Salt Lake City Corp. v. Jordan River Res. ( 2018 )


Menu:
  •            This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2018 UT 62
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    SALT LAKE CITY CORPORATION,
    Appellee,
    v.
    JORDAN RIVER RESTORATION NETWORK, JEFF SALT,
    STATE RECORDS COMMITTEE, and
    SALT LAKE CITY RECORDS APPEALS BOARD,
    Appellants.
    No. 20160098
    Filed December 20, 2018
    On Direct Appeal
    Third Judicial District, Salt Lake City
    The Honorable Andrew H. Stone
    Case No. 100910873
    Attorneys:
    Margaret D. Plane, Catherine L. Brabson, for appellee
    Salt Lake City Corporation
    Karthik Nadesan, for appellants
    Jordan River Restoration Network and Jeff Salt
    Paul H. Tonks, Brent A. Burnett, for appellant
    State Records Committee
    JUSTICE PETERSEN authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
    JUSTICE HIMONAS, and JUSTICE PEARCE joined.
    JUSTICE PETERSEN, opinion of the Court:
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    INTRODUCTION
    ¶1    The Jordan River Restoration Network and its founder
    Jeff Salt (collectively, JRRN) filed a request with Salt Lake City
    Corporation (City) seeking every document related to the planned
    construction of a sports complex along the Jordan River. In the
    request, JRRN also asked the City to provide the documents at no
    charge. The City granted the document request, but denied
    JRRN’s fee waiver request.
    ¶2    JRRN appealed the City’s fee waiver denial to the City
    Records Appeals Board, which ruled in JRRN’s favor. The City
    appealed that decision to the State Records Committee, which also
    ruled in favor of JRRN. The City then petitioned for judicial
    review of these administrative orders in the district court. The
    court ruled in favor of the City, concluding its fee waiver denial
    was reasonable.
    ¶3    JRRN challenges a number of the district court’s
    procedural and substantive rulings. We conclude that the court
    conducted the review contemplated by the Government Records
    Access and Management Act (GRAMA). And while we find that
    the court did make some procedural errors, each was harmless.
    Accordingly, we affirm.
    BACKGROUND
    ¶4     JRRN is a coalition of individuals and organizations
    committed to restoring and preserving the Jordan River and the
    surrounding area. When JRRN’s founder, Jeff Salt, learned of the
    City’s plan to develop a sports complex along the river in Salt
    Lake County, he was concerned. He ultimately came to oppose
    the plan altogether.
    ¶5    To obtain information about the project, JRRN filed
    somewhere between five to twenty GRAMA requests with the
    City. The City provided “roughly 700 pages of records” to JRRN
    free of charge. However, JRRN did not find this information to be
    sufficient and filed an extensive and detailed GRAMA request on
    2
    Cite as: 
    2018 UT 62
                          Opinion of the Court
    March 10, 2010, that effectively sought every document related to
    the project. This is the request at issue in this case.1
    ¶6   In this request, JRRN asked for “all records in the City’s
    possession that related to the Project,” including “all agreements
    related to the Project, all correspondence and meeting
    information, all site selection analysis, all budgets, and all
    engineering plans.” Some of the records sought had already been
    provided in response to JRRN’s earlier requests.
    ¶7   JRRN also asked the City to waive any fee associated
    with producing the records. Salt justified the fee waiver request
    by including on the request form: “nonprofit organization,
    information for public good and education, not used for profit.”
    ¶8    While the City agreed to provide JRRN with the
    documents it had requested, it denied the fee waiver request. By
    letter, the City informed JRRN that the estimated cost of
    providing the requested records would be two hundred dollars,
    and JRRN would have to pay that amount “before any response to
    the GRAMA request [could] begin.” In the same letter, the City
    informed JRRN that it could appeal the City’s decision to the City
    Records Appeals Board.2
    ¶9     JRRN did so. After a hearing, the City Records Appeals
    Board agreed with JRRN, and ordered the City to provide the
    requested records without charge. The Appeals Board also found
    that the request was “voluminous.” The result of this finding was
    to extend the period of time in which the City was required to
    fulfill the request from ten business days to forty-five days from
    the date of the hearing.
    1 Accordingly, we reference and analyze the 2010 version of
    the Utah GRAMA statute throughout this opinion.
    2 The City cited Salt Lake City Code section 2.64.130(D) (2010),
    which provided that a “person who believes that there has been
    an unreasonable denial of a fee waiver . . . may appeal the denial
    in the same manner as a person appeals when inspection of a
    public record is denied.” This mirrors the language in GRAMA
    section 63G-2-203(6)(a).
    3
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    ¶10 Both parties appealed to the State Records Committee.
    JRRN appealed the Appeals Board’s finding that the request was
    voluminous and the City cross-appealed the determination that
    JRRN was entitled to a fee waiver. After a hearing, the Records
    Committee denied the City’s cross-appeal.
    ¶11 The City filed a petition for judicial review in the district
    court of the orders of both the Appeals Board and the Records
    Committee.3 After some initial motion practice followed by a
    significant period of inactivity, the parties eventually exchanged
    initial disclosures, engaged in fact discovery, and JRRN disclosed
    an expert witness. Both sides then filed motions for summary
    judgment.
    ¶12 JRRN argued that the City’s petition for judicial review
    should be dismissed because it lacked standing to appeal the
    decision of its own City Records Appeals Board and its internal
    appeals process did not strictly comply with the GRAMA statute.
