The first thing to consider is that for the purposes of GRAMA, records that are subject to copyright may or may not be records. This is provided in Utah Code Section 63G-2-103(25)(b)(iv), which states that, “record does not include: material to which access is limited by the laws of copyright or patent…” 

So, when access is limited by the laws of copyright or patent, then the documentary material is not a record. The application of GRAMA comes into play after the laws of copyright have been considered and applied. 

Records officers who are not confident in determining whether a copyright or patent limits access may want to consult with their legal counsel or chief administrative officer.

The State Records Committee has heard the copyright issue on several occasions, including the following examples: 

• 2020-39 — Salt Lake Legal Defenders vs. Utah Department of Public Safety
• 2017-11— Britt Miller vs. Utah Transit Authority
• 2014-08— Jack Jessop vs. Utah Department of Corrections
• 1994-13— KTVX TV vs. Board of Pardons and Parole 

An excellent legal analysis concerning this issue is in case law: Second District Court (Davis County) ACLU vs. Davis County. This case may be particularly useful for records officers or attorneys who are considering access questions. 

As a further point of consideration, the definition “not a record” as it relates to GRAMA applies to records access, but not to records management. Retention schedules still apply regardless of whether access is limited by copyright laws.