HomeMy Public PortalAboutORD-CC-1993-18ORDINANCE NO- 93-18
AN ORDINANCE REPEALING ORDINANCE 92-09 AND CREATING AN
ORDIANNCE 93-18 OF MOAB CITY CORPORATION, A UTAH MUNICIPALITY,
ESTABLISHING A RECORDS, ACCESS AND MANAGEMENT PROGRAM.
SEC. 1. SHORT TITLE
The ordinance is known as the "Moab City Corporation
Government Records Access and Management Act."
SEC. 2. PURPOSE AND INTENT
1. In enacting this act, the city recognizes two fundamental constitutional rights:
a. the right of privacy in relation to personal data gathered by the city; and
b. the public's right of access to information concerning the conduct of the Public's
business.
2. It is the intent of the city to:
a. establish fair information practices to prevent abuse of personal information by the
city while protecting the public's right of easy and reasonable access to unrestricted
public records; and
b. provide guidelines of openness to .government information and privacy of personal
information consistent with nationwide standards.
c. Establish and maintain an active, continuing program for the economical and
efficient management of the city's records as provided in this ordinance.
SEC. 3. DEFINITIONS
As used in this ordinance:
1. "Audit" means:
a. a systematic examination of financial, management, program, and related records
for the purpose of determining the fair presentation of financial statements, adequacy of
internal controls, or compliance with laws and regulations; or
b. a systematic examination of program procedures and operations for the purpose of
determining their effectiveness, economy, efficiency, and compliance with statutes and
regulations.
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2. "Chronological logs" means the regular and customary summary records of law
enforcement agencies and other public safety agencies that show the time and general
nature of police, fire, and paramedic calls made to the agency and any arrests or jail
bookings made by the agency.
3. "Classification," "classify," and their derivative forms mean determining whether
a record series, record, or information within a record is public, private, controlled, or
protected, or exempt from disclosure under Utah code, Section 63-2-201(3)(b).
4. a. "Computer program" means a 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 and source material that explain how to operate the computer program.
h. "Computer program" does not mean:
(i)
the original data, including numbers, text, voice, graphics, and images;
(ii) analysis, compilation, and other manipulated forms of the original data
produced by use of the program; or
(iii) the mathematical or statistical formulas (excluding the underlying
mathematical algorithms contained in the program) that could be used if the
manipulated forms of the original data were to be produced manually.
5. "Controlled record" means a record containing data on individuals that is
controlled as provided by Section 11.
6. a. "Contractor" means:
(i) any person who contracts with the city to
provide goods or services directly to the city: or
(ii) any private , nonprofit organization that receives funds from the city.
b. "Contractor" does not mean a private provider.
7. "Gross compensation" means every form of remuneration payable for a given
period to an individual for services provided including salaries, commissions, vacation
pay, severance pay, bonuses, and any board, rent, housing, lodging, payments in kind,
and any similar benefit received from the individual's employer.
8. "Designation", in "designate", and their derivative forms mean indicating, based
on the city's familiarity with a record series or based on the city's review of a
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reasonable sample of a record series, the primary classification that a majority of
records in a record series would be given if classified and the classification that other
records typically present in the record series would he given if classified.
9. a. "Initial contact report" means an initial written or recorded report, however
titled, prepared by peace officers engaged in public patrol or response duties describing
official actions initially taken in response to either a public complaint about or the
discovery of an apparent violation of law, which report may describe:
(i) the date, time, location, and nature of the complaint, the incident, or
offense;
(ii) names of victims;
(iii) the nature or general scope of the agency's initial actions taken in response
to the incident;
(iv) the general nature of any injuries or estimate of damages sustained in the
incident;
(v) the name, address, and other identifying information about any person
arrested or charged in connection with the incident;
(vi) the identity of the public safety personnel (except undercover personnel) or
prosecuting attorney involved in responding to the initial incident.
b. Initial contact reports do not include follow-up or investigative reports prepared
after the initial contact report. However, if the information specified in Subsection (a)
appears in follow-up or investigative reports, it may only be treated confidentially if it
is private, controlled, protected, or exempt from disclosure under Section
63-2-201(3)(b) of the Utah Code.
10. "individual" means a human being.
11. "Person" means any individual, nonprofit or profit corporation, partnership, sole
proprietorship, or other type of business organization.
12. "Private record" means a record containing data on individuals that is classified
private as provided by Section 10.
13. "Private provider" means any person who contracts with the city to provide
services directly to the public.
14. "Protected record: means a record that is classified protected as provided by
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Section 12.
15. "Public record" means a record that has not been appropriately classified private,
controlled, or protected as provided in Sections 10, 11, and 12 of this ordinance.
16. a. "Record" means all b(x)ks, letters, documents, papers, maps, plans,
photographs, films, cards, tapes, recording, or other documentary materials, and
-electronic data regardless of physical form or characteristics, prepared, owned, used,
received, or retained by the city;
b. "Record does not mean:
(i) temporary drafts or similar materials prepared for the originator's personal
use or prepared by the originator for the personal use of an individual for whom
he is working;
(ii) materials that are legally owned by an individual in his private capacity;
(iii) materials to which access is limited by the laws of copyright or patent unless
the copyright or patent is owned by the city;
(iv) proprietary software;
(v) junk mail or commercial publications received by the city or an official or
employee of the city;
(vi) books and other materials that are cataloged, indexed, or inventoried and
contained in the collections of libraries open to the public, regardless of physical
form or characteristics of the material;
(vii) daily calendars and other personal notes prepared by the originator for the
originator's personal use or for the personal use of an individual for whom he is
working; or
(viii) computer programs as defined that are developed or purchased by or for the
city for its own use.
