Episodes

Radio Free Mormon: 170: SPECIAL REPORT–Utah State Records Committee Hearing

Today was the appeal hearing before the Utah State Records Committee.  RFM has doggedly been pursuing release of emails between Brigham Young University and the BYU Police Department.  These emails likely contain directives to the police to not release certain information contained in their reports  damaging to BYU and the LDS Church.  The Committee made their ruling at the end of the hearing.  I won’t spoil the surprise by revealing it here!  Let’s just say the Committee did not deny RFM’s appeal!

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54 thoughts on “Radio Free Mormon: 170: SPECIAL REPORT–Utah State Records Committee Hearing

  1. I did some math and you have put out in 2.5 months roughly the same amount of content from the previous 8 months. WOW and I love all of it. Thank you so much for my sanity and giving me something to look forward to. I have posted to many forums recommending you, to include adjustment of their tithing to more worthy causes ie rfm. Stay healthy.

    • Thank you so much, Matt!

      I have definitely been knocking myself out these past eight weeks!

      Today is the end of the eighth week of this frenetic pace! Can you imagine that?

      It takes me the whole weekend just to recover.

      Only slightly joking!

  2. Hmmmm….so very interesting, RFM.

    You have a real knack for taking complexity and making it as accessible as possible.

    If I’m understanding what I heard, the LDS lawyer didn’t fare well in that hearing. You had him on an edgy defensive the whole time…you could hear it in his voice.

    Did he anticipate that the committee would rather not take his word for it and could summon the emails to essentially decide for themselves if his assertion of client privilege was indeed the case?????

    I know he has to protect his client , but his reaction to the request for the emails, ie..that he would decide after the order, whether to comply or not, made him seem guilty…..guilty of protecting what he knows the committee will find is not privileged.

    I’m on the edge of my armchair lawyer seat! Woo-Hoo!!!!

    • P.S….an amendment to my comments hahaha……I love how you requested that the document they sent you be included…I’m thinking that is so the committee can easily view what kind of bullcrap disclosure they actually made..after all their “privileged” advice?

      this is going to end up with egg fo young on their faces, im afraid:)

      • Great comment. I keep thinking, “ they are fricking going to tick off this judge” You could hear that. I thought this would be boring but it was exciting! And then… RFM says they will appeal! I’m on the edge of my seat. Mormonism has so many layers. How can you leave it alone? Look what you would miss! And yes… thank you so much Radio holding their little piggies to the fire. And for doing all these extra podcasts! It has brightened my day so many times. Thank you !!!

    • It is always interesting to me to hear how non-lawyers perceive what is going on at a hearing.

      I heard from somebody else that opposing counsel seemed confident at first, but less so by the end.

      I think the last thing BYU will do is give the emails to the committee to review.

      God forbid they might actually release some of them!

      My expectation is that BYU will appeal the order so they don’t have to turn over the emails to the committee. At least not right now.

      That is why they wanted the order in writing.

      So they could appeal it.

      Just my best guess.

      P.S. I think the committee knew full well why BYU wanted the order, as well. ;^)

  3. With respect to the problem of having a PD work for a private organization, this case involving McKenna Denson has similar misconduct taking place in the 2016 Rhoades case where as a BYU police officer he acted as a surrogate for BYU’s Honor Code office. Or, in other words his employer, not the public.

    https://www.sltrib.com/news/politics/2019/02/26/utah-moves-decertify-byu/

    So while it was the Rhoades case that lead the Utah Department of Public Safety (DPS) move to decertify BYU PD, it seems to me that the Mckenna case is yet another example of conflict of interest. In fact, to me the arguments put forward by the BYU PD lawyers in this public hearing only reinforces DPS’s concerns. Is my perception skewed or should I not be surprised that no one (SLTrib or any other media outlet) has brought forward this similar conflict of interest example as yet another instance where BYU PD put their employer’s interest in front of the Public’s.

    If my perception is correct, the next question is if DSP should be alerted to BYU PD’s argument today emphasizing it’s communication with their employer’s lawyer as privileged communication showing that no attempt has been made to setup a wall between the two entities.

