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Chapter 3-4 GOVERNMENT RECORDS ACCESS AND MANAGEMENT

Chapter 3-4 GOVERNMENT RECORDS ACCESS AND MANAGEMENT 

Sections:
3-4-010             Short Title.
3-4-020             Purpose.
3-4-030             Definitions.
3-4-040             Compliance with State Law.
3-4-050             Public Access to Records.
3-4-060             Public, Private, Controlled, Protected Records.
3-4-070             Privacy Rights.
3-4-080             Designation, Classification and Retention.
3-4-090             Procedures for Records Request.
3-4-100             Fees.
3-4-110             Appeals.
3-4-120             Record Amendments.
3-4-130             Penalties.
3-4-140             Records Officer.
3-4-150             Records Maintenance.
3-4-160             City Archives. 

Chapter 3-4 GOVERNMENT RECORDS ACCESS AND MANAGEMENT

Section 3-4-010             Short Title.  This chapter shall be known as the Draper City Government Records Access and Management Ordinance, and may be so cited and pleaded. 

Section 3-4-020             Purpose.  In enacting this chapter, it is the purpose and intent of the City Council to  acknowledge and comply with the Utah Government Records Access and Management Act as contained in Chapter 2 of Title 63G of the Utah Code Annotated 1953, as amended,  and specifically to conform with Section 63G-2-701 thereof which provides that the City may adopt an ordinance  relating to information practices  including classification, designation, access, denials, segregation, appeals, management, retention, and amendment of records. 

Section 3-4-030             Definitions.  As used in this chapter: 

        (a) "Act" means the Government Records Access and Management Act, Chapter 2 of Title 63G of the Utah Code Annotated 1953, as amended. 

        (b) "Agency" means any office, department, division, section, staff office, board, commission, committee or other division of Draper City or any public or private entity which pursuant to contract with the City has agreed to produce and maintain public City records. 

     (c) "City" means Draper City. 

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

      (e) "Controlled records" means those defined as controlled under the provisions of this chapter and in accordance with the provisions of the Act. 

      (f) "Data" means individual entries, e.g. birth date or address, in records. 

      (g) "Dispose" means to destroy, or render irretrievable or illegible, a record or the information contained in it by any physical, electronic, or other means, including unauthorized deletion or erasure of electronically recorded audio, visual, non-written formats, data processing, or other records. 

      (h) "Non-public records" means those records defined as private, controlled, or protected under the provisions of this chapter and the Act.

      (i) "Private records" means those records classified as private under the provisions of this chapter and the Act. 

     (j) "Protected records" means those records classified as protected under the provisions of this chapter and the Act. 

    (k) "Public records" shall refer to those records which have not been classified as non-public in accordance with the provisions of this chapter and the Act. 

     (l) "Record" means a book, letter, document, paper, map, plan, photograph, film, card, tape, recording, electronic data, or other documentary material regardless of physical form or characteristics, prepared, owned, received, or retained by the City where all of the information in the original is reproducible by photocopy or other mechanical or electronic means. "Record" does not mean:   

         (1)                 a personal note or personal communication prepared or received by an employee or officer of the City in a capacity other than the employee’s or officer’s governmental capacity, or that is unrelated to the conduct of the public’s business;

         (2)                 a temporary draft or similar material prepared for the originator’s personal use or prepared by the originator for the personal use of an individual for whom the originator is working;

         (3)                 material that is legally owned by an individual in the individual’s private capacity;

         (4)                 material to which access is limited by the laws of copyright or patent unless the copyright or patent is owned by a governmental entity or political subdivision;

         (5)                 proprietary software;

         (6)                 junk mail or a commercial publication received by the City or an official or employee of the City;

         (7)                 a book that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public;

         (8)                 material that is cataloged, indexed, or inventoried and contained in the collections of a library open to the public, regardless of physical form or characteristics of the material;

         (9)                 a daily calendar or other personal note prepared by the originator for the originator’s personal use or for the personal use of an individual for whom the originator is working;

         (10)             a computer program that is developed or purchased by or for the City for its own use;

         (11)             a note or internal memorandum prepared as part of the deliberative process by:

                     (i)                   a member of the judiciary;

                     (ii)                 an administrative law judge;

                     (iii)                a member of any other body charged by law with performing a quasi-judicial function; 

         (12)             a telephone number or similar code used to access a mobile communication device that is used by an employee or officer of the City, provided that the employee or officer of the City has designated at least one business telephone number that is a public record as provided in Utah Code Ann 63G-2-301; or

         (13)             information that an owner of unimproved property provides to the City as provided in Utah Code Ann. 11-42-205.

