Will new records director represent Utahns or the government? Cox's nominee advances
After an hourlong hearing on Monday with some airing concerns about perception issues over whether he'll be an unbiased and transparent records czar, a panel of Utah lawmakers voted 5-2 to forward Gov. Spencer Cox's pick for the first-ever director of the state's newly created Government Records Office to the full Senate for a final vote.
If confirmed by the Senate, Lonny Pehrson will become a powerful decision-maker over which government records become public — and which ones never see the light of day. He'll be the first person to lead a new office that the Utah Legislature created to replace the 30-year-old, seven-member State Records Committee, which previously decided disputes over public records.
Pehrson, who has worked as records counsel for the Utah Attorney General's Office since 2016, appeared before the Senate Government Operations Conformation Committee on Monday to field questions from legislators about what kind of records director he'd be if confirmed to the post.
Gov. Cox taps former Utah AG records counsel as new public records director
Pehrson said for nearly the last decade he's spent in the Attorney General's Office, 'I have been responsible for overseeing all aspects of compliance' with Utah's open records law, the Government Records Access and Management Act (GRAMA).
That's what Pehrson said his focus would be — ensuring that government entities are following the law when it comes to which records do or don't get released to the public.
'Over the years, I've had countless discussions with attorneys and officials from all different levels of government regarding records requests,' Pehrson said. 'Quite frequently, my role was to encourage disclosure of records, often when doing so was not necessarily the preferred course of action.'
Pehrson added that 'over the years, I have helped prevent many records disputes from arising, which has always been my goal.'
But concerns about Pehrson's appointment came from both the left and right, including from a Democratic senator and a conservative advocate.
Maryanne Christensen, executive director of the conservative advocacy group Utah Legislative Watch, said the 'biggest problem' with Pehrson's appointment is 'the public perception' given Pehrson has spent a long time working for the executive branch of government.
While she acknowledged state officials have applauded him for doing 'a fine job of representing clients,' she said 'the public really worries about who he is going to consider his clients here.'
'He's very accustomed to his clients being government officials,' Christensen said, 'and we need a GRAMA officer that will consider the citizens of Utah (as) their clients, and that they will weigh in on the side of the citizens of Utah. That's a really hard perception to overcome … That's where a lot of the lack of trust comes from.'
Sen. Nate Blouin, D-Salt Lake City, also opposed Pehrson's appointment. While he acknowledged Pehrson is clearly qualified for the position, Blouin said he also shared 'frustrations and concerns' over the 'optics' of selecting someone from the Utah Attorney General's Office, which under former Attorney General Sean Reyes faced criticism for a lack of transparency.
'The optics are just bad,' Blouin said.
Pehrson, in his previous role as records counsel for then-Utah Attorney General Sean Reyes, argued against releasing Reyes' work calendar in response to requests from local news outlets KSL and The Salt Lake Tribune.
In the dispute over those records, the State Records Committee ultimately sided with reporters, and in February a judge ruled that Reyes' official calendar should be released. But the same day as the judge's ruling, the Utah Legislature passed a bill to allow elected officials and government employees the ability to keep their calendars — including work meetings — private moving forward.
Reyes didn't seek reelection last year after concerns surfaced over his past relationship with the embattled anti-trafficking nonprofit Operation Underground Railroad and its founder, Tim Ballard. Earlier this year, a legislative audit of Reyes' administration concluded that 'insufficient transparency' resulted in 'a lack of accountability for the position of the attorney general.'
Pehrson, in his comments in front of Monday's legislative panel, addressed those concerns.
'I recognize and appreciate the concerns that have been expressed about my experience with the Attorney General's Office and whether it might hamper my ability to faithfully carry out this new role,' Pehrson said. 'While understandable, I believe these concerns to be unfounded.'
As assistant attorney general, Pehrson said he had an 'ethical obligation to selflessly represent my client to the best of my ability.'
'I have always tried to do this, regardless of whether I agreed personally with the position taken or not,' Pehrson added. 'However, having also worked extensively in a judicial setting, I understand very well the difference between representing a client and acting as a neutral arbiter of disputes.'
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Thus, Pehrson said he didn't believe his time in the Attorney General's Office 'would in any way compromise my ability to lead the Government Records Office or to fairly and impartially decide records disputes that might come before me.'
As for who he'd consider his clients, the government or the people of Utah? Pehrson said he'd consider the citizens of the state to be his clients.
'I certainly would make that my goal,' he said. 'I mean, that would be my lodestar as I approach these records issues.'
When Blouin pressed Pehrson on what he would do if a conflict of interest arose, Pehrson said he could recuse himself and select someone to serve in his stead.
Kenneth Williams, director of the Utah Division of Archives and Records Service and state archivist — who also chaired the State Records Committee up until it was dissolved by the Legislature last month — said he supported Pehrson's nomination.
'Over my career, I have had the privilege of working with Mr. Pehrson on many difficult and very nuanced records access issues,' Williams said.
Williams added that records disputes have become increasingly more difficult, especially when it comes to electronic records and privacy issues. 'But I can confidently say that Mr. Pehrson is one of the most knowledgeable attorneys practicing in Utah when it comes to records law.'
Utah lawmakers look to dissolve, replace State Records Committee. Here's why that matters
'His understanding of GRAMA and other statutes that have to be taken into consideration when considering records access issues is outstanding, and he is one of the leading experts on those issues in the state,' Williams said. 'I've always known him to apply the law fairly, accurately, and as he seeks to represent the interests of his clients, that's a difficult position to be in.'
