Lawmakers were clearly angered by the latest scandal to hit the Attorney General’s office Tuesday, as special council to the House Investigation Committee explained the breadth and depth of missing data from Attorney General John Swallow’s state issued desktop, laptop, state issued cell phone, personal cell, and home computer.
“We have encountered a series of troubling circumstances that include missing electronic records [and] failures to order the preservation of evidence…The scope of the data loss is like nothing I have ever seen,” said Steven Reich, lead investigator for the committee who previously worked on the Clinton impeachment, noting that “the scope of the records loss here touches literally every data device the Attorney General has had either in the Attorney Generals office or at home since [Swallow] started as Chief Deputy Attorney General [in 2009].” The timeline of data loss from Swallow’s machines stretch from 2009 to 2011.
At issue is the fact that emails and calendar entries disappeared from Swallow’s various public and private machines sometime in late 2012 or early 2013, just as allegations of wrongdoing by Swallow began to swirl around the Attorney General elect. Swallow claims that the loss took place when electronic systems were upgraded in the AG’s office in late 2012, and that, during the transfer, the data was lost or destroyed. Simultaneously, Reich’s investigators noted that they made copies of the Attorney General’s Office hard drives in an attempt to recover data, but lawyers within the office are refusing to let members of the committee have access to the copies, saying that the data may contain medical data protected by HIPAA, a federal act that protects patients personal medical information from being distributed under most circumstances.
Reich also revealed during the hearing that state’s Department of Technical Services (DTS) was unaware of any data loss during the transfer of machines and do not believe this was actually the case, nor did any other user statewide office suffer the same level of data loss during the transfer; furthermore, there were no other users who couldn’t ultimately retrieve lost data after the migration. Adding to the intrigue, Reich added that only certain calendar entries appeared to be missing, and only from specific years.
DTS noted that Swallow did complain of lost emails after the migration but could offer no explanation as to why Swallow’s records alone couldn’t have been retrieved post-migration. If it were truly lost, as opposed to deleted, it should have been retrievable. Reich then informed the committee that only three people had access to Swallow’s account, and two have said that they did not delete information from Swallow’s hard drives – the third individual who has yet to make a statement is John Swallow himself.
The Attorney General’s Office has its own independent IT department, paid out of office funds.
One thing was clear according to Reich: “what has happened [with this missing data is that] our job has become immeasurably harder and immeasurably costlier…The missing information is from a time that is highly relevant to the committees work.”
Lawmakers reeled at the revelations. Representative Brad Dee (Republican – Ogden) wondered aloud as he said “don’t the people of Utah have the right to expect to have access to these documents?” and urged investigators to follow up with this part of the investigation, regardless of political whims.
“In the face of a very disturbing pattern of missing records, [Swallow's council seem to suggest that] the committee should just throw up its hands and conclude that nothing can or should be done to get to the truth of how the broad set of records went missing,” Reich said with frustration.
Reich also expressed deep concern with the Attorney General’s Office failure to issue what is known as a “hold order” on documents within the office. A hold order specifically requires that any and all documents created within an office not be destroyed when it is know that an investigation is pending or underway. Reich’s investigation revealed that AG’s office had several legal matters wherein a hold order would have been expected – first when Robert Gehrke from The Salt Lake Tribune requested documents dating back to 2008, then when indicted businessman Jeremy Jonson (who’s initial allegations in January started a flood of allegations against Swallow), requested documents dating to 2010, Utah Political Capitol’s document request early this year, and finally culminating in a formal request for a hold order from the political nonprofit group, Alliance for a Better Utah, in January of this year. Swallow was also made aware that former Attorney General, Mark Shurtleff, went to the Department of Justice in October of 2012, specifically asking for an investigation. Perhaps most damning was when Swallow himself indicated in a now infamous taped conversation with Jeremy Johnson at the Orem Krispy Kreme in April 2012 that he believed he was likely the target of a pending federal investigation, he also wrote to the Federal District Attorney for Utah specifically asking for an investigation to clear his name on January 14, 2013. In none of these cases, however, was a hold order issued and, ultimately, data was lost or destroyed.
“[Hold Orders are] basic to the the functioning of lawyers – and we are talking about the premier law enforcement office of the State of Utah [failing to put one in place],” Reich said during a moment of brevity.
A frustrated Representative Francis Gibson (Republican – Mapleton) lamented that Swallow does not appear to be cooperating with the investigation, even if his staff are. “The man a the top drives the business,” he said, noting that even though staff have been cooperative, Swallow appears to be stonewalling. “Does [Swallow] consider this a bridge club?” added an angered Representative Lynn Hemmingway (Democrat – Salt Lake City).
Even in the light of a subpoena from the Department of Justice back in July of this year, no hold order was put in place by the Attorney General until September of this year, when the investigative committee itself had to ask Swallow to do so in order to prevent further documents from being destroyed.
“The failure of the office to issue a hold order has had a concrete, and not just theoretical, impact on [the committees'] work.” Reich told the committee.
The investigation into Swallow is expected to move forward, as the special investigators are now involving the courts to obtain what data is still available.