Three years of struggle to disclose records of former government officials protect the right to know what our government is doing.
(Scott Sommerdorf | Tribune file photo) The Matheson Courthouse in 2016.
Posted by Cathy McKitrick | Special on The Tribune
It is a win!
My more than three-year struggle to obtain government filings culminated on Thursday in a Utah Supreme Court ruling that invalidated the arguments of Peter Stirba, attorney for former Weber County Commissioner Kerry Gibson.
Gibson – who has served as state lawmaker, division director, and congressional candidate at various times – was the subject of a month-long criminal investigation that began in the fall of 2017. It ended in May 2018 when Davis County Attorney Troy Rawlings denied the prosecution, saying there was “insufficient evidence to prove beyond doubt that Commissioner Kerry Gibson committed the Utah Code misuse of public funds “.
Up until then, there had been a lot of speculation about what the investigation was all about. But without the content and results of this investigation, the public would be left with speculation. And Gibson seemed intent on keeping this information private.
The victory was not only for this particular case, but also enshrined in law that officials like Gibson cannot block the publication of public documents just so as not to look bad.
The day after Rawlings made his decision, I filed a Government Record Request (GRAMA) for the contents and results of this investigation, believing the public had a right to know.
I followed these records through the summer of 2018, first receiving a denial on July 3, 2018 from Ogden City Attorney Mara Brown, who stated that the public interest in disclosure outweighed the city’s interest in classifying the records as private and protected does not predominate.
Pursuant to Utah Law and Ogden City Law, my next appeal was before Ogden City’s Chief Administrative Officer, Mark Johnson, who confirmed the denial on July 23, 2018.
My next step was to appeal this decision to the Ogden City Records Review Board, which I did on July 25, 2018. On September 4, 2018, this board heard my calling and on September 6, cleared the release of the recordings with some editors.
But Gibson, a director of the Utah Department of Agriculture and Food before stepping down to head an unsuccessful 2020 Congressional race, believed the release of the records could damage his reputation and embarrass his family. So he took the case to Ogden Second District Court in late October, suing Ogden City and its File Review Board for keeping the files secret.
By January 2019, my pro bono attorneys – David Reymann and Jeremy Brodis of Parr Brown Gee & Loveless – filed to intervene in this case and, hopefully, dismiss it.
In August 2019, District 2 Judge Noel Hyde heard the case and, after more than an hour of deliberation, ruled against the files being surrendered.
In late September, my attorneys appealed to the Utah Supreme Court, which agreed to include him in their number in November 2019.
In May 2021, the Utah Supreme Court justices heard Reymann’s oral arguments on my behalf and those of Peter Stirba, who was representing Kerry Gibson.
They gave their unanimous opinion on August 19th.
Stirba argued on Gibson’s behalf, claiming his client had a broader constitutional right to privacy that overrode Gibson’s lack of status under Utah’s Government Records Access and Management Act (GRAMA).
But the judges disagreed.
Their 16-page opinion concluded that a plaintiff “cannot overcome a lack of legal action by following the elements of another litigation doctrine”.
They said that Gibson was not in the plain language of GRAMA because he was not the requestor of the records or a harmed prospect. Instead, it was the subject of record.
The implications of the decision could be far-reaching. If Gibson and his lawyer had won. This would mean that any elected or government official could claim a constitutional right to privacy in relation to government documents that could prove embarrassing. And journalists or interested citizens would have to fight their fight in court, in what could be a very costly record fight.
This precedent would have made it so much more difficult to obtain important public records. Solid investigative journalism relies on such records – otherwise we have only rumors and speculation that are the basis of most of the disinformation.
We do not have these records yet, but if we do, it is our responsibility to report with accuracy and fairness. The goal here is not to incriminate a single person, but to protect Utah’s GRAMA law forever. Government transparency and accountability are the ultimate goals.
Cathy McKitrick is an investigative reporter and a board member of the Utah Investigative Journalism Project, a nonprofit that works with other news organizations to advance journalism’s historic role as the government watchdog and defender of the poor and oppressed.
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