(ix) notes or internal memoranda prepared as part of the deliberative process by
a member of the judiciary, an administrative law judge, a member of, the Board
of Pardons, or a member of any other body charged bylaw with performing a
quasi-judicial function.
17. "Record series" means a group of records that may be treated as a unit for
purposes of designation, description, management, or disposition.
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18. "Records officer" means the city recorder and other
individuals as appointed by the city recorder to work in the
care, maintenance, scheduling, designation, classification,
disposal, and preservation of records.
19. "Summary data" means statistical records and compilations that contain data
derived from private, controlled, or protected information but that do not disclose
private, controlled, or protected information.
SEC. 4. RIGHT OF PUBLIC ACCESS
1. Every person has the right to inspect a public record free of charge and the right
to take a copy of a public record during normal working hours, subject to the payment
of costs and fees pursuant to Section G of this ordinance.
2. All records are public unless otherwise expressly provided by this ordinance or
State or Federal law or regulation.
3. The ibllowing records are not public:
a. records that are appropriately classified private, conholled, or protected as
allowed by Sections 10, 11, and 12 of this ordinance; and
b, records to which access is restricted pursuant to court rule, another state statute,
federal statute, or federal regulation, including records for which access is governed or
restricted as a condition of participation in a state or federal program or 14 receiving
state or federal funds.
4. only those records specified in Sections 10 11 or 12 maybe classified private,
controlled, or protected.
5. a. The city may not disclose a record that is private, controlled, or protected to
any person except as provided in Subsection (5)(b) or Section 5.
b. The city may, at its discretion, disclose records that are private under Subsection
10.2 or protected under Section 12 to persons other than those specified in Section 5 if
the city council, or a designee, determines that there is no interest in restricting access
to the record, or that the interests favoring access outweigh the interest favoring
restriction of access.
G. a. The disclosure of records to which access is governed or limited pursuant to
court rule, another state statute, federal statute, or federal regulation, including records
for which access is governed or limited as a condition of participation in a state or
federal program or for receiving state or federal funds, is governed by the specific
provisions of that statute, rule or regulation.
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b. This chapter applies to records described in Subsection (a) insofar as this chapter
is not inconsistent with the statute, rule, or regulation.
7. The city shall provide a person with a certified copy of a record if:
a. the person requesting the record has a right to inspect it;
- b. identifies the record with reasonable specificity; and
c. pays the lawful fees.
8. a. The city is not required to create a record in
response to a request.
b. Nothing in this ordinance requires the city to fulfill a person's records request if
the request unreasonably duplicates prior records requests from that person.
9. If a person requests copies of more than 50 pages of records, and if the records
are contained in files that do not contain records that are exempt from disclosure, the
city may:
a. provide the requester with the facilities for copying the requested records and
require that the requester make the copies himself; or
b. allow the requester to provide his own copying facilities and personnel to make
the copies at the city offices, and waive the fees for copying the records.
10. a. If the city owns an intellectual property right and offers the intellectual
property right for sale, or license, the City may control by ordinance or policy the
duplication, and distribution of the material based on terms the city considers to be in
the public interest.
b. Nothing in this ordinance shall be construed to limit or impair the rights or
protections granted to the city under federal copyright or patent law as a result of its
ownership of the intellectual property right.
11. The City may not use the physical form, electronic or otherwise, in which a
record is stored to deny, or unreasonably hinder the rights of persons to inspect and
receive copies of a record under this ordinance.
SEC. 5. ACCESS TO NON PUBLIC RECORDS
1. Upon request the city shall disclose a private record to:
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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; or
(ii) submits a notarized release from the subject of the record or his legal
representative dated no later than 90 days before the date the request is made; or
e. any person to whom the record must be provided pursuant to court order.
2. a. Upon request, the city shall disclose a controlled record to:
(i) a physician, psychologist, or certified social worker upon submission of a
notarized release from the subject of the record that is dated no more than 90 days
prior to the date the request is made and a signed acknowledgement of the terms
of disclosure of controlled information as provided by Subsection b; and
(ii) any person to whom a record must be disclosed pursuant to Court Order.
b. A person who receives a record from the city in accordance with Subsection
5.2.a.(i) may not disclose controlled information from that record to any person,
including the subject of the record.
3. 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. Upon request the city shall disclose a protected record to:
a. the person who submitted the information in 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
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(ii) submits a notarized release from their legal representatives dated no more
than 90 days prior to the date the request is made; or
c. any person to whom a record must be provided pursuant to a court order.
5. The city may disclose a record classified private, controlled, or protected to
another governmental entity, city, another state, the United States, or a foreign
"government only as provided by Utah Code annotated 63-2-206.
6. Before releasing a private, controlled, or protected record, the city shall obtain
evidence of the requester's identity.
