2023 Utah Code › Title 63G - General Government › Chapter 2 - Government Records Access and Management Act › Part 2 - Access to Records › Section 209 - Vexatious requester.

Effective 5/3/2023
63G-2-209.
Vexatious requester.
(1) As used in this section:
(a) "Committee" means the State Records Committee created in Section 63G-2-501.
(b) "Executive secretary" means an individual appointed as executive secretary under Subsection 63G-2-502(3).
(c) "Respondent" means a person that a governmental entity claims is a vexatious requester under this section.
(2)
(a) A governmental entity may file a petition with the committee to request relief from a person that the governmental entity claims is a vexatious requester.
(b) A petition under Subsection (2)(a) shall:
(i) be filed with the committee by submitting the petition to the executive secretary; and
(ii) contain:
(A) the name, phone number, mailing address, and email address that the respondent submitted to the governmental entity;
(B) a description of the conduct that the governmental entity claims demonstrates that the respondent is a vexatious requester;
(C) a statement of the relief the governmental entity seeks; and
(D) a sworn declaration or an unsworn declaration, as those terms are defined in Section 78B-18a-102.
(c) On the day the governmental entity files a petition under Subsection (2)(a), the governmental entity shall send a copy of the petition to the respondent.
(3)
(a) Except as provided in Subsection (3)(c), no later than seven business days after receiving the petition the executive secretary shall schedule a hearing for the committee to consider the petition, to be held:
(i)
(A) at the next regularly scheduled committee meeting falling at least 16 calendar days after the date the petition is filed but no later than 64 calendar days after the date the petition is filed; or
(B) at a regularly scheduled committee meeting that is later than the period described in Subsection (3)(a)(i)(A) if the later committee meeting is the first regularly scheduled committee meeting at which there are fewer than 10 appeals scheduled to be heard; or
(ii) at a date sooner than a period described in Subsection (3)(a)(i) if the governmental entity:
(A) requests an expedited hearing; and
(B) shows good cause for the expedited hearing.
(b) If the executive secretary schedules a hearing under Subsection (3)(a), the executive secretary shall:
(i) send a copy of the petition to each member of the committee;
(ii) send a copy of the notice of hearing to the governmental entity, the respondent, and each member of the committee; and
(iii) if applicable, send a copy of the respondent's statement under Subsection (3)(c)(ii) to the governmental entity and each member of the committee.
(c)
(i) The executive secretary may decline to schedule a hearing if:
(A) the executive secretary recommends that the committee deny the petition without a hearing because the petition does not warrant a hearing;
(B) the executive secretary consults with the chair of the committee and at least one other member of the committee; and
(C) the chair of the committee and all committee members with whom the executive secretary consults under this Subsection (3)(c)(i) agree with the executive secretary's recommendation to deny the petition without a hearing.
(ii) The executive secretary may, in making the determination described in Subsection (3)(c)(i)(A), request that the respondent submit a written response to the petition.
(d) If the executive secretary declines to schedule a hearing in accordance with Subsection (3)(c):
(i) the executive secretary shall send a notice to the governmental entity and the respondent indicating that the request for a hearing has been denied and the reasons for the denial; and
(ii) the committee shall:
(A) vote at the committee's next regular meeting to accept or reject the recommendation to deny the petition without a hearing;
(B) issue an order that includes the reasons for the committee's decision to accept or reject the recommendation; and
(C) if the committee rejects the recommendation to deny the petition without a hearing, direct the executive secretary to schedule a hearing as provided in Subsection (3)(a).
(4)
(a) No later than five business days before the hearing, the respondent may submit to the executive secretary and the governmental entity a written statement in response to the governmental entity's petition.
(b) The written statement described in Subsection (4)(a) may be the same document as the respondent's written response described in Subsection (3)(c)(ii).
(5) No later than 10 business days before a hearing under this section, a person whose legal interests may be substantially affected by the proceeding may file a request for intervention with the committee as provided in Subsection 63G-2-403(6).
(6) If a respondent fails to submit a written statement under Subsection (4) or fails to appear at the hearing, the committee shall:
(a) cancel the hearing; or
(b) hold the hearing in accordance with Subsection (7).
(7)
(a) If the committee holds a hearing scheduled under Subsection (3), the committee shall:
(i) allow the governmental entity to testify, present evidence, and comment on the issues; and
(ii) allow the respondent to testify, present evidence, and comment on the issues if the respondent appears at the hearing.
(b) At the hearing, the committee may allow another interested person to comment on the issues.
(c)
(i) Discovery is prohibited, but the committee may issue subpoenas or other orders to compel production of necessary testimony or evidence.
(ii) If the subject of a committee subpoena disobeys or fails to comply with the subpoena, the committee may file a motion with the district court for an order to compel obedience to the subpoena.
(8)
(a) No later than seven business days after a hearing is held as scheduled under Subsection (3) or the date on which a hearing cancelled under Subsection (6) was scheduled to be held, the committee shall:
(i) determine, in accordance with Subsection (9), whether the governmental entity has demonstrated that the respondent is a vexatious requester; and
(ii) issue a signed order that grants or denies the petition in whole or in part.
(b) Upon granting the petition in whole or in part, the committee may order that the governmental entity is not required to fulfill requests from the respondent or a person that submits a request on the respondent's behalf for a period of time that may not exceed one year.
(c) The committee's order shall contain:
(i) a statement of the reasons for the committee's decision;
(ii) if the petition is granted in whole or in part, a specific description of the conduct the committee determines demonstrates that the respondent is a vexatious requester, including any conduct the committee finds to constitute an abuse of the right of access to information under this chapter or a substantial interference with the operations of the governmental entity;
(iii) a statement that the respondent or governmental entity may seek judicial review of the committee's decision in district court as provided in Section 63G-2-404; and
(iv) a brief summary of the judicial review process, the time limits for seeking judicial review, and a notice that, in order to protect applicable rights in connection with the judicial review, the person seeking judicial review of the committee's decision may wish to seek advice from an attorney.
(9) In determining whether a governmental entity has demonstrated that the respondent is a vexatious requester, the committee shall consider:
(a) the interests described in Section 63G-2-102;
(b) as applicable:
(i) the number of requests the respondent has submitted to the governmental entity, including the number of pending record requests;
(ii) the scope, nature, content, language, and subject matter of record requests the respondent has submitted to the governmental entity;
(iii) the nature, content, language, and subject matter of any communications to the governmental entity related to a record request of the respondent; and
(iv) any pattern of conduct that the committee determines to constitute:
(A) an abuse of the right of access to information under this chapter; or
(B) substantial interference with the operations of the governmental entity; and
(c) any other factor the committee considers relevant.
(10)
(a) A governmental entity or respondent aggrieved by the committee's decision under this section may seek judicial review of the decision as provided in Section 63G-2-404.
(b) In a judicial review under Subsection (10)(a), the court may award reasonable attorney fees to a respondent if:
(i) the respondent substantially prevails; and
(ii) the court determines that:
(A) the petition filed by the governmental entity under Subsection (2) is without merit; and
(B) the governmental entity's actions in filing the petition lack a reasonable basis in fact or law.
(c) Except for the waiver of immunity in Subsection 63G-7-301(2)(e), a claim for attorney fees under this Subsection (10) is not subject to Chapter 7, Governmental Immunity Act of Utah.
(11) Notwithstanding any other provision of this chapter, a records request that a governmental entity is not required to fulfill in accordance with an order issued under this section may not be the subject of an appeal under Part 4, Appeals.
(12) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the committee shall make rules to implement this section.
Enacted by Chapter 516, 2023 General Session