63G-2-305 - Protected records.
63G-2-305. Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secrethas provided the governmental entity with the information specified in Section 63G-2-309;
(2) commercial information or nonindividual financial information obtained from aperson if:
(a) disclosure of the information could reasonably be expected to result in unfaircompetitive injury to the person submitting the information or would impair the ability of thegovernmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access thanthe public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with theinformation specified in Section 63G-2-309;
(3) commercial or financial information acquired or prepared by a governmental entity tothe extent that disclosure would lead to financial speculations in currencies, securities, orcommodities that will interfere with a planned transaction by the governmental entity or causesubstantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer acompetitive advantage upon a potential or actual competitor of, a commercial project entity asdefined in Subsection 11-13-103(4);
(5) test questions and answers to be used in future license, certification, registration,employment, or academic examinations;
(6) records the disclosure of which would impair governmental procurement proceedingsor give an unfair advantage to any person proposing to enter into a contract or agreement with agovernmental entity, except, subject to Subsections (1) and (2), that this Subsection (6) does notrestrict the right of a person to have access to, once the contract or grant has been awarded, a bid,proposal, or application submitted to or by a governmental entity in response to:
(a) a request for bids;
(b) a request for proposals;
(c) a grant; or
(d) other similar document;
(7) records that would identify real property or the appraisal or estimated value of real orpersonal property, including intellectual property, under consideration for public acquisitionbefore any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmentalentity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under aduty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the describedproperty have already learned of the governmental entity's plans to acquire the property;
(d) in the case of records that would identify the appraisal or estimated value of property,the potential sellers have already learned of the governmental entity's estimated value of theproperty; or
(e) the property under consideration for public acquisition is a single family residenceand the governmental entity seeking to acquire the property has initiated negotiations to acquire
the property as required under Section 78B-6-505;
(8) records prepared in contemplation of sale, exchange, lease, rental, or othercompensated transaction of real or personal property including intellectual property, which, ifdisclosed prior to completion of the transaction, would reveal the appraisal or estimated value ofthe subject property, unless:
(a) the public interest in access outweighs the interests in restricting access, including thegovernmental entity's interest in maximizing the financial benefit of the transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of thevalue of the subject property have already been disclosed to persons not employed by or under aduty of confidentiality to the entity;
(9) records created or maintained for civil, criminal, or administrative enforcementpurposes or audit purposes, or for discipline, licensing, certification, or registration purposes, ifrelease of the records:
(a) reasonably could be expected to interfere with investigations undertaken forenforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcementproceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartialhearing;
(d) reasonably could be expected to disclose the identity of a source who is not generallyknown outside of government and, in the case of a record compiled in the course of aninvestigation, disclose information furnished by a source not generally known outside ofgovernment if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques,procedures, policies, or orders not generally known outside of government if disclosure wouldinterfere with enforcement or audit efforts;
(10) records the disclosure of which would jeopardize the life or safety of an individual;
(11) records the disclosure of which would jeopardize the security of governmentalproperty, governmental programs, or governmental recordkeeping systems from damage, theft, orother appropriation or use contrary to law or public policy;
(12) records that, if disclosed, would jeopardize the security or safety of a correctionalfacility, or records relating to incarceration, treatment, probation, or parole, that would interferewith the control and supervision of an offender's incarceration, treatment, probation, or parole;
(13) records that, if disclosed, would reveal recommendations made to the Board ofPardons and Parole by an employee of or contractor for the Department of Corrections, the Boardof Pardons and Parole, or the Department of Human Services that are based on the employee's orcontractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
(14) records and audit workpapers that identify audit, collection, and operationalprocedures and methods used by the State Tax Commission, if disclosure would interfere withaudits or collections;
(15) records of a governmental audit agency relating to an ongoing or planned audit untilthe final audit is released;
(16) records prepared by or on behalf of a governmental entity solely in anticipation oflitigation that are not available under the rules of discovery;