Section 3-4-040 Compliance with State Law.  The following provisions of the Act are hereby adopted and corporate by reference 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.

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 – Classification statement – Notice to provider of information.
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 may adopt ordinances in compliance with chapter.
 

Remedies 

63G-2-801. Criminal penalties.
63G-2-802. Injunction - Attorney fees.
63G-2-803. No individual liability for certain decisions of a governmental entity.
63G-2-804. Violation of provision of chapter – Penalties for intentional mutilation or destruction - Disciplinary action.

Section 3-4-050             Right to Inspect Records and Receive Copies. 

        (a) Right to inspect records and receive copies of records.  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 Sections 63G-2-203 and 63G-2-204 of the Act and the provisions of this chapter. 

     (b) Obligation to Create..  In response to a request, the City is not required to:

             (1) create a record;

             (2) compile, format, manipulate, package, summarize, or tailor information;

                (3) provide a record in a particular format, medium, or program not currently maintained by the City;


             (4) fulfill a person’s records request if the request unreasonably duplicates prior records requests from that person; or

                (5) fill a person’s records request if:


                 (i)                   the record requested is accessible in the identical physical form and content in a public publication or product produced by the City;

                 (ii)                 the City provides the person requesting the record with the public publication or product; and

                 (iii)                the City specifies where the record can be found in the public publication or product.

Section 3-4-060             Public, Private, Controlled, and Protected Records. 

         (a) Public records shall be as defined in Section 63-2-201 of the Act and this chapter.   

         (b) Private records shall be those records classified as private as defined in Section 63-2-302 of the Act and as classified and defined in procedures established pursuant to this chapter. Private records shall be made available to:

                 (1)           the subject of the record;

                      (2)                
the parent or legal guardian of an unemancipated minor who is the subject of the record;

                 (3)                 the legal guardian of a legally incapacitated individual who is the subject of the record;

                 (4)           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 Subsection 63G-2-302(1)(b), is a health care provider, as defined in Section 26-33a-102, if releasing the record or information in the record is consistent with normal professional practice and medical ethics; or
                (5)                 any person to whom the record must be provided pursuant to court order as provided in Subsection 63G-2-202(7) or a legislative subpoena  As provided in Utah Code Title 36, Chapter 14, Legislative Subpoena Powers.  

         (c) Controlled records shall be those classified as controlled as defined in Section 63-2-303 of the Act and as classified and defined in procedures established in this chapter. Controlled records shall be made available to a physician, psychologist, or certified social worker, insurance provider or producer, or a government public health agency upon submission of a release from the subject of the record that is dated no more than 90 days prior to the date request is made; and a signed acknowledgment of the terms of disclosure of controlled information.  

         (d) Protected records shall be those records classified as protected as defined in Section 63G-2-305 of the Act and as classified and defined in procedures established in this chapter. Upon request, and except as provided in Utah Code Ann 63G-2-202(10 or (11)(b), the City shall disclose a protected record to:

                 (1)                the person who submitted the record;

                 (2)               any other individual who:

                             (i)                   who 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. 

Section 3-4-070             Classification and Retention.  All records and records series of any format shall be classified and scheduled for retention according to the provisions of the Act and this chapter. Records classification and scheduling for retention shall be conducted under the supervision of the city records officer. 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. 

Section 3-4-080             Procedures for Records Requests.  

         (a)        Under circumstances in which the City is not able to immediately respond to a records request, the requester shall furnish the City a written request on forms provided by the City. The date and time of the request shall be noted on the request form and all time frames provided under this chapter shall commence from that time and date. Requesters of non-public information shall adequately identify themselves and their status prior to receiving access to non-public records.  

      (b)        The City may respond to a request for a record by approving the request and providing the records, denying the request, or by giving such other appropriate response as may be established by policies and procedures.  

      (c)        In most circumstances, the City shall respond to a written request for a public record as soon as reasonably possible, but no later than ten business days after receiving the written request as described in this section.  

