State Records Committee orders the attorney general to release its secret opinion on the special 3rd District election

Keith Johnson | The Salt Lake Tribune Utah Governor Gary Herbert, right, announces Sean Reyes as Utah's new Attorney General, December 23, 2013.

Citing a public interest in the way elections are managed, the Utah State Records Committee ruled unanimously Thursday that the attorney general’s office should release a written legal opinion it prepared for the Legislature on the governor’s unilateral action to set rules for the special 3rd Congressional District election.

The attorney general’s office had decided not to release the document, citing ethical concerns about a conflict of interest. The Legislature let the matter drop, but The Salt Lake Tribune sought the opinion under state open-records laws and appealed to the committee after the attorney general’s office denied the request twice.

“You could tell the records committee really understood the substantial public interest,” said Mark Tolman, the Tribune’s attorney, after the vote. “There was no debate about what mattered most, and that was that the public needs to see this document.”

Daniel Burton, a spokesman for the attorney general’s office, told The Tribune in an email that the office believes “government should be open and transparent to the extent ethically and professionally possible.”

But, he added, “The attorney general must retain the ability to determine how best to exercise his lawful and constitutional duties. If the draft opinion were released it could impact our ability to represent our client. There are strong public interests in promoting the attorney-client privilege.”

Burton said the attorney general has not yet decided on whether to appeal the committee’s ruling.

Lawmakers requested the legal opinion in May after their lawyers accused Gov. Gary Herbert of overstepping his executive authority by setting the special election process and timeline to replace Rep. Jason Chaffetz, who resigned June 30 and eventually took a job at Fox News.

Attorneys working for Utah Attorney General Sean Reyes drafted the opinion, informed lawmakers it was completed, then pulled back, saying that providing the document might constitute a conflict of interest with the office’s duties to advise Herbert.

Assistant Attorney General Lonny Pehrson argued before the committee that the opinion should be protected because it was a preliminary draft and created in anticipation of probable litigation. He also argued the document had “very little weight of benefit to the public.”

“For the attorney general’s office at this point to weigh in or throw in its two cents serves no purpose other than to further politicize the issue,” he said.

The Tribune argued that neither claim held up to scrutiny and the document should be released to the public.

“We’ve decided as a democracy that it’s incredibly important how elections are conducted,” said Dan Harrie, the Tribune’s government and politics editor. “And if there are irregularities in the way elections are conducted, if there are illegalities in the way elections are conducted, the public needs to know about that.”

After viewing the document in closed session, the committee ruled 4-2 that it was a draft but not that it was prepared with a lawsuit in mind. However, they disagreed with the attorney general’s office that the document was of no consequence.

“I believe that it is in the public interest to be released,” said Holly Richardson, a former state legislator and the chair pro tem of the committee, who writes a regular opinion column for The Tribune. “I think that the public interest is substantial — probably to the point of overwhelming.”