McKitrick v. Gibson

This opinion is subject to revision before final
publication in the Pacific Reporter

2024 UT 1

IN THE

SUPREME COURT OF THE STATE OF UTAH

CATHY MCKITRICK,
Appellant,
v.
KERRY GIBSON, CITY OF OGDEN, and
ODGEN CITY RECORDS REVIEW BOARD,
Appellees.

No. 20220738
Heard November 13, 2023
Filed January 11, 2024

On Direct Appeal

Second District, Weber County
The Honorable Noel S. Hyde
No. 180906947

Attorneys:
Jeffrey J. Hunt, David C. Reymann, Kade N. Olsen, Salt Lake City,
for appellant
Stephen F. Noel, Ryan D. Poole, Ogden, for appellee
City of Ogden
Peter Stirba, Matthew Strout, Salt Lake City, for appellee
Kerry Gibson
Clinton R. Drake, Bountiful, for appellee Ogden City Records
Review Board

JUSTICE POHLMAN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE PETERSEN, and JUDGE HARRIS joined.
Having recused herself, JUSTICE HAGEN does not participate
herein; COURT OF APPEALS JUDGE RYAN M. HARRIS sat.
 MCKITRICK v. GIBSON et al.
Opinion of the Court

JUSTICE POHLMAN, opinion of the Court:

INTRODUCTION
¶1 The Ogden City Records Review Board (Review Board)
ordered Ogden City to release redacted versions of certain records
to Cathy McKitrick, an investigative journalist who requested the
records under the Government Records Access and Management
Act (GRAMA). Although neither McKitrick nor Ogden City
challenged the Review Board’s decision, Kerry Gibson, the subject
of the records, did. Naming the Review Board and Ogden City—
but not McKitrick—as respondents, Gibson petitioned the district
court to prevent the records’ release.
¶2 McKitrick perceived from the parties’ initial court filings
that her interest in obtaining the records would not be fully
represented in the proceedings, so she intervened and moved the
court to dismiss Gibson’s petition for want of standing. That issue
came to this court, and we held that Gibson lacked standing to
challenge the Review Board’s decision. See McKitrick v. Gibson
(McKitrick I), 2021 UT 48, ¶ 50, 496 P.3d 147. We accordingly
remanded the case and instructed the district court to dismiss
Gibson’s petition. Id.
¶3 Before the district court dismissed the case, however,
McKitrick moved for an award of attorney fees and litigation costs.
She contended that a provision under GRAMA, Utah Code section
63G-2-802 (the fee provision), obliged Ogden City to pay the fees
and costs she incurred in contesting Gibson’s petition. The district
court denied McKitrick’s motion, and we now review that decision.
¶4 We reverse the district court’s interpretation of the fee
provision but stop short of holding that McKitrick is entitled to a
fee award. Because the district court did not consider substantive
aspects of the fee provision, we remand the case for it to do so.
BACKGROUND
¶5 While serving as a Weber County Commissioner, Kerry
Gibson was accused of misusing public resources for his personal
benefit. That accusation led to a formal investigation, which
concluded without charges being filed.
¶6 Soon thereafter, freelance journalist Cathy McKitrick
emailed the Ogden Police Department requesting, under GRAMA,
the “contents and filings” of the investigation into Gibson. Gibson
objected to McKitrick’s request, and Ogden City denied it,
explaining that the records were classified as “private” and
2
 Cite as: 2024 UT 1
Opinion of the Court

