Utah High Court Considers Records Dispute Over Investigation Report

Utah High Court Considers Records Dispute Over Investigation Report

The following was written by Cathy McKitrick, a freelance journalist and board member of The Utah Investigative Journalism Project. The following was published in conjunction with Utah Political Underground.

When I filed my May 2018 GRAMA request seeking the contents and findings of the criminal probe into former Weber County Commissioner Kerry Gibson, I had no idea that almost three years later, its fate would rest in the hands of the Utah Supreme Court.

The journey has been a thrilling — and sometimes boring roller coaster ride that stalled for months at a time between its highs and lows. So here I’d like to detail that journey and why it matters to journalists and Utahns (scroll to the end for a timeline of the records fight).

It began with a politician’s fierce fight to keep documents from a criminal investigation into his alleged misuse of taxpayer resources secret. The reason? He said it would be embarrassing.

GRAMA refers to Utah’s Government Records Access & Management Act, which Utah lawmakers passed in the early 1990s to promote government transparency while also protecting the privacy of the vulnerable.

The legislative intent behind this imperfect but valuable classification system recognized the need to balance public access with personal privacy, and also the right to easy and reasonable access of government records that detail how the public’s business is conducted.

And when the public interest is of equal weight to an individual’s right to privacy, GRAMA’s intent is to favor releasing the records for the sake of government transparency.

High Court Arguments

David Reymann, an attorney with the Salt Lake City-based firm of Parr Brown Gee & Loveless, said the public release of potentially embarrassing information happens all the time.

“If you gave unlimited appellate rights to anybody who disagreed or said ‘I’m going to be embarrassed by these allegations,’ you’d be tied up just like this case has been, in years of litigation where the public is denied the right to know about allegations of misconduct against someone who’s running for Congress,” Reymann told Supreme Court justices via Zoom on March 5.

Gibson ran for Utah’s 1st Congressional seat in 2020, but got eliminated in the June 30 Republican primary.

But Peter Stirba, an attorney with Stirba, P.C., argued that divulging the contents of the criminal investigation would violate Gibson’s privacy rights, which in his view “are the very things that GRAMA protects in spades throughout the entire statute.”

GRAMA is relatively clear on who can file an appeal when release of documents is denied: a political subdivision such as a city or county, requestor of the denied records or an interested party.

But Gibson — an elected official who was also the subject of the records and sought to keep them secret — didn’t fall in any of those categories.

Stirba argued that Gibson has a larger constitutional right to privacy — which would have the effect of broadening GRAMA far beyond its legislative intent and would also render it useless as a tool for government transparency because any elected or appointed government official could use it as a defense to withhold “embarrassing” records.

Justice Thomas Lee asked Stirba, “What would stand in the way of Mr. Gibson challenging the constitutionality of GRAMA?”

Stirba responded that Gibson could pursue another lawsuit to specifically address his  constitutional right, but said that “would be wasteful, inefficient and expensive.”

“Why would you put Gibson through this drill?” Stirba added. He also expressed outrage over Gibson’s plight.

“This whole concept that somehow it’s unfair that these things are not released, are you kidding me?” Stirba told the justices. “This is a criminal investigation, which went nowhere based upon unfounded data or statements. That’s not the kind of thing that’s a policy matter that prosecutors or anybody should reveal ever, because nothing has gone anywhere.”

This merits a quick revisit of the May 17, 2018 letter in which Davis County Attorney Troy Rawlings announced the Gibson probe had closed. Earlier that year, the Ogden City Police Department handed it off to him to weigh any criminal charges.  Rawlings said he received additional allegations in the case after that handoff and conducted further investigation.

Rawlings concluded “that there is insufficient evidence to prove beyond a reasonable doubt that Commissioner Kerry Gibson committed the offense of Misusing Public Money.” But several unanswered questions remain about the investigation and why Gibson would be so damaged and embarrassed by its contents.

A month before Rawlings publicly closed the investigation, Gibson held a press conference at the Weber County Republican Convention and announced that no charges would be brought against him.

In March 5 arguments to the Supreme Court, Stirba also asserted that Gibson “stepped into the shoes of the political subdivision,” because Ogden City had not appealed release of the records.

“That’s a new one,” Reymann countered, noting the argument had not previously appeared in the case briefs.

“I’m not aware of any authority that accepts it, but I am aware of a case from this court that rejects it.” Reymann added, citing a 1996 Utah Supreme Court opinion that supported his statement.

Reymann argued that Gibson initially could have filed his constitutional claim in federal or state court along with a motion for a temporary restraining order or a preliminary injunction to block release of the records.

“He’d have to show irreparable harm — the burden would be on him,” Reymann said. “Instead, by invoking these GRAMA procedures, he effectively has obtained a de facto stay under the statute that has prevented the records from being released.”

The high court’s decision is expected sometime this summer.

Mapping the Journey

May 18, 2018 — McKitrick files GRAMA request to the Ogden City Police Department, the agency that oversaw the investigation

June 20, 2018 — Ogden Chief Deputy City Attorney Mara Brown responds that the records have been classified as private and protected, but acknowledged the competing interests of access vs. privacy. In a June 14 letter, Gibson’s attorney, Scott Higley of Stirba P.C., said release of the records would further embarrass and harass Gibson, ruin his reputation, overwhelmingly burden his personal and family relationships, and possibly destroy his career.

July 3, 2018 — Mara Brown denies McKitrick’s request, saying the public’s interest in disclosure does not outweigh the city’s interest in classifying the records as private and protected.

July 9, 2018 — McKitrick files appeal to Ogden City Chief Administrative Officer Mark Johnson.

July 23, 2018 — Johnson upholds denial of access to the records.

July 25, 2018 —  McKitrick appeals to the Ogden City Records Review Board.

Sept. 4, 2018 — Ogden City Records Review Board hears McKitrick’s appeal.

Sept. 6, 2018 — Ogden City Records Review Board grants appeal, will release redacted records.

Oct. 31, 2018 — Gibson sues Ogden City and its Records Review Board in 2nd District Court to block release of the records.

Jan. 8, 2019 — McKitrick, with pro-bono legal representation from attorneys David Reymann and Jeremy Brodis, files as an intervenor, asking that the case be dismissed because Gibson lacks statutory standing under GRAMA.

Aug. 13, 2019 — Judge Noel Hyde hears oral arguments on McKitrick’s motion to dismiss. Gibson’s attorney claims constitutional right to privacy as reason to keep the file secret. After deliberating for 66 minutes, Hyde rules against McKitrick.

Sept. 30, 2019 — McKitrick’s attorneys file appeal with Utah Supreme Court.

Nov. 25, 2019 — Utah Supreme Court agrees to hear the appeal.

Mar. 5, 2021 — Utah Supreme Court Justices hear oral arguments in Cathy McKitrick v. Kerry Gibson (case #20190811). Decision is expected in four to six months.

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