Thursday, March 03, 2011

Records Review Board Orders Release of Field House Prospective Donor List - Updated 2X

An unexpected victory for open government

By Dan Schroeder

The Ogden City Records Review Board ruled yesterday that the city must release one of the records it had attempted to withhold from my November 2010 request. According to the city’s description, this record is a “draft spreadsheet of potential Field House donors prepared by Mayor Godfrey for personal use.”

Under Utah’s Government Records Access Management Act (GRAMA), all government records must be released to the public on request unless they fall under a specific exemption. About a hundred such exemptions are listed in the statute.

In this case, the city initially withheld the record under the exemption for “drafts, unless otherwise classified as public” (Utah Code 63G-2-305(22)). However, I immediately wrote to the city explaining that this particular “draft” was classified as public under Utah Code 63G-2-301(3)(k), which says that a record loses its “draft” status when the government relies upon it in carrying out action or policy. Other documents showed that Mayor Godfrey had already contacted several potential donors regarding the field house, and that he had publicly expressed his intention to obtain the specific sum of $10 million from these donors.

When the city failed to respond to my informal letter, I filed a formal appeal of the city’s decision to withhold the record. Appeals are heard by the city’s Records Review Board, a volunteer committee of three appointed by the mayor with approval of the city council. Our hearing was scheduled for last Friday, and continued yesterday when the Board made its decision.

During the hearing, Assistant City Attorney Mara Brown conceded that the record had lost its “draft” status. Meanwhile, however, Brown had found another GRAMA exemption to try to apply to this record. Utah Code 63G-2-305(6) protects records whose disclosure “would impair government procurement proceedings....” The plain intention of this exemption is to protect the integrity of a competitive bidding process, for instance, by preventing one bidder from obtaining a copy of a competitor’s sealed bid. Ms. Brown, however, tried to stretch this provision to include “procurement” of grants and donations, arguing that releasing prospective donors’ names “would jeopardize the city’s position with these donors.”

In response, I pointed out that “procurement”, in Utah law, means obtaining goods or services—not soliciting donations. A separate GRAMA provision, 63G-2-305(37), allows donors’ names to be kept secret under certain conditions, but only by government entities that are “primarily engaged in educational, charitable, or artistic endeavors”—not by cities. Furthermore, the city had provided no evidence that any of these prospective donors even wished to remain anonymous.

Although I was confident that the law was on my side, I still expected to lose the appeal. Ms. Brown is much better at oral arguments than I am, and inevitably came across as more authoritative. Furthermore, the Board consists of three government insiders: Robert DeBoer is a former WSU administrator who served for 12 years on the Ogden City Council; Janene Eller-Smith is a long-time city employee who now works in the city council office; and Eugene Hart is Business Administrator for the Ogden School District. I had appeared before this Board twice in 2007 and lost both times, leading to the Sierra Club’s still-pending lawsuit over an assortment of records pertaining to the gondola proposal.

In a further twist, a dispute arose when the Board decided to close the meeting to the public during its deliberations. The Utah Open and Public Meetings Act contains no explicit provision allowing a meeting to be closed for such a purpose, but some activist judges on the Utah Supreme Court have apparently ruled in favor of closed meetings in similar circumstances. I intend to research this point further, but it’s now moot in this instance.

When they invited us back in following their deliberations, both Eller-Smith and Hart made statements favoring disclosure of the disputed record. A motion to that effect was then approved unanimously, and the meeting came to a close. The city can still appeal this decision to the 2nd District Court, and has 30 days to decide whether to do so.

If the prospective donor list is soon released, the public should get a much better picture of how Mayor Godfrey proposes to raise $10 million in private donations for the field house. That information, in turn, should give the public entities—the city council, county, and school boards—a much better idea of whether this proposal is at all realistic.

Update 3/3/11 3:58 p.m.: Per Dan S... here's Cathy McKitrick's writeup from the Salt Lake Tribune:
Nothing on this story yet from the Std-Ex.

Update 3/4/11 7:00 a.m.: Per the ever-sharp-eyed Curmudgeon, we're informed that the SE has its story on the review board's decision up on its website now:

32 comments:

Ray said...

Dan: Watch the sky, I suspect you'll soon have a blimp over head.

Curmudgeon said...

Congratulations, Dan.

Given Hizzonah's past performance assuring the Council, the County and the RAMP board that he had donors lined up waiting to contribute megabucks if only public money was committed first to one of his pet obsessions --- remember the Ice Tower, when it turned out none of the promised private donations in fact materialized? --- it will be good for the Council, the County and the public to get a look at what the Mayor says has been committed but which he has refused to provide corroboration for.

Curmudgeon said...

And once again, we have to wonder why it's a private citizen who is going after public documents regarding a controversial public matter, why it isn't the Standard Examiner doing the job?

Deborah said...

Good job, Dan, you seem to have a pretty good grasp of records laws here in Utah. It seems to me like you had the statute on your side, and that is what won your case not your's and Mara's oral testimonies (although I'm sure you put up a good oral argument).

