Ogden Administration Requests Redo of GRAMA Appeal

Ever-tenacious mayor really doesn’t want to release his Field House donor list.

By Dan Schroeder

Ten days ago I reported that I had won an appeal hearing before the Ogden City Records Review Board, which decided that Mayor Godfrey’s spreadsheet of prospective field house donors is a public record and must be released. The Board then took a week to write up its decision, which I received Wednesday afternoon.

At the same time, however, the city attorney’s office sent me another document: a formal-looking “motion to reconsider,” with 12-page memorandum attached, asking the Board to redo the hearing and reverse its decision. I’m hard-pressed to describe this stunt in neutral terms, but here is a copy of the letter I sent to the Board the next day.

In brief, there are four reasons why the Board should either ignore or reject Ogden’s “motion”:

1. There’s simply no provision for such a “redo” motion in any statute, ordinance, or policy.
2. Ogden defends its ability to make such a motion on the basis of a single sentence, quoted out of context, from a 1997 Utah Supreme Court case that merely said an administrative board had the authority to go back and clarify an earlier decision in light of changed factual circumstances.
3. In this case, however, there are no new facts. The administration simply feels that it can do a better job arguing the case the second time, and has marshaled some new legal arguments in its memorandum. But there’s no reason to give the losing party a “second bite at the apple.”
4. Meanwhile, the clock is ticking on the 30-day time period during which a party can appeal the Board’s decision to District Court. A second administrative hearing would cause yet another delay and make the judicial appeal deadline ambiguous. But a judicial challenge would be expensive, and the administration may even have to pay my attorney’s fees if it loses.

You can also read about Ogden’s “motion” in the Salt Lake Tribune and the Standard-Examiner.

This incident highlights the difficulty that a citizen faces in trying to get access to public records that the government wants kept secret. Even when the law says a record is public, the government can erect multiple roadblocks in the way of someone who tries to obtain it. First the government can delay its response to a request for several weeks. Next the government can unilaterally declare the record exempt from disclosure. The requester can then appeal, but that introduces another delay. The appeals board is appointed by the government, and the government can spend taxpayer dollars on professional attorneys to research the law and argue its case before the board. Even if the requester wins the appeal, the government can continue to spend taxpayer dollars taking the case to District Court.

And in the present case, the government can try to make up completely new rules in the middle of the process.

Throughout this process, the requester’s only real advantage is the GRAMA law itself, which says that records are public by default, and the burden of proof is on the government to show otherwise. Unfortunately, the newly passed HB477 will (if it takes effect on July 1, as seems likely) put many additional records into GRAMA-exempt categories, and shift the burden of proof onto the requester in close cases. It will also discourage citizens from making GRAMA requests in the first place, by allowing the government to charge practically unlimited fees for fulfilling all but the simplest requests.