“protected” under GRAMA and that the “public’s interest in
disclosure [did] not outweigh the City’s interest in classifying” the
records as such. (Citing UTAH CODE §§ 63G-2
-302(2)(d), -305(10)(d)–(e)).
¶7 McKitrick appealed to the Ogden Chief Administrative
Officer, who upheld Ogden City’s denial. McKitrick appealed once
more, asking the Review Board to reverse Ogden City’s and the
Chief Administrative Officer’s decisions. The Review Board held a
hearing at which it heard arguments from McKitrick, Ogden City,
and Gibson. After considering the arguments and inspecting the
records in camera, the Review Board issued a written decision and
order, reversing the previous denials of McKitrick’s records request
and ordering Ogden City to release the records with limited
redactions.
¶8 One month after the Review Board issued its decision,
Ogden City asked for, and the Review Board granted, more time to
redact the necessary information from the records. In addition, the
Review Board learned that Gibson was not notified of its decision
and order, so it extended the right to appeal for thirty more days.
¶9 Gibson then filed a “petition for judicial review” of the
Review Board’s decision, identifying Ogden City and the Review
Board as respondents. In the petition, Gibson asked the district
court to reverse the Review Board’s decision and to order that the
records not be disclosed because, in his view, the records are
properly classified as private and protected under GRAMA and
because his privacy interest outweighs the public’s interest in
accessing the records.
¶10 In its response to Gibson’s petition, Ogden City first noted
that it had chosen not to appeal the Review Board’s decision.
Ogden City went on to address Gibson’s arguments and requests
for relief. It “support[ed] and “join[ed]” portions of Gibson’s
requests for relief—specifically, “that the records be deemed
properly classified as protected . . . and . . . private under GRAMA”
and “that the subject documents be precluded from disclosure.”
But it expressed “no interest in” the other portions of Gibson’s
requests—including his requests for the district court to balance
interests, reverse the Review Board’s decision, and order that the
records not be disclosed.
¶11 The Review Board, in turn, defended its order and
explained that, in issuing its decision, it “was merely fulfilling its
obligations” under GRAMA. The Review Board therefore stated

3
 MCKITRICK v. GIBSON et al.
Opinion of the Court

that it was “not in a position to admit or deny any of the allegations
contained in” Gibson’s petition.
¶12 At that point, McKitrick moved to intervene in the case.
She claimed to be “entitled to participate” in the litigation based on
her “direct interest in the subject matter.” She also asserted that her
interest in the case was “sufficiently different from the existing
parties’ interests,” noting in particular that Ogden City was
“supporting [Gibson’s] position on appeal that the Board’s Order
should be reversed.” The district court granted McKitrick’s motion
and made her a party to the proceeding.
¶13 Responding to Gibson’s petition, McKitrick rebutted
Gibson’s claims and requests for relief: she contended that the
records “are neither private . . . nor protected” under GRAMA,
denied that Gibson’s privacy interest outweighs the public’s
interest in the records, and defended the Review Board’s decision.
She also urged the court to award “her reasonable costs and
attorneys’ fees to the extent permitted by applicable law.”
¶14 McKitrick then moved the court to dismiss Gibson’s
petition because Gibson “lack[ed] standing under GRAMA to bring
th[e] action.” Gibson countered that he had standing “under the
traditional and public-interest standing doctrines.” The district
court agreed that Gibson had standing, and McKitrick appealed
that decision to this court. See generally McKitrick I, 2021 UT 48, 496
P.3d 147. We reversed the district court’s decision, holding that
“Gibson lack[ed] standing under GRAMA to seek judicial review
of the Review Board’s decision” and that Gibson was therefore
precluded from “proceed[ing] on traditional or alternative
standing grounds.” Id. ¶ 50. In accordance with that holding, we
remanded the case “for the dismissal of Gibson’s petition.” Id.
¶15 On remand, McKitrick invoked the fee provision to collect
the attorney fees and litigation costs that she incurred in opposing
Gibson’s petition. Under the fee provision, “A district court may
assess against any governmental entity or political subdivision
reasonable attorney fees and costs reasonably incurred in
connection with a judicial appeal to determine whether a requester
is entitled to access to records under a records request, if the
requester substantially prevails.” UTAH CODE § 63G-2-802(2)(a).
The fee provision goes on to list three factors (the statutory factors)
that “the court shall consider” in making its determination: (1) “the
public benefit derived from the case,” (2) “the nature of the
requester’s interest in the records,” and (3) “whether the

