Chapter 2.40
GOVERNMENT RECORDS ACCESS AND MANAGEMENT
Sections:
2.40.030 Compliance with state law.
2.40.050 Public access to records.
2.40.060 Public, private, controlled, protected records.
2.40.080 Designation, classification and retention.
2.40.090 Procedures for records request.
Prior legislation: Ord. 93-64.
2.40.010 Short title.
This chapter shall be known as the Naples City Government Records Access and Management Ordinance, and may be so cited and pleaded. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.020 Purpose.
In enacting this chapter, it is the purpose and intent of the city council to adopt an ordinance acknowledging and complying with the Government Records Access and Management Act as contained in Title 63G, Chapter 2, of the Utah Code Annotated 1953, as amended (hereinafter referred to as the Act), and specifically to conform with Section 63G-2-701, Utah Code Annotated 1953, which provides that the city may adopt an ordinance or a policy relating to information practices of the city and its agencies including classification, designation, scheduling, access, denials, segregation appeals, management, retention and amendment of records. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.030 Compliance with state law.
In enacting this chapter the city council hereby adopts and incorporates by reference the following provisions of the Act as part of this chapter as though fully set forth herein. Any inconsistency or conflict between this chapter and the following referenced statutes of the state of Utah shall be governed by the statute.
|
General Provisions |
|
|
63G-2-102 |
Legislative intent |
|
63G-2-103 |
Definitions |
|
63G-2-104 |
Administrative Procedures Act not applicable |
|
63G-2-105 |
Confidentiality agreements |
|
63G-2-106 |
Records of security measures |
|
63G-2-107 |
Disclosure of records subject to federal law |
|
63G-2-108 |
Certification of records officer |
|
|
|
|
Access to Records |
|
|
63G-2-201 |
Right to inspect records and receive copies of records |
|
63G-2-202 |
Access to private, controlled and protected documents |
|
63G-2-205 |
Denials |
|
63G-2-206 |
Sharing records |
|
63G-2-207 |
Subpoenas – Court ordered disclosure for discovery |
|
|
|
|
Time Limits |
|
|
Classification |
|
|
63G-2-301 |
Records that must be disclosed |
|
63G-2-302 |
Private records |
|
63G-2-303 |
Private information concerning certain government employees |
|
63G-2-304 |
Controlled records |
|
63G-2-305 |
Protected records |
|
63G-2-306 |
Procedure to determine classification |
|
63G-2-307 |
Duty to evaluate records and make designations and classifications |
|
63G-2-308 |
Segregation of records |
|
63G-2-309 |
Confidentiality claims |
|
63G-2-310 |
Records made public after 75 years |
|
|
|
|
Accuracy of Records |
|
|
63G-2-601 |
Rights of individuals on whom data is maintained |
|
63G-2-602 |
Disclosure to subject of records – Context of use |
|
63G-2-604 |
Retention and disposition of records |
|
|
|
|
Applicability to Political Subdivisions |
|
|
63G-2-701 |
Political subdivisions to enact ordinances in compliance with chapter |
|
|
|
|
Remedies |
|
|
63G-2-801 |
Criminal penalties |
|
63G-2-802 |
Injunction – Attorneys’ fees |
|
63G-2-803 |
No liability for certain decisions of a governmental entity |
|
63G-2-804 |
Disciplinary action |
[Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.040 Definitions.
The definitions set forth in Section 63G-2-103, Utah Code Annotated 1953, are adopted and incorporated herein. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.050 Public access to records.
(1) Right to Access. 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, the Act, and policies and procedures developed hereunder.
(2) Obligation to Create. 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.
(3) Duty of Custodial Agency. When a record is temporarily held by a custodial city agency, pursuant to that custodial agency’s statutory and ordinance 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 agency or agencies which usually keeps or maintains that record and any request for access to such records shall be directed to that agency or agencies, rather than the custodial agency, pursuant to procedures established by the city. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.060 Public, private, controlled, protected records.