(17) records disclosing an attorney's work product, including the mental impressions or
legal theories of an attorney or other representative of a governmental entity concerninglitigation;
(18) records of communications between a governmental entity and an attorneyrepresenting, retained, or employed by the governmental entity if the communications would beprivileged as provided in Section 78B-1-137;
(19) (a) (i) personal files of a state legislator, including personal correspondence to orfrom a member of the Legislature; and
(ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of legislativeaction or policy may not be classified as protected under this section; and
(b) (i) an internal communication that is part of the deliberative process in connectionwith the preparation of legislation between:
(A) members of a legislative body;
(B) a member of a legislative body and a member of the legislative body's staff; or
(C) members of a legislative body's staff; and
(ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice oflegislative action or policy may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research andGeneral Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislationor contemplated course of action before the legislator has elected to support the legislation orcourse of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to theOffice of Legislative Research and General Counsel is a public document unless a legislator asksthat the records requesting the legislation be maintained as protected records until such time asthe legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and GeneralCounsel or the Office of the Legislative Fiscal Analyst and research findings prepared inresponse to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity's strategy about collective bargaining orpending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences thatmay be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the UninsuredEmployers' Fund, or similar divisions in other governmental entities;
(25) records, other than personnel evaluations, that contain a personal recommendationconcerning an individual if disclosure would constitute a clearly unwarranted invasion ofpersonal privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or biologicalresources that if known would jeopardize the security of those resources or of valuable historic,scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would conflictwith the fiduciary obligations of the agency;
(28) records of an institution within the state system of higher education defined inSection 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,retention decisions, and promotions, which could be properly discussed in a meeting closed inaccordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of the
final decisions about tenure, appointments, retention, promotions, or those students admitted,may not be classified as protected under this section;
(29) records of the governor's office, including budget recommendations, legislativeproposals, and policy statements, that if disclosed would reveal the governor's contemplatedpolicies or contemplated courses of action before the governor has implemented or rejected thosepolicies or courses of action or made them public;
(30) 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 finalrecommendations in these areas;
(31) records provided by the United States or by a government entity outside the statethat are given to the governmental entity with a requirement that they be managed as protectedrecords if the providing entity certifies that the record would not be subject to public disclosure ifretained by it;
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public bodyexcept as provided in Section 52-4-206;
(33) records that would reveal the contents of settlement negotiations but not includingfinal settlements or empirical data to the extent that they are not otherwise exempt fromdisclosure;
(34) memoranda prepared by staff and used in the decision-making process by anadministrative law judge, a member of the Board of Pardons and Parole, or a member of anyother body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered byor requested from a governmental entity for the purpose of encouraging a person to expand orlocate a business in Utah, but only if disclosure would result in actual economic harm to theperson or place the governmental entity at a competitive disadvantage, but this section may notbe used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintainingthe governmental entity's proprietary protection of intellectual property rights including patents,copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including aninstitution within the state system of higher education defined in Section 53B-1-102, and otherinformation concerning the donation that could reasonably be expected to reveal the identity ofthe donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not beclassified protected by the governmental entity under this Subsection (37); and
(c) except for an institution within the state system of higher education defined inSection 53B-1-102, the governmental unit to which the donation is made is primarily engaged ineducational, charitable, or artistic endeavors, and has no regulatory or legislative authority overthe donor, a member of the donor's immediate family, or any entity owned or controlled by thedonor or the donor's immediate family;
(38) accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and73-18-13;
(39) a notification of workers' compensation insurance coverage described in Section34A-2-205;