4
 Cite as: 2024 UT 1
Opinion of the Court

governmental entity’s or political subdivision’s actions had a
reasonable basis.” Id. § 63G-2-802(2)(b).
¶16 The fee provision also includes certain limitations.
Relevant here, it permits an award only for fees and costs “incurred
20 or more days after the requester provided to the governmental
entity or political subdivision a statement of position that
adequately explains the basis for the requester’s position.” Id.
§ 63G-2-802(4).
¶17 McKitrick argued to the district court that, under the fee
provision’s plain language, she is entitled to an award of fees and
costs at Ogden City’s expense. In her view, Gibson’s petition
constituted “a judicial appeal to determine whether a requester”—
McKitrick—“is entitled to access to records under a records
request.” See id. § 63G-2-802(2)(a). By McKitrick’s estimation, she
also “substantially prevail[ed],” see id., because she secured the
dismissal of Gibson’s petition and thereby confirmed she is entitled
to the records. And, McKitrick added, the statutory factors weigh
in favor of a fee award. See id. § 63G-2-802(2)(b).
¶18 Ogden City responded that the fee provision is
inapplicable under the circumstances. First, Ogden City claimed
there was no “judicial appeal,” see id. § 63G-2-802(2)(a), because the
fee provision “only contemplates an appeal either from the
requester of the disputed records or from the governmental entity.”
So because Gibson, not McKitrick or Ogden City, petitioned for
review of the Review Board’s decision, the fee provision did not
apply. Next, according to Ogden City, McKitrick cannot seek fees
and costs under the fee provision because she “did not
‘substantially prevail’ in any action against Ogden City.” See id.
And, turning to the statutory factors, Ogden City maintained that
because its actions had a reasonable basis, McKitrick should be
denied fees. See id. § 63G-2-802(2)(b)(iii).
¶19 Additionally, Ogden City insisted that, even if the statute
otherwise applied, McKitrick was ineligible for fees because she
did not provide Ogden City with “a statement of position that
adequately explain[ed] the basis” for her position. See id.
§ 63G-2-802(4). On this point, Ogden City emphasized that
McKitrick did not attempt to contact Ogden City to discuss the
situation before moving to intervene.
¶20 The district court denied McKitrick’s motion for fees.
Attempting to read the fee provision “in a reasonable manner,” the
court concluded that “the language of the statute simply was not
drafted in contemplation of the circumstance that is now before the
5
 MCKITRICK v. GIBSON et al.
Opinion of the Court

Court.” From the court’s perspective, because the fee provision
“was intended to apply to circumstances wherein a requester or the
city appeals a review board’s decision,” the fact that neither
McKitrick nor Ogden City initiated the petition for review “is very
significant and weighs heavily against an award of attorney fees.”
¶21 Although the district court referenced the statutory factors
in its written decision, its discussion was fragmentary. The court
lamented that because standing was the only issue fully considered
in the case, applying the statutory factors required it “to force the
statute onto the facts of the current matter.” The court thus
concluded “there is no basis to determine any public benefit
derived from the case . . . , the nature of the requester’s interest in
the records, and whether Ogden’s actions had a reasonable basis.”1
¶22 Turning to the question of whether McKitrick provided
Ogden City with a “statement of position,” see id., the district court
reiterated that the circumstances of the case fall outside the fee
provision’s ambit because the fee provision “necessarily
contemplates a statement of the Requester’s position for the right
to have access to the documents, not the requester’s position on the
standing of a third party.” The district court accordingly offered an
alternative basis for its denial of McKitrick’s motion for fees,
determining that her filings in the case did not constitute a
statement of position under the fee provision.
¶23 The district court’s written decision did not address
whether McKitrick “substantially prevail[ed]” for purposes of the
fee provision. See id. § 63G-2-802(2)(a). Nor did the court determine
the reasonableness of McKitrick’s fees and costs. See id. (permitting
district courts to assess “reasonable attorney fees and costs
reasonably incurred”).
¶24 McKitrick appeals the district court’s decision.
ISSUE AND STANDARD OF REVIEW
¶25 McKitrick disputes the district court’s interpretation and
application of the fee provision. While we defer to a district court’s
__________________________________________________________
1 The district court did go a bit further in analyzing whether

Ogden City’s actions were reasonable, though its discussion was
again narrowly focused on the issue of Gibson’s standing. “[A]s to
that issue,” the court concluded it “ha[d] not been presented with
any information to suggest that the positions maintained by the
City were anything but reasonable and appropriate under the
circumstances.”
6
 Cite as: 2024 UT 1
Opinion of the Court