(1) Public records shall be those records as defined in Section 63G-2-201, Utah Code Annotated 1953, and as classified and defined in procedures established pursuant to this chapter. Public records shall be made available to any person.
(2) Private records shall be those records classified as “private,” as defined in Section 63G-2-302, Utah Code Annotated 1953, and as classified and defined in procedures established pursuant to this chapter.
Upon request, and except as provided in Section 63G-2-202(11)(a), Utah Code Annotated 1953, a the city shall disclose a private record to:
(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) Any other individual who:
(i) Has a power of attorney from the subject of the record;
(ii) Submits a notarized release from the subject of the record or the individual’s legal representative dated no more than 90 days before the date the request is made; or
(iii) If the record is a medical record described in Section 63G-2-302(1)(b), Utah Code Annotated 1953, is a health care provider, as defined in Section 26-33a-102, Utah Code Annotated 1953, if releasing the record or information in the record is consistent with normal professional practice and medical ethics; or
(e) Any person to whom the record must be provided pursuant to:
(i) Court order as provided in Section 63G-2-202(7), Utah Code Annotated 1953; or
(ii) A legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena Powers, Utah Code Annotated 1953.
(3) Controlled records shall be those records classified as “controlled” as defined in Section 63G-2-304, Utah Code Annotated 1953, and as classified and defined in procedures established in this chapter. Upon request, a governmental entity shall disclose a controlled record to:
(a) A physician, psychologist, certified social worker, insurance provider or producer, or a government public health agency upon submission of:
(i) A release from the subject of the record that is dated no more than 90 days prior to the date the request is made; and
(ii) A signed acknowledgment of the terms of disclosure of controlled information as provided by Section 63G-2-304(2)(b), Utah Code Annotated 1953; and
(b) Any person to whom the record must be disclosed pursuant to:
(i) A court order as provided herein; or
(ii) A legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena Powers, Utah Code Annotated 1953.
(c) A person who receives a record from a governmental entity in accordance with this subsection may not disclose controlled information from that record to any person, including the subject of the record.
(d) More Than One Subject of Record. If there is more than one subject of a private or controlled record, the portion of the record that pertains to another subject shall be segregated from the portion that the requester is entitled to inspect.
(4) Protected records shall be those city records classified as “protected” as defined in Section 63G-2-305, Utah Code Annotated 1953, and as classified and defined in procedures established in this chapter. Upon request, and except as provided in Section 63G-2-305(10) or (11)(b), Utah Code Annotated 1953, a governmental entity shall disclose a protected record to:
(a) The person who submitted the record;
(b) Any other individual who:
(i) Has a power of attorney from all persons, governmental entities, or political subdivisions whose interests were sought to be protected by the protected classification; or
(ii) Submits a notarized release from all persons, governmental entities, or political subdivisions whose interests were sought to be protected by the protected classification or from their legal representatives dated no more than 90 days prior to the date the request is made;
(c) Any person to whom the record must be provided pursuant to:
(i) A court order as provided herein; or
(ii) A legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena Powers, Utah Code Annotated 1953; or
(d) The owner of a mobile home park, subject to the conditions of Section 41-1a-116(5), Utah Code Annotated 1953.
(5) Evidence of Identity Required. Before releasing a private, controlled, or protected record, the city shall obtain evidence of the requester’s identity.
(6) Court Order. Disclosure pursuant to a court order shall comply with Section 63G-2-202(7), Utah Code Annotated 1953.
(7) Private information concerning certain government employees shall have the meaning set forth in Section 63G-2-303, Utah Code Annotated 1953. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.070 Privacy rights.
The city recognizes and upholds the personal right of privacy retained by persons who may be the subject of governmental records. When required by law, the city shall notify the subject of a record that a request for access to the subject’s record has been made and require the requester of records to provide a written and notarized release of the same before access to such records is provided. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.080 Designation, classification and retention.