Unfortunately, as you may be aware, there is a GRAMA revision bill by the legislature that is currently being debated as I type and will likely pass. This will indeed negatively impact how records are treated in Utah - shutting the door on openness and allowing government agencies to make important decisions clandestinely.

Dan, and others, please contact your legislators to stop this bill! If it passes there ain't gonna be any sunshine in Utah.

Just another one of a whole slew of BAD bills being debated at the Capitol this year.

blackrulon said...

Any guesses on how much time passes before the Mayor starts to replace the volunteer members of the Ogden City Records Review Board?

Dan S. said...

Curm: Thanks! I informed Mr. Schwebke of the hearing, but as usual received no acknowledgment.

Deborah: From what source do you hear that HB 477 will likely pass? I know it sailed through the House committee but it got a late start and the session ends in a week. I'm contacting everyone I can think of regarding this bill, but I don't have any information on when it will come to the House floor, let alone the Senate.

Blackrulon: Committee members are limited to two terms, and I suspect they're all already in their second terms, so they'll soon be replaced regardless. But I don't know, off the top of my head, exactly when any of their terms are due to expire.

Moroni McConkie said...

Bravo, Dan. I know I'm not alone here wishing you were mayor, or even county attorney. However, to turn Lyndon Baines Johnson's bromide on its head, it may be more valuable to have you "outside the tent pissing in."

Ozboy said...

Great job Dan, thanks.

Ya shoulda been a lawyer! Ya, I know, your parents were married and you couldn't get into law school, but maybe you coulda got a waiver or something.

Deborah said...

Sorry, Dan, it was my opinion that HB477 will likely pass based on the comments in the House and other comments from Legislators over the past few years about GRAMA (and my overall hopelessness w/ this legislature). There seems to be a feeling from the legislature that GRAMA is too open - and this does affect them personally. From what I've seen over recent years is that GRAMA amendments have always been passed w/out much concern (granted the changes have been smaller compared to these proposed ones). Plus, the fact that it got a late start does not mean much, it could actually help it get passed in the end. I'm sure this bill has been a long time coming.

Stephen M. Cook said...

Damn dood; out of the park!

Sneaky and secretive little cabal up there, and incompetent.

And that is the theme of the upcoming election: competency. You want to remake Ogden using taxpayer dollars and back-room sluice donations, at least make a show of knowing what you are doing.

And, use a little fiscal restraint?

Ugh said...

I heard through the grape vine that Mayor Godfrey's Field House building plans contemplate razing some historic buildings on the the corner of 25th and Grant. I have not seen the plans, but someone I know did see them and say they plan to tear down some historically significant buildings in downtown. This seems like a very convoluted and complicated ordeal and will be very sad if the little Mayor gets his way.

Does anyone know if this is true or not?

Rhea Barnett said...

it is never too late for a career in law.

Dan S. said...

Here's Cathy McKitrick's writeup in the Tribune: http://www.sltrib.com/sltrib/home/51355916-76/ogden-board-list-procurement.html.csp

Dan S. said...

HB 477 -- the worst GRAMA-gutting bill in many years -- was approved by the Utah House this afternoon by a vote of 61 to 12. All of the no votes were Democrats, as were a few of the yes votes. Now this bill is before the Senate.

Dan S. said...

KSL TV just interviewed me for a story on HB 477. Watch at 10:00 tonight.

Dan S. said...

Just got a call from Mr. Schwebke, so I guess the story will be in tomorrow's Standard-Examiner.

Curmudgeon said...

Dan:

Looks like the SE will be a day late and a dollar short on this story. Could and should have had it first.

Curmudgeon said...

I see that on the Gut GRAMA Bill, two of Ogden's Very Own representatives voted in favor: Rep. Pitcher and the increasingly disappointing Rep. Dee. [Ambition is a terrible corrosive to ethical conduct in some.]

Both, as I recall, liked to talk when campaigning about their commitment to transparency and accountability in government. And yet they voted to gut the GRAMA bill and so to more effectively hide from journalists and voters what elected officials at every level of government [state, county and municipal] are doing when they're about, or claim to be about, the public's business.

I hope voters in Mr. Dee's district will remind him, and those in Ogden's 10 House District will remind Mr. Pitcher, should either of them dare to claim a commitment to accountability and transparency in government next time they run of their vote undermining both of those things today.

Dan S. said...

Curm: Froerer and Peterson also voted for HB 477, as did all the R's except one who wasn't there for the vote.

The Trib now has a good new article about the bill. It's clear that some legislators are pretty angry at the media and at others for submitting what they view as inappropriate GRAMA requests. This is the payback.

watcher said...

Strike one, Jeremy.

Anonymous said...

If you had to pay out of your personal pocket for this crap, you wouldn't be doing it, Dan shame on you. You waste an awful lot of peoples time to achieve a personal boner. Get a life, or hobby, buddy. Everybody watch Im going to be on ksl.

A humble public servant said...