grant or denial of a request for attorney fees, see Schroeder v. Utah
Att’y Gen.’s Off., 2015 UT 77, ¶ 4, 358 P.3d 1075, we give no
deference to a district court’s construction of a statutory provision
authorizing attorney fees, see MAA Prospector Motor Lodge, LLC v.
Palmer, 2017 UT 68, ¶ 11, 416 P.3d 352.
ANALYSIS
¶26 “Attorney fees are generally recoverable in Utah only
when authorized by statute or contract.” Reighard v. Yates, 2012 UT
45, ¶ 41, 285 P.3d 1168 (cleaned up). McKitrick appeals the district
court’s denial of her motion for fees, asserting that the fee provision
authorizes her to recover the attorney fees and litigation costs she
incurred while defending the Review Board’s decision.
¶27 Anchoring her interpretation of the fee provision in its
broad language, McKitrick maintains that, even though it was
Gibson who petitioned for judicial review of the Review Board’s
decision, the fees and costs she solicits were nevertheless incurred
“in connection with a judicial appeal to determine whether” she
was “entitled to access to records.” See UTAH CODE
§ 63G-2-802(2)(a). And, because she effectively vindicated her
records request, McKitrick argues that she “substantially
prevail[ed],” as required by the fee provision. See id. Further,
according to McKitrick, her early court filings, which she served on
Ogden City, qualify as “a statement of position that adequately
explain[ed] the basis” for her position. See id. § 63G-2-802(4). Next,
McKitrick encourages us to balance the statutory factors and hold
that they support a fee award. Finally, McKitrick requests we
remand the case for the district court to decide the reasonableness
of the costs and fees she incurred, see id. § 63G-2-802(2)(a), and to
award costs and fees incurred in this appeal.
¶28 Ogden City disagrees that the fee provision entitles
McKitrick to an award. For starters, Ogden City contends that the
fee provision is inapplicable under the circumstances because
McKitrick and Ogden City opted not to appeal the Review Board’s
decision. Even if the statute were to apply, Ogden City continues,
McKitrick’s court filings did not put Ogden City on notice of her
intent to collect fees from Ogden City, so they do not suffice as a
“statement of position.” See id. § 63G-2-802(4). And, assuming we
conclude that the statute applies and that McKitrick provided a
statement of position, Ogden City requests we remand the case for
the district court to decide whether McKitrick “substantially
prevail[ed]” and whether the statutory factors weigh in favor of a
fee award. See id. § 63G-2-802(2)(a), (2)(b).
7
 MCKITRICK v. GIBSON et al.
Opinion of the Court

¶29 We agree with McKitrick that the district court narrowed
the fee provision’s scope by reading restrictive language into the
statute that the legislature did not include. We likewise agree with
McKitrick that her court filings qualify as a “statement of position.”
See id. § 63G-2-802(4). But we agree with Ogden City that the
district court did not apply the fee provision in its entirety, and we
accordingly remand the case for the court to do so.
I. THE FEE PROVISION’S PLAIN LANGUAGE CONTRAVENES
THE DISTRICT COURT’S READING
¶30 McKitrick challenges the district court’s conclusion that a
fee award is permissible only when a governmental entity initiates
a judicial appeal or opposes an appeal initiated by a requester. We
agree that this interpretation overlooks the fee provision’s broad
language and imports a condition the legislature did not include.
¶31 Our primary goal when interpreting a statute is to
ascertain the legislature’s intent. McKitrick I, 2021 UT 48, ¶ 19, 496
P.3d 147. And “the best evidence of the legislature’s intent is the
plain language of the statute itself.” Id. (cleaned up). “Where the
statute’s language marks its reach in clear and unambiguous terms,
it is our role to enforce a legislative purpose that matches those
terms, not to supplant it with a narrower or broader one . . . .”
Hooban v. Unicity Int’l, Inc., 2012 UT 40, ¶ 17, 285 P.3d 766.
¶32 The fee provision allows for an award of fees and costs that
are “incurred in connection with a judicial appeal to determine
whether a requester is entitled to access to records under a records
request.” See UTAH CODE § 63G-2-802(2)(a). As an initial matter, we
note there is nothing about the word “appeal,” as used in this
context, to suggest that McKitrick falls outside the fee provision’s
scope. An appeal is “[a] proceeding undertaken to have a decision
reconsidered by a higher authority.” Appeal, BLACK’S LAW
DICTIONARY (11th ed. 2019). Gibson’s petition for judicial review
meets that definition: by seeking “judicial review of the Board’s
Order,” Gibson sought to have the Review Board’s decision
reconsidered by a higher authority—the district court.
¶33 And the parties do not dispute that the purpose of
Gibson’s petition for judicial review was “to determine whether a
requester is entitled to access to records under a records request.”
See UTAH CODE § 63G-2-802(2)(a). In his petition, Gibson asked the
district court to review the Review Board’s decision de novo,
outlining reasons why the records should not be released to
McKitrick and requesting an “order that the disputed records . . .
not be disclosed.” Thus, the proceedings were initiated to
8
 Cite as: 2024 UT 1
Opinion of the Court