All city records and records series, of any format, shall be classified and scheduled for retention according to the provisions of the Act and this chapter. Any records generated in the future shall also be so classified and scheduled for retention. Records classification and scheduling for retention shall be conducted under the supervision of the city records officer, and the agency director of the agency in charge of the record in question. Assistance may be requested from the city attorney as needed. Classification and retention scheduling forms and guidelines shall be prepared and promulgated by the records officer. The city shall by resolution establish a retention schedule for all city records and records series. In the absence of a schedule, the State Archives Retention Schedule shall be used. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.090 Procedures for records request.
(1) Under circumstances in which the city does not immediately respond to a records request, the requester shall present to the city a written request on forms or format provided by the city or the records ombudsman. The date and time of the request shall be noted on the written request form and all time frames provided under this chapter shall commence from that time and date.
(2) 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.
(3) The city has limited staff and resources and part-time legal counsel; therefore, in most circumstances and excepting those eventualities set out below, the city shall respond to a written request for a public record within 15 business days after that request.
(4) Extraordinary circumstances shall justify the city’s failure to respond to a written request for a public record within 15 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 records officer. Extraordinary circumstances shall include but not be limited to the following:
(a) The city or 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 seasonal work loads in the processing of other work;
(d) The request involves an analysis of legal issues to determine the proper response to the request;
(e) The request involves extensive editing to separate public data in a record from that which is not public; or
(f) The request requires computer programming or other manipulation of data in order to provide the information.
(5) When a record request cannot be responded to within 15 days, the city shall give the requester an estimate of the time required to respond to the request.
(6) 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 or agency’s denial of such request, shall give the requester the right to appeal as provided herein in NCC 2.40.110.
(7) Any city record which has been requested in accordance with this chapter and the Act that is disposable by approved retention schedule may not be disposed of until the request is granted and fulfilled, or 60 days after all appeals are completed, pursuant to NCC 2.40.110.
(8) No city record, disposable by approved retention schedule, which is subject to pending litigation or audit shall be disposed of until the litigation or audit has been completed or resolved. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.100 Fees.
The city may charge a reasonable fee to cover the city’s costs of providing a record.
The fee shall be as stated in the city fee schedule.
(1) When the city compiles a record in a form other than that normally maintained by the city, the actual costs under this section may include the following:
(a) The cost of staff time for compiling, formatting, manipulating, packaging, summarizing, or tailoring the record either into an organization or media to meet the person’s request;
(b) The cost of staff time for search, retrieval, and other direct administrative costs for complying with a request; and
(c) In the case of fees for a record that is the result of computer output other than word processing, the actual incremental cost of providing the electronic services and products together with a reasonable portion of the costs associated with formatting or interfacing the information for particular users, and the administrative costs as set forth in subsections (1)(a) and (1)(b) of this section.
(2) An hourly charge under subsection (1) of this section may not exceed the salary of the lowest paid employee who, in the discretion of the custodian of records, has the necessary skill and training to perform the request.
(3) Notwithstanding subsections (1) and (2) of this section, no charge may be made for the first quarter hour of staff time.
(4) Fee Schedule. The fees may be set and amended by resolution of the city council. The initial fee, until changed by resolution, is:
(a) Black and white copies: $0.50 per page.
(b) Color copies are $1.00 per page.
(c) CD/DVD copies are $5.00 each plus the cost of duplication.
(d) Others to be determined on basis of time and expense.
(e) Police reports: minimum $5.00 plus other applicable fees in schedule.
(5) The city may fulfill a record request without charge when it determines that:
(a) Releasing the record primarily benefits the public rather than a person;
(b) The individual requesting the record is the subject of the record; or
(c) Requester’s legal rights are directly implicated by the information in the record, and the requester is impecunious.
(6) The city, except as permitted by Section 63G-2-203(2)(a)(ii), Utah Code Annotated 1953, shall not charge a fee for reviewing a record to determine whether it is subject to disclosure or for inspecting a record. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.110 Appeals.