    The district court denied JRRN’s motion. But the court partially
    granted the City’s motion, entering summary judgment against
    JRRN on each of its counterclaims. However, the court found that
    there were “factual issues as to whether the City’s decision to
    deny the fee waiver was reasonable.” Accordingly, the court
    could not grant summary judgment on that claim and informed
    the parties that it would resolve the issue in a trial de novo.
    ¶13 The City then filed a motion asking the court to
    determine what the standard of review would be and which party
    would have the burden of proof at the trial de novo. In a written
    order, the court ruled that the burden of going forward would be
    on “Respondents [JRRN] as the party seeking relief in the form of
    a Court-ordered fee waiver from the City.” The court stated that it
    would review “the City’s decision to deny the fee waiver and not
    the decision or proceedings of the City Appeals Board and State
    Records Committee.” The court further explained: “At this state of
    3 The City filed its petition pursuant to Utah Code sections
    63G-2-404(1)(a) and 63G-2-701(6) and in accordance with 63G-2-
    404(3).
    4
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    review, those proceedings are not relevant. The evidence cannot
    be limited to the record before the State Records Committee
    because there is not a record.”
    ¶14 After conducting the trial de novo, the district court
    upheld the City’s decision to deny the fee waiver. The court
    issued detailed Findings of Fact and Conclusions of Law, and
    ultimately held that “the City was entitled to charge for the costs
    of [fulfilling the GRAMA Request].”
    ¶15 JRRN then filed this appeal.4 JRRN asserts that the court
    should have granted summary judgment against the City because
    it did not have standing to petition for judicial review, and its
    internal appeals procedure did not strictly comply with the
    GRAMA statute. JRRN also argues the court should not have
    granted summary judgment against it on its counterclaims. With
    regard to the bench trial, JRRN contends that the court: (1) should
    have limited its review to the administrative record rather than
    considering new evidence, (2) applied the wrong standard of
    review, (3) should have assigned the burden of proof to the City,
    and 4) misapplied the law.
    ¶16 We have jurisdiction to hear this case pursuant to Utah
    Code section 78A-3-102(3)(j).
    STANDARDS OF REVIEW
    ¶17 JRRN raises a number of legal issues that we review for
    correctness, without any deference to the holdings of the trial
    court.
    4  JRRN appealed to the Utah Court of Appeals. The City then
    filed a motion to transfer the appeal to this court, asserting that
    “the Utah Supreme Court’s most recent GRAMA decision
    clarified that it has jurisdiction to review the district court’s
    decision arising from a petition for judicial review of the Utah
    State Records Committee’s determination.” Order of the Utah
    Court of Appeals, Case No. 20160098-CA (Sept. 13, 2017) (citing
    Schroeder v. Utah Attorney Gen.’s Office, 
    2015 UT 77
    , ¶ 15, 
    358 P.3d 1075
    ). JRRN did not oppose the City’s motion and the Court of
    Appeals granted it.
    5
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    ¶18 Regarding our review of the district court’s ruling
    against JRRN on summary judgment, “the district court’s legal
    conclusions and ultimate grant or denial of summary judgment
    are reviewed for correctness.” Massey v. Griffiths, 
    2007 UT 10
    , ¶ 8,
    
    152 P.3d 312
    (citing View Condo. Owners Ass’n v. MSICO,
    L.L.C., 
    2005 UT 91
    , ¶ 17, 
    127 P.3d 697
    ); see also Graham v. Davis Cty.
    Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT
    App 136, ¶ 7, 
    979 P.2d 363
    (“On appeal from a grant of summary
    judgment, we view the evidence in the light most favorable to the
    non moving party and affirm only if there are no disputed issues
    of material fact and the moving party is entitled to judgment as a
    matter of law.”).
    ¶19 JRRN’s challenge to the district court’s conclusion that
    the City had standing is a mixed question of law and fact.
    “[W]hen reviewing a lower court’s standing determination we
    have stated that ‘the question of whether a given individual or
    association has standing to request a particular relief is primarily
    a question of law, although there may be factual findings that bear
    on the issue.’” Utah Chapter of Sierra Club v. Utah Air Quality Bd.,
    
    2006 UT 74
    , ¶ 13, 
    148 P.3d 960
    (quoting Kearns–Tribune Corp. v.
    Wilkinson, 
    946 P.2d 372
    , 373 (Utah 1997)). We have acknowledged
    a spectrum of deference for mixed questions, but have ultimately
    determined that “[l]aw-like mixed questions are reviewed de
    novo, while fact-like mixed questions are reviewed deferentially.”
    Sawyer v. Dep’t of Workforce Servs., 
    2015 UT 33
    , ¶¶ 10–11, 
    345 P.3d 1253
    . Since this is a mixed question of law and fact that is
    primarily a question of law, we review the district court’s
    determination for correctness. See 
    id. ¶ 11.
        ¶20 The determination of the appropriate standard of review
    is a question of law that we review for correctness. See Drake v.
    Indus. Comm’n of Utah, 
    939 P.2d 177
    , 181 (Utah 1997). The district
    court’s allocation of the burden of proof is also a question of law
    that we review for correctness, Beaver Cty. v. Utah State Tax
    Comm’n, 
    916 P.2d 344
    , 357 (Utah 1996), with “no deference to the
    district court’s legal conclusions.” Salt Lake City Corp. v. Jordan
    River Restoration Network, 
    2012 UT 84
    , ¶ 32, 
    299 P.3d 990
    (citation
    omitted) (internal quotation marks omitted).