determine whether McKitrick was entitled to access to records
under her records request.
¶34 That leaves us with the district court’s conclusion that, for
the fee provision to apply, either a governmental entity or a
requester must initiate the appeal. Ogden City endorses the district
court’s analysis on this point, citing our decision in McKitrick I for
support. There, we opined that under the plain language of Utah
Code section 63G-2-701(6)(a), “only a requester of a record . . . or a
political subdivision . . . may petition for judicial review of a local
appeals board decision in the district court.” McKitrick I, 2021 UT
48, ¶ 43. Adhering to well-settled norms of statutory interpretation,
we presumed in McKitrick I “that the legislature used ‘requester’
and ‘political subdivision’ advisedly in crafting GRAMA’s
appellate review language.” Id. ¶ 39. Because we saw nothing to
contradict that presumption, we concluded that “the legislature
carefully chose which access decisions were subject to appeal and
which persons could pursue those appeals.” Id. ¶ 41.
¶35 But McKitrick I did not involve the fee provision. Indeed,
the fee provision presents the flipside of the statutory language at
issue in McKitrick I. While in McKitrick I we presumed the inclusion
of restrictive language to be purposeful, here we must presume the
omission of restrictive language to be so. That is, of course, standard
statutory-interpretation practice. See, e.g., Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“We . . . give effect to
omissions in statutory language by presuming all omissions to be
purposeful.”).
¶36 And although section 63G-2-701’s restrictive language
could conceivably be understood to be impliedly incorporated into
the fee provision, that view is contradicted by the legislature’s
express use of restrictive language in other GRAMA fee provisions.
Cf. Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 341 (2005) (“We do
not lightly assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply, and our
reluctance is even greater when Congress has shown elsewhere in
the same statute that it knows how to make such a requirement
manifest.”). In a separate GRAMA provision authorizing attorney
fees, the legislature identifies who must seek judicial intervention
for the court to award fees, providing: “If a governmental entity
requests a court to restrict access to a record under this section, the
court shall require the governmental entity to pay the reasonable
attorney fees and costs incurred by the lead party in opposing the
governmental entity’s request . . . .” UTAH CODE § 63G-2-405(2)

9
 MCKITRICK v. GIBSON et al.
Opinion of the Court

(emphasis added). The fact that the legislature left out this
restrictive language from the fee provision suggests it intended not
to identify or restrict who must seek judicial intervention for the fee
provision to apply.
¶37 Ogden City complains that McKitrick’s proposed reading
of the fee provision has no “limiting principle.” In particular,
Ogden City worries that in a future scenario like this one—where a
third party appeals a decision granting a records request and
names the governmental entity, but not the requester, as a
respondent—the governmental entity would be on the hook for an
intervening requester’s attorney fees and costs even if the
governmental entity opposed the third-party’s appeal. But Ogden
City’s concern is not grounded in the fee provision’s text and is
easily resolved. For a district court to assess fees against a
governmental entity, the fees must be “reasonably incurred.” Id.
§ 63G-2-802(2)(a). Moreover, in considering whether to issue an
award, a district court is directed to examine whether the
governmental entity’s actions “had a reasonable basis.” Id.
§ 63G-2-802(2)(b)(iii). Ogden City’s fear could thus be avoided
through the exercise of district court discretion. Confronted with
the situation Ogden City describes, a district court could conclude
that, because the requester’s interests were adequately represented
by the governmental entity, her intervention in the case was
unnecessary, so the fees were not reasonably incurred.
Alternatively, the district court could decline to award fees on the
ground that the governmental entity’s opposition to the third-
party’s appeal had a reasonable basis.
¶38 In sum, the district court interpreted the fee provision to
be narrower than its text provides. McKitrick may be entitled to an
award under the fee provision even though it was Gibson who
petitioned for review of the Review Board’s decision.2

