           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




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                      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).




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    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).




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                       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.




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    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).




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                       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



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    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




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                        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).




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    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


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                       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.




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    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.




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   ¶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).


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    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


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                       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.”).



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    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


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                        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.




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    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.




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                       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).




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    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.




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                        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.




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    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




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                       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.




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