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4.01.404. Appeals to the Record Appeals Board

            (1)        A petitioner may appeal to the Record Appeals Board by filing a notice of appeal with the City Recorder no later than:

                        (a)        thirty (30) days after the City Manager has granted or denied the records request in whole or in part, including a denial under Subsection 4.01.204(7); or

                        (b)        forty-five (45) days after the original request for records if:

                                    (i)         the circumstances described in Subsection 4.01.401(1)(b) occur; and

                                    (ii)        the City Manager did not make a determination under Section 4.01.401.

            (2)        The notice of appeal shall contain the following information:

                        (a)        the petitioner's name, mailing address, and daytime telephone number;

                        (b)        a copy of any denial of the records request; and

                        (c)        the relief sought.

            (3)        The petitioner may file a short statement of facts, reasons, and legal authority in support of the appeal.

            (4)        (a)        Except as provided in Subsection (4)(b), no later than three (3) business days after receiving a notice of appeal, the Board shall:

                                    (i)         schedule a hearing for the Board no longer than forty-five (45) days after the date the notice of appeal was filed provided, however, the Board may schedule an expedited hearing upon application of the petitioner and good cause shown;

                                    (ii)        send a copy of the notice of hearing to the petitioner; and

                                    (iii)       send a copy of the notice of appeal, supporting statement, and a notice of hearing to:

                                                (A)       each member of the Board;

                                                (B)       the records officer and the City Manager;

                                                (C)       any person who made a business confidentiality claim under Section 4.01.309 for a record that is the subject of the appeal; and

                                                (D)       all parties in interest that participated in the proceedings before the City Manager.

                        (b)        The Board may decline to schedule a hearing if the record series that is the subject of the appeal has been found by the Board in a previous hearing to be appropriately classified as private, controlled, or protected.  If the Board declines to schedule a hearing, a notice shall be sent to the petitioner indicating that the request for hearing has been denied and the reason for the denial.

            (5)        (a)        A written statement of facts, reasons, and legal authority in support of the Manager's position must be submitted to the City Recorder not later than five (5) business days before the hearing.

                        (b)        The City shall send a copy of the written statement to the petitioner by first class mail, postage prepaid.  The City Recorder shall forward a copy of the written statement to each member of the Board.

            (6)        No later than ten (10) business days after the notice of appeal is sent, a person whose legal interests may be substantially affected by the proceeding may file a request for intervention before the Board.  Any written statement of facts, reasons, and legal authority in support of the intervener's position shall be filed with the request for intervention.  The person seeking intervention shall provide copies of the statement to all parties to the proceedings before the Board.

            (7)        The Board shall hold a hearing within the period of time described in Subsection (4).

            (8)        At the hearing, the Board shall allow the parties to testify, present evidence, and comment on the issues.  The Board may allow other interested persons to comment on the issues.

            (9)        (a)        The Board may review the disputed records.  However, if the Board is weighing the various interests under Subsection (11) the Board must review the disputed records.  The review shall be in camera.

                        (b)        Members of the Board may not disclose any information or record reviewed in camera unless the disclosure is otherwise authorized by this Chapter.

            (10)      (a)        Discovery is prohibited, but the Board may issue subpoenas or other orders to compel production of necessary evidence.

                        (b)        When the subject of a Board's subpoena disobeys or fails to comply with the subpoena, the Board may file a motion for an order to compel obedience to the subpoena with the district court.

                        (c)        The Board's review shall be de novo.

            (11)      (a)        No later than thirty (30) business days after the hearing, the Board shall issue a signed order either granting the petition in whole or in part or upholding the determination of the City Manager in whole or in part.

                        (b)        The Board 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, controlled, or protected if the public interest favoring access outweighs the interest favoring restriction of access.

                        (c)        In making a determination under Subsection (b), the Board shall consider and, where appropriate, limit 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 4.01.305(1) and (2), and privacy interests or the public interest in the case of other protected records.

            (12)      The order of the Board shall include:

                        (a)        a statement of reasons, including statutory, regulatory, court rule, or other authority supporting the determinations;

                        (b)        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 or information exempt from disclosure under Subsection 4.01.201(3)(b); and

                        (c)        a statement that any party to the proceeding before the records committee may appeal the Board's decision to the district court.

            (13)      If the Board fails to issue a decision within thirty-five (35) days of the filing of the notice of appeal, that failure shall be considered the equivalent of an order denying the appeal.  The petitioner shall notify the Board in writing if he considers the appeal denied.

Ord. No.97-35, Recodified, 6/19/1997
Ord. No. 00-24, Amended, 6/1/2000
Ord. No. 954, Enacted, 6/18/1992
Ord. No. 96-59, Amended, 10/3/1996
Ord. No. 13-11, Amended, 7/18/2013
Ord. No. 16-23, Amended, 5/19/2016

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