__________________________________________________________
2 Ogden City also urges us to reject McKitrick’s proposed
interpretation of the fee provision under the absurdity doctrine. We
decline to do so because Ogden City has not shown that “the
operation of the statute is so overwhelmingly absurd that no
rational legislator could ever be deemed to have supported a literal
application of its text.” See Garfield Cnty. v. United States, 2017 UT
41, ¶ 22, 424 P.3d 46 (cleaned up).
10
 Cite as: 2024 UT 1
Opinion of the Court

II. MCKITRICK’S COURT FILINGS QUALIFY AS A
STATEMENT OF POSITION
¶39 Attorney fees and costs can be recovered under the fee
provision only if they are “incurred 20 or more days after the
requester provided to the governmental entity or political
subdivision a statement of position that adequately explains the
basis for the requester’s position.” UTAH CODE § 63G-2-802(4).
McKitrick contests the district court’s determination that she failed
to provide Ogden City with a statement of position. We agree with
McKitrick that her court filings qualify as a statement of position.
¶40 At the outset, we observe there is nothing in the fee
provision’s text to indicate that, categorically, a court filing may not
serve as a statement of position. Although we have never held that
a court filing may qualify as a statement of position under the fee
provision, our court of appeals has implied as much. See Murray
City v. Maese, 2011 UT App 73, ¶ 5, 251 P.3d 843 (allowing a
responsive judicial pleading to qualify as a statement of position).
Because a court filing can serve to adequately explain the basis for
a requester’s position, we affirm that a court filing is one way that
a requester could provide a governmental entity or political
subdivision with a statement of position under the fee provision.
¶41 Here, McKitrick asserts that her motion to intervene,
answer in intervention, and motion to dismiss together sufficed as
a statement of position. Because she served those filings on each
party to the litigation, they were necessarily “provided to” Ogden
City, see UTAH CODE § 63G-2-802(4), so the only question under the
fee provision’s plain language is whether the filings “adequately
explain[ed] the basis for [her] position,” see id. According to Ogden
City, McKitrick’s filings were insufficient as a statement of position
because her “only material position” was that Gibson lacked
standing under GRAMA to seek judicial relief. Thus, she did not
adequately explain the basis for her view that she was in a “legally
adverse position to Ogden,” nor did she put Ogden City on notice
that it could be liable for her fees and costs.
¶42 But, taken together, McKitrick’s motion to intervene and
answer in intervention contradict Ogden City’s assertions. In those
filings, McKitrick not only challenged Gibson’s standing, she also
described her “legal interests” in the action, explained how her
position “diverge[d]” from Ogden City’s, “denie[d] that Gibson
[was] entitled to any judgment or relief,” contended that the
records are “neither private . . . nor protected” under GRAMA,
defended the Review Board’s decision, and cited law under which
11
 MCKITRICK v. GIBSON et al.
Opinion of the Court

the records should be released. In addition, McKitrick’s answer in
intervention put Ogden City on notice that McKitrick intended to
recover reasonable attorney fees and costs “to the extent permitted
by applicable law.”
¶43 We are persuaded that, collectively, McKitrick’s
statements in her motion to intervene and answer in intervention
adequately explained her position. Because her answer in
intervention was filed later in time, we hold that McKitrick’s
statement of position was provided on the date of that filing.
III. WE REMAND FOR THE DISTRICT COURT TO CONSIDER
THE ASPECTS OF THE FEE PROVISION THAT IT
HAS NOT ADDRESSED
¶44 The district court’s order did not address substantive
aspects of the fee provision, including whether McKitrick
substantially prevailed, whether the statutory factors support an
award, and whether McKitrick’s fees and costs are reasonable.
Because these questions are subject to district court discretion, we
remand the case for the court to consider them.
¶45 To begin, the district court did not analyze whether, under
the fee provision, McKitrick “substantially prevail[ed].” See UTAH
CODE § 63G-2-802(2)(a) (permitting a district court to “assess . . .
reasonable attorney fees and costs . . . if the requester substantially
prevails”). And we decline to do so on appeal. Because the question
of whether a party prevailed typically “depends, to a large
measure, on the context of each case,” we conclude it is appropriate
“to leave th[e] determination to the sound discretion of the [district]
court.” See R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119.
But we offer two points for the court to consider on remand.
¶46 First, Ogden City suggests the question “against whom?”
must be a part of the inquiry into whether McKitrick substantially
prevailed. But, for the reasons noted above, see supra ¶¶ 32–38, this
would effectively add restrictive language to the fee provision that
the legislature omitted. Thus, we clarify that it is possible McKitrick
substantially prevailed even if she did not prevail against Ogden
City. Second, and similarly, while the fee provision describes what
the appeal must be about—“whether a requester is entitled to
access to records under a records request,” UTAH CODE
§ 63G-2-802(2)(a)—it does not describe the way in which the
requester must substantially prevail, whether on the merits or as a
result of a jurisdictional defect of the appeal. This is an omission we
presume to be purposeful. Accordingly, we clarify that it is possible

