-303    Controlled records

63-2-304    Protected records

63-2-305    Procedure to determine classification

63-2-306    Duty to evaluate records and make designations and classifications

63-2-307    Segregation of records

63-2-308    Business confidentiality claims

Part 4 [EXCLUDED]

Part 5 [EXCLUDED]

Part 6 Accuracy of Records

63-2-601    Rights of individuals on whom data is maintained

63-2-602    Disclosure to subject of records – Context of use

Part 7    Applicability to Political Subdivisions: The Judiciary and the Legislature

63-2-701    Political subdivisions to enact ordinances in compliance with chapter

Part 8 Remedies

63-2-801    Criminal penalties

63-2-802    Injunction – Attorney’s fees

63-2-803    No liability for certain decisions of a governmental entity

63-2-804    Disciplinary action

Part 9 Archives and Records Service

63-2-903    Duties of a Governmental Entity

63-2-905    Records declared property of the State

63-2-907    Right to replevin

Part 10 Other

63-30-10.6    Attorney fees for records request

[Code 2000 § 4-3-3].

2.75.040 Definitions.

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

“Act” shall refer to the Government Records Access and Management Act, Sections 63-2-101, et seq., Utah Code Annotated 1953, as amended.

“Actual cost” shall include, but not be limited to, time and overtime of city staff in preparation of information request.

“Computer software program” means the series of instructions or statements that permit the functioning of a computer system in a manner designed to provide storage, retrieval, and manipulation of data from the computer system, and any associated documentation, manuals, or other source materials explaining how to operate the software program. “Software” does not include the original data or record which is manipulated by the software.

“Controlled records” shall be those defined as controlled under the provisions of the Act.

“Data” shall refer to individual entries (for example, birth date, address, etc.) in records.

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

“Nonpublic records” shall refer to those records defined as private, controlled, or protected under the provisions of the Act.

“Private records” shall refer to those records classified as private under the provisions of the Act.

“Protected records” shall refer to those records classified as protected under the provisions of the Act.

“Public records” shall refer to those records which have not been classified as nonpublic in accordance with the provisions of the Act.

“Record” means all books, letters, documents, papers, maps, plans, photographs, films, cards, tapes, recordings, or other documentary materials, and electronic data regardless of physical form or characteristics, prepared, owned, used, received, or retained by the city where all the information in the original is reproducible by some mechanical, electronic, photographic or other means. “Record” does not mean:

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

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

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

4. Junk mail or commercial publications received by the city or by an officer or employee of the city;

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

6. Proprietary computer software programs as defined in subsection (3) of this definition that are developed or purchased by or for the city for its own use. [Code 2000 § 4-3-4].

2.75.050 Public right to records.

A. Members of the public shall have the right to see, review, examine and take copies, in any format maintained by the city, of all city governmental records defined as “public” under the provisions of this chapter, upon the payment of the lawful fee and pursuant to the provisions of this chapter and the Act.

B. The city has no obligation to create a record or record series in response to a request from a member of the public, if the record requested is not otherwise regularly maintained or kept.

C. When a record is temporarily held by a custodial city agency, pursuant to that custodial agency’s statutory functions, such as records storage, investigation, litigation or audit, the record shall not be considered a record of the custodial agency for the purposes of this chapter. The record shall be considered a record of the city and any requests for access to such records shall be directed to the city, rather than the custodial agency, pursuant to these procedures.

D. Original documents shall not leave the custody of the city. Document inspection will occur in the conference area of the administrative office building or such other area designated by the records officer. Private citizens will not be allowed in the vault where original documents are maintained. The appropriate documents and/or files given to the individual will be accounted for subsequent to the individual’s inspection and prior to his/her departure from the city offices. [Code 2000 § 4-3-5].

2.75.060 Public, private, controlled and protected records.

A. Public records shall be all those city records that are not private, controlled, or protected and that are not exempt from disclosure as provided in Subsection 63-2-201(3)(b) of the Act. Public records shall be made available to any person. All city records are considered public unless they are (1) expressly designated, classified, or defined otherwise by the city in accordance with policies and procedures established by this chapter, (2) are so designated, classified or defined by the Act, or (3) are made nonpublic by other applicable law.

B. Private records shall be those city records classified as “private,” as defined in the Act, Section 63-2-302, Utah Code Annotated 1953, as amended, and as designated, classified, or defined in procedures established pursuant to this chapter. Private records shall be made available to the following persons: the subject of the record, the parent or legal guardian of a minor who is the subject of the record, the legal guardian of an incapacitated individual who is the subject of the record, any person who has a power of attorney or a notarized release from the subject of the record or his legal representative, or any person possessed of and serving a legislative subpoena or a court order issued by a court of competent jurisdiction.

C. Controlled records shall be those city records classified as “controlled,” as defined in the Act, Section 63-2-303, Utah Code Annotated 1953, as amended, and as designated, classified, or defined in procedures established in this chapter. Controlled records shall be made available to a physician, psychologist, or licensed social worker who submits a notarized release from the subject of the record or any person presenting a legislative subpoena or a court order issued by a court of competent jurisdiction.