    6
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    ¶21 We review the district court’s application of GRAMA for
    correctness. State v. Graham, 
    2006 UT 43
    , ¶ 16 n.7, 
    143 P.3d 268
    .
    ANALYSIS
    ¶22 This case presents questions about the procedural steps
    the district court took in hearing the case, and whether the court’s
    ultimate decisions on the merits were correct. First, we address
    the court’s summary judgment rulings. We then take up JRRN’s
    challenges to the court’s handling of the trial de novo regarding the
    standard of review, the burden of proof, and the scope of the
    review. Finally, we assess whether the court correctly applied
    GRAMA.
    I. SUMMARY JUDGMENT
    A. Standing
    ¶23 JRRN claims the district court should have granted
    summary judgment against the City because the City lacked
    standing to petition for judicial review. JRRN reasons that the City
    should not have been allowed to appeal the decision of its own
    City Records Appeals Board, so the City lost standing after that
    point in the proceedings. Before addressing this argument, it is
    helpful to review the avenues GRAMA establishes for appealing
    the denial of a fee waiver request.
    ¶24 GRAMA permits a governmental entity to charge a
    reasonable fee to recoup the actual cost of providing records in
    response to a GRAMA request. UTAH CODE § 63G-2-203(1) (2010).
    But the statute encourages entities to fulfill a record request
    without charge when “releasing the record primarily benefits the
    public rather than a person,” among other reasons. 
    Id. § 63G-2-
    203(4)(a). This statutory language gives a government entity
    discretion—it encourages but does not mandate an entity to waive
    its costs when a request benefits the public.
    ¶25 But despite the discretionary nature of this provision, a
    requester who believes a government entity’s fee waiver denial
    was unreasonable can challenge the denial in the same way a
    person appeals the denial of a record request. 
    Id. § 63G-2-
    203(6)(a). First, the requester can appeal the denial to the entity’s
    chief administrative officer. 
    Id. § 63G-2-
    401. If the chief
    7
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    administrative officer denies the request, the requester may
    appeal the denial to the State Records Committee, 
    id. § 63G-2-403,
    or petition for judicial review in the district court, 
    id. § 63G-2-404.
        ¶26 GRAMA also allows, but does not require, a political
    subdivision such as the City to adopt its own internal appeals
    process. 
    Id. § 63G-2-
    701. The City did this, and created the City
    Records Appeals Board. See SALT LAKE CITY, UTAH, CODE
    § 2.64.140 (2010). Any appeal from an appeals board established
    by a political subdivision is to be by petition for judicial review to
    the district court. UTAH CODE § 63G-2-701(6).
    ¶27 A political subdivision may also provide an additional
    level of administrative review to the State Records Committee. 
    Id. § 63G-2-
    701(5). Any party to that proceeding may petition for
    judicial review to the district court. 
    Id. § 63G-2-
    404(1)(a).
    ¶28 In this case, the City had not designated a chief
    administrative officer, so JRRN’s initial appeal was to the City
    Records Appeals Board. Both parties appealed from the Appeals
    Board to the Records Committee. After the Records Committee
    found in favor of JRRN, the City petitioned for judicial review in
    the district court.
    ¶29 JRRN argues that the City did not have standing to
    petition for judicial review because it should not have been
    allowed to challenge the decision of its own City Records Appeals
    Board. Essentially JRRN argues that, although it appealed part of
    the decision of the Appeals Board to the State Records Committee,
    the City should not have been allowed to do the same. And
    because the City should not have been permitted its intermediate
    appeal to the State Records Committee, its standing here is
    compromised. We reject this argument.
    ¶30 First, nothing in GRAMA prevents a city from appealing
    a decision made by a municipal-level appeals board. Section 701
    governs a political subdivision’s internal appeals process, if it
    adopts one. The provision discussing appeals from a municipal
    appeals board does not limit which parties are permitted to
    appeal. It directs: “Appeals of the decisions of the appeals boards
    8
    Cite as: 
    2018 UT 62
                            Opinion of the Court
    established by political subdivisions shall be by petition for
    judicial review to the district court.”5 UTAH CODE § 63G-2-701(6).
    The sentence does not contain a subject limiting who can appeal
    the decisions of municipal appeals boards.
    ¶31 This provision also instructs that a judicial review
    proceeding should be in accordance with sections 402 and 404 of
    GRAMA. See 
    id. § 63G-2-701(6).
    Neither section prohibits the City
    from challenging a decision of the Appeals Board. See 
    id. §§ 63G-2-
    402, -404. JRRN points to section 402(1) as limiting the City’s right
    to appeal because it specifies that a “requester” may petition for
    judicial review if a chief administrative officer of a governmental
    entity denies a records request. But this case does not involve a
    denial from a chief administrative officer, so that section does not
    govern here.
    ¶32 And it makes sense that GRAMA allows only a requester
    to appeal a decision of a chief administrative officer but does not
    similarly limit who may appeal a decision of a municipal appeals
    board. A chief administrative officer is employed by and, in this
    context, speaks for the government entity. If GRAMA permitted a
    city to appeal a decision of its chief administrative officer, the city
    would effectively be appealing itself. But a municipal appeals
    board is different. Section 701 requires such a board to include
    one government employee and two public members. See 
    id. § 63G-2-701(5).
    It is designed to have some independence from the
    governmental entity that created it. So it is logical that the
    legislature would permit a city to appeal from its municipal
    appeals board but not its chief administrative officer.