Daniel Burton, general counsel for the Utah Attorney General's Office, also urged lawmakers to approve Pehrson's appointment. Though Burton said he's disappointed to see Pehrson leave, he said he'd be a responsive and professional records director.
'He's always attentive to the statutes. He doesn't put his own finger on the scale,' Burton said. 'There are often political pressures in the GRAMA realm, but Lonny's first and only role in the office was to be as apolitical, publicly minded, and as much a civil servant, an attorney whose job it was to give advice to clients and then represent them in the appropriate forum.'
Burton added that 'every conversation we ever had came back to the statutes, to what was written by the Legislature and what appropriate case law affected that statute.'
'He wasn't always able to give exactly what was sought by records requestors, whether because of privacy concerns, ongoing investigations or some sort of record classification required by the statute, but he was always professional in his demeanor in his actions and advice,' Burton said.
Sen. Daniel Thatcher — a former Republican from West Valley who recently unaffiliated with the Utah Legislature's dominating party to join the Utah Forward Party — said he opposed SB277, the law that replaced the State Records Committee with a single decision-maker, agreeing that it gave a single person too much power over government transparency issues.
However, Thatcher said the matter before the committee Monday wasn't whether SB277 was a good policy or not. Rather, he said lawmakers now need to follow the law that passed and decide whether Pehrson is qualified to fill the post.
Thatcher ultimately voted in favor of Pehrson's appointment. The only senators who voted against were Blouin and Sen. Ron Winterton, R-Roosevelt, who also opposed the passage of SB277.
Pehrson's appointment now advances to the full Utah Senate for a confirmation vote, which is scheduled to take place during an extraordinary session on June 18.
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Trump has said that trade imbalances, declining manufacturing power and the cross-border flow of drugs justified the tariffs under IEEPA. A dozen Democratic-led states and five small U.S. businesses challenging the tariffs argue that IEEPA does not cover tariffs and that the U.S. Constitution grants Congress, not the president, authority over tariffs and other taxes. A loss for Trump would also undermine the latest round of sweeping tariffs on dozens of countries that he unveiled late Thursday. Trump has made tariffs a cornerstone of his economic plan, arguing they will promote domestic manufacturing and substitute for income taxes. WHAT'S THE STATUS OF THE LITIGATION? The U.S. Court of Appeals for the Federal Circuit heard oral arguments on Thursday in the case. The panel of 11 judges sharply questioned the government about Trump's use of IEEPA, but did not rule from the bench. The Federal Circuit has not said when it will issue a decision, but its briefing schedule suggests it intends to move quickly. Meanwhile, the tariffs remain in effect after the Federal Circuit paused a lower court's ruling declaring them illegal. WILL TRUMP'S TARIFFS BE BLOCKED IF HE LOSES IN COURT? A Federal Circuit ruling would almost certainly not end the litigation, as the losing party is expected to appeal to the Supreme Court. If the Federal Circuit rules against Trump, the court could put its own ruling on hold while the government appeals to the Supreme Court. This approach would maintain the status quo and allow the nine justices to consider the matter more thoroughly. The justices themselves could also issue an "administrative stay" that would temporarily pause the Federal Circuit's decision while it considers a request from the Justice Department for more permanent relief. IS THE SUPREME COURT LIKELY TO STEP IN? The Supreme Court is not obligated to review every case appealed to it, but it is widely expected to weigh in on Trump's tariffs because of the weighty constitutional questions at the heart of the case. If the Federal Circuit rules in the coming weeks, there is still time for the Supreme Court to add the case to its regular docket for the 2025-2026 term, which begins on October 6. The Supreme Court could rule before the end of the year, but that would require it to move quickly. HOW MIGHT THE SUPREME COURT RULE? There is no consensus among court-watchers about what the Supreme Court will do. Critics of Trump's tariffs are optimistic their side will win. They point to the Supreme Court's decision from 2023 that blocked President Joe Biden from forgiving student loan debt. In that ruling, the justices limited the authority of the executive branch to take action on issues of "vast economic and political significance" except where Congress has explicitly authorized the action. The justices in other cases, however, have endorsed a broad view of presidential power, especially when it comes to foreign affairs. CAN IMPORTERS SEEK REFUNDS FOR TARIFFS PAID? If Trump loses at the Supreme Court, importers are likely to seek refunds of tariffs already paid. This would be a lengthy process given the large number of anticipated claims. Federal regulations dictate that such requests would be first heard by U.S. Customs and Border Protection. If that agency denies a refund request, the importer can appeal to the Court of International Trade. There is precedent for tariff refund requests being granted. Since May, CBP has been processing refunds to importers who inadvertently overpaid duties because of tariff "stacking" — where multiple overlapping tariffs are applied to the same imports. And in the 1990s, after the Court of International Trade struck down a tax on exporters that was being used to finance improvements to U.S. harbors, the court set up a process for issuing refunds. That decision was upheld by both the Federal Circuit and the Supreme Court. WOULD A COURTROOM DEFEAT UNRAVEL TRUMP'S TRADE DEALS? Trump has used the threat of emergency tariffs as leverage to secure concessions from trading partners. A loss at the Supreme Court would hamstring Trump in future negotiations. The White House, however, has other ways of imposing tariffs, like a 1962 law that allows the president to investigate imports that threaten national security. Trump has already used that law to put tariffs on steel and aluminum imports, and those levies are not at issue in the case before the Federal Circuit. Some legal experts say a loss for Trump at the Supreme Court would not impact bilateral trade agreements the U.S. has already inked with other countries. Others say that the trade deals alone might not provide sufficient legal authority for taxes on imports and may need to be approved by Congress.