7. The City shall disclose a record pursuant to the terms of a court order signed by a
judge from a court of competent jurisdiction, provided that:
a. the record deals with a matter in controversy over which the court has
jurisdiction.
b. the court has considered the merits of the request for access to the record; and
c. the court has considered and, where appropriate, limited the requester's use and
further disclosure of the record in order to protect privacy interests in the case of
private or controlled records, business confidentiality interests in the case of records
protected under Subsections 63-2-304(1) and (2), and privacy interests or the public
interest in the case of other protected records;
d. to the extent the record is properly classified private, controlled, or protected, the
interests favoring access, considering limitations thereon, outweigh the interests
favoring restriction of access; and
e. where access is restricted by a rule, statute, or regulation referred to in Subsection
4.3(b), the court has authority independent of this ordinance to order disclosure.
8. a. The city may disclose or authorize disclosure of private or controlled
records for research purposes if the city:
(i) determines that the research purpose cannot reasonably be accomplished
without use of disclosure of the information to the researcher in individually
identifiable form;
(ii) determines that the proposed research is bona fide, and that the value of the
research outweighs the infringement upon personal privacy;
(iii) requires the researcher to assure the integrity, confidentiality, and security
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of the records and requires the removal or destruction of the individual identifiers
associated with the records as soon as the purpose of the research project has been
accomplished;
(iv) prohibits the researcher from disclosing the record in individually
identifiable form except as provided in Subsection (b), or from using the record
for purposes other than the research approved by the city; and
(v) secures from the researcher a written statement of his understanding of and
agreement to the conditions of this Subsection and his understanding that violation
of the terms of this Subsection may subject him to criminal prosecution under
Section 63-2-801 of the Utah Code.
b. A researcher may disclose a record in individually identifiable form if the record
is disclosed for the purpose of auditing or evaluating the research program and no
subsequent use or disclosure of the record in individually identifiable form will be made
by the auditor or evaluator except as provided by this section.
C. The City may require indemnification as a condition of permitting research under
this subsection.
9. a. Under Subsections 4.5(b) and Section 16.4 the city may disclose records
that are private under Section 10, or protected under Section 12 to persons other than
those specified in this section.
b. Under Section 16 the City Council may require the disclosure of records that are
private under Section 10, controlled under Section 11, or protected under Section 12 to
persons other than those specified in this section.
c. Under Subsection 63-2-404(8) of the Utah Code the court may require the
disclosure of records that are private under section 10, controlled under Section 11, or
protected under Section 13 to persons other than those specified in this section.
SEC.6. FEES
1. The city may charge a reasonable fee to cover the city's actual cost of duplicating
a record or compiling a record in a form other than that maintained by the city. The
fees may be set by Resolution. The initial fee, until changed by Resolution, is as set
forth in Exhibit "A" hereto.
a. A city may fulfill a record request without charge when it determines that:
(i) releasing the record primarily benefits the public rather than a person;
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(ii) the individual requesting the record is the subject of the record; or
(iii) the requester's legal rights are directly implicated by the information in the
record, and the requester is impecunious.
b. A city may not charge a fee for:
(i) reviewing a record to determine whether it is subject to disclosure; or
(ii) inspecting a record.
SEC. 7. PROCEDURES FOR ACCESS
I. A person making a request for a record shall furnish the city with a written
request containing his name, mailing address, daytime telephone number if available,
and a description of the records requested that identifies the record with reasonable
specificity.
2. As soon as reasonably possible, but no later than ten business days after receiving
a written request, or five business days after receiving a written request if the requester
demonstrates that expedited response to the record request benefits the public rather
than the person, the city shall respond to the request by:
(i) approving the request and providing the record;
(ii) denying the request;
(iii) notifying the requester that it does not maintain the record and providing, if
known, the name and address of where the record can be found; or
(iv) notifying the requester that because of one of the extraordinary
circumstances listed in, subsection 4, it, cannot immediately approve or deny the
request. The notice shall describe the circumstances relied upon and specify the
earliest time and date when the records will be available.
3. Any person who requests a record to obtain information for a story or report for
publication or broadcast to the general public is presumed to be acting to benefit the
public rather than a person.
4. The following circumstances constitute "extraordinary circumstances" that allow
the city to delay approval or denial by an additional period of time as specified in
Subsection 7.5 if the city determines that due to the extraordinary circumstances it
cannot respond within the time limits provided in Subsection 7.2:
a. another governmental entity is using the record, in which case the city shall
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promptly request that the governmental entity currently in possession return the record;
b. another governmental entity is using the record as part of an audit and returning
the record before the completion of the audit would impair the conduct of the audit;
c. the request is for a voluminous quantity of records;
d. the city is currently processing a large number of records requests;
e. the request requires the city to review a large number of records to locate the
records requested;
f. the decision to release a record involves legal issues that require the city to seek
legal counsel for the analysis of statutes, rules, ordinances, regulations, or case law;
g. segregating information that the requester is entitled to inspect from information
that the requester is not entitled to inspect requires extensive editing; or
h. segregating information that the requester is entitled to inspect from information
that the requester is not entitled to inspect requires computer programming.