    ¶33 The plain language of GRAMA reveals that it does not
    limit which parties may appeal decisions of a municipal appeals
    board. And although the City established its internal appeals
    process, including the City Records Appeals Board, the City and
    5 This is correct unless, as is the case here, the political
    subdivision has provided for an additional level of administrative
    review to the records committee, to which the requester concurs.
    UTAH CODE § 63G-2-701(5).
    9
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    the Appeals Board are not the same entity. See, e.g., Salt Lake City
    Corp. v. Haik, 
    2014 UT App 193
    , ¶ 19, 
    334 P.3d 490
    . Accordingly,
    we conclude that the City had the right to appeal the decision of
    the City Records Appeals Board, as would any other aggrieved
    party.
    ¶34 Second, the City also has standing in this case because,
    although it challenged the decisions of both the Appeals Board
    and the State Records Committee, this matter arrived in the
    district court by way of the Records Committee. And the City’s
    petition for review of a Records Committee decision is clearly
    permissible under the plain language of GRAMA. See UTAH CODE
    § 63G-2-404. The GRAMA statute allows “[a]ny party to a
    proceeding before the records committee [to] petition for judicial
    review by the district court of the records committee’s order.” 
    Id. § 63G-2-
    404(1)(a) (emphasis added). This broad language plainly
    encompasses the City, and grants standing to the City here.
    ¶35 Accordingly, we conclude that the district court correctly
    determined the City had standing in this case.
    B. Strict Compliance with GRAMA
    ¶36 JRRN claims that it should have been granted summary
    judgment because the City did not strictly comply with GRAMA
    when it “failed to provide JRRN with the right to appeal to its
    chief administrative officer” and “its appeal board did not consist
    of [any] members of its governing body.” However, JRRN
    acknowledges that it did not make these arguments before the
    City Records Appeals Board or the State Records Committee. Oral
    Argument at 1:05:30, Salt Lake City v. Jordan River Restoration
    Network, No. 20160098 (2018), https://www.utcourts.gov/
    opinions/streams/index.php?court=sup.            When      the    City
    petitioned for judicial review, JRRN argued for the first time in
    the district court that it was entitled to relief because the City did
    not strictly comply with GRAMA. Thus, JRRN failed to preserve
    this argument.
    ¶37 “Utah law requires parties to preserve arguments for
    appellate review by raising them first in the forum below—be it a
    trial court or an administrative tribunal.” Fuller v. Springville City,
    
    2015 UT App 177
    , ¶ 14, 
    355 P.3d 1063
    (citation omitted); see also
    10
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    ABCO Enters. v. Utah State Tax Comm’n, 
    2009 UT 36
    , ¶ 11, 
    211 P.3d 382
    . “The preservation doctrine provides that ‘issues not raised in
    proceedings before administrative agencies are not subject to
    judicial review except in exceptional circumstances.’” Frito-Lay v.
    Utah Labor Comm’n, 
    2009 UT 71
    , ¶ 32, 
    222 P.3d 55
    (quoting Sullivan
    v. Utah Bd. of Oil, Gas & Mining, 
    2008 UT 44
    , ¶ 14, 
    189 P.3d 63
    ). The preservation doctrine applies when the issue raised on
    appeal could have been resolved in the administrative setting.
    ABCO Enters., 
    2009 UT 36
    , ¶¶ 8–11. Thus, litigants may exhaust
    their administrative remedies and properly bring an appeal to a
    state district court but still be limited by the preservation doctrine
    regarding which issues they can raise before the court. Frito-Lay,
    
    2009 UT 71
    , ¶ 32.
    ¶38 JRRN did not raise this issue until this case was before
    the district court, so the City had no opportunity to respond to or
    resolve its alleged non-compliance with GRAMA in the
    administrative setting. Accordingly, this issue was not preserved.
    Since the district court was acting as a reviewing court of the
    administrative proceedings below, this claim was not properly
    before it. However, the district court addressed this argument on
    the merits. But because the court ruled against JRRN on this claim,
    the error was harmless.
    C. JRRN’s Counterclaims
    ¶39 JRRN makes a cursory argument that the district court
    erred in granting summary judgment against it on its
    counterclaims. JRRN couches this argument in its “right to file a
    GRAMA counterclaim,” which has been “expressly recognized by
    the Court of Appeals as the sole means for a requester to obtain
    injunctive relief and recover attorney[s’] fees and costs when the
    governmental agency . . . is the party petitioning for judicial
    review.”
    ¶40 The district court did not deny JRRN its right to bring its
    counterclaims. The district court assessed JRRN’s counterclaims
    on the merits and ruled against JRRN in a detailed memorandum
    decision. The district court did not err because it did not, as JRRN
    suggests, bar JRRN from maintaining its counterclaims.
    11
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    II. THE TRIAL DE NOVO
    ¶41 JRRN challenges several of the procedures used by the
    district court at the trial de novo in this case. JRRN asserts that the
    court should have: (1) conducted a non-deferential review of the
    Records Committee’s decision instead of reviewing the decision of
    the City for an abuse of discretion, (2) assigned the burden of
    proof to the City rather than JRRN, and (3) confined its review to
    the administrative record below rather than accepting new
    evidence. Finally, JRRN argues that the court’s legal analysis was
    insufficient.
    A. Standard of Review
    ¶42 JRRN argues that the court should have conducted a
    non-deferential review of the State Records Committee’s decision
    rather than reviewing the City’s decision for an abuse of
    discretion. JRRN is not wrong, but it mischaracterizes the
    standard of review the district court employed.