    I’m interested in RFM’s thoughts

    • I agree with you on this, VFANRJ.

      BYU’s interposing itself in how BYUPD responds to public disclosure requests, together with the fact BYUPD apparently went along with it and redacted the reports in violation of their responsibility under GRAMA, illustrates yet again why BYUPD should not be certified by the Utah DPS.

      Excellent point!

  4. RFM: Would you please be so kind as to post the citation(s) of the attorney-client-privilege Supreme Court cases (and any other cases) that BYU asserts applies to emails at issue?

    • Nevermind. Found it.

      Upjohn Co. v. United States, 449 U.S. 383 (1981),

      • You beat me to it!

        Opposing counsel thought Upjohn the lynch-pin of his case.

        The problem, as I pointed out, is that Upjohn doesn’t deal with a division of a private company that is at one and the same time a public agency.

        It seems to me a distinction that makes a difference under the unusual facts of this case.

        • I agree. Not only are the facts different in Upjohn, but also the holding of Upjohn is much narrower that BYU PD counsel asserted.

          Upjohn merely holds that the “control group test” does not apply to privilege law.

          Upjohn did NOT create a general rule that “a communication is privileged at least when … an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct with the scope of employment.” We know this because Justice Burger wrote in his concurring opinion to argue that the majority should have articulated that general rule.

  5. When the committee asked for the emails, I imagined the BYU police acting like Colonel Jessop in A Few Good Men: “You have to ask me nicely. You see, [Utah State Records Committee], I can deal with the bullets and the bombs and the blood. I don’t want money and I don’t want medals. What I do want is for you to stand there … and … extend me some f***ing courtesy! You gotta ask me nicely.”

    (I hereby request of that unmistakable movie score sometime in your coverage, RFM.)

    Except the committee DID ask nicely. And unlike Colonel Jessop, asking nicely was NOT enough for the BYU police!

    I have to think that the committee is not going to be pleased to have to go through the rigmarole of 1) ordering delivery of the privilege log and emails, 2) receiving BYU police’s refusal to provide the privilege log and emails, and 3) engaging in litigation to obtain the privilege log and emails.

    Is BYU police REALLY going to tug on superman’s cape, spit into the wind, pull the mask off that old lone ranger, and mess around with Jim?

    • Great line from Colonel Jessop!

      Here is how I expect it will play out:

      1. BYU is asking for a written order from the committee that BYU turn over the emails.

      2. Once the order is issued, BYU will appeal the order to the court system in Utah in order to avoid turning over the emails to the committee.

      3. The committee will not have to engage in litigation with BYU to get the emails. They will be pretty much forced to agree that their order to turn over the emails be held in abeyance while BYU appeals the order.

      4. On appeal, BYU will be limited to the issue of whether the committee abused its discretion in ordering BYU to turn over the emails so they could look at them to see if BYU’s characterization of them was correct, and whether they are not disclosable to the public because of attorney-client privilege and/or being prepared in anticipation of litigation as BYU asserts.

      5. BYU has no chance of winning that appeal. It will be a play for time; a play made only because they are so concerned about the content of those emails they won’t even trust the committee to review them in camera.

      I write this in advance to test whether I am a prophet.

      One does tend to wonder why BYU would be so concerned the committee might release some of the emails if indeed they were as BYU described them . . .

      • On appeal, will the reviewing court (1) look at the documents in question to assess whether privilege or the work product doctrine in fact applies to the documents or (2) merely consider whether it was an abuse of discretion for the Committee to ask to review the documents in camera?

  6. The attorney didn’t like the comparison to Walmart. How dare you. I loved it and thought during your analogy that anyone representing the church in whatever form would find it offensive..and he did.
    If it’s client privilege? What constitutes a conflict of interest? It would seem that BYU and the BYU police would need separate attorney representation. When he kept using the term…client…for some reason it had a mafia sound to it. Just sayin’.

    • I didn’t mean to give offense by choosing Walmart for the comparison. I just cast about for a big company that everybody would have heard of!

      I agree with you that BYUPD needed representation independent of BYU.

