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While pledging transparency, the Utah Legislature voted to place parts of its investigation into Attorney General John Swallow behind a cloak of secrecy.
The House of Representatives voted 67-6 Wednesday to approve HB1001, which allows the House investigative committee charged with investigating Swallow to subpoena witnesses, place them under oath and grant limited immunity. The Senate voted 28-0 to approve the measure, with Sen. Curt Bramble, R-Provo, being the only senator not present for the vote.
But the bill also grants the committee the power to close its meetings by a simple majority vote to discuss strategy, obtain legal advice or to interview witnesses. It also allows the committee to declare some of its records as protected, including records of a witness interview, committee members' impressions of the case or documents that "the disclosure of which would interfere with the effectiveness of the investigation."
The bill states that the records would remain protected until the committee concludes its business.
"I believe the process should be as transparent as possible," House Majority Leader Brad Dee, R-Ogden, said. But he said there was a need to maintain confidence between the committee and its legal counsel.
Dee also claimed the Legislature went the "extra mile" by discussing the bill with members of the Utah Media Coalition, of which The Salt Lake Tribune is a member, and they were OK with the restrictions.
Salt Lake City media attorneys Jeff Hunt and Michael O'Brien represented the coalition in discussions with legislators last week.
Hunt said lawmakers were actually looking to put more restrictions on the information, and what came out in the bill was a compromise. Hunt said traditionally in Utah, criminal investigation records are typically regarded a protected records, and the legislative committee records fell into that category.
Also, Hunt noted that had the Legislature made the records private, as was originally proposed, the public would not be able to challenge the closure since private records are not subject to the test balancing the public's interest in disclosure against the need to keep the record under wraps. Protected records, on the other hand, can be made public if the public interest at least equals the privacy concern.
But such an appeal would go through the Legislature's own records committee and then the courts. Lawmakers exempted themselves from having to defend record closures before the State Records Committee.
Not everyone was happy with granting the committee exemptions from open-government laws.
Rep. David Lifferth, R-Eagle Mountain, said the committee should not be meeting behind closed doors, but should allow the public to see what is being done.
Jim Fisher, who has taught journalism at the University of Utah, said the investigation should be completely open, with nothing held back.
"It seems to me that there is almost nothing more public than the review of a public employee by the Legislature," said Fisher, who is also on the board of the state chapter of the Society of Professional Journalists. "It should be public from the get-go."
Swallow has been accused of helping indicted St. George businessman Jeremy Johnson attempt to bribe U.S. Senate Majority Leader Harry Reid; suggesting to businessmen that contributing to then-Attorney General Mark Shurtleff's campaign would give them special consideration in the event of an investigation; and violating attorney-client privilege. Swallow is already the target of a federal investigation, as well as probes by the Salt Lake and Davis counties' attorneys.