    ¶43 When a petition for judicial review under GRAMA
    arrives in the district court after a proceeding in the Records
    Committee, the text of GRAMA does direct the court to review the
    Records Committee’s decision. Section 403, which outlines the
    procedure the Records Committee follows when it receives a
    GRAMA appeal, directs the Committee to include in its order “a
    statement that any party to the proceeding before the records
    committee may appeal the records committee’s decision to [the]
    district court.” UTAH CODE § 63G-2-403(12)(c) (2010) (emphasis
    added).
    ¶44 And section 404, which addresses judicial review in the
    district court, explains that “[a]ny party to a proceeding before the
    records committee may petition for judicial review by the district
    court of the records committee’s order.” 
    Id. § 63G-2-
    404(1)(a)
    (emphasis added). This section also instructs a petitioner to
    include “a copy of the records committee order from which the
    appeal is taken” with its complaint. 
    Id. § 63G-2-
    404(3)(b). This
    provision would not make sense if the Records Committee’s order
    was irrelevant.
    12
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    ¶45 Thus, the plain language of the statute makes clear that
    when a petition for judicial review makes its way to the district
    court by way of the Records Committee, it is the Records
    Committee’s decision that the district court should review.
    ¶46 However, the court does not give the Records
    Committee’s decision any deference. GRAMA instructs the
    district court to “make its decision de novo.” 
    Id. § 63G-2-
    404(7)(a).
    De novo means “anew.” De Novo, BLACK’S LAW DICTIONARY (10th
    ed. 2014). In practice, this means the district court must make its
    own, independent determination of whether the governmental
    entity’s fee waiver decision was reasonable—with no deference to
    the Committee’s decision. To do this, the court must make its own
    assessment of the City’s denial. And that is precisely what the
    district court did here.
    ¶47 As JRRN points out, the district court did expressly rule
    that it was reviewing the decision of the City, not the State
    Records Committee. And that was incorrect. But in this context,
    that is a distinction without a difference. The district court
    conducted the review contemplated by GRAMA.
    ¶48 JRRN claims that the court incorrectly assessed the City’s
    decision under an abuse of discretion standard. But this
    misunderstands the court’s review.
    ¶49 Rather, the court analyzed the City’s denial in light of
    the fee waiver provisions of GRAMA, which give the City great
    discretion in choosing whether to waive a fee. The provisions
    provide:
    (1) A governmental entity may charge a reasonable
    fee to cover the governmental entity’s actual cost of
    providing a record.
    ...
    (4) A governmental entity may fulfill a record
    request without charge and is encouraged to do so when
    it determines that:
    (a) releasing the record primarily benefits the
    public rather than a person . . . .
    UTAH CODE § 63G-2-203 (emphasis added).
    13
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    ¶50 Looking to the statute, the court assessed the City’s
    decision as follows:
    If the City establishes that it considered the
    appropriate statutory factors . . . and did not rely on
    any impermissible policies or factors . . . then under
    the statute, the City’s decision is entitled to deference
    . . . [and the] Court’s role is limited to a review of
    whether the result was reasonable. If the Court
    determines the City’s decision was an abuse of
    discretion, then it is not entitled to deference and the
    Court will determine de novo based on the evidence
    presented at trial whether the City’s denial of the fee
    waiver was unreasonable pursuant to Utah Code
    § 63G-2-203(6)(a).
    ¶51 Although the court used the term “abuse of discretion,”
    we note that this was not because the court had adopted that
    particular standard of review. Rather, the court was merely
    applying the statute governing the City’s decision.
    ¶52 But the court’s review was not entirely correct. We
    clarify that upon judicial review of a government entity’s fee
    waiver denial, the ultimate question is not whether the entity
    abused its discretion, but whether its decision was reasonable. The
    court should make this decision de novo—meaning without
    deference to the Records Committee’s decision, the Appeals
    Board’s decision, or the governmental agency’s decision.
    ¶53 When making this determination, a court should do as
    the court did here: view the entity’s decision in the context of the
    governing statute. Here, that meant assessing whether the entity
    properly considered those circumstances under which GRAMA
    encourages a fee waiver: when releasing the record primarily
    benefits the public, the requester is the subject of the record, or the
    requester’s legal rights are directly implicated by the information
    in the record and the requester is impecunious. See UTAH CODE
    § 63G-2-203(4). But this is not necessarily determinative.
    ¶54 The court should examine this and any other evidence it
    finds relevant to the reasonableness of the entity’s denial. Here,
    the court properly considered the City’s failure to contemplate
    14
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    whether releasing the record benefitted the public, along with the
    time and effort required of the City to fulfill the request, the
    extreme breadth of the request, and the fact that some of the
    material requested duplicated records the City had already
    produced to JRRN.
    ¶55 Because the court found that the City had not considered
    whether releasing the record would primarily benefit the public,
    the court gave no deference to the City’s decision. So the court
    ultimately conducted a de novo review to determine if the City’s
    decision was reasonable in light of the GRAMA provisions
    regarding fee waivers. Accordingly, it conducted the review
    contemplated by GRAMA and any error it made as to the
    standard of review was harmless.
    B. Burden of Proof
    ¶56 The court’s ruling that it was reviewing the City’s
    decision rather than the order of the Records Committee did lead
    to an error regarding the assignment of the burden of proof. But
    that error is also harmless because the court concluded the City
    had proven its case by a preponderance of the evidence.
