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In a first-of-its-kind request, the Utah attorney general's office is pushing for a closed-door hearing to argue against releasing records of an investigation into controversial San Juan County Commissioner Phil Lyman records the state won't confirm exist.
The Utah State Records Committee has yet to rule on the closed hearing, along with the A.G.'s request to let it make its case in sealed documents, but will hear arguments in the case on Thursday.
At issue are documents from a closed criminal investigation and whether they should be made public.
The case has gone beyond the typical records dispute between a news outlet and the government. The Utah attorney general's office is refusing to confirm or deny whether it ever investigated Lyman and wants to make its argument in a closed hearing that would be off limits even to The Tribune, which filed the records request triggering the dispute.
"Because being identified as the subject of a criminal investigation can have devastating consequences, it is the investigating agency's responsibility in many of these situations to back out of the investigation without leaving any footprints," Assistant Attorney General Blaine Ferguson argued in his motion with the committee.
A lawyer representing Lyman will be heard Thursday, too.
In his filings, Lyman attorney Peter Stirba argues the attorney general's office was correct to deny the release of records requested by Tribune reporter Robert Gehrke.
Stirba says the office shouldn't even share the documents with the Records Committee, which normally reviews documents in private after hearing arguments in a public forum. The panel also holds its deliberations in public.
"It would be a gross invasion of Mr. Lyman's personal privacy to disclose any personal information or data gathered by the A.G.'s office over the last five years to anyone, let alone Mr. Gehrke," Stirba wrote.
Neither state records law nor Records Committee rules allow for a closed hearing like the one the attorney general's office is seeking, in which the arguments of the state, questioning of the attorney general's representative, and committee deliberations would all be conducted out of the public eye.
Three attorneys with expertise in Utah open-records law, including Records Committee legal counsel Paul Tonks, an assistant attorney general, say the request is the first of its kind.
"It hasn't happened before the Records Committee, but it has happened in district court," said Tonks.
"The committee will rule upon it when they meet on Thursday ... and I'm not privy to how they're going to go, so I don't know."
In The Tribune's response, Gehrke referred to the proposed closed-door hearing as a "star chamber" and said such a scheme "obliterates any opportunity for a fair hearing on the matter."
Lyman already is facing the possibility of prison after being convicted in federal court of two misdemeanors for leading an ATV protest ride up Recapture Canyon, closed several years ago by the Bureau of Land Management to protect American Indian artifacts.
State probe • At the heart of the records dispute in the separate state investigation is whether Lyman used his elected position to benefit himself and clients of his accounting practice, according to San Juan County's former assessor Howard Randall.
Randall said he believed Lyman was reducing the assessed value of some commercial property to cut the owners' tax bill. The three San Juan County commissioners also serve as the county's board of equalization, which hears property tax disputes.
The properties included Goulding's Lodge in Monument Valley. Randall said the lodge underwent an extensive remodel and expansion that significantly increased its assessed value. According to a Sept. 12, 2012, article in the San Juan Record, Goulding's value increased to $5.9 million from $1.6 million. The Board of Equalization voted to return the value to $1.6 million over Randall's protests.
"Everyone else had to pay for it," Randall said in an interview Wednesday, noting that a change in value for one property influences the price of other properties.
Randall said he made a complaint to the Utah State Tax Commission, which referred it to the A.G. Randall met with A.G. investigators in 2013 and, he said, was shown a summary of their findings, including evidence Lyman had some kind of professional relationship with the lodge's owners or potential buyers.
"What became of [the A.G. case], I do not know," Randall said.
No criminal charges have ever been filed related to the San Juan County assessments.
Stirba on Wednesday did not address the specific allegations, but denied Lyman did anything wrong.
"Anything [Randall] alleged about any misbehavior by Mr. Lyman is patently untrue," Stirba said.
Public vs. private • Utah Supreme Court rulings, including cases cited by Gehrke in his appeals, have held that records of closed investigations into government employees or elected officials, are public under Utah law. Stirba and the attorney general's office, however, are pointing to state statutes that safeguard privacy.
On July 21, Gehrke submitted a request for documents from the Lyman probe under Utah's records law, known as the Government Records Access and Management Act, or GRAMA. GRAMA gives government agencies 10 business days to respond to such requests.
The attorney general's office told Gehrke it needed more time. But when the office responded Oct. 23, it denied the request. The response cited no statute or court ruling to support denial, as required by GRAMA.
Gehrke appealed to Attorney General Sean Reyes. His chief of staff, Parker Douglas, answered on his boss' behalf.
Douglas upheld the denial, arguing that explaining the reason for the denial would actually disclose information the law says shouldn't be public.
"Even the knowledge that an investigation was conducted may substantially impact the reputation of an individual although an investigation alone is obviously not a determination that there has been misconduct," Douglas wrote.
Thursday's hearing is the final administrative appeal for The Tribune. If any party is unhappy with the Records Committee ruling, it can file a lawsuit in state court.
Records Committee hearings are designed to be less formal than state court. Most petitioners and respondents simply send the committee copies of requests, denials and one or two pages of arguments. But Thursday's hearing has led to a high number of filings and back-and-forth between the newspaper and the attorney general's office. Gehrke, in his arguments, contends attorney general's office spokeswoman Missy Larsen told another Tribune reporter earlier this year that the Lyman investigation had been completed and no action was taken.
Larsen countered in a Dec. 3 affidavit that that claim is incorrect and that she never told anyone that the attorney general's office conducted such an investigation. Reporter Brian Maffly, who covers public lands for The Tribune, signed an affidavit the next day, saying he interviewed Randall about the Lyman allegations in December of last year. Maffly, according to the affidavit, then asked Larsen if there had been an investigation.
Maffly's affidavit said Larsen told him that, under Utah Attorney General John Swallow, investigators looked into a concern and, after Reyes had replaced Swallow, sent Lyman a letter in spring 2014, informing Lyman that not enough evidence had been found to warrant further investigation. Maffly did not write an article about the matter.
In a statement issued Tuesday, Spencer Austin, chief criminal deputy at the attorney general's office, said the office is dedicated to complying with Utah law regarding disclosures.
"In certain circumstances, our office is precluded by law from releasing records or giving information about why a records request has been denied, even when a request might otherwise be proper. This is one of those times," Austin's statement said.