Records Released by Ogden City

The tables below provide descriptions and links for all the records released by Ogden City in response to the Sierra Club's open records lawsuit, filed in October 2007 and settled in May 2011. The records we requested pertained to the massive development project that would have included two gondolas, 400 housing units in the foothills, and a new ski resort in Malan's Basin, in the mountains above Ogden. The project was proposed jointly by Mayor Matthew Godfrey and Chris Peterson, owner of the Malan's Basin property.

These newly released records are interesting for two reasons:

1. The records provide a historical glimpse into the city's involvement in this highly controversial proposal, and especially the city administration's attempt to funnel funds to the project without city council involvement; and
2. The records demonstrate the city's obsession with secrecy and blatant disregard of the letter and spirit of Utah's Government Records Access Management Act (GRAMA).

Exemptions claimed

The city claimed, and continues to claim, that these records are exempt from disclosure under the following provisions of GRAMA:

• Draft, Utah Code Section 63G-2-305(22). This provision protects "drafts, unless otherwise classified as public." However, Utah Code Sections 63G-2-301(3)(j) and (k) state that the draft exemption may not be used for drafts that have already been circulated to someone outside the government, or for drafts that "have never been finalized but were relied upon by the governmental entity in carrying out action or policy". All of the "draft" records listed below were either circulated to someone outside the government (e.g., Chris Peterson) or were written after a verbal agreement was already in place and action had already been taken (hiring consultant LYRB to carry out the fiscal impacts study).
• Business incentive, Utah Code Section 63G-2-305(35). This provision protects "records that would reveal negotiations regarding assistance or incentives offered by or requested from a governmental entity for the purpose of encouraging a person to expand or locate a business in Utah, but only if disclosure would result in actual economic harm to the person or place the governmental entity at a competitive disadvantage". Ogden has attempted to use this provision to protect a wide variety of emails involving Chris Peterson, but none of these emails mention any negotiations or formal incentives. Peterson does ask the city for some favors such as modifying the downtown Junction development, but none of these favors were still under negotiation at the time the records were requested. One could argue that the draft development agreement includes numerous incentives, but the terms of this agreement were already being publicly discussed at the time. In any case, there is absolutely no evidence that disclosure of these records would cause actual economic harm to Peterson or put Ogden at a competitive disadvantage. No other business was competing for these same incentives, and no other city was competing with Ogden for the gondola project.
• Procurement, Utah Code Section 63G-2-305(6). This provision protects records whose disclosure "would impair governmental procurement proceedings or give an unfair advantage to any person proposing to enter into a contract or agreement with a governmental entity". Ogden has tried to apply it to any record that mentions, even vaguely, a procurement process or a potential vendor. None of these records include formal bids and in fact, Ogden never conducted any formal bidding. To the contrary, in most cases Ogden was working with a single vendor and if anything, keeping this information secret had the effect of giving that vendor an unfair advantage.
• Attorney-client communication, Utah Code Section 63G-2-305(18). This provision protects communications between government officials and their attorneys, provided that these communications involve the exchange of confidential information for the purpose of obtaining legal advice. Ogden attempted to apply this exemption to eight records of communication between city officials and city attorneys. In the five records indexed below, however, it is apparent that no confidential information was being exchanged. The Sierra Club's attorneys have reviewed the remaining three records under a confidentiality agreement, and have determined that they are legitimately protected as attorney-client communications.
• Personal notes, Utah Code Section 63G-2-103(22)(b)(i). This provision exempts personal notes prepared by a government employee in a private capacity. Ogden attempted to apply this exemption to the draft development agreement, presumably because there are handwritten notes on it. However, these notes were obviously written as part of an employee's job, not in a private capacity.

Records pertaining to gondola studies and UTA

This first group of records documents the city administration's efforts to fund studies of the proposed gondolas (and related developments) through an elaborate scheme that bypassed the city council and the normal budgeting process. The city's lobbyist had secured a $247,500 federal earmark for bus facilities, which the administration proposed to sign over to the Utah Transit Authority in exchange for UTA's pledge to spend an equal amount of non-federal funds on gondola studies. It appears that UTA General Manager John Inglish may have verbally agreed to this exchange in early 2006, but serious misunderstandings over the details became apparent over the following year as Ogden and UTA attempted to put the agreement in writing. Meanwhile, Ogden went ahead and hired a consultant, Lewis, Young, Robertson & Burningham (LYRB), to conduct a "fiscal impacts study" of the gondola-resort proposal. This study was apparently completed before a written contract was signed, and the city eventually arranged for UTA to pay the $16,250 invoice. The rest of the deal broke down, however, and UTA ended up spending the rest of the $247,500 on a study of more conventional transit options between downtown Ogden and Weber State University.

For more documentation of these events, see this collection of articles on the Weber County Forum blog, and this collection of records that Ogden initially provided in response to our 2007 request.

Records of communication with Chris Peterson

The remaining records, listed below, consist of miscellaneous communications involving the city, Chris Peterson (owner of Malan's Basin), and various other parties.