(1) Any person aggrieved by the city’s classification of a record or by the city’s response to a record request or fee waiver may appeal the determination to the mayor or designee within 30 days after notice of the city’s action is mailed or delivered to the requester, by filing a written notice of appeal. The notice of appeal shall contain the petitioner’s name, address, phone number, relief sought and shall set forth in detail a statement of the facts, reasons and legal authority relied upon in making the appeal.
(2) If the appeal involves a record that is subject to business confidentiality or affects the privacy rights of an individual, the city recorder shall send a notice of the requester’s appeal to the affected person.
(3) The mayor or designee shall make a determination on the appeal within 30 days after receipt of the appeal. During this 30-day period, the mayor or designee may schedule an informal hearing or request any additional information deemed necessary to make a determination. The city recorder shall send written notice to all participants providing the mayor/designee determination on the appeal and the reasons therefor.
(4) If the mayor/designee affirms the denial in whole or in part, the denial shall include a statement that the requester has a right to appeal the denial to the city council within 30 days after date the decision is mailed or delivered to the requester.
(5) Any person aggrieved by the decision may file a written notice of appeal to the city council which appeal shall thereafter be scheduled by the city for hearing at a regular or special meeting of the council. The final decision of the council shall be by majority vote of a quorum of the council. The council shall prepare a written decision indicating the determination of the appeal and the reasons therefor. A copy of the written decision shall be sent to all parties to the appeal.
(6) If the city council affirms the denial, in whole or in part, the person may petition for judicial review in city court as provided in Section 63G-2-404, Utah Code Annotated 1953. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.120 Record amendments.
Government records held by the city may be amended or corrected as needed. An individual may contest the accuracy or completeness of any public, or private, or protected record concerning him or her by submitting a written request to the city to amend the record. However, this section does not affect the right of access to private or protected records. The request shall contain the requester’s name, mailing address and daytime telephone number and a detailed statement explaining why the city should amend the record. The city shall issue a decision either approving or denying the request to amend no later than 60 days after receipt of the request. The city shall inform the requester in writing of its decision. The requester may appeal the denial of the request to amend a record pursuant to the provisions contained herein regarding appeals. This section does not apply to records relating to title to real or personal property, medical records, judicial case files, or any other records that the city determines must be maintained in their original form to protect the public interest and to preserve the integrity of the record system. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.130 Penalties.
(1) Any city employee who knowingly refuses to permit access to records in accordance with the Act and this chapter, who knowingly permits access to nonpublic records, or who knowingly, without authorization or legal authority, disposes of, alters, or removes records or allows other persons to do so in violation of the provisions of the Act, this chapter, or other law or regulation, may be subject to criminal prosecution and disciplinary action, including termination.
(2) In accordance with the Act, neither the city nor any of its agencies 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. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.140 Records officer.
(1) There shall be appointed a city records officer to oversee and coordinate records access, management and archives activities. The records officer shall make annual reports of records services activities to the city council.
(2) A person may be designated by each agency of the city to assist with and to work under the direction of the city records officer in implementing the policies and procedures set forth in this chapter. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]
2.40.150 Records maintenance.
Records maintenance procedures shall be developed to ensure that due care is taken to maintain and preserve appropriate city records safely and accurately over the long term. The records officer shall be responsible for monitoring the application and use of technical processes in the creation, duplication, and disposal of city records. The records officer shall monitor compliance with required standards of quality, permanence, and admissibility pertaining to the creation, use, and maintenance of records.
(1) 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 and/or obsolete city records. This prohibition does not include the providing of copies of city records otherwise produced for release or distribution under this chapter.
(2) 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 records officer.
(3) All records which are in the possession of any city agency shall, upon termination of activities of such agency, be transferred to any successor agency; provided, that such transfer is consistent with the formal provisions of such termination. [Ord. 15-169 § 1, 2015; Ord. 14-163, 2014.]