      If I, or pretty much any other attorney, were representing BYU and got this call from the BYUPD about what to disclose, the first think I would have done is tell them this is a conflict of interest; I can’t represent BYUPD’s interest of complying fully with GRAMA while at the same time representing BYU’s interest in not having damaging information made public.d

      I would have arranged for BYUPD to retain a separate attorney with no ties to BYU, and told BYUPD that any communications they have about the issue are to be between them and their attorney only, and I am not to be part of any discussion. I don’t even want to hear what they are talking about!

      That is what most lawyers would do . . .

      I was going to mention this at the hearing, as well, but you would be surprised how fast 20-minutes can go when you are having fun!

      • Wow! I would have loved to have heard BYU PD legal reply to that.

        • I can tell you.

          BYU would have said that there is no conflict of interest; that BYU’s interests were the same as BYUPD’s interests–to fully and fairly comply with the GRAMA request. (I know they would have said this because this is, in fact, what they did say, both in briefing as well as in their argument.)

          That is why I started out by showing that it sure looked like somebody other than BYUPD was pulling the strings on how to respond to the GRAMA request . . . somebody who was not interest in fully and fairly complying with GRAMA . . . and somebody who was protecting the interests of BYU and the LDS Church.

  7. I’ll be honest, I thought this was the end of the road for you RFM I guess curiosity killed the cat for this committee. How far can the issue be appealed before they are held to the fire of justice?

    • Years and years.

      I expect that is what BYU is counting on.

      But honestly, if the stuff in those emails is so damaging they won’t even turn them over to the committee for review, what more do we need to know about their contents?

  8. What’s the old legal adage? When the facts are on your side, argue the facts. When the facts are not on your side, argue the law. It’s clear opposing counsel was firmly arguing the law.

    I am curious about the outcome, I think this will be a barometer about how much the lds church still controls the state. 30 years ago you wouldn’t stand a chance. Nowadays, you have a good chance to prevail.

    • The Utah State Records Committee hears these types of arguments on a regular basis. They have one day a month devoted to hearings of this sort.

      They were extremely competent and I was encouraged by their grasp of the facts and the legal issues.

      It seemed to me a foregone conclusion they would ask to see the emails so they could render an informed decision as to whether they really contained what BYU was claiming they contained.

      BYU seemed to be saying the committee should just take BYU’s word for what they contained; that they didn’t really even need to look at the emails for themselves.

      That was when a committee member said they are “highly skeptical” of representations that such emails are protected by attorney-client privilege and they needed to look at the emails to make sure BYU’s description of their contents was accurate.

      This is another reason I expect BYU will not allow the committee to see the emails, but will appeal it instead.

  9. What I liked most was how you concentrated on the evidence that someone was making decisions on redactions to protect BYU and the Church. The BYU lawyer was left to make your attorney-client privilege argument for you. If this goes to district court, will BYU be arguing with the records committee or with you?

    • Thank you for noticing exactly what I was doing.

      I didn’t want to argue on the attorney-client playing field.

      That’s why my argument didn’t mention attorney-client at all.

      Instead I tried to pierce through that argument and focus on what was really happening:

      A private company was telling a public agency how to respond to a public disclosure request.

      • Very interesting hearing. Respondent’s counsel argued that BYU PD was not a public agency. He argued via citation to authority on the issue. I didn’t hear you push back on that argument. Maybe I missed it? In prior podcasts you were very persuasive that BYU PD was a public agency. This seems to be the lynchpin of your case. Is there a reason you did not focus on that issue?

        • Hi, Glen T. Hale!

          You have posted your comment twice, so I know you are interested in my answer. ;^)

          When I am arguing a case, I don’t want to follow every red herring the other side is throwing out there. I want to focus on arguing my case.

          In this instance, everybody, including all the members of the Committee, knew this argument was dead on arrival.

          BYUPD was defined by statute in the summer of last year to be a public agency.

          What BYUPD did in the hearing was say that prior to that time, BYUPD was not a public agency.

          But the committee is already fully aware that they appealed that decision from the committee in a prior case involving the same issue to the district court level; and that the district court judge disagreed with them, ruling that BYUPD was, in fact, a public agency, even under the former wording of the statute.

          This, in short, is why I didn’t spend any time pushing back on that particular argument.