Anon,

Get a clue. Do you have any idea how much Godfrey's hair brained ideas, stubborn idiotic vindictive tendencies and other immaturity have cost the taxpayers of Ogden. Dan uses his own time and money to keep things open and honest. I for one am glad there is a Dan Schroeder in my community to ask questions and obtain information that should be public.

When conducting public business, you owe it to the public to keep those dealings open and honest. How hard is it to comprehend that?

Curmudgeon said...

The SE has its story on the review board's decision up on its website now. Link here.

blackrulon said...

The question is whether the list of "potential donors" have committed money or is a list of people the Mayor hopes he can convince to give money in support of the fieldhouse. The potential of mayoral embarrasement to people discovering their names on this list unaware that they were being considered as donors.

Sam Joe said...

And the legislators have the gall to justify the bill by claiming it protects Utah citizens from invasion of privacy - bull crap.

Has the legislature actually done anything of relevance this session besides berate our public programs, erode our rights away and piss away a whole lotta money? Well done!

James said...

Sam Joe-

You're right.

It is a good thing we have fought wars and battles and lost countless lives and spent trillions of dollars in defense to protect our freedoms here in America over the years so that our very own local leaders and legislators can have the freedom to take those rights away from us (and then tell us that they are doing it for our own good).

F. Lee Bailey said...

Ozboy, Dan S couldn't get into law school BECAUSE his parents were married. That disqualified him. Now that we're on this path, I find it to be somehow humouris when a layman attempts to practice law, regarless of the arena. They usually loose, as was the case here. Mara is a smart and accomplished attorney and I doubt that Dan can honestly stand up to her in any legal situation.

Also, once we have this list of prospective donors, what is the plan? Will they all be stood up against the wall and shot?

Curmudgeon said...

F Lee:

Laymen usually lose, "as was the case here" Huh?

Did you read the story? Mr. Schroeder did not lose. He won. The review board decided for him, not for the Administration represented by its paid professional mouthpiece [aka asst. city attorney].

Second, Mr. Schroeder was not "practicing law." He was, as a private citizen, defending his request for a public document under the GRAMA statute that the Mayor didn'[t want to give him. The matter was heard not by a judge, but by a board not composed of attorneys, though the Administration was represented by one. And the Administration lost.

F. Lee said...

Yes, Mr. Mudgeon, I read the story and stand by my position:

"In response, I pointed out that “procurement”, in Utah law, means obtaining goods or services—not soliciting donations. A separate GRAMA provision, 63G-2-305(37), allows donors’ names to be kept secret under certain conditions, but only by government entities that are “primarily engaged in educational, charitable, or artistic endeavors”—not by cities. Furthermore, the city had provided no evidence that any of these prospective donors even wished to remain anonymous.

Although I was confident that the law was on my side, I still expected to lose the appeal. Ms. Brown is much better at oral arguments than I am, and inevitably came across as more authoritative."

Give it a read yourself and you should catch my drift. It is common phraseology for one to say "practicing law" when a layman, such as Dan S., tries to interpret the law and explain its function.

Still left unanswered is what the hell would he do with or to the donors, once he obtained the "list?"

Dan S. said...

Rule 14-111. Practicing without a license prohibited.

(a) Action or proceedings to enforce. Exception. Pursuant to Rule 14-506(a), no person who is not duly admitted and licensed to practice law in Utah as an attorney at law or as a foreign legal consultant nor any person whose right or license to so practice has terminated either by disbarment, suspension, failure to pay his or her license and other fees or otherwise, shall practice or assume to act or hold himself or herself out to the public as a person qualified to practice law or to carry on the calling of an attorney at law in Utah. Such practice, or assumption to act or holding out, by any such unlicensed or disbarred or suspended person shall not constitute a crime, but this prohibition against the practice of law by any such person shall be enforced by such civil action or proceedings, including writ, contempt or injunctive proceedings, as may be necessary and appropriate, which action or which proceedings shall be instituted by the Bar after approval by the Board.

(b) Nothing in this article shall prohibit a person who is unlicensed as an attorney at law or a foreign legal consultant from personally representing that person's own interests in a cause to which the person is a party in his or her own right and not as assignee.

Dan S. said...

F. Lee:

To answer your last question, my principal intent is to release the list of prospective donors to the public, so everyone can see who they are. It's also possible that I, or a professional journalist, will contact some of the prospective donors to ask whether it's likely that they will actually donate. The overall goal is to assess whether the mayor's promise of $10 million in private donations is realistic.

F. Lee said...

A fine goal, Dan S. And I agree, you certainly have the right to represent yourself, or your cause, in matters such as these. My point here is that laymen who do so, against an accomplished and practicing attorney, most often fail to prevail. Even a judge discourages the practice of representing oneself at trail.

You continue with your causes, some of which I agree with, others with which I don't, but your interpreting the law in your reasonings on this blog do not rise to the occasion, I'm afraid.

But keep on truckin' and keep those in power accountable. But in those endeavors consider whom they have representing them, and even with your professorship, I doubt you can match an attorney when it comes to legalese.

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