Utah Supreme Court sides with journalist in Kerry Gibson records case
SALT LAKE CITY — The Utah Supreme Court has ruled that Kerry Gibson, the former Weber County Commissioner, has no standing to challenge release of a 2018 Ogden Police Department probe into his duties in the post.
Accordingly, it reversed an Aug. 13, 2019, ruling in the matter by 2nd District Court Judge Noel Hyde and has called on Gibson’s lawsuit in the lower court aimed at blocking release of the investigation to be dismissed. Gibson may still ask the Utah Supreme Court for a rehearing, but presuming Thursday’s decision stands, the ruling would pave the way for public release of the police inquiry, at least an edited version of it.
“This is a win for GRAMA, journalists and people seeking to know the inner workings of local and state government,” said Cathy McKitrick, the freelance journalist who challenged Gibson’s right to block release of the investigation, leading to Thursday’s ruling. McKitrick initially sought release of the police probe under Utah’s public records measure, the Government Records Access and Management Act, or GRAMA.
The police probe, which came to public light in late 2017, stemmed from accusations of misdeeds and ethical lapses involving Gibson during his tenure as county commissioner. He has denied any wrongdoing and he has never been charged in connection with the investigation.
Gibson’s attorney, Peter Stirba, expressed disappointment at Thursday’s decision. “However, there’s a right to privacy embedded in the GRAMA statute that we still think is important,” he said.
Gibson has 14 days to decide if he’ll ask the Utah Supreme Court for a rehearing. Stirba said he’s still reviewing the decision to determine what additional steps, if any, to take.
Gibson stepped down as county commissioner in mid-2018 and later took over as deputy director of the Utah Department of Natural Resources. Then-Gov. Gary Herbert tapped him to lead the Utah Department of Agriculture and Food, where he served from April 2019 until January 2020, when he announced a bid, ultimately unsuccessful, for the 1st District U.S. House seat. It later emerged in a Utah State Auditor’s report in November 2020 that Herbert had placed Gibson on administrative leave near the end of his tenure in the UDAF post stemming from concerns about management in the department.
Thursday’s decision comes more than three years after McKitrick first sought release of the investigation, the day after the May 17, 2018, announcement by the Davis County Attorney’s Office that it wouldn’t file charges against Gibson following a review of the Ogden police investigation. The Ogden Records Review Board on Sept 6, 2018, agreed to release a redacted version of the probe, per McKitrick’s records request. But Gibson filed suit in 2nd District Court in Ogden on Oct. 31, 2018, to halt release, the case that was at the center of Thursday’s ruling.
The Standard-Examiner, where McKitrick previously worked, has also sought release of the police investigation via a GRAMA records request filed in 2018.
“I’ve got to reflect on how long it’s been,” said Jeremy Brodis, an attorney with Parr Brown Gee & Loveless who helped represent McKitrick.
News of the Ogden Police Department investigation into Gibson seeped to the public in late 2017, when Gibson was serving in his second term as Weber County commissioner. He’s denied wrongdoing all along and fought release of the probe, saying its release would unfairly hurt his reputation and represent an invasion of his privacy.
The Standard-Examiner has dug deep to understand the issues that led to the police probe, speaking with former county employees and others familiar with the matter.
They’ve told the Standard-Examiner that it has its roots in discontent among Weber County roads and public works employees overseen by Gibson when he was a county commissioner. The Davis County Attorney’s Office, when it announced no charges would come of the probe, said it had screened allegations that Gibson had tapped county equipment and county employees to do work on his family’s dairy farm, among other things.
At issue in the Utah Supreme Court matter was whether Gibson had authority to sue to block release of the Ogden Police Department report, per provisions of GRAMA. Gibson argued he had “traditional” or “alternative” standing under state law to seek court review.
McKitrick, though, said that isn’t enough and the Supreme Court justices — in a unanimous decision, Brodis said — sided with her. GRAMA, the high court said, states that the only parties that may legally seek review of decisions related to the public records law are “requesters,” those seeking records, or “political subdivisions,” the entities maintaining records.
“We conclude that when reading subsection 701(6)(a) in context, it is clear that only a political subdivision or a request may appeal the decision of a local appeals board,” said the decision, alluding to a provision in GRAMA. “And Gibson is neither a political subdivision nor a requester.”