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 3/3/11 3:58 p.m.: Per Dan S... here's Cathy McKitrick's writeup from the Salt Lake Tribune:
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:
