McKitrick v. Gibson

541 P.3d 949

Cathy MCKITRICK, Appellant,

v.Kerry GIBSON, City of Ogden, and Odgen City Records Review Board, Appellees.

No. 20220738

Supreme Court of Utah.

Heard November 13, 2023

Filed January 11, 2024

Jeffrey J. Hunt, David C. Reymann, Kade N. Olsen, Salt Lake City, for appellant

Stephen F. Noel, Ryan D. Poole, Ogden, for appellee City of Ogden

Peter Stirba, Matthew Strout, Salt Lake City, for appellee Kerry Gibson

Clinton R. Drake, Bountiful, for appellee Ogden City Records Review Board

Justice Pohlman authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Pearce, Justice Petersen, and Judge Harris joined.

Justice Pohlman, opinion of the Court:

INTRODUCTION

¶1 The Ogden City Records Review Board (Review Board) ordered Ogden City to release redacted versions of certain records to Cathy McKitrick, an investigative journalist who requested the records under the Government Records Access and Management Act (GRAMA). Although neither McKitrick nor Ogden City challenged the Review Board's decision, Kerry Gibson, the subject of the records, did. Naming the Review Board and Ogden City—but not McKitrick—as respondents, Gibson petitioned the district court to prevent the records’ release.

¶2 McKitrick perceived from the parties’ initial court filings that her interest in obtaining the records would not be fully represented in the proceedings, so she intervened and moved the court to dismiss Gibson's petition for want of standing. That issue came to this court, and we held that Gibson lacked standing to challenge the Review Board's decision. See McKitrick v. Gibson (McKitrick I ), 2021 UT 48, ¶ 50, 496 P.3d 147. We accordingly remanded the case and instructed the district court to dismiss Gibson's petition. Id.

¶3 Before the district court dismissed the case, however, McKitrick moved for an award of attorney fees and litigation costs. She contended that a provision under GRAMA, Utah Code section 63G-2-802 (the fee provision), obliged Ogden City to pay the fees and costs she incurred in contesting Gibson's petition. The district court denied McKitrick's motion, and we now review that decision.

¶4 We reverse the district court's interpretation of the fee provision but stop short of holding that McKitrick is entitled to a fee award. Because the district court did not consider substantive aspects of the fee provision, we remand the case for it to do so.

BACKGROUND

¶5 While serving as a Weber County Commissioner, Kerry Gibson was accused of misusing public resources for his personal benefit. That accusation led to a formal investigation, which concluded without charges being filed.

¶6 Soon thereafter, freelance journalist Cathy McKitrick emailed the Ogden Police Department requesting, under GRAMA, the "contents and filings" of the investigation into Gibson. Gibson objected to McKitrick's request, and Ogden City denied it, explaining that the records were classified as "private" and "protected" under GRAMA and that the "public's interest in disclosure [did] not outweigh the City's interest in classifying" the records as such. (Citing UTAH CODE §§ 63G-2-302(2)(d), -305(10)(d)–(e)).

¶7 McKitrick appealed to the Ogden Chief Administrative Officer, who upheld Ogden City's denial. McKitrick appealed once more, asking the Review Board to reverse Ogden City's and the Chief Administrative Officer's decisions. The Review Board held a hearing at which it heard arguments from McKitrick, Ogden City, and Gibson. After considering the arguments and inspecting the records in camera , the Review Board issued a written decision and order, reversing the previous denials of McKitrick's records request and ordering Ogden City to release the records with limited redactions.

¶8 One month after the Review Board issued its decision, Ogden City asked for, and the Review Board granted, more time to redact the necessary information from the records. In addition, the Review Board learned that Gibson was not notified of its decision and order, so it extended the right to appeal for thirty more days.

¶9 Gibson then filed a "petition for judicial review" of the Review Board's decision, identifying Ogden City and the Review Board as respondents. In the petition, Gibson asked the district court to reverse the Review Board's decision and to order that the records not be disclosed because, in his view, the records are properly classified as private and protected under GRAMA and because his privacy interest outweighs the public's interest in accessing the records.

¶10 In its response to Gibson's petition, Ogden City first noted that it had chosen not to appeal the Review Board's decision. Ogden City went on to address Gibson's arguments and requests for relief. It "support[ed] and "join[ed]" portions of Gibson's requests for relief—specifically, "that the records be deemed properly classified as protected ... and ... private under GRAMA" and "that the subject documents be precluded from disclosure." But it expressed "no interest in" the other portions of Gibson's requests—including his requests for the district court to balance interests, reverse the Review Board's decision, and order that the records not be disclosed.