5. If one of the extraordinary circumstances listed in Subsection 4, precludes
approval or denial within the time specified in Subsection 2., the following titne limits
apply to the extraordinary circumstances:
a. for claims under Subsection 4.a., the governmental entity currently in possession
of the record shall return the record to the originating entity within five. business days
of the request for the return unless returning the record would impair the holder's
work.
b. for claims under Subsection 4.b., the originating city shall notify the requester
when the record is available for inspection and copying;
c. for claims under Subsection 7.4.c., 7.4.d., and 7.4.e., the city shall:
(i) disclose the records that it has located which the requester is entitled to inspect;
(ii) provide the requester with an estimate of the amount of time it will take to
finish the work required to respond to the request; and
(iii) complete the work and disclose those records that requester is entitled to
inspect as soon as reasonably possible;
d. for delays under Subsection 7.4.f., the city shall either approve or deny the
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request within five business days after the response time specified fi>r the original
request has expired;
e. for delays under Subsection 7.4.g., the city shall fulfill the request within 15
business days from the date of the original request; or
f. for delays under Subsection 7.4.h., the city shall complete its programming and
disclose the requested records as soon as reasonably possible.
7. if the city fails to provide the requested records or issue a denial within the
specified time period, that failure is considered the equivalent of a determination
denying access to the records.
SEC. 8. DENIALS
1. If the city denies the request in whole or part, it shall provide a notice of denial
to the requester either in person or by sending the notice to requester's address.
2. The notice of denial shall contain the following information:
a. a description of the record or portions of the record to which access was denied,
provided that the description does not disclose private, controlled, or protected
information or records to which access is restricted pursuant to court rule, another state
statue, federal statute, or federal regulation, including records for which access is
governed or restricted as a condition of participation in a state or federal program or for
receiving state or federal funds.
b. citations to the provisions of this ordinance, another state statute, federal statute,
court rule or order or federal regulation that exempt the record or portions of the record
from disclosure, provided that the citations do not disclose private, controlled, or
protected information;
c. statement that the requester has the right to appeal the denial to the city council;
and
d. a brief summary of the appeals process, and the time limits for filing an appeal.
3. Unless otherwise required by a court or agency of competent jurisdiction, the city
may not destroy or give up custody of any record to which access was denied until the
period for an appeal has expired or the end of the appeals process, including judicial
appeal.
SEC. 9. RECORDS THAT MUST BE DISCLOSED
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1. The following records are public.
a. laws and ordinances;
b. names, gender, gross compensation, job titles, job descriptions, business
addresses, business telephone numbers, number of hours worked per pay period, dates
of employment, and relevant education, previous employment, and similar job
qualification of the city's former and present employees and officers excluding
undercover law enforcement personnel or investigative personnel if disclosure could
reasonably be expected to impair the effectiveness of investigations or endanger any
individual's safety;
c. final opinions, including concurring and dissenting opinions, and orders that are
made by the city in an administrative, adjudicative, or judicial proceeding except that if
the proceedings were properly closed to the public, the opinion and order may be
withheld to the extent that they obtain information that is private, protected, or
controlled;
d. final interpretation of statutes or rules by the city unless classified as protected as
provided in Subsections 12 (15), (16) and (17).
e. information contained in or compiled from a transcript, minutes, or report of the
open portion of a meeting of the city including the records of all votes of each member
of the city council;
f. judicial records unless a court orders the records to be restricted under the rules
of civil or criminal procedure or unless the records are private under this ordinance;
g. records filed with or maintained by county recorders, clerks, treasurers,
surveyors, zoning commissions the Division of State Lands and Forestry, the Division
of Oil, Gas and Mining, the Division of water Rights, or other governmental entities
that give public notice of:
(i) titles or encumbrances to real property;
(ii) restrictions on the use of real property;
(iii) the capacity of persons to take or convey
title to real property; or
(iv) tax status for real and personal property;
h. records of the Department of Commerce that evidence incorporations, mergers,
name changes, and uniform commercial code filings;
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i. data on individuals that would otherwise be private under this ordinance if the
individual who is the subject of the record has given the city written permission to
make the records available to the public;
j. documentation of the compensation that the city pays to a contractor or private
provider; and
k.
summary data.
2. The following records are normally public, but to the extent that a record is
expressly exempt from disclosure, access may be restricted under Subsection 4.3(b) or
Sections 10, 11 or 12:
a.
administrative staff manuals, instructions to staff, and statements of policy;
b. records documenting a contractor's or private provider's compliance with the
terms of a contract with the city;
c. records documenting the services provided by a contractor or a private provider to
the extent the records would be public if prepared by the city;
d. contracts entered into by the city;
e. any account, voucher, or contract that deals with the receipt or expenditure of
funds by the city;
f. records relating to governmental assistance or incentives publicly disclosed,
contracted for, or given by the city, encouraging a person to expand or relocate a
business in Utah, except as provided in Subsection 63-2-304(34) of the Utah Code.
g. chronological logs and initial contact reports;
h. correspondence by and with the city in which the city determines or states an
opinion upon the rights of the state, a political subdivision, the public, or any person;
i. empirical data contained in drafts if:
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(i) the empirical data is not reasonably available to, the requester elsewhere in
similar form; and
(ii) the city is given a reasonable opportunity to correct any errors or make
nonsubstantive changes before release;
drafts that are circulated to anyone other than the city, state or to anyone other
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than a federal agency if the city, state or federal agency are jointly responsible for
implementation of a program or project that has been legislatively approved; and
k. drafts that have never been finalized but were relied upon by the city in carrying
out action or policy;
1. original data in a computer program if the city chooses not to disclose the
• program;
m. arrest warrants after issuance, except that, for good cause, a court may order
restricted access to arrest warrants prior to service;
n. search warrants after execution and filing of the return, except that a court, for
good cause, may order restricted access to search warrants prior to trial;
o. records that would disclose information relating to formal charges or disciplinary
actions against a past or present city employee if:
(i) the disciplinary action has been completed and all time periods 14
administrative appeal have expired; and
(ii) the formal charges were sustained; _
p. records maintained by the Division of State Lands and Forestry or the Division of
Oil, Gas and Mining that evidence mineral production on government lands;
q. final audit reports;
r. occupational and professional licenses;
s. business licenses; and
t. a notice of violation, a notice of agency action under Section 63-46b-3 of the
Utah Code, or similar records used to initiate proceedings for discipline or sanctions
against persons regulated by the city, but not including records that initiate employee
discipline.
