Gov. Spencer Cox is illegally delaying access to public documents related to Utah’s COVID-19 response by requiring they be reviewed by his lawyers before being released, a new lawsuit contends.
Filed July 2 against the Utah Department of Health by Draper attorney Suzette Rasmussen, the suit alleges that a series of open records requests she filed between mid-March and mid-May tied to the state’s handling of the pandemic remain all but unfulfilled, well past deadlines set by state law.
Those delays violate state open records laws, the lawyer asserts, and she blames the slowdown partly on a new policy she says Cox enacted more than a year ago that requires “an additional layer of review” by his attorneys before coronavirus-related documents go out to requesters.
She argues that approach runs afoul of Utah’s Government Records Access and Management Act, or GRAMA, which lawmakers set up to govern the timely release of public documents.
“A ‘new policy’ that stretches response times from the 10 days provided by statute to four months or more violates GRAMA,” Rasmussen writes in the 3rd District Court lawsuit, which seeks to have the documents turned over immediately.
A spokesperson for the Cox administration declined to comment Thursday about the GRAMA lawsuit, citing a policy of not speaking out on pending litigation. Health Department officials did not respond to repeated inquiries seeking comment.
Though an attorney, Rasmussen is listed as the plaintiff in the case, but she told The Tribune she filed the suit on behalf of a client.
“The GRAMA appeal I’ve filed,” she writes in an email, “is meant to ensure that public access to records in Utah is both easy and reasonable, as the statute provides.”
Her client is Paul Huntsman, who acknowledged Friday he is backing a multistate quest for government records related to COVID-19. He is also chairman of the nonprofit Tribune’s board and brother to Jon Huntsman Jr., whom Cox defeated in last year’s Republican primary.
Paul Huntsman’s pursuit of records, with its own state corporate registration papers under the name Jittai, was launched to dig for thousands of government documents in Utah and at least three other states, Huntsman states in a Tribune column published Friday.
“I am a Utah taxpayer who is not amused when the state government and the private sector misuse public funds,” Huntsman states, “some of which I believe went to private gain.”
He writes that he has financed the records push outside of Tribune operations but plans to share any findings with the newsroom and journalists in multiple states. Jittai, he said, will be “treated as one among hundreds of sources The Tribune relies on to do its reporting.”
He notes that The Tribune used documents obtained by Jittai as a source for a story last month about Co-Diagnostics, a Salt Lake City medical testing company initially involved in TestUtah. All the information included in the story was independently confirmed through documents and interviews obtained as part of the outlet’s own newsgathering.
For her part, Rasmussen, a partner at the Draper law firm Freeman Lovell, confirmed Friday she is working for Jittai — though she added that work is being conducted through her solo law firm, Draper-based All Utah Law.
Her lead lawyer in the lawsuit is Salt Lake City attorney Michael O’Brien, who often represents The Tribune on legal matters involving public records and open meetings.
Rasmussen, who worked as a staff attorney and chief records officer for then-Gov. Gary Herbert, argues in her suit that while government officials can invoke “extraordinary circumstances” under GRAMA for why documents can’t be released on time, that doesn’t include imposing a new level of legal review “by the governor’s office or anybody else.”
She asks the judge to overturn the administration’s policy and release what her lawsuit says are “several thousands of pages” of relevant records, including communications and contracts between Health Department officials and a series of private lab-testing and software providers, lobbyists and others.
Court documents indicate Rasmussen is zeroing in on government records tied to the state’s initial and controversial ramp-up of COVID-19 testing and tracing with the onset of the pandemic.
They include records referring to Premier Medical Laboratories, a COVID-19 lab testing vendor; MountainStar Healthcare, owner of Timpanogos Regional Hospital, which helped to process COVID-19 testing samples; software-based tools for testing and tracing, referred to as COVID-19 Solutions by Qualtrics, a Provo-based firm; as well as Co-Diagnostics.
Rasmussen is also seeking documents involving key state health officials and lobbyists, as well as an email attachment sent June 19, 2020, by Angela Dunn, former state epidemiologist, referred to as a “COVID Brief.”
The Health Department doesn’t dispute the records are public, according to correspondence cited in the lawsuit.
But, in early April, when delays in fulfilling the request emerged, a records officer at the agency allegedly told Rasmussen its employees were “running behind” and had “other duties to meet” while they waited for the state Department of Technology Services to gather emails relevant to her request.
Once those records were received, the officer told her, health officials would “need to go through them” and then the records would “need to be approved by the governor’s office,” making it “highly unlikely” the request would be met in the required 10 days, according to the suit.
In response to further requests, Rasmussen asserts, “the Department of Health offered either vague, noncommittal responses or no response at all.”
When Rasmussen appealed the delays, she states that Richard Saunders, then the department’s executive director, responded that the records officer “never intended to deny your requests nor did she consider your requests denied.”
Saunders, who has since been appointed chief innovation officer in Cox’s Cabinet, made no reference in his June 2 letter to a review policy by the governor’s office.
Other issues, he wrote, had slowed the records release, including the “voluminous” number of documents covered by the request, technical issues “and the unusual circumstance” of numerous other COVID-related GRAMA requests pending with the department, “which are extremely time-consuming.”
Then, in a June 11 exchange, according to the suit, the records officer explained that “the governor’s office has been requiring all DOH public records requests to go through their legal counsel” under a process covering COVID-related documents that “has been in place for a year.”
Rasmussen is asking the court to declare that policy “unlawful and incompatible with GRAMA” and also seeks reimbursement for all costs and fees incurred in her records request and ensuing legal action.
In his column, Huntsman explains that he formed Jittai as “a specialized group independent of The Tribune to make public records inquiries in multiple states.” Its Japanese name, he says, is “roughly translated to truth and fact.” State corporate records confirm a Huntsman employee formed Jittai in late March.
Huntsman writes that Jittai has financed several legal actions for documents related to TestUtah, a COVID-19 testing program set up by state officials shortly after the onset of the pandemic.
“The scope of confidential multistate records, held hostage with the threat of endless litigation,” he writes, “gives those in power hope that their efforts to cloak the public’s business will be derailed by costly lawyers and court battles.”
Huntsman declined further comment, pointing to his published column.
The Utah businessman and son of the late philanthropist and chemicals magnate Jon Huntsman Sr., bought The Tribune in 2016 and has since donated it to the community, while remaining as head of the nonprofit’s 11-member board.
Clarification • July 16, 2021, 2:20 p.m. — Information regarding Suzette Rasmussen’s solo law practice, Draper-based All Utah Law, was added to clarify where her work for Jittai is based.