A state committee Thursday rejected an unprecedented request from the Utah attorney general's office to go behind closed doors to discuss its refusal to release any records from a past criminal investigation of San Juan County Commissioner Phil Lyman.
Members of the Utah State Records Committee unanimously denied the closed-hearing motion and then, when the attorney general's office refused to provide the committee any records to review in private, they unanimously ordered the office to release any relevant documents to The Salt Lake Tribune.
The attorney general's office has refused to acknowledge any investigation of Lyman, closed or ongoing, and appears prepared to go to court to defend that position.
At Thursday's hearing, Assistant Attorney General Blaine Ferguson told the records committee he was "legally constrained" from saying publicly whether there are any investigation records and, if such records exist, why they shouldn't be disclosed.
"The attorney general's office has consistently stated this request is denied, and cannot give any more information about why it was denied," Ferguson said.
Lyman, through his own attorney, also opposed the release of these records. Lyman was not present for the 90-minute hearing, but entered the meeting room at the Utah State Archives seconds after the hearing adjourned. He then spent several minutes huddling with his lawyer, Julia Kyte.
The attorney general and Lyman both have the option of filing a lawsuit in state court to overturn the committee's decision. Ferguson on Thursday told the committee: "It appears likely the matter will be destined for district court."
The impetus for the records dispute are allegations Lyman used his county post to lessen tax assessments for himself or clients of his accounting practice. Former San Juan County Assessor Howard Randall has said he reported his concerns in 2012 to the state Tax Commission, who referred the matter to the attorney general's office. Randall has said attorney general investigators in 2013 showed him a presentation of what they had found, including concerns Lyman had business dealings with people whose property values he had lowered while serving on the county's board of equalization.
During the summer, Tribune reporter Robert Gehrke sent the office of Utah Attorney General Sean Reyes a request under the Government Records Access and Management Act, known as GRAMA. The request sought case files of any closed investigations into Lyman from the last five years.
The office denied the request and then denied an appeal he filed. State law typically requires the government to cite a statute or court ruling which bars release of documents.
But in their denials to Gehrke and again Thursday, the attorney general's office cited a statute that says it does not have to specify the reason for the denial if that reason would itself disclose information that should not be public.
Thursday's hearing began with a request from Ferguson to close the hearing to everyone but him and the committee and its staff so he could make arguments and submit briefs in private. Gehrke objected, and the committee ruled against the request.
The records committee had never received such a request before, and committee members said no mechanism existed under state law or its rules to close the hearing in such a way.
Once the topic turned to whether any records should be publicly disclosed, Gehrke pointed to multiple Utah court rulings dealing with government investigations into elected officials and public employees, including a Utah Supreme Court ruling from August in which Reyes' office was ordered to release records of its investigation into a political-action committee in Ogden.
While Ferguson didn't offer a rationale for withholding the records, Kyte did. She told the committee that any investigation could have also gathered personal information from Lyman's accounting clients, and those clients have a right to privacy.
She also told the committee disclosing any records could unduly influence Lyman's pending sentencing in an unrelated federal case. U.S. District Judge David Nuffer is scheduled on Dec. 18 to sentence Lyman for two misdemeanors related to an ATV protest ride he led up Recapture Canyon, closed by the Bureau of Land Management to protect American Indian artifacts. Prosecutors are asking for a prison term for Lyman.
"We do believe, unfortunately, that certain reporters of The Tribune are seeking negative information about Mr. Lyman to effect a harsher sentence," Kyte said.
Gehrke called those allegations "speculative at best," and said chances of the records influencing the judge were "slim to none." The committee usually takes about 10 days to publish its order, after which the attorney general will have 30 days to provide any records or file a lawsuit.
The committee voted after open arguments to go into a closed session to review the records in private and make a decision on whether they should be public, as is its normal practice. Typically, they emerge from the closed-door review to deliberate in a public forum.
State law says the attorney general's office was supposed to bring the records to the hearing for just such a review.
But Ferguson said he had no records to provide the committee. He would not say whether that meant no records exist.
"The only choice we have is to order the AG's office to produce the records," David Fleming, the committee's chairman pro tem, said during deliberations.
The committee voted unanimously to include unusual phrasing in its order, acknowledging a possibility that no records exist.