3. The list of public records in this section is not exhaustive and should not be used
to limit accesses to records.
SEC. 10. PRIVATE RECORDS
1. The following records are private:
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a. records concerning an individual's eligibility for unemployment insurance
benefits, social services, welfare benefits, or the determination of benefit levels;
b. records containing data on individuals describing medical history, diagnosis,
condition, treatment, evaluation, or similar medical data;
c. records of publicly funded libraries that when examined alone or with other
records identify a patron;
d. records received or generated in a Senate or House ethics committee concerning
any alleged violation of the rules on legislative ethics if the ethics committee meeting
was closed to the public;
e. records concerning a current or former employee of„ or applicant for
employment with the city that would disclose that individual's home address, home
telephone number, social security number, insurance coverage, marital status, or payroll
deductions.
2. The following records are private if properly classified by the city:
a. records concerning a current or former employee of, or applicant for employment
with the city, including performance evaluations and personal status information such a
race, religion, or disabilities, but not including records that are public under
Subsections 9.(b)., 9.2(o) or private under Subsection 10.1(e).
b. records describing an individual's finances, except that the following Are public:
(i) records described in Subsection 9.1;
(ii) information provided to the city for the purpose of complying with a
financial assurance requirement; or
(iii) records that must be disclosed in accordance with another statute;
c. records of independent state agencies if the disclosure of those records would
conflict with the fiduciary obligations of the agency;
d. other records containing data on individuals the disclosure of which constitutes a
clearly unwarranted invasion of personal privacy.
e. records provided by the United States or by a governmental entity outside the
state that are given with the requirement that the records be managed as private records,
if the providing entity states in writing that the record would not be subject to public
disclosure if retained by it.
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SEC. 11. CONTROLLED RECORDS
A record is controlled only if;
1. the record contains medical, psychiatric, or psychological data about an
individual;
2. the city reasonably believes that:
a. releasing the information in the record to the subject of the record would be
detrimental to the subject's mental health or to the safety of any individual; or
b. releasing the information would constitute a violation of normal professional
practice and medical ethics; and
c. the city has properly classified the record.
SEC. 12. PROTECTED RECORDS
The following records are protected if properly classified by the city:
1. trade secrets as defined in Section 13-24-2 of Utah Code Annotated if the person
submitting the trade secret has provided the city with the information specified in
section 63-2-308 of Utah Code Annotated.
2. commercial information or nonindividual financial obtained from a person if:
a. disclosure of the information could reasonably be expected to result in unfair
competitive injury to the person submitting the information or would impair the ability
of the city to obtain necessary information in the future;
b. the person submitting the information has a greater interest in prohibiting access
than the public in obtaining access; and
c. the person submitting the information has provided the city with the information
specified in Section 63-2-308 of Utah Code Annotated.
3. commercial or financial information acquired or prepared by the city to the extent
that a disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the city or cause
substantial financial injury to the city or cause substantial financial injury to the city or
state economy;
4. test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;
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5. records the disclosure of which would impair governmental procurement or give
an unfair advantage to any person proposing to enter into a contract or agreement with
the city, except that this subsection does not restrict the right of a person to see bids
submitted to or by the city after bidding has closed;
6. records that would identify real property or the appraisal or estimated value of
real or personal property, including intellectual property, under consideration for public
acquisition before any rights to the property are acquired unless;
a. public interest in obtaining access to the information outweighs the city's need to
acquire the property on the hest terms possible;
b. the information has already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
c. in the case of records that would identify property, potential sellers of the
property described have already learned of the city'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 city's estimated value of the
property;
7. records prepared in contemplation of sale, exchange, lease, rental, or other
compensated transaction of real or personal property including intellectual property,
which, if disclosed prior to completion of the transaction, would reveal the appraisal or
estimated value of the subject property, unless:
a. the public interest in access outweighs the interests in restricting access, including
the city's interest in maximizing the financial benefit of the transaction; or
b. when prepared by or on behalf of the city, appraisals or estimates of the value of
the subject property have already been disclosed to persons not employed by or under a
duty of confidentiality to the city.
