Module 4: Appeals

Section 4.3 Evidentiary standards for release of certain enforcement and litigation records (63G-2-406)

The weighing provision is found in several provisions of GRAMA, including the intent language and the appeals process. The chief administrative officer or the state records committee can invoke the weighing provision when “the interests favoring access are greater than or equal to the interest favoring restriction of access” (Section 63G-2-201(5)(b)). The weighing provision allows for the release of properly restricted records.

In instances where the weighing provision is invoked, the requirement is that the benefit of disclosure is equal to or greater than the interests favoring restriction. The exceptions to this process are records found in Section 406. As noted in this provision, the records listed within are subject to disclosure by a governmental entity’s chief administrative officer, the state records committee, or by court order only if the conditions of GRAMA’s weighing provision are satisfied and “if the person or party seeking disclosure of the record has established, by a preponderance of the evidence” that the public interest in providing access is, in fact, equal to or greater than the conditions favoring restriction of access.

Under this section of GRAMA, and only for the records listed below, the law places the burden of providing sufficient evidence favoring disclosure on the person or party requesting disclosure of the record.

Records covered by Section 63G-2-406:

Records maintained for civil, criminal, or administrative enforcement purposes or audit purposes, for discipline, licensing, certification, or registration purposes 63G-2-305(10)
Records that would jeopardize the life or safety of an individual 63G-2-305(11)
Records that are subject to the attorney client privilege 63G-2-305(17)
Records prepared for or by an attorney, consultant, surety, indemnitor, insurer, employee, or agent of a governmental entity… in anticipation of, litigation, judicial, …or administrative proceeding. 63G-2-305(18)
Records revealing a governmental entity’s strategy about: collective bargaining, imminent or pending litigation; 63G-2-305(23)
Records of investigations of loss occurrences and analyses of loss occurrences…covered by Risk Management Fund, Employers’ Reinsurance Fund, Uninsured Employers’ Fund; 63G-2-305(24)
Settlement negotiations but not including final settlements or empirical data 63G-2-305(33)