Close to four years after filing this case it has reached a conclusion having received the bulk of records in dispute.  Ban Law Office was happy to be a part of the effort.  Kudos to Pat Shea and Dan Schroeder for all their hard work.

For Immediate Release — 3 June 2011

Contact:  Dan Schroeder, Sierra Club volunteer, 801-393-4603

SIERRA CLUB AND OGDEN SETTLE GONDOLA RECORDS LAWSUIT

The Sierra Club and Ogden City have settled a legal dispute over
access to government records dating from 2007.

The disputed records pertain to the gondola and resort development
that was proposed in 2005 by Mayor Matthew Godfrey and Chris Peterson,
owner of the Malan’s Basin property in the mountains above Ogden.

The Sierra Club requested access to a variety of records in mid-2007,
and the city released many of the requested records at that time.
However, the city also withheld a few dozen records–mostly
emails–citing several statutory exemptions under Utah’s Government
Records Access Management Act (GRAMA). After the city’s Records Review
Board upheld the decision to withhold these records, the Sierra Club
filed suit in Utah’s Second District Court.

Under the terms of the recent settlement, Ogden has now released 43 of
the 46 withheld records, even while continuing to maintain that these
records were legally withheld. The Sierra Club disagrees with Ogden’s
opinion on these 43 records, but has agreed that the remaining three
records were legally withheld under GRAMA. To complete the settlement,
Ogden has reimbursed the Sierra Club for $10,000 in attorneys’ fees.

The Sierra Club considers this settlement a full victory, aside from
the investment of volunteer time and the long delay before the vast
majority of the records were publicly released. The Sierra Club’s
attorneys, Joel Ban and Patrick Shea, were allowed to examine the
three remaining records under a confidentiality agreement, and
determined that those three records were legitimate attorney-client
communications that could be withheld under GRAMA.

As the lawsuit progressed over the last three years, the Sierra Club
and Ogden became engaged in several procedural disputes. Chief among
these was whether Ogden was required to provide a detailed list of the
records being withheld.

Initially, the city refused to list the withheld records or even to
disclose the number of records being withheld. When this question came
before the court, however, Second District Judge W. Brent West ruled
that the city had to provide an index of the withheld records that was
sufficiently detailed to allow the opposing party to assess the
applicability of each GRAMA exemption that was being claimed. The
Sierra Club hopes that this ruling will help set a state-wide
precedent, encouraging other government agencies to adequately
describe the records they are withholding.

Although the gondola and resort proposal has been dormant for the last
three years, the content of the released records is still interesting
for two reasons.

First, the records document the depth of involvement of Ogden City
officials and others in promoting the gondola-resort proposal. For
example:

* The city administration assembled a detailed $600,000 budget for
gondola-related studies and attempted to fund nearly half of this
amount through an exchange of federal grant funds with the Utah
Transit Authority, bypassing the Ogden City Council.

* Peterson and Godfrey managed the public relations campaign through a
“steering team” consisting of Michael Joseph, Edgar Allen, Dave
Hardman, Dan Musgrave, Larry Hansen, Bob Geiger, Kent Petersen, and
Jennifer Jones.

* The Ogden-Weber Chamber of Commerce paid at least $15,000 to
Pinnacle Marketing for the public relations effort, and was reimbursed
for at least $10,000 by Peterson.

Second, the newly released records document the city’s overly broad
interpretations of several GRAMA exemptions. For example:

* A contract and invoice for an already-completed consultants’ study
were withheld under the GRAMA exemption for “drafts”.

* A price quote from an engineering firm was withheld under the GRAMA
exemption for records whose disclosure would impair government
procurement, even though no competitive bids were ever sought.

* An email suggesting that Peterson close off the hiking trails on his
property was withheld under the GRAMA exemption for records of
negotiations over business incentives.

* An email consisting solely of the sentence “Thanks for following up
on this” was withheld under the GRAMA exemption for attorney-client
communications.

These classifications highlight the city administration’s troubling
preoccupation with secrecy, even in instances when the withheld
records contained no information worth protecting. Equally troubling
is the fact that the city’s Records Review Board, a supposedly
independent body, upheld every one of these classifications during its
administrative appeal hearings.

Copies of all of the released records are posted on the Sierra Club’s
web site, http://utah.sierraclub.org/ogden/.