(40) (a) the following records of an institution within the state system of higher educationdefined in Section 53B-1-102, which have been developed, discovered, disclosed to, or receivedby or on behalf of faculty, staff, employees, or students of the institution:
(i) unpublished lecture notes;
(ii) unpublished notes, data, and information:
(A) relating to research; and
(B) of:
(I) the institution within the state system of higher education defined in Section53B-1-102; or
(II) a sponsor of sponsored research;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals;
(b) Subsection (40)(a) may not be construed to prohibit disclosure of public informationrequired pursuant to Subsection 53B-16-302(2)(a) or (b); and
(c) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor Generalthat would reveal the name of a particular legislator who requests a legislative audit prior to thedate that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to theOffice of the Legislative Auditor General is a public document unless the legislator asks that therecords in the custody or control of the Office of Legislative Auditor General that would revealthe name of a particular legislator who requests a legislative audit be maintained as protectedrecords until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map orother document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information:
(a) contained in the statewide database of the Division of Aging and Adult Servicescreated by Section 62A-3-311.1; or
(b) received or maintained in relation to the Identity Theft Reporting Information System(IRIS) established under Section 67-5-22;
(44) information contained in the Management Information System and LicensingInformation System described in Title 62A, Chapter 4a, Child and Family Services;
(45) information regarding National Guard operations or activities in support of theNational Guard's federal mission;
(46) records provided by any pawn or secondhand business to a law enforcement agencyor to the central database in compliance with Title 13, Chapter 32a, Pawnshop and SecondhandMerchandise Transaction Information Act;
(47) information regarding food security, risk, and vulnerability assessments performedby the Department of Agriculture and Food;
(48) except to the extent that the record is exempt from this chapter pursuant to Section63G-2-106, records related to an emergency plan or program prepared or maintained by the
Division of Homeland Security the disclosure of which would jeopardize:
(a) the safety of the general public; or
(b) the security of:
(i) governmental property;
(ii) governmental programs; or
(iii) the property of a private person who provides the Division of Homeland Securityinformation;
(49) records of the Department of Agriculture and Food relating to the National AnimalIdentification System or any other program that provides for the identification, tracing, or controlof livestock diseases, including any program established under Title 4, Chapter 24, UtahLivestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and Quarantine;
(50) as provided in Section 26-39-501:
(a) information or records held by the Department of Health related to a complaintregarding a child care program or residential child care which the department is unable tosubstantiate; and
(b) information or records related to a complaint received by the Department of Healthfrom an anonymous complainant regarding a child care program or residential child care;
(51) unless otherwise classified as public under Section 63G-2-301 and except asprovided under Section 41-1a-116, an individual's home address, home telephone number, orpersonal 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 bekept 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;
(52) the name, home address, work addresses, and telephone numbers of an individualthat 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, as defined in Section53B-1-102; and
(b) conducted using animals;
(53) an initial proposal under Title 63M, Chapter 1, Part 26, Government ProcurementPrivate Proposal Program, to the extent not made public by rules made under that chapter;
(54) information collected and a report prepared by the Judicial Performance EvaluationCommission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter 12, JudicialPerformance Evaluation Commission Act, requires disclosure of, or makes public, theinformation or report;
(55) (a) records of the Utah Educational Savings Plan created under Section 53B-8a-103if the disclosure of the records would conflict with its fiduciary obligations;
(b) proposals submitted to the Utah Educational Savings Plan; and
(c) contracts entered into by the Utah Educational Savings Plan and the related payments;
(56) records contained in the Management Information System created in Section62A-4a-1003;
(57) records provided or received by the Public Lands Policy Coordinating Office infurtherance of any contract or other agreement made in accordance with Section 63J-4-603;
(58) information requested by and provided to the Utah State 911 Committee underSection 53-10-602;
(59) recorded Children's Justice Center investigative interviews, both video and audio,the release of which are governed by Section 77-37-4; and
(60) in accordance with Section 73-10-33:
(a) a management plan for a water conveyance facility in the possession of the Divisionof Water Resources or the Board of Water Resources; or
(b) an outline of an emergency response plan in possession of the state or a county ormunicipality.
Amended by Chapter 6, 2010 General Session
Amended by Chapter 113, 2010 General Session
Amended by Chapter 247, 2010 General Session