OGDEN — The arguments in the legal fight over release of the police probe into Kerry Gibson’s tenure as a Weber County commissioner are emerging more clearly.
Gibson’s lawsuit to halt release of Ogden Police Department investigation must be dismissed because he has no legal basis for his court bid, says the freelance journalist seeking a copy of the document, Cathy McKitrick.
A larger issue is at stake, though, counters Gibson — his right to privacy and, by extension, the right to privacy of other public officials in similar circumstances.
The case has implications on “the constitutional rights of not only the parties, but also similarly-situated public officials and the public at large,” Gibson’s attorney Matthew Strout of Stirba P.C. argues in court papers. “It is therefore in the public interest for the issues raised in this action to be fully litigated and resolved by this court.”
- What do you think? Should the report be released to the public? Scroll to the bottom of the story and answer the survey question.
The city of Ogden’s Records Review Board last September partially acceded to McKitrick’s request for the document, also sought by the Standard-Examiner, ordering release of the investigation with certain names and other information blacked out. Gibson subsequently filed a lawsuit in 2nd District Court in Ogden against the city to block the release.
Now, about six months after Gibson sued, some of the issues at play are coming into sharper focus. Oral arguments on some of the legal questions, set on April 23, are to be held on Aug. 13.
The Ogden police probe, sought by Weber County officials in late 2017, focused on allegations that Gibson misused county equipment, personnel and funds as a county commissioner. It was completed last year and led to no charges after review by the Davis County Attorney’s Office. All along, Gibson, now director of the Utah Department of Agriculture, has denied any wrongdoing, saying political foes were behind the matter.
McKitrick, involved in Gibson’s lawsuit as an intervenor — an interested party by virtue of having sought release of the records in question — filed a motion to dismiss Gibson’s case last February. W. Ash McMurry, the lawyer from Parr Brown Gee & Loveless who’s representing her, argued that the state’s open records law — the Government Records Access and Management Act, or GRAMA — gives Gibson no legal authority to sue in the matter.
McKitrick, like the Standard-Examiner, sought release of the investigation per terms of GRAMA. McKitrick previously worked for the Standard-Examiner and has done freelance work for the newspaper.
GRAMA “authorizes appeals to district court for only two categories of appellants: requestors and political subdivisions,” McMurry argued. “Gibson, who is simply a person seeking to prevent access to records, is neither a requester nor a political subdivision, so GRAMA gives him no right to appeal a local appeals board decision.”
Gibson filed the suit, McMurry wrote, as an “interested party.” But Utah lawmakers in 2015, McMurry said, eliminated that class as having standing to sue in court in GRAMA cases.
“Instead, the legislature made the policy decision to favor finality, certainty and expediency in the resolution of local appeals board decisions, and to preclude anyone with an interest in a public record from blocking its proper release,” McMurry said.
Among other things, Strout, Gibson’s lawyer, argues that Gibson does indeed have standing to sue because a broader public interest is at stake — the right to privacy of individuals.
As argued by Gibson in his lawsuit, “being a state or local official does not strip an individual of their right to privacy, and releasing police records where the accusations are found to be false or unsubstantiated would be an unwarranted invasion of privacy,” Strout wrote.
Elsewhere, Strout argued that the Ogden Records Review Board, in making its determination in the Gibson case, had a duty to balance the public’s right to information and individual rights to privacy.
“Whether the review board properly weighed and balanced these rights is not a question of legislative policy or executive practice, but it is rather a legal question that falls squarely within the competence of the judiciary,” he wrote.
In countering that, McMurry stated that Gibson’s avenue for relief is elsewhere.
“Gibson may believe that it is bad policy to prevent those aggrieved by disclosure of records from appealing GRAMA decisions from (a) local appeals board. If that is his belief, his remedy lies with the legislature, which has already considered and rejected the procedural path Gibson has attempted in this case,” McMurry wrote.
The Standard-Examiner and McKitrick have sought release of the Gibson investigation for a range of reasons, including Gibson’s role as a public official and local power broker. Lingering questions about what spurred the probe in the first place also figure.