(1) As used in this section, "defending party" means:

1. (a) a governmental entity or political subdivision:

   1. (i) whose access denial is the subject of a petition for judicial review under Section 63G-2-404; and
   2. (ii) that defends the access denial in an action for judicial review under Section 63G-2-404; or
2. (b) a person, other than the governmental entity or political subdivision described in Subsection (1)(a), that is party to the action for judicial review in opposition to disclosure of the record that is the subject of judicial review.

(3)

1. (a) A district court may assess against a defending party reasonable attorney fees and costs reasonably incurred in connection with a judicial appeal to determine whether a requester is entitled to access to records under a records request, if the requester substantially prevails.

2. (b) In determining whether to award attorney fees or costs under this section, the court shall consider:

   1. (i) the public benefit derived from the case;
   2. (ii) the nature of the requester's interest in the records; and
   3. (iii) whether the defending party's actions had a reasonable basis.
3. (c) Attorney fees and costs shall not ordinarily be awarded if the purpose of the litigation is primarily to benefit the requester's financial or commercial interest.

(5) Notwithstanding Subsection (3), a court may award attorney fees and costs incurred in connection with appeals to district courts under Subsection 63G-2-404(2) only if the attorney fees and costs were incurred 20 or more days after the requester provided:

1. (a) an adequate explanation in writing of the basis for the requester's position, regardless of whether the explanation is a part of or outside an administrative or court proceeding; and
2. (b) to the governmental entity, political subdivision, or other person against which the requester seeks an award of attorney fees and costs.