    ¶57 The court ruled that the burden of proof6 was on the
    respondent, as “the party seeking relief in the form of a Court-
    ordered fee waiver from the City.” However, it was JRRN that
    prevailed before the State Records Committee, and it was the City
    petitioning for a review of that decision. As the petitioner seeking
    a reversal of the decision below, the City should have borne the
    burden of proof.
    6  The nomenclature for evidentiary burdens can be confusing,
    as various courts and commentators have used prevalent terms in
    different ways. “[B]urden of proof” is a catchall term that
    encompasses both the burden of persuasion and the burden of
    production and generally refers to “[a] party’s duty to prove a
    disputed assertion or charge.” Searle v. Milburn Irrigation Co., 
    2006 UT 16
    , ¶ 49 n.2, 
    133 P.3d 382
    (second alteration in original)
    (citation omitted); see also Burden of Proof, BLACK’S LAW
    DICTIONARY (10th ed. 2014) (“The burden of proof includes both
    the burden of persuasion and the burden of production.”).
    15
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    ¶58 The governing statute, Utah Code section 63G-2-404,
    does not expressly state which party bears the burden of proof in
    a judicial review proceeding. The nearest guidance section 404
    provides is that the petition for judicial review shall be a
    complaint governed by the Utah Rules of Civil Procedure, and
    shall contain “a request for relief specifying the type and extent of
    relief requested,” and “a statement of the reasons why the
    petitioner is entitled to relief.” 
    Id. § 63G-2-
    404(3).
    ¶59 In general, the law has long assigned the burden of proof
    to the petitioner, plaintiff, or appellant. See Cox v. Laycock, 
    2015 UT 20
    , ¶¶ 55, 58, 
    345 P.3d 689
    (Lee, J., concurring); see also State v.
    Litherland, 
    2000 UT 76
    , ¶ 17, 
    12 P.3d 92
    (“Appellants bear the
    burden of proof with respect to their appeals . . . .”); Foote v. Clark,
    
    962 P.2d 52
    , 55 (Utah 1998) (holding that parties seeking a remedy
    have the burden of producing evidence to buttress the requested
    award); O’Rourke v. Utah State Tax Comm’n, 
    830 P.2d 230
    , 232
    (Utah 1992) (noting that on review of formal agency actions, “[t]he
    burden of proof lies with the petitioning party to establish a basis
    for the petition to be granted”).
    ¶60 But this rule is not absolute. For instance, when a
    defendant appeals a criminal conviction from justice court to
    district court under Utah Code section 78A-7-118, the district
    court conducts a trial de novo, where “[t]he state bears the same
    burden of establishing a defendant’s guilt . . . as it would had the
    case originated there.” Bernat v. Allphin, 
    2005 UT 1
    , ¶ 31, 
    106 P.3d 707
    . And a respondent in a civil case generally bears the burden of
    proof when asserting affirmative defenses. See, e.g., Seale v.
    Gowans, 
    923 P.2d 1361
    , 1363 (Utah 1996) (stating that defendants
    have the burden of proof with respect to affirmative defenses);
    Messick v. PHD Trucking Serv., Inc., 
    615 P.2d 1276
    , 1277 (Utah 1980)
    (“Accord and satisfaction is an affirmative defense and requires
    the party alleging it to meet the burden of proof as to every
    necessary element.”).
    ¶61 Here, the GRAMA statute does not contain any language
    indicating that the burden of proof should be assigned to the non-
    moving party. And because the statute states that it is the decision
    of the State Records Committee under review, it makes sense that
    the party challenging the Records Committee’s decision should
    16
    Cite as: 
    2018 UT 62
                            Opinion of the Court
    bear the burden of proof. While the Committee’s decision is not
    entitled to deference, it still has significance. If the district court
    denies the petition, then the Committee’s decision remains. In the
    absence of any statutory directive to the contrary, the general rule
    stands: the party seeking the remedy of overturning the
    Committee’s decision must bear the burden of proof.
    ¶62 The City initiated this case in 2010 when it filed its
    Complaint in the district court. Thus, the City, as the petitioner
    and party seeking a reversal of the administrative order on
    review, should have borne the burden of proof.
    ¶63 However, this error did not affect the proceedings in the
    district court—other than to allow JRRN to present its evidence
    first and offer a rebuttal case. This is because, while the court did
    not formally assign the burden of proof to the City, in practice the
    court analyzed the case as if the City did have that burden. Before
    trial the district court ruled that it was the City’s burden to
    “establish[] that it considered the appropriate statutory factors
    and factors consistent with the polices of GRAMA and did not
    rely on any impermissible polices or factors in making its
    decision.” And after the bench trial, the court ultimately
    concluded that the City had established by a “preponderance of
    the evidence . . . that the decision to deny the requested fee
    waiver . . . was reasonable . . . .” Salt Lake City Corp. v. Jordan River
    Restoration Network, No. 100910873, Findings of Fact and
    Conclusions of Law, 7 (Dec. 8, 2015).
    ¶64 So, while the court did not assign the burden of proof to
    the City, the court analyzed the evidence as if the City did bear
    this burden. The court ultimately concluded that the City had
    proven its case by a preponderance of the evidence. Accordingly,
    any error on this point was harmless.
    C. The Scope of the Review
    ¶65 JRRN’s final procedural challenge relates to the scope of
    the district court’s review. The district court conducted a complete
    trial de novo, in which it considered any admissible evidence
    offered by the parties. JRRN asserts the court should have limited
    its review to the record before the State Records Committee.