12
 Cite as: 2024 UT 1
Opinion of the Court

McKitrick substantially prevailed even if she did not prevail on the
merits.
¶47 Next, the district court did not evaluate the statutory
factors comprehensively. Under the fee provision, the district court
“shall consider” three factors in determining whether to enter an
award of fees: (1) “the public benefit derived from the case,”
(2) “the nature of the requester’s interest in the records,” and
(3) “whether the governmental entity’s or political subdivision’s
actions had a reasonable basis.” Id. § 63G-2-802(2)(b). The district
court concluded that because the merits of Gibson’s petition were
never considered, there was “no basis” to analyze the statutory
factors. In its written decision, the court forewent analysis of the
first two statutory factors and undertook a curbed analysis of the
third. Addressing the third factor, the court explained that
McKitrick had not shown that Ogden City’s “positions” on whether
Gibson possessed standing “were anything but reasonable and
appropriate.”
¶48 The parties agree that the district court’s consideration of
the statutory factors was incomplete, though they disagree about
how to remedy the shortcoming. McKitrick maintains that the
district court incorrectly weighed the statutory factors, so we
should step in and conclusively weigh them. For its part, Ogden
City asserts we must remand the issue because district court
discretion is integral to the fee provision.
¶49 We agree with Ogden City’s proposed course of action.
Consistent with our caselaw discussing the fee provision, as well as
that of the court of appeals, we decline to weigh the statutory
factors on appeal because doing so would deprive the district court
of its legislatively assigned discretion to apply the fee provision to
the facts of the case. See Schroeder v. Utah Att’y Gen.’s Off., 2015 UT
77, ¶ 62, 358 P.3d 1075 (noting that because the fee provision “is
permissive” and allows the district court “to award fees after
considering a variety of factors,” “the district court is in the best
position to make th[e] decision in the first instance”); Murray City
v. Maese, 2011 UT App 73, ¶ 6, 251 P.3d 843 (remanding the case for
the district court to determine whether a records requester was
entitled to attorney fees and costs under the fee provision). We
clarify, however, that even though Gibson’s petition was never
addressed on the merits, that does not strip the district court of its
ability to evaluate the statutory factors with a comprehensive view
of the underlying circumstances. In other words, on remand the
court should look beyond the question of Gibson’s standing when

13
 MCKITRICK v. GIBSON et al.
Opinion of the Court

considering the public benefit derived from the case, the nature of
McKitrick’s interest in the records, and whether Ogden City’s
actions had a reasonable basis.
¶50 Finally, because it denied McKitrick’s motion for fees on
other grounds, the district court did not consider whether the
award McKitrick seeks comprises “reasonable attorney fees and
costs reasonably incurred.” See UTAH CODE § 63G-2-802(2)(a). On
appeal, neither party contests that this is a question for the district
court, and we instruct the court to consider it on remand should the
court balance the statutory factors in McKitrick’s favor. We
likewise instruct the district court to consider on remand
McKitrick’s request for the fees and costs she incurred in this
appeal.
CONCLUSION
¶51 Under the fee provision’s plain language, McKitrick may
be eligible for an award of fees even though neither she nor Ogden
City appealed the Review Board’s decision. McKitrick provided
Ogden City with a statement of position in the form of a motion to
intervene and answer in intervention. We therefore reverse the
district court’s decision interpreting the fee provision, and we
remand the case for the court to address the parts of the fee
provision that it has not fully considered.

14