Estimated read time: 3-4 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
SALT LAKE CITY — The Utah Supreme Court has ruled in favor of an investigative journalist attempting to gather more information about allegations of misconduct against a former public official who cited privacy reasons in seeking to block the release of police records and other documents.
The justices' opinion out Thursday has the effect of allowing veteran Utah reporter Cathy McKitrick to obtain access to the records more than three years after she first requested them from Ogden police.
Despite the delay, McKitrick and her attorneys say the decision is a victory for freedom of information that will help more reporters get access to similar information faster in the future.
"To me, it's a clear win," said McKitrick, who retired from the Standard-Examiner newspaper in Ogden in 2018 but continues to report for the Utah Investigative Journalism Project and other outlets. If the state's high court had gone the other way, she said, "it would have basically — in my opinion — gutted our GRAMA law, where any public official, elected official, could claim the right to privacy and have records withheld."
McKitrick referred to Utah's Government Records Access and Management Act. She had been looking into accusations that former Weber County Commissioner Kerry Gibson, who went on to oversee the state's agriculture department, used county equipment to work on his own dairy farm, among other allegations.
Prosecutors in neighboring Davis County reviewed the case and declined to file criminal charges against him. Gibson's attorney Peter Stirba said the prosecutors did not find "sufficient substantiation" behind the allegations and the release of records would impinge on his privacy. Such information "can seriously harm the reputation of somebody, just based upon a series of unfounded unsubstantiated allegations which aren't meritorious," he said.
But McKitrick wanted to see for herself the sorts of information that investigators gathered. Her original request for records pinballed from the police department to an independent records panel and up to Ogden's 2nd District Court, where a judge ruled Gibson could appeal the panel's decision allowing McKitrick to obtain the records. The Supreme Court disagreed, saying in these circumstances only the person seeking the documents and "political subdivisions" like cities and counties can do so.
The bottom line of the (Utah Supreme Court's) holding is that just because you're implicated by a public record, doesn't mean that you can sue to prevent it from being released if the government is determined to release it.
–David Reymann, attorney
"He really couldn't litigate the issue because the Supreme Court determined he did not have statutory standing," Stirba said of his client. "He couldn't even get up to hit the ball because he couldn't get up to the plate, that's what the Supreme Court essentially said."
The journalist and her attorneys had a different takeaway.
"The bottom line of the holding is that just because you're implicated by a public record, doesn't mean that you can sue to prevent it from being released if the government is determined to release it," said attorney David Reymann, a member of the legal team who represented McKitrick at no cost. "That's really at its core what this case is about: whether the court was going to allow people to tie up embarrassing records in years of litigation."
He said the answer is no. Reymann expects other journalists in McKitrick's situation to now be able to point to the opinion and obtain the information they're seeking more quickly.
But that doesn't mean it will be easy. McKitrick noted the process can be long and difficult in other ways for journalists seeking to obtain information that government officials don't want to release.
"It's a fight," McKitrick said. But the ruling is reassuring because it means news media won't need to worry as much about covering the cost of prolonged legal battles waged by people at the center of misconduct investigations.
"Right now I don't know too many journalists or news outlets that have a boatload of money," she said.
Gibson stepped down from the state post in 2020 to run for Congress and lost. A state audit released later that year concluded he improperly used a state car for personal trips to Bear Lake, among other issues. Gibson did not return a message seeking comment.