    17
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    ¶66 The text of the relevant provision does not provide a
    clear answer. The statute directs the district court to “make its
    decision de novo, but allow introduction of evidence presented to
    the records committee.” UTAH CODE § 63G-2-404(7)(a) (emphasis
    added). JRRN argues that this language permits the district court
    to review only the evidence presented to the Records Committee.
    We disagree.
    ¶67 While the statute directs the district court to include
    evidence presented to the Records Committee in its review, it
    does not contain language requiring the exclusion of other
    evidence. JRRN’s interpretation of the statutory text assumes a
    word that is absent: the provision does not say that the court
    should allow introduction of “only” the evidence presented to the
    Records Committee.
    ¶68 JRRN also points out that the relevant provision uses the
    term “de novo” without conjoining the word “trial.” See 
    id. In contrast,
    other statutes explicitly reference a “trial de novo.” For
    example, the Administrative Procedures Act, which does not
    apply to GRAMA,7 states that “district courts have jurisdiction to
    review by trial de novo all final agency actions resulting from
    informal adjudicative proceedings.” 
    Id. § 63G-4-402
    (emphasis
    added).
    ¶69 This distinction is worth consideration. However, it is
    not dispositive. We have recognized that, in the context of judicial
    review of administrative action, even the complete phrase “trial de
    novo” can mean either: “(1) A complete retrial upon new evidence;
    [or] (2) a trial upon the record made before the lower tribunal.”
    Pledger v. Cox, 
    626 P.2d 415
    , 416 (Utah 1981) (citations omitted);
    Denver & R. G. W. R. Co. v. Pub. Serv. Comm’n, 
    100 P.2d 552
    , 554–55
    (Utah 1940).
    7Section 63G-2-104 of GRAMA states that “Title 63G, Chapter
    4, Administrative Procedures Act, does not apply to this chapter
    except as provided in Section 63G-2-603”—which deals with
    requests to amend a record on appeal. See 
    id. § 63G-2-104.
    18
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    ¶70 Ultimately, the meaning of “de novo” in each statute is
    informed by the wording and context of the statute in which it
    appears and by “the nature of the administrative body, decision
    and procedure being reviewed.” 
    Pledger, 626 P.2d at 416
    –17.
    Viewing this provision in context, it is clear that the district court
    was correct in considering any admissible evidence at the bench
    trial in this case.
    ¶71 In proceedings before the Records Committee, discovery
    is prohibited. UTAH CODE § 63G-2-403(10)(a). But proceedings in
    the district court are governed by the Utah Rules of Civil
    Procedure. So, with some exceptions,8 petitions for judicial review
    in the district court may proceed like any other civil case.
    ¶72 This means that discovery is permitted. See UTAH R. CIV.
    P. 26. The parties can engage in motion practice. See 
    id. 7, 56.
    And
    if the case is not resolved earlier, the court will hold a bench trial
    where it will decide not only questions of law, but will “determine
    all questions of fact.” UTAH CODE § 63G-2-404(7)(b).
    ¶73 GRAMA directs the court to “decide the issue at the
    earliest practical opportunity.” 
    Id. § 63G-2-
    404(7)(c). And nothing
    prevents the parties from forgoing discovery and stipulating to an
    expedited hearing in which the court reviews only the evidence
    before the Records Committee.
    ¶74 But cases involving judicial review of an administrative
    GRAMA decision are governed by the Utah Rules of Civil
    Procedure, and the parties may make use of those procedures.
    Here, the parties engaged in discovery—including JRRN
    disclosing an expert witness—and the case proceeded to a bench
    trial. The court was correct to proceed as it would in any other
    8 For example, GRAMA does not permit a jury trial. 
    Id. § 63G-2-
    404(7)(b). And it contains some additional procedural
    requirements that are not found in the Utah Rules of Civil
    Procedure, like deeming the State Records Committee a necessary
    party and specifying particular information that must be
    contained in a petition. 
    Id. § 63G-2-
    404(1)(c), (3).
    19
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    civil case, including considering any admissible evidence
    presented by the parties.9
    D. Application of the Law
    ¶75 Finally, JRRN alleges that the district court should have
    weighed “the public’s constitutional right of access” against “the
    government’s burden in fulfilling the request” in its legal analysis.
    However, JRRN relies on law specific to requests for records, not
    fee waiver requests.
    ¶76 JRRN supports its argument with two cases. In the first,
    Deseret News Publishing Co. v. Salt Lake County, 
    2008 UT 26
    , 
    182 P.3d 372
    , we analyzed Salt Lake County’s denial of a records
    request, not a fee waiver request. See 
    id. ¶ 1.
    JRRN quotes
    passages from Deseret News in which we discussed the
    foundational policies of the GRAMA statute. See 
    id. ¶¶ 13–14.
    We
    noted there that GRAMA strikes a balance between “the right of
    access to information concerning the conduct of the public’s
    business and the right of individual privacy concerning personal
    information acquired by governmental entities.” 
    Id. ¶ 13;
    see also
    UTAH CODE § 63G-2-102(1). In Deseret News, we did not interpret
    GRAMA to require district courts to enter into a balancing
    analysis in the context of fee waiver requests.
    ¶77 In the second case, Graham v. Davis County Solid Waste
    Management & Energy Recovery Special Service District, 1999 UT
    App 136, 
    979 P.2d 363
    , the court of appeals reviewed, among
    other things, a district court’s upholding of a Davis County fee
    9  We recognize that the interaction between our preservation
    requirements and the Utah Rules of Civil Procedure may create a
    hybrid proceeding in this type of case. Our preservation rules
    require a party to raise a claim or issue in the administrative
    proceeding to preserve it in district court. However, in a GRAMA
    case parties may conduct discovery for the first time in the district
    court, and evidence gathered in discovery may be admissible in
    the district court case even though it was not presented in the
    underlying administrative proceeding. But such evidence will be
    admissible only if it is relevant to a preserved issue.