D. Protected records shall be those city records classified as “protected,” as defined in the Act, Section 63-2-304, Utah Code Annotated 1953, as amended, and as designated, classified or defined in procedures established in this chapter. Protected records shall be made available to the person who submitted the information in the record, to a person who has power of attorney or notarized release from any persons or governmental entities whose interests are protected by the classification of the record, or to any person presenting a legislative subpoena or a court order regarding the release of the information and issued by a court of competent jurisdiction. [Code 2000 § 4-3-6].

2.75.070 Privacy rights.

A. The city recognizes and upholds the personal right of privacy retained by persons who may be the subject of governmental records.

B. The city may, as determined appropriate by the city manager, notify the subject of a record that a request for access to the subject’s record has been made.

C. The city may require that the requester of records provide a written release, notarized within 30 days before the request, from the subject of the records in question before access to such records is provided. [Code 2000 § 4-3-7].

2.75.080 Designation, classification and retention.

All city records and record series, of any format, shall be designated, classified and scheduled for retention according to the provisions of the Act and this chapter. Any records or record series generated in the future shall also be so designated, classified and scheduled for retention. Records designation, classification and scheduling for retention shall be conducted under the supervision of the city manager. [Code 2000 § 4-3-8].

2.75.090 Procedures for records request.

A. Under circumstances in which the city is not able to respond immediately to a records request, the requester shall fill out and present the city a written request on forms provided by the city. The date and time of the request shall be noted on the written request form and all time forms provided under this chapter shall commence from that time and date. Requesters of nonpublic information shall adequately identify themselves and their status prior to receiving access to nonpublic records.

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

C.    1. In most circumstances and excepting those eventualities set out below, the city shall respond to a written request for a public record within 10 business days after that request.

2. Extraordinary circumstances shall justify the city’s failure to respond to a written request for a public record within 10 business days and shall extend the time for response thereto to that time reasonably necessary to respond to the request, as determined by the city manager. Extraordinary circumstances shall include, but not be limited to, the following:

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

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

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

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

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

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

3. When a record request cannot be responded to within 10 days, the city records officer shall give the requester an estimate of the time required to respond to the request.

D. The failure or inability of the city to respond to a request for a record within the time frames set out herein, or the city’s denial of such a request, shall give the requester the right to appeal as provided in WPCC 2.75.110. [Code 2000 § 4-3-9].

2.75.100 Fees.

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

Review a record to determine whether it is subject to disclosure

No charge

Inspection of record by requesting person

No charge

Copy fees

$0.25 per page

Computer disk

Actual cost (including time and overtime of city staff in preparation of information request)

Other forms

Actual cost

Miscellaneous fees

Actual cost

[Code 2000 § 4-3-10].

2.75.110 Appeal process.

A. Any person aggrieved by the city’s denial or claim of extraordinary circumstances may appeal the determination within 30 days after notice of the city’s action to the city manager by filing a written notice of appeal. The notice of appeal shall contain the petitioner’s name, address, phone number, relief sought and, if petitioner desires, a short statement of the facts, reasons and legal authority for the appeal.

B. If the appeal involves a record that is subject to business confidentiality or affects the privacy rights of an individual, the city manager shall send a notice of the requester’s appeal to the affected person.

C. The city manager shall make a determination of the appeal within 30 days after receipt of the appeal. During this 30-day period the city manager may schedule an informal hearing or request any additional information deemed necessary to make a determination. The city manager shall send written notice to all participants providing the reasons for the city manager’s determination.

D. In addition, if the city manager affirms the denial in whole or in part, the denial shall include a statement that the requester has a right to appeal the denial to the West Point city council within 30 days at the next scheduled meeting.

E. The person may file a written notice of appeal to the West Point city council to be heard at the next scheduled meeting of the council. If there is no meeting scheduled in the next 30 days the city council shall schedule a special meeting for the purpose of hearing the appeal. The final decision of the city council shall be by majority vote of a quorum of the council. The council shall prepare a written decision outlining its final determination and reasons for the final determination.

F. If the city council affirms the denial, in whole or in part, the person may petition for judicial review as provided in Section 63-2-404, Utah Code Annotated 1953. [Code 2000 § 4-3-11].

2.75.120 Reasonable accommodation.

Reasonable accommodations regarding access to governmental records shall be provided to persons with disabilities in accordance with the Americans with Disabilities Act upon request of the applicant. [Code 2000 § 4-3-12].

2.75.130 Records amendments.

Government records held by the city may be amended or corrected as needed. Requests for amendments, corrections, or other changes shall be made in writing to the city having custody of the records and setting forth, with specificity, the amendment or correction requested. When an amendment or correction of a government record is made, both the original record and the amended or corrected record shall be retained, unless provided otherwise by the Act or other state or federal law. [Code 2000 § 4-3-13].

2.75.140 Penalties.

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

B. In accordance with the Act, neither the city nor any of its officers or employees shall be liable for damages resulting from the release of a record where the requester presented evidence of authority to obtain the record, even if it may be subsequently determined that the requester had no such authority. [Code 2000 § 4-3-14].

2.75.150 Records officer.

The city recorder shall oversee and coordinate records access, management and archives activities and shall make annual reports of records services activities to the city manager who shall make an annual report of such activities to the mayor and city council. [Code 2000 § 4-3-15].

2.75.160 Records maintenance.

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

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

C. Custodians of any city records shall, at the expiration of their terms of office, appointment or employment, deliver custody and control of all records kept or received by them to their successors, supervisors, or to the city manager. [Code 2000 § 4-3-16].