Posted: September 19, 2022
Code of Judicial Administration – Comment Period Closed November 3, 2022
CJA04-0202.04. Request to access a record associated with a case; request to classify a record associated with a case. (Amend). Clarifies that requesters denied access to non-public court records associated with a case that they are not authorized to access under rule 4-202.03 must file a motion or petition to access the record.
CJA04-0202.08. Fees for records, information, and services. (Amend). Consistent with H.B. 96 and 63G-2-203(5)(c), the proposed amendments in lines 55-62 would allow the court to charge requesters for the first 15 minutes of personnel time if the person has submitted a separate request within the 10-day period immediately prior to the date of the new request, provided the person is not a Utah media representative.
In line 112, “impecunious” is changed to “indigent” to make it more consistent with Utah Code and other court rules.
In lines 116-118, indigent requesters are allowed one free copy of each record, after which they would be required to pay the standard rates. Exceptions can be made by the State Court Administrator.
CJA01-0204. Executive committees. (Amend). The proposed amendments create court-level core teams and subcommittees of Policy, Planning, and Technology to assist the Committee in accomplishing its new technology responsibilities.
CJA01-0201. Judicial Council Membership – Election. (Amend).
CJA01-0302. Board of Judges Membership – Officers – Secretariat. (Amend).
The proposed amendments clarify that Council members may serve as non-voting members of a trial court board and continue to allow an exception for the appellate courts.
Rule 1-201 has also been amended to reflect the Judicial Council’s membership exception for the Standing Committee on Judicial Fairness and Accountability set forth in rule 1-205(1)(C).
Regarding CJA04-0202.08. Fees for records, information, and services.
Should we consider removing references to microfiche, audio and video tapes?
I also understand why the fee for fax is $5.00 for 10 pages or less and then there is a .50 per page for additional pages, but should the cost be the same for documents being emailed? Perhaps there should be a difference in how we charge for those.
Regarding CJA04-0202.08. Fees for records, information, and services.
Feedback from clerical staff indicate that requests for audio and video “tapes” may be outdated, and filling these requests usually results in a digital file being sent to the requestor. Also, video is not widely available, and moving forward we may want to consider if restrictions should be placed on releasing video that is available due to Webex.
Regarding CJA01-204 Executive Committees.
District Administration team suggests changing line 53-64 to delete naming positions and rather note having representation from each district and a representation from justice court for core membership. The current philosophy for the core team is that it is more important to have representation from each district rather than certain positions represented. The positions naturally do get represented in who each district elects to the committee. But we want to make sure we have a voice from across the state.
Line 53-58 is our core admin team make up, so wondering if we want to distinguish between core and core admin teams?
Line 81-82 Should we specify that the two members from core to serve on the advisory committee, are two members from the core admin teams?
Line 106 Do we want to specify that there is a District and a Juvenile COC? We specify that for the TCE, we should for COC as well.
Please consider the following changes to Rule 4-202.04
1. Authorization to Access Records:
The clarification on lines 23-24 is helpful. It should also be added to line 13, specifying that a request to access a non-public record should be directed to the court clerk only when access is authorized by rule 4-202.03 (as opposed authorization by the balancing of factors under this rule.)
2. Denial of Requests to Access Records:
The addition of “public” before “record” on line 20 should be removed. Adding “public” inadvertently precludes relief for those who are entitled to access a non-public record but are mistakenly denied access by the court clerk. Subsection (1) directs those who are entitled to access records (either public or non-public) to request access from the clerk. Subsection (2)(A) currently authorizes all those who are denied access by a court clerk to file a motion for access. The proposed amendment would limit that relief to those who are denied access to public records.
Subsection (2)(B) does not solve the problem because filing a motion is limited to those who are not authorized by rule to access the non-public record. Filing a motion would in effect be a concession that the person is not authorized under rule 4-202.03.
3. Petitions to Access Records:
The rule currently specifies in Subsection (3) that for requests to reclassify a record, a motion is the appropriate vehicle when the court has jurisdiction over the case and a petition is the appropriate vehicle when the court no longer has jurisdiction. Logically, that same distinction should apply to requests to access a non-public record addressed under Subsection (2). But Subsection (2) doesn’t make that distinction—it speaks only of motions. The heading added on line 18 acknowledges the distinction, but it should also be specified in the body of Subsection (2).
For example, the following language could be added to the end of line 21: “if the court record is associated with a case over which the court has jurisdiction, or a petition to access the record if the court record is associated with a case over which the court no longer has jurisdiction.” The same language should then be added at the end of the sentence on line 24.
4. Procedural Rules:
Moving what was Subsection (5) into Subsection (3) has the effect of making the procedural rules inapplicable to motions and petitions to access records under Subsection (2). The procedural rules identified in Subsection (5) should apply both to requests to reclassify records, and to request to access records.
It makes sense to move Subsection (5) above Subsection (4), but it should still be its own subsection, not nested under Subsection (3).
5. Service:
The rule should require service to the person whose interests are protected by the non-public classification. For example, a crime victim is not a true “party” to an action but may have a privilege interest in records filed with the court such as medical and mental health records. The rule currently does not require any notice to such persons when someone seeks to access or reclassify such records. Because the person whose interests are protected may not always be known to someone seeking access or reclassification, the rule should require the court to provide notice to that person when the movant or petitioner certifies that the person is unknown.
The rule should also clarify who is entitled to notice for petitions. The rule implicitly requires service on any parties when a motion is filed in a case over which the court has jurisdiction. (It does so by incorporating the applicable rules of procedure.) But it is not clear who, if anyone, is entitled to service in a case over which the court no longer has jurisdiction. (Who are the “parties” referred to in the rules of procedure? The parties in the underlying case? Or new parties to the petition?) At the very least, an advisory committee note could clarify that the parties to the original case should receive service when a petition is filed. But rule language would be preferable.
These changes could be accomplished by breaking lines 41-48 into several subsections. For example:
“(4)(A) As appropriate for the nature of the case with which the record is associated, the motion or petition shall be filed and proceedings shall be conducted under the rules of civil procedure, criminal procedure, juvenile procedure, or appellate procedure.
(4)(B) In addition to the service required under the procedural rules identified in Subsection (4)(A),
(i) the person filing the petition shall serve any parties to the case over which the court previously had jurisdiction;
(ii) the person filing the motion or petition shall serve the person who is the subject of the non-public record if known, or certify that the person who is the subject of the non-public record is unknown;
(iii) the court shall provide notice to the subject of the non-public record when the person filing the motion or petition certifies that the subject is unknown; and
(iv) the person filing the motion or petition shall serve any representative of the press who has requested notice in the case.
(4)(C) The court shall conduct a closure hearing when a motion or petition to close a record is contested, when the press has requested notice of closure motions or petitions in the particular case, or when the court decides public interest in the record warrants a hearing.”
William Hains
Assistant Solicitor General