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Utah House committee says records missing in Attorney General John Swallow probe

Published: Friday, Nov. 1 2013 12:01 a.m. MDT

Utah Attorney General John Swallow speaks with reporters in Salt Lake City.

Jeffrey D. Allred, Deseret News

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SALT LAKE CITY — Records a Utah House committee says it needs to advance its inquiry into alleged wrongdoing on the part of Attorney General John Swallow are missing, the committee chairman said Thursday.

Rep. Jim Dunnigan, who heads the nine-member panel, said the committee's investigators are trying figure out how the electronic data disappeared.

"We need to look at those records," the Taylorsville Republican said. "We think they're important to our investigation."

The committee issued subpoenas to Swallow and his office on Sept. 25 demanding written and electronic documents, mostly regarding his relationships with indicted businessman Jeremy Johnson and imprisoned businessman Marc Sessions Jenson. Both have accused the attorney general of influence peddling.

Dunnigan wouldn't specify if the records are emails or computer files or both. But he said investigators didn't see data within a certain time frame that they expected would be there based on similar records that they did find.

The attorney general's office agrees records are missing and is cooperating with the committee's investigators to recover them, Dunnigan said.

One explanation coming out of the attorney general's office for any missing emails is the state switching from GroupWise to Google last November. Dunnigan said investigators are looking into the migration from one system to other.

But the Utah Department of Technology Services, which oversaw the transfer, says it isn't aware of any data being lost in the change.

"As far as we know, everything transferred correctly," said technology services spokeswoman Stephanie Weiss.

There were failures with some accounts but the process was restarted to successfully move the data, she said. The department, she said, received calls for several weeks after the switch from employees who discovered missing emails and that information was restored.

Weiss said it is possible that workers who lost emails didn't notify technology services to retrieve them.

Brian Tarbet, general counsel for the attorney general's office, sent a letter to Swallow's staff five days after receiving the Sept. 25 subpoena advising them to cooperate with the House investigation and keep any pertinent records.

"If you have any knowledge, communications or documents relating to the issues raised by the subpoena, please preserve all evidence and contact Brian Farr, who is coordinating the office’s response to the subpoena," he wrote.

Attorney general's office spokesman Paul Murphy said Swallow and the office have turned over "anything and everything" sought in the several investigations of the attorney general. Swallow denies any wrongdoing.

Shortly after accusations against Swallow broke in early January, the Alliance for a Better Utah anticipated that records could be intentionally or inadvertently destroyed, even if only according to normal retention policies. It sent a letter to the attorney general and the governor requesting a "litigation hold" on electronic records in the offices.

Better Utah executive director Maryann Martindale said it's clear the attorney general's office ignored the request.

"I wish I could stop having I-told-you-so moments with this Swallow story," she said.

Martindale said the missing information creates a roadblock for the House committee.

"If these records were important for the investigation, clearly that's a piece of the investigation that can't move forward. That's extremely concerning," she said. "I think it just adds to that cloud of suspicion that hangs over the whole office, that hangs over Swallow."

Better Utah, a public policy advocacy group with a history of challenging Utah's Republican majority, filed a complaint against Swallow alleging campaign finance law violations. The lieutenant governor's office hired special counsel to investigate the claim. It's findings are expected in late December or early January.

Also, the Utah State Bar recently closed its investigation of a Better Utah complaint that Swallow violated professional conduct standards. The bar hasn't acted on a second complaint filed by former state Division of Consumer Protection director Traci Gundersen.

Swallow received a subpoena from the U.S. Department of Justice on July 2 to appear before a federal grand jury. In lieu of appearing in person, it allowed him to submit all documents related to Johnson, Jenson and several others. Murphy said he complied with the request to provide the records.

The DOJ Public Integrity Section declined to file criminal charges against Swallow after it ended a monthslong investigation in September. Two county attorneys with help from the FBI continue to investigate the attorney general.

Contributing: Richard Piatt

Email: romboy@deseretnews.com, Twitter: dennisromboy

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