¶11 The Review Board, in turn, defended its order and explained that, in issuing its decision, it "was merely fulfilling its obligations" under GRAMA. The Review Board therefore stated that it was "not in a position to admit or deny any of the allegations contained in" Gibson's petition.

¶12 At that point, McKitrick moved to intervene in the case. She claimed to be "entitled to participate" in the litigation based on her "direct interest in the subject matter." She also asserted that her interest in the case was "sufficiently different from the existing parties’ interests," noting in particular that Ogden City was "supporting [Gibson's] position on appeal that the Board's Order should be reversed." The district court granted McKitrick's motion and made her a party to the proceeding.

¶13 Responding to Gibson's petition, McKitrick rebutted Gibson's claims and requests for relief: she contended that the records "are neither private ... nor protected" under GRAMA, denied that Gibson's privacy interest outweighs the public's interest in the records, and defended the Review Board's decision. She also urged the court to award "her reasonable costs and attorneys’ fees to the extent permitted by applicable law."

¶14 McKitrick then moved the court to dismiss Gibson's petition because Gibson "lack[ed] standing under GRAMA to bring th[e] action." Gibson countered that he had standing "under the traditional and public-interest standing doctrines." The district court agreed that Gibson had standing, and McKitrick appealed that decision to this court. See generally McKitrick I , 2021 UT 48, 496 P.3d 147. We reversed the district court's decision, holding that "Gibson lack[ed] standing under GRAMA to seek judicial review of the Review Board's decision" and that Gibson was therefore precluded from "proceed[ing] on traditional or alternative standing grounds." Id. ¶ 50. In accordance with that holding, we remanded the case "for the dismissal of Gibson's petition." Id.

¶15 On remand, McKitrick invoked the fee provision to collect the attorney fees and litigation costs that she incurred in opposing Gibson's petition. Under the fee provision, "A district court may assess against any governmental entity or political subdivision reasonable attorney fees and costs reasonably incurred in connection with a judicial appeal to determine whether a requester is entitled to access to records under a records request, if the requester substantially prevails." UTAH CODE § 63G-2-802(2)(a). The fee provision goes on to list three factors (the statutory factors) that "the court shall consider" in making its determination: (1) "the public benefit derived from the case," (2) "the nature of the requester's interest in the records," and (3) "whether the governmental entity's or political subdivision's actions had a reasonable basis." Id. § 63G-2-802(2)(b).

¶16 The fee provision also includes certain limitations. Relevant here, it permits an award only for fees and costs "incurred 20 or more days after the requester provided to the governmental entity or political subdivision a statement of position that adequately explains the basis for the requester's position." Id. § 63G-2-802(4).

¶17 McKitrick argued to the district court that, under the fee provision's plain language, she is entitled to an award of fees and costs at Ogden City's expense. In her view, Gibson's petition constituted "a judicial appeal to determine whether a requester"—McKitrick—"is entitled to access to records under a records request." See id. § 63G-2-802(2)(a). By McKitrick's estimation, she also "substantially prevail[ed]," see id. , because she secured the dismissal of Gibson's petition and thereby confirmed she is entitled to the records. And, McKitrick added, the statutory factors weigh in favor of a fee award. See id. § 63G-2-802(2)(b).

¶18 Ogden City responded that the fee provision is inapplicable under the circumstances. First, Ogden City claimed there was no "judicial appeal," see id. § 63G-2-802(2)(a), because the fee provision "only contemplates an appeal either from the requester of the disputed records or from the governmental entity." So because Gibson, not McKitrick or Ogden City, petitioned for review of the Review Board's decision, the fee provision did not apply. Next, according to Ogden City, McKitrick cannot seek fees and costs under the fee provision because she "did not ‘substantially prevail’ in any action against Ogden City." See id. And, turning to the statutory factors, Ogden City maintained that because its actions had a reasonable basis, McKitrick should be denied fees. See id. § 63G-2-802(2)(b)(iii).

¶19 Additionally, Ogden City insisted that, even if the statute otherwise applied, McKitrick was ineligible for fees because she did not provide Ogden City with "a...