8. records created or maintained for civil, criminal, or administrative enforcement
purposes or audit purposes, or for discipline, licensing, certification, or registration
purposes if release of the records:
a. reasonably could be expected to interfere with investigations undertaken for
enforcement, discipline, licensing, certification, or registration purposes;
b. reasonably could be expected to interfere with audits, disciplinary, or enforcement
proceedings;
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c. would create a danger of depriving a person of a right to a fair trial or impartial
hearing;
d. reasonably could he expected to disclose the identity of a source who is not
generally known outside of government and, in the case of a record compiled in the
course of an investigation, disclose information furnished by a source not generally
known outside of government 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
would interfere with enforcement or audit efforts;
9. records the disclosure of which would jeopardize the life or safety of an
individual;
10. records the disclosure of which would jeopardize the security of governmental
property, governmental programs, or governmental record keeping systems from
damage, theft, or other appropriation or use contrary to law or public policy;
11. records that, if disclosed, would jeopardize the security or safety of a correctional
facility, or records relating to incarceration, treatment, probation, or parole, that would
interfere with the control and supervision of an offender's incarceration, treatment,
probation or parole;
12. records that if disclosed, would reveal recommendations made to the Board of
Pardons by an employee of or contractor for the Department of Corrections, the hoard
of Pardons, or the Department of Human Services that are based on the employee's or
contractor's supervision, diagnosis, or treatment of any person within the board's
jurisdiction;
13. records and audit workpapers that identify audit, collection, and operational
procedures and methods used by the Utah State Tax Commission if disclosure would
interfere with audits or collections;
14. records of a governmental audit agency relating to an ongoing or planned audit
until the final audit is released;
15. records prepared by or on behalf of the city solely in anticipation of litigation that
are not available under the rules of discovery;
16. records disclosing an attorney's work product, including the mental impressions or
legal theories of an attorney or other representative of the city concerning litigation;
17. records of communications between the city and an attorney representing, retained
or employed by the city if the communications would be privileged as provided in
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section 78-24-8 of Utah Code Annotated.
18. drafts, unless otherwise classified as public;
19. records concerning the city's strategy about collective bargaining or pending
litigation;
20. records of investigations of loss occurrences and analyses of loss occurrences.
21. records, other than personnel evaluations, that contain a personal recommendation
concerning an individual if disclosure would constitute a clearly unwarranted invasion
of personal privacy, or disclosure is not in the public interest.
22. records that reveal the location of historic, prehistoric, palentological, or
biological resources that if known would jeopardize the security of those resources or of
valuable historic, scientific, educational, or cultural information;
23. records of independent state agencies if the disclosure of the records would
conflict with the fiduciary obligations of the agency;
24. records provided by the united States or by a government entity outside the state
that are given to the city with a requirement that they be managed as protected records
if the providing entity certifies that the record would not be subject to public disclosure
if retained by it;
25. transcripts, minutes, or reports of the closed portion of a meeting of a public
body except as provided in Section 52-4-7 of the open and Public Meeting Act;
26. records that would reveal the contents of settlement negotiations but not including
final settlements or empirical data to the extent that they are not otherwise exempt from
disclosure;
27. memoranda prepared by staff and used in the decision -making process by an
administrative law judge, a member of the Board of Pardons, or a member of any other
body charged by law with performing a quasi-judicial function;
28. records that would reveal negotiations regarding assistance or incentives offered
by or requested from the city for the purpose of encouraging a person to expand or
locate a business in Utah, but only if disclosure would result in actual economic harm
to the person or place the city at a competitive disadvantage, but this section may not
be used to restrict access to a record evidencing a final contract; and
29. materials to which access must be limited for purposed of securing or maintaining
the city's proprietary protection of intellectual property rights including patents,
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copyrights, and trade secrets.
SEC. 13. RECORDS CLASSIFICATION AND DESIGNATION
1. The city shall:
a. evaluate all record series that it uses or creates;
b. designate those record series as provided by this ordinance;
c. report the designation of its record series to the state archives.
2. The City may classify a particular record, record series, or information within a
record at any time, but is not required to classify a particular record, record series, or
information until access to the record is requested.
3. The city may redesignate a record series or reclassify a record or record series, or
information within a record at any time.
SEC. 14. RECORDS RETENTION
The city shall by Resolution establish a retention schedule 14 each record series. The
initial retention schedule shall be as set forth in Exhibit "B" hereto.
SEC. 15. SEGREGATION OF RECORDS
Notwithstanding any other provision in this ordinance, if the city receives a request for
access to a record that contains both information that the requester is entitled to inspect
and information that the requester is not entitled to inspect under this ordinance, and, if
the information the requester is entitled to inspect is intelligible, the city:
1. shall allow access to information in the record that the requester is entitled to
inspect under this ordinance; and
2. may deny access to information in the record if the information is exempt from
disclosure to the requester, issuing a notice of denial.
SEC. 16. APPEALS
1. a. Any person aggrieved by the city's access determination under this
ordinance, including a person not a party to the city's proceeding, may appeal the
determination to the mayor and city Council by filing a notice of appeal.
b. if the city claims extraordinary circumstances and specifies the date when the
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records will be available and, if the requester believes the extraordinary circumstances
do not exist or that the time specified is unreasonable, the requester may appeal the
city's claim of extraordinary circumstances or date for compliance within 30 days after
notification of a claim of extraordinary circumstances by the city, despite the lack of a
"determination" or its equivalent.
2. a. if the appeal involves a record that is the subject of a business
confidentiality claim under Section 63-2-308 of the Utah Code, the city recorder shall:
(i) send notice of the requester's appeal to the business confidentiality claimant
within three business days after receiving notice, except that if notice under this
section must be given to more than 35 persons, it shall be given as soon as
reasonably possible;
(ii) send notice of the business confidentiality claim and the schedule for the
city recorder's determination to the requester within three business days after
receiving notice of the requester Is appeal.
b. The claimant shall have seven business days alter notice is sent by the City
Recorder to submit further support, for the claim of business confidentiality.
