Can GRAMA requesters recover attorney fees when third parties challenge record access? McKitrick v. Gibson Explained

In McKitrick v. Gibson, 2024 UT 1, the Utah Supreme Court addressed an important question about attorney fee recovery under the Government Records Access and Management Act (GRAMA). The case arose when a journalist successfully obtained records through GRAMA’s appeal process, but a third party challenged the records release in court.

Background and Facts

Freelance journalist Cathy McKitrick requested records under GRAMA concerning an investigation into Weber County Commissioner Kerry Gibson. After Ogden City initially denied the request, McKitrick appealed to the Ogden City Records Review Board, which ordered the records released with limited redactions. Gibson then petitioned for judicial review to prevent disclosure, naming Ogden City and the Review Board—but not McKitrick—as respondents. McKitrick intervened and moved to dismiss Gibson’s petition for lack of standing, which the Utah Supreme Court ultimately granted in McKitrick I.

Key Legal Issues

Following her successful challenge to Gibson’s standing, McKitrick sought attorney fees from Ogden City under Utah Code section 63G-2-802(2)(a), GRAMA’s fee provision. The district court denied the motion, reasoning that the fee provision only applies when either the requester or governmental entity initiates the judicial appeal, not when a third party does so.

Court’s Analysis and Holding

The Utah Supreme Court reversed, applying principles of statutory interpretation. The court emphasized that the fee provision’s plain language permits fee awards for costs “incurred in connection with a judicial appeal to determine whether a requester is entitled to access to records.” Critically, the statute does not restrict who may initiate the appeal. The court noted that while other GRAMA provisions explicitly limit who may seek judicial intervention, the legislature purposefully omitted such restrictive language from the fee provision. The court also held that McKitrick’s court filings constituted an adequate “statement of position” under the statute.

Practice Implications

This decision significantly expands GRAMA requesters’ ability to recover attorney fees. Requesters can now seek fees when defending their records access rights, even if they didn’t initiate the judicial proceedings. However, practitioners should note that fee recovery still requires satisfying other statutory requirements, including that the requester “substantially prevailed” and that the statutory factors support an award. The court remanded for consideration of these issues, emphasizing that district courts retain discretion in applying the fee provision’s substantive requirements.