    20
    Cite as: 
    2018 UT 62
                            Opinion of the Court
    waiver request denial. See 
    id. ¶¶ 1–7.
    In so doing, the court
    discussed GRAMA’s balancing of “the public’s right to access
    government documents against the government’s interest in
    operating free from unreasonable and burdensome records
    requests.” 
    Id. ¶ 22.
    The court noted that “the Legislature . . . also
    restricted access to public records by allowing agencies to impose
    fees for the production of records in limited instances.” 
    Id. ¶ 23.10
        ¶78 Although allowing governmental entities to impose fees
    is one way that GRAMA balances the government’s interests and
    the public’s right of access, GRAMA does not require for fee
    waivers the same balancing analysis that applies in the context of
    records requests.
    ¶79 In assessing a request for records that are private or
    protected, GRAMA instructs government entities to weigh the
    interests favoring access against the interests favoring restriction.
    See UTAH CODE § 63G-2-201(5)(b)(ii). If the government entity
    denies the records request, and the requester petitions for judicial
    review, section 63G-2-404 directs district courts to “weigh[] . . . the
    various interests and public policies pertinent to the classification
    and disclosure or nondisclosure, [and] order the disclosure of
    information properly classified as private, controlled, or protected
    if the interest favoring access outweighs the interest favoring
    restriction of access.” 
    Id. § 63G-2-
    404(8)(a) (emphasis added).
    ¶80 But the code does not require the same substantive
    analysis, either from the government entity or the reviewing
    court, in determining whether to grant or deny a fee waiver
    10 JRRN cites Graham for the proposition that, in addition to
    weighing the right of access against the burden on the
    government, a governmental entity must prove: “(1) it was
    required to compile records in a form other than that maintained
    by the City; [and] (2) it was impossible to allow JRRN to obtain
    the records on its own.” But in Graham, the court of appeals
    focused on the amount an agency should be allowed to charge in
    compilation fees. Graham, 
    1999 UT App 136
    , ¶¶ 19–28. Here, our
    focus is different. We address when an agency may charge a fee
    and when it should waive its cost entirely.
    21
    SALT LAKE CITY CORP. v. JORDAN RIVER RESTORATION NETWORK
    Opinion of the Court
    request. As we have discussed, GRAMA has provisions specific to
    charging and waiving fees. And while an appeal of a fee waiver
    denial follows the same procedure as an appeal of a record
    request denial, that does not mean the same substantive law
    applies. As JRRN states in its brief, “[t]he reasonableness of the
    [entity’s] order must be determined in light of the statutory
    setting in which it operates.” (Quoting Utah Dep’t of Admin. Servs.
    v. Pub. Serv. Comm’n, 
    658 P.2d 601
    , 611 (Utah 1983).)
    ¶81 Here, the district court properly assessed the
    reasonableness of the City’s decision in light of the relevant fee
    waiver statute. The court recognized that section 63G-2-203
    “permitted [the City] to charge fees for retrieving and copying the
    requested documents,” but encouraged it to fulfill record requests
    without charge when the request primarily benefits the public.
    ¶82 The court found that the City incorrectly had not
    considered this provision, and factored that into its ultimate
    ruling in this case. The court also considered any other evidence
    relevant to the question of reasonableness. It found that JRRN’s
    request:
    required substantial efforts to “compile” documents
    as defined in Graham. The request’s breadth would
    require extracting many documents from disparate
    larger sources. The effort within Public Works
    required many hours and interrogating many
    employees as to the files they possessed. It would not
    have been feasible to allow JRRN the access needed to
    gather the documents themselves.
    The court also found that “the breadth of the request . . . was
    unreasonably large,” that “full compliance with the request would
    have required many more hours of employee time compiling and
    copying,” and that the “request [was] not tailored to [this] issue,
    but rather appear[ed] calculated to require production of every
    conceivable document concerning the project.”
    ¶83 Despite finding that JRRN’s “purpose was to primarily
    benefit the public,” the court concluded that the City’s “decision
    to deny the requested fee waiver . . . was reasonable given the
    22
    Cite as: 
    2018 UT 62
                           Opinion of the Court
    voluminous nature of the request and the effort necessary to
    compile the requested documents.”
    ¶84 The district court did not also need to weigh competing
    interests pertinent to disclosure and nondisclosure. While fees do
    affect the public’s access to documents, the legislature has
    identified different considerations specific to the fee waiver
    context. The district court correctly identified and applied them
    here.
    CONCLUSION
    ¶85 The district court correctly concluded that the City had
    standing to petition for judicial review. And while the court
    should have conducted a de novo review of the decision of the
    State Records Committee, its error was harmless because that
    decision is not entitled to deference. It was necessary for the court
    to make its own assessment of the governmental entity’s decision,
    which it did.
    ¶86 At trial, the court correctly considered any admissible
    evidence and applied the specific provisions of GRAMA
    governing fee waivers. While the court’s ruling on the burden of
    proof was incorrect, that error was harmless because the court
    ultimately found that the City proved the reasonableness of its
    decision by a preponderance of the evidence.
    ¶87   Accordingly, we affirm.
    23