A massive amount of Utah Attorney General John Swallow's electronic data dating back to when he first joined the office in late 2009 may have been deleted or lost, according to a court filing late Friday by House investigators attempting to retrieve the potential evidence.
Swallow's lawyer had said his client lost some emails when the state changed its system provider, adding that it was a technical glitch with no nefarious intentions.
The filing in 3rd District Court by attorneys for the House investigative committee, however, suggests the data deletion is much broader.
In addition to a "potentially large number of emails" to and from Swallow that are missing, investigators say entries from his electronic calendar have disappeared along with all of the data on his state-provided desktop and laptop computers before he became attorney general in January.
Swallow also got a new personal cellphone in 2012 and his home computer is not working. Information from that computer has not been retrieved, according to investigators.
House investigators are asking a judge to order the attorney general's office to give computer forensic experts access to copies of hard drives and the office's computer servers so they can attempt to reconstruct the data.
The attorney general's office has expressed concerns about health information on the servers, which, under federal law, it cannot legally disclose. So the brief, filed by Legislative General Counsel John Fellows, asks the court to intervene.
Swallow's attorney, Rod Snow, said Friday that Swallow's office computers were swapped out sometime in 2012, part of a routine upgrade. The memory on the computers was wiped out and they were given to someone else in the office.
Snow said he had the technical experts his firm works with try to recover data from the machines, but they could not. Nor were they able to retrieve information from Swallow's home computer, which crashed early this year.
Snow said both the replacement of Swallow's office computers and the crash of his home unit happened before any investigation had been launched.
"Our view is we hope they recover everything, because they're not going to find anything," Snow said. "Exactly how much is missing, I don't know. We don't think there's anything on there we need to worry about. We hope they can recover it."
On Sept. 25, the House Special Investigative Committee issued a subpoena to Swallow and the attorney general's office for records relating to several individuals who have leveled allegations including extortion, influence peddling and acceptance of improper gifts against Swallow and others allegedly involved in the activities.
According to an affidavit by Andrew Melnick, one of the investigators working for the House committee, representatives of the attorney general's office notified investigators Sept. 27 that a potentially large volume of Swallow's official email was missing.
A Sept. 30 email from Brian Tarbet, general counsel to the attorney general, notified all employees in the office to retain any material that might be pertinent to the investigation.
That notice apparently marked the first time such a directive had been issued despite numerous investigations into the conduct of Swallow and his Republican predecessor, Mark Shurtleff, including one by the U.S. Department of Justice, which acknowledged in January it was conducting such an inquiry.
Subsequent to the House subpoenas, Melnick said, it became clear that a "potentially significant number" of Swallow's calendar entries from 2009 when Swallow joined the office as Shurtleff's chief deputy to 2011 have disappeared.
In late 2012, Swallow asked for and received new desktop and laptop computers and a new handheld data device. The information on all of the old devices was deleted. At about the same time, Swallow replaced his personal cellphone.
Swallow's home computer has stopped working. He has provided the hard drive to the committee, which has forensic experts working to retrieve the information.
Melnick said investigators have copied the hard drives on electronic-storage devices in the attorney general's office, the first step in an effort to try to retrieve the information. But because of the health-privacy concern, the attorney general's office still has custody of those copies.
Attorneys for the House investigation are asking the judge to order the office to comply with the committee's subpoenas. Under their proposed order, investigators would not be allowed to access any health data and the copies of the hard drives would be returned to the attorney general's office when the recovery efforts are complete.
Rep. Jim Dunnigan, the committee's chairman, said the panel will discuss the issue when it meets Tuesday at the Utah Capitol.
"The committee and their special counsel and investigators have been working very hard and actively engaged in trying to determine the factual basis or not for the allegations against the attorney general," said Dunnigan, R-Taylorsville. "As part of the committee work, we filed the pleadings today in court."
The bipartisan House panel is examining a series of allegations against Swallow in a probe that could lay the groundwork for impeachment proceedings of the first-year Republican attorney general.
The Justice Department notified Swallow and Shurtleff in September it was closing its case and would not file criminal charges. Two county attorneys Salt Lake County District Attorney Sim Gill, a Democrat, and Davis County Attorney Troy Rawlings, a Republican continue to work with the FBI investigating the allegations.
Gill said Thursday that the records deletion could be addressed in the course of that probe.
"If the deleted emails pertain to ongoing investigations and if those emails were deleted knowing such investigations were afoot," Gill said, "then it would raise the specter of concern, specifically obstruction of justice, not to mention the erosion of public trust."
University of Utah law professor Shima Baradaran said the consequences for deleting records, assuming it was meant to conceal information from investigators, could lead to criminal charges of tampering with evidence and become a liability for defendants at any trial.
The lieutenant governor's office is wrapping up an inquiry into whether Swallow omitted information on his candidate financial-disclosure filing, and the Utah State Bar still has one complaint alleging he violated attorney ethics rules.
It dropped another complaint.
What's missing from where
According to a court filing by the House Special Investigative Committee examining the conduct of Attorney General John Swallow, the following information belonging to Swallow may have been lost or deleted:
• A "potentially large number of emails.
• A "potentially significant number" of calendar entries from 2009, 2010 and 2011.
• All information from Swallow's state-provided desktop computer until 2013.
• All information from Swallow's state-issued laptop computer until 2013.
• All information from Swallow's state-issued handheld data device until 2013.
• Information from Swallow's home computer, which crashed early this year.
• Information from Swallow's cellphone, replaced in 2012, which may be recoverable.