          Thanks for your comment, though!

          It is a good question you ask.

          RFM

          • Sorry about double post. I don’t know how the replies work. And thank you very much for your reply.

            If a ruling has already been made that BYUPD was, at the time, a public entity, then reviewing non privileged emails seems a waste of time. The committee, wanted to review the emails to see if the content contained privileged content? If so, then the committee seems to think that a privilege might apply depending on content? Am I missing a point ( or two) in the analysis?

            Your entire podcast library and content is so,so helpful. Besides it’s clarity and in depth research and relevant subject matter, it is wonderful to me because it is trustworthy. THANK YOU!

          • I don’t think you are missing anything, Glen.

            BYUPD claimed the content of the emails was privileged because it was attorney-client communication, and because it was work product (i.e., prepared by an attorney in anticipation of litigation).

            My understanding is that the Committee just wanted to look at the actual email themselves to see if they agreed with BYUPD’s characterization of their contents.

            Thanks so much for the kind words!

            RFM

  10. Congratulations RFM!

    I seem to remember that there was some issue years back where the BYU police department was playing the other side of the fence.

    i.e. We our public so we get to do …, verses this go around of We our private so we get to do …

    Seems I remember they lost that last case?

    • Hi, Rockslider!

      So glad to see your comment here!

      Yes, I think the case to which you refer had to do with a BYUPD cadet directing traffic at a football game and somebody got hurt as a result.

      The injured party wanted to sue BYU because the BYUPD cadet was an employee of BYU.

      If memory serves, BYU argued the BYUPD cadet was not an employee of BYU, but was an employee of a public agency (BYUPD) and so BYU was not legally responsible.

      Consistency is not the hallmark of BYU’s legal department.

  11. Well done RFM!

    Keep holding the feet of the corporation at the proximity of the glowing coals they previously ingited.

    Hats off!

    • Thanks!

      Somebody once observed that the cover-up is always worse than the crime.

      I think we may be seeing that play out before our very eyes.

  12. The BYU lawyer dismissed the Walmart analogy because SLCPD isn’t a department of Walmart, which is besides the point. I thought it was a great analogy. I kept thinking during your argument, how this could be compared to the Jerry Sandusky case, if you imagine Penn State University asking it’s police department to suppress what it knew to protect the image of the University.

    • The Penn State University would have been a great analogy!

      I should have used that one!

      I was trying to keep it as simple as I possibly could.

      It took me weeks and months to boil it down to the relatively simple summation I gave.

      The opening lines to my argument I came up with only minutes before the hearing started!

  13. The BYU lawyer kept saying that “it’s clear” or “not under dispute” or “no argument” or “no challenge” when describing the issue. Correct me if I’m wrong but isn’t the fact that there is a hearing prove that there is a challenging argument under dispute, because it’s not clear?

    Does BYUPD want to be a public or private organization? They were arguing that they fulfilled all the public requirements but also arguing that they are a private organization and shouldn’t be subject to GRAMMA. Kind of sounds like they change to be whatever gets them what they want.

    RFM, how do you stay so calm? I wanted to interrupt and correct the BYU lawyer so many times. I’m guessing it comes with experience and practice. Good job RFM!

    • You are right, Jarime.

      If something is clear, you typically don’t have to keep reminding your audience how clear it is.

      To answer your question, BYUPD wants to be a public agency when it suits BYU, and BYUPD wants to be a private organization when it suits BYU.

      Does that answer your question?

      ;^)

      • You have more patience than I, to deal with that kind of back and forth arguing. Keep fighting the good fight.

        • One final comment, Jarime.

          You don’t win any points with the Committee or a judge by interrupting the other side to point out where they are wrong.

          You save that for when it is your time to speak.

          That is what I did during the hearing.

          And, to their credit, that is what the other side did, as well.

          I am sure they wanted to interrupt at several points during my argument, as well!

  14. Great job, RFM!! BYU/PD lawyer sounds young, inexperienced and way too aggressive for this type of hearing. His desperation was palpable. Great move to remind the Committee to compare BYU/PD email list against the Privilege Log.

    By the way props to the citizen committee member