Gov. Gary Herbert’s office wants to appeal a unanimous decision by the Utah State Records Committee that the Utah Attorney General’s Office should make public a written legal opinion it prepared for the Legislature on his setting of rules for the special 3rd Congressional District election.
Paul Edwards, Herbert’s deputy chief of staff, called Friday for a court review of the Thursday decision, noting that the records committee also had found the document to be a protected record under state open-records laws.
“We appreciate the high level of curiosity in this protected draft document (a document that our office has never seen),” Edwards said in a statement.
“Nonetheless, we believe the records committee did not appropriately weigh the compelling governmental and public interests involved in protecting the attorney-client relationship and the privilege accompanying that relationship,” Edwards continued. “We need a court of competent jurisdiction that fully understands the legal requirements of this relationship to weigh the issues and equities in this case.”
The State Records Committee’s opinion will be posted Oct. 23, and the parties will have 30 days to file an appeal with the court.
A spokesman for Attorney General Sean Reyes said he still was deciding whether to challenge the ruling.
“This is a record, which belongs to the attorney general’s office, which is still undertaking its internal review about whether to appeal,” Reyes’ spokesman Daniel Burton said.
Lawmakers requested the legal opinion in May after their lawyers accused Herbert of overstepping his executive authority by unilaterally setting the special election process and timeline to replace Utah Rep. Jason Chaffetz, who resigned June 30 and eventually took a job at Fox News.
Lawyers working for Reyes drafted the opinion and informed lawmakers it was complete, but then withheld it, saying that providing the document might constitute a conflict of interest with the attorney general’s duties to advise Herbert.
The Legislature let the matter drop, but The Salt Lake Tribune sought the opinion under state open-records laws, eventually appealing to the State Records Committee after Reyes’ office twice denied The Tribune’s request.
“We’ve decided as a democracy that it’s incredibly important how elections are conducted,” said Dan Harrie, Tribune government and politics editor, at Thursday’s records committee hearing. “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 Thursday, records committee members ruled 4-2 that the document was a draft, which would be protected under government records laws, but not that it was prepared with a lawsuit in mind. The committee, however, unanimously agreed that releasing the document was in the public interest.
“The public interest is substantial — probably to the point of overwhelming,” said Holly Richardson, a former state legislator and the chair pro tem of the committee, who also writes a regular opinion column for The Tribune.