3. a. The mayor shall make a determination on any appeal within the t011owing
period of time:
(i) within five business days after the mayor's receipt of the notice of appeal;
or
(ii) within twelve business days after the city sends the requester's notice of
appeal to a person who submitted a claim of business confidentiality.
b. if the mayor fails to make a determination within the time specified in Subsection
(3)(a), the failure shall be considered the equivalent of an order denying the appeal.
c. The provisions of this section notwithstanding, the parties participating in the
proceeding may, by agreement, extend the time periods specified in this section.
4. The mayor may, upon consideration and weighing of the various interests and
public policies pertinent to the classification and disclosure or nondisclosure, order the
disclosure of information properly classified as private under Section 10.2 or protected
under Section 12 if the interests favoring access outweigh the interest favoring
restriction of access.
5. The city shall send written notice of the determination of the mayor to all
participants. If the mayor affirms the denial in whole or in part, the denial shall
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include a statement that the requester has the right to appeal the denial to the City
Council, and the time limits for filing an appeal.
6. The duties of the mayor under this section may be delegated.
7. The notice of appeal to the City Council must be tiled with the City Recorder no
later than 30 days after the Mayor has denied the appeal or fails to make a
determination within the time specified in Subsection 16.3 (a).
8. The notice of appeal shall contain the following information:
a. the petitioner's name, mailing address, and daytime telephone number; and
b. the relief sought.
9. The petitioner may file a short statement of facts, reasons, and legal authority in
support of the appeal.
10. No later than three days after receiving a notice of appeal, the recorder shall:
a. schedule a hearing for the city council to discuss the appeal which shall be held
no sooner than 15 days and no later than 30 days from the date of the filing of the
appeal;
b. At the hearing, the city council shall allow the parties to testify, present evidence,
and comment on the issues. The city council may allow other interested persons to
comment on the issues.
c. No later than three business days aater the hearing, the city council shall issue a
signed order either granting the petition in whole or in part or upholding the
determination of the city in whole or in part.
d. The order of the city shall include:
(i) a statement of reasons for the decision„ including citations to this ordinance
or federal regulation that governs disclosure of the record, provided that the
citations do not disclose private, controlled, or protected information;
(ii) a description of the record or portions of the record to which access was
ordered or denied, provided that the description does not disclose private,
controlled, or protected information;
(iii) a statement that any party to the appeal may appeal the city's decision to
district court; and
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(iv) a brief summary of the appeal, and a notice that in order to protect its rights
on appeal, the party may wish to seek advice from an attorney.
11. A person aggrieved by the Cty's classification or designation determination under
this chapter, but who is not requesting access to the records, may appeal that
determination using the procedures provided in this sections. if a nonrequestor is the
only appellant, the procedures provided in this section shall apply, except that the
determination on the appeal shall be made within 30 days after receiving the notice of
appeal.
SEC. 17. JUDICIAL REVIEW
1. Any party to a proceeding before the city council may petition for judicial review
by the district court of the city council's order. The petition shall be filed no later than
30 days after the date of the city council's order.
SEC. 18. CONFIDENTIAL TREATMENT OF RECORDS FOR WHICH NO
EXEMPTION APPLIES
1. A court may, on appeal or in a declaratory or other action, order the confidential
treatment of records for which no exemption from disclosure applies if:
a. there are compelling interest favoring restriction of access to the record; and
b. the interests favoring restriction of access clearly outweigh the interests favoring
access.
2. if the City requests a court to restrict access to a record under this section, the
court shall require the city to pay the reasonable attorneys' fees incurred by the lead
party in opposing the City's request, if:
a. the court finds that no statutory or constitutional exemption from disclosure could
reasonably apply to the record in question; and
b. the court denies confidential treatment under this section.
3. This section does not apply to records that are specifically required to be public
under Section 9 of this ordinance or Section 63-2-301 of the Utah Code, except as
provided in Subsection 4.
4. a. Access to drafts and empirical data in drafts may be limited under this section,
but the court may consider, in its evaluation of interests favoring restriction of access,
only those interest that relate to the underlying information, and not to the deliberative
nature of the record.
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b. Access to original data in a computer program may be limited under this section,
but the court may consider, in its evaluation of interest favoring restriction of access,
only those interests that relate to the underlying intimation, and not to the status of
that data as part of a computer program.
SEC. 19. REQUEST TO AMEND A RECORD
1. a. Subject to Subsection 7, an individual may contest the accuracy or
completeness of any public, or private, or protected record concerning him by
requesting the city to amend the record. However, this section does not affect the
right of access to private or protected records.
b. The request shall contain the following intimation:
(i) The requester's name, mailing address, and daytime telephone number; and
(ii) a brief statement explaining why the city should amend the record.
2. The city shall issue an order either approving or denying the request to amend no
later than 30 days after receipt of the request.
3. If the city approves the request, it shall correct all of its records that contain the
same incorrect information as soon as practical. A city may not disclose the record
until it has amended it.
4. if the city denies the request is shall:
a. inform the requester in writing; and
b. provide a brief statement giving its reasons for denying the request.
5. a. If the city denies a request to amend a record, the requester may submit a
written statement contesting the information in the record.
b. The city shall:
(i) file the requester's statement with the disputed record if the record is in a
form such that the statement can accompany the record or make the statement
accessible if the record is not in a form such that the statement can accompany
the record; and
(ii) disclose the requester's statement along with the information in the record
whenever the city discloses the disputed information.
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6. The requester may appeal the denial of the request to amend a record pursuant to
Section 16 of the ordinance.
7. This section does not apply to records relating to title to real or personal
property, medical records, judicial case tiles, 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.
SEC. 20. RIGHTS OF INDIVIDUALS ON WHOM DATA IS MAINTAINED
1. a. The city shall file with the state archivist a statement explaining the
purposes for which record series designated private or controlled are collected and used
by that city.
b. That statement is a public record.
2. upon request, the city shall explain to an individual:
a. the reasons the individual is asked to furnish to the city information that could be
classified private or controlled;
b. the intended uses of the intimation; and
C. the consequences for refusing to provide the information.
3. The city may not use private or controlled records for purposes other than those
given in the statement filed with the state archivist under Subsection (1) or for
purposes other than those for which another governmental entity could use the record
under Section 63-2-206.
SEC. 21. CRIMINAL PENALTIES
1. a. A public employee or other person who has lawful access to any private,
controlled, or protected record under this chapter, and who intentionally discloses or
provides a copy of a private, controlled or protected record to any person knowing that
such disclosure is prohibited, is guilty of a class B misdemeanor.
b. it is a defense to prosecution under Subsection (1)(a) that the actor released
private, controlled or protected information in the reasonable belief that the disclosure
of the information was necessary to expose a violation of law involving government
corruption, abuse of office, or misappropriation of public funds or property.
c. it is a defense to prosecution under Subsection (1)(a) that the record could have
lawfully been released to the recipient if it had been properly classified.
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2. a. A person who by false pretenses, bribery, or theft, gains access to or
obtains a copy of any private, controlled, or protected record to which he is not legally
entitled is guilty of a class B misdemeanor.
b. No person shall be guilty under Subsection (2)(a) who receives the record,
information, or copy after the fact and without prior knowledge of or participation in
the false pretenses, bribery, or theft.
3. a. A public employee who intentionally refuses to release a record the
disclosure of which the employee knows is required by law or by final unappealed
order from a city, the records committee, or a court, is guilty of a class B
misdemeanor.
This ordinance shall take effect June 15th 1993.
PASSED AND APPROVED BY A MAJORITY VOTE OF THE MOAB
CITY COUNCIL, THIS 15th day of June, a.d., 1993.
ATTEST:
John West
Cit Re order
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Thomas A. Stocks
Mayor
EXHIBIT "A"
SCHEDULE A
FEES
RESOLUTION NO. 05-92
A RESOLUTION ESTABLISHING AND SETTING FORTH A FEE STRUCTURE FOR
ORDINANCE 92-09, REGARDING RECORD RESEARCH FEES AND PHOTOCOPYING.
WHEREAS, the Governing Body of the City of Moab finds it
necessary to establish and set forth a fee structure for Ordinance
92-09, regarding record research fees and photocopying.
NOW THEREFORE, BE IT RESOLVED by the Moab City Council that the
Moab City fee structure for Ordinance 92-09, regarding record research
fees and photocopying shall be as follows:
1. Record research fee 525.00/HR
2. Photocopying fee for 8 1/2 x 11" 500.10/EA
3. Photocopying fee for 8 1/2 x 11" double -sided.. 500.20/EA
4. Photocopying fee for 11 x 14" 500.15/EA
5. Photocopying fee for 11 x 14" double -sided 500.30/EA
6. Photocopying fee for 11 x 17" 500.20/EA
7. Photocopying fee for 11 x 17" double -sided 500.40/EA
EFFECTIVE DATE of this resolution shall take effect on April
1st 1992.
PASSED AND APPROVED in open Council by a maiority vote of the
Governing Body of Moab City Council this 17th day of March ,
A.D., 1992.
ATTEST:
John
est
City R=corder
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Thomas A. Stocks
Mayor
EXHIBIT "B"
SCHEDULE B
RETENTION SCHEDULE
RESOLUTION NO. 06-92
A RESOLUTION ESTABLISHING AND SETTING FORTH THE MOAB CITY RECORD
RETENTION GUIDE.
WHEREAS, the Governing Body of the City of Moab finds it
necessary to establish and set forth the Moab City Record Retention
Guide to assure that all city record retention shall proceed in an
orderly manner. The Moab City Record Retention Guide shall include
the Utah Municipal General Records Retention Schedule, dated 1990,
including any future updates, but, not limiting Moab City to only the
retention schedule set by Utah State Archives & Records Services.
Moab City being a rural community may wish to retain certain city
records longer or shorter than set forth in the Utah Municipal General
Records Retention Schedule.
NOW THEREFORE, BE IT RESOLVED by the Moab City Council that the
Moab City Record Retention Guide be as mentioned above; to comply with
Moab City Ordinance 92-09, Establishing A Records, Access And
Management Program.
EFFECTIVE DATE of this resolution shall take effect on April
1st 1992.
PASSED AND APPROVED in open Council by a maJority vote of the
Governing Body of Moab City Council this 17th day of March ,
A.D., 1992.
ATTEST:
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Thomas A. Stocks
Mayor