by Dennis Romboy
SALT LAKE CITY — An attempt to scrutinize how the Utah Attorney General's Office conducts court-sanctioned secret investigations has failed — for now.
Third District Judge Deno G. Himonas ruled Monday that former investigative reporter Lynn Packer does not have legal standing to pursue a court order requiring state investigators to comply with Utah's investigative subpoena law. Such investigations are typically kept secret, though the law calls for prosecutors to file specific documents with the court, some of which may be open to the public.
Though the decision to dismiss his case went against him, Packer found some of the judge's conclusions in his favor. He said he intends to appeal.
"It was an interesting and sort of strange ruling by the court," he said Tuesday.
Packer, who acted as his own lawyer, contended the attorney general's office did not file the required documents during an investigation into Weber State University's procurement practices. Those documents include a copies of all subpoenas issued and detailed descriptions of evidence produced as a result of the subpoenas.
"The law is crystal clear," he said. "It is not ambiguous."
The attorney general's office argued such a requirement would hamper a criminal investigation because those documents aren't generally filed until the after the probe is complete.
Himonas disagreed.
"It is apparent that requiring a prosecutor to comply with the subpoena act by filing the documents within a reasonable time would not unduly interfere with the prosecutor's investigation," he wrote.
Assistant attorney general Scott Reed acknowledged that not all the required documents are filed as investigations progress, but eventually make their way into the record. The law does not specify when they must be filed.
Himonas said waiting to the end hinders the court's ability to review the scope of the secrecy order.
"Indeed, if a prosecutor could delay filing the required materials until the end of every investigation, a court could not perform its essential duties and, rather than being presumed open, the records would be presumed secret until the end of the investigation," the judge wrote.
Reed said Tuesday the A.G.'s office might consider establishing a protocol for filing the documents.
"I think we're going to take that information from the judge's ruling and probably do an in-house training session," he said.
Still, he said when investigators obtain thousands of pages of documents, their first duty is to digest them and their second duty is to "dot the i's and cross the t's" required by the subpoena law.
Packer stumbled across the secret files as the result of a business dispute with Weber State regarding its competitive bidding procedures. His complaint to the attorney general's office initiated an investigation in which subpoenas and secrecy orders were issued.
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