OGDEN — Kerry Gibson may challenge release of the police investigation into his duties as Weber County commissioner, a probe sought by Weber County in 2017 that ultimately led to no charges, a judge ruled Tuesday.
The Standard-Examiner and freelance journalist Cathy McKitrick, through separate public records requests, seek a copy of the Ogden Police Department investigation, completed in 2018. McKitrick's request proceeded more quickly, and the Ogden Records Review Board, a city body that weighs in on such things, ruled last September that the document could be released, with certain names and other information blacked out.
Gibson, a former county commissioner who now serves as commissioner of the Utah Department of Agriculture and Food, subsequently filed suit against the city last October in 2nd District Court in Ogden to halt release. Allowing public review of the document, he argued, would unfairly violate his right to privacy.
Then McKitrick, as an intervenor in the case, filed a motion to dismiss Gibson's challenge, saying he lacked standing to sue, the focus of Tuesday's hearing before Judge Noel Hyde.
In rejecting McKitrick's motion to dismiss, thus allowing Gibson's challenge to proceed, Hyde cited a provision of the state's public records law that gives judges leeway to factor "privacy interests" in handling cases related to public records requests. The judge also pointed to what he said were inconsistencies and deficiencies in the public records law, the Government Records Access and Management Act, or GRAMA.
"The statute itself is not a picture of clarity and that causes difficulties for its interpretation," Hyde said.
After the ruling, Peter Stirba, Gibson's lawyer, alluded to Gibson's "interests" in the matter. He had argued that release of the investigation would "trample his privacy rights," particularly in light of the fact that the investigation led to no charges.
"Obviously Mr. Gibson's interests are profound and important. The court certainly recognizes the importance of those interests," Stirba said. Gibson did not appear at Tuesday's hearing.
Jeremy Brodis, one of the lawyer's representing McKitrick, a former Standard-Examiner staffer who now writes for the newspaper as a freelancer, said he would be considering the options. Tuesday's decision could theoretically be appealed.
The Ogden police probe — sought by Weber County officials during a time of tense wrangling among the three county commissioners in power at the time — 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 has vehemently denied any wrongdoing, saying political foes trying to tarnish his image were behind the matter.
'TOTALLY SHUT OUT'
In arguing that Gibson didn't have standing to sue to block release of the investigation, Brodis pointed to provisions of GRAMA stating that only those seeking records or political subdivisions, like cities, may go to court over access to public records. Gibson, though at the center of the matter, is regarded an "interested party" and Utah lawmakers have specifically rejected legislation in the past giving such individuals the right to appeal public records matters.
The city of Ogden, Brodis continued, could have appealed the Ogden Records Review Board decision allowing partial release of the document, but didn't.
Stirba focused on the fact that the police investigation didn't lead to charges and such inquiries "are typically not in the public domain." He also noted the lack of seeming avenues for Gibson to have say in the matter.
"Here the interested part is totally shut out. That makes no sense," he said, adding that he didn't think that was the Utah Legislature's intent in crafting GRAMA.
Pending a final determination from McKitrick and her lawyers on how they respond to Tuesday's action, the case turns to the merits of whether the Gibson investigation should be made public.
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.