      (d)        Extraordinary circumstances shall justify the City's failure to respond to a request for a public record within ten business days and shall extend the time for response to that time reasonably necessary to respond to the request, as determined by the City. Extraordinary circumstances shall include but not be limited to the following:  

                (1)       another governmental entity is using the record, in which case the City shall promptly request that the governmental entity currently in possession return the record;  

                (2)       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;  

                (3)       the City is currently processing a large number of records requests;  

                    (4)       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;   
    
                    (5)       segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires extensive editing; or  


               (6)       segregating information that the requester is entitled to inspect from information that the requester is not entitled to inspect requires computer programming.  

         (e)        When a record request cannot be responded to within ten days, the City shall give the requester an estimate of the time required to respond to the request.  

         (f)         The failure or inability of the City to respond to a request for a record within the time frames set out herein, or the City's denial of such request, shall give the requester the right to appeal.  

         (g)        Any record which has been requested  that is disposable by the approved retention schedule may not be disposed of until the request is granted and fulfilled, or 60 days after all appeals are completed.  

         (h)        No record, disposable by the 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. 

 Section 3-4-090             Fees.

         (a)                 The City may charge a reasonable fee to cover the City's actual cost of providing a record. The fee shall be as stated in the City’s Consolidated Fee Schedule.

         (b)                 When the City compiles a record in a form other than that normally maintained by the City, the actual costs may include the following:

                            (1)                
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;

                     (2)                  the cost of staff time for search, retrieval and other direct administrative costs for complying with a request; and

                     (3)                 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 for in Utah Code Ann. 63G-2-203(2)(a)(k) and (ii).

         (c)     The City may fulfill a record request without charge when it determines that:  

                     (1) releasing the record primarily benefits the public rather than a person;

                     (2) the individual requesting the record is the subject of the record, or an individual specified in Utah Code Ann. 63G-2-202(1) or (2); or          

                            (3) the requester's legal rights are directly implicated by the information in the record, and the requester is impecunious.

        (d)                
The City may not charge a fee for reviewing a record to determine whether it is subject to disclosure or for inspecting a record. 

 Section 3-4-100             Appeals.  

         (a) 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 within 30 days after notice of the City's action to the City Manager by filing a written notice of appeal. The notice of appeal shall contain the petitioner's name, address, phone number, relief sought and shall set forth in detail a statement of the facts, reasons and legal authority relied upon in making the appeal.  

         (b) If the appeal involves a record that is subject to business confidentiality or affects the privacy rights of an individual, the City Manager shall send a notice of the requester's appeal to the affected person.  

         (c) The City Manager shall make a determination on the appeal within 30 days after receipt of the appeal. During this 30 day period, the City Manager may schedule an informal hearing or request any additional information deemed necessary to make a determination. The City Manager shall send written notice to all participants of the determination on the appeal and the reasons therefor.  

         (d) If the City Manager affirms the denial in whole or in part, the denial shall include a statement that the requester has a right to appeal the denial to the State Records Committee within 30 days after date of the City Manager's decision. 

Section 3-4-110             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 30 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 in this chapter 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. 

Section 3-4-120             Penalties.  

        (a) Any City employee who knowingly refuses to permit access to records in accordance with the Act and this chapter, who knowingly permits access to non-public 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.      

        (b) 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. 

Section 3-4-130             Records Officer. 

        (a) 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 manager.  


      (b) A person may be designated by each department of the City to assist with and work under the direction of the city records officer in implementing the policies and procedures set forth in this chapter. 

Section 3-4-140             Records Maintenance. 

     (a) 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 Manager.

     (b) 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 Ordinance.

Section 3-4-150 Records Maintenance.  
 
    (a) Records maintenance procedures shall be developed to ensure that due care is taken to maintain and preserve records safely and accurately over the long term. The city records officer shall be responsible for monitoring the application and use of technical processes in the creation, duplication, and disposal of records. The records officer shall monitor compliance with required standards of quality, permanence, and admissibility pertaining to the creation, use, and maintenance of records. 
 
    (b) All records shall remain the property of the City unless federal or state legal authority provides otherwise. Property rights to records may not be permanently transferred from the City to any private individual or entity, including those legally disposable or obsolete records. This prohibition does not include the providing of copies of records otherwise produced for release or distribution under this chapter. 

    (c) Custodians of any 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. 

    (d) 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. 


Title 3 Chapter 4 Code Amendments  

03-04 Adopted                           per Resolution No. 98-47            12/01/1998
03-04 Amended                         per Ordinance #1086                  03/04/2014
03-04 Amended                         per Ordinance #1102                  05/27/2014