Cathy McKitrick: Utah Supreme Court rules in favor of transparency

Three-year battle to open records related to former government official protects the right to know what our government is doing.

(Scott Sommerdorf | Tribune file photo) The Matheson Courthouse in 2016.

It’s a win!

My three-plus years battle to obtain government records culminated Thursday in a Utah Supreme Court decision that deflated the arguments of Peter Stirba, attorney for former Weber County Commissioner Kerry Gibson.

Gibson — who at various times has served as a state legislator, department director and congressional candidate — was the subject of a months-long criminal investigation that began in the fall of 2017. It ended in May 2018 when Davis County Attorney Troy Rawlings declined to prosecute, saying there was “insufficient evidence to prove beyond a reasonable doubt that Commissioner Kerry Gibson committed the offense of Misusing Public Money pursuant to Utah Code.”

By then, there had been plenty of speculation about what the probe involved. But without the contents and findings of that investigation, the public was left with nothing but speculation. And Gibson seemed intent on keeping that information under wraps.

The win was not just for this particular case, but also cemented into law that public officials like Gibson can’t block the release of public documents just to avoid looking bad.

The day after Rawlings issued his decision, I filed a government records (GRAMA) request for the contents and findings of that investigation, believing the public had a right to know.

Through the summer of 2018, I pursued those records, first getting a denial from Ogden City Attorney Mara Brown on July 3, 2018, who determined that the public’s interest in disclosure did not outweigh the city’s interest in classifying the records as private and protected.

According to Utah law and Ogden City code, my next appeal came before Ogden City Chief Administrative Officer Mark Johnson, who upheld the denial July 23, 2018.

My next step involved appealing that decision to the Ogden City Records Review Board, which I did July 25, 2018. On Sept. 4, 2018, that board heard my appeal and granted release of the records with some redactions on Sept. 6.

But Gibson, a director of Utah’s Department of Agriculture and Food before he stepped down to run an unsuccessful 2020 congressional race, believed that release of the records could tarnish his reputation and embarrass his family. So he took the case to Ogden’s 2nd District Court in late October, suing Ogden City and its records review board to keep the records secret.

By January 2019, my pro-bono attorneys — David Reymann and Jeremy Brodis from the firm of Parr Brown Gee & Loveless — filed to intervene in that case and hopefully get it dismissed.

In August 2019, 2nd District Judge Noel Hyde heard the case, and after more than an hour of deliberation, ruled against release of the records.

In late September, my attorneys filed an appeal with the Utah Supreme Court, which agreed in November 2019 to add it to their caseload.

In May 2021, Utah’s Supreme Court justices heard Reymann’s oral arguments on my behalf, and those of Peter Stirba representing Kerry Gibson.

They delivered their unanimous opinion Aug. 19.

Stirba, arguing on behalf of Gibson, maintained his client had a larger constitutional right to privacy that overrode Gibson’s lack of standing under Utah’s Government Records Access and Management Act (GRAMA).

But the justices disagreed.

Their 16-page opinion concluded that a claimant “may not overcome a lack of statutory standing by satisfying the elements of some other doctrine of standing.”

They said that Gibson lacked standing under GRAMA’s plain language because he was neither the records requestor nor an aggrieved interested party. Instead, he was the subject of the records.

The decision’s effects could be far-reaching. If Gibson and his attorney had prevailed. It would mean that any elected or government official could claim a constitutional right to privacy regarding government records that could prove embarrassing. And journalists or interested citizens would have to take their fight to court in what could be a very costly records battle.

That precedent would have made it so much more difficult to obtain key public records. Sound investigative journalism relies on such records — otherwise all we have is rumor and speculation, which is the foundation of most disinformation.

We don’t have those records yet, but when we do, it’s our responsibility to report with accuracy and fairness. The aim here is not to incriminate a single individual but to protect Utah’s GRAMA law in perpetuity. Government transparency and accountability are the end goals.

Cathy McKitrick

Cathy McKitrick is an investigative reporter and board member of the Utah Investigative Journalism Project, a nonprofit partnering with other news organizations in an effort to bolster journalism’s historic role as a government watchdog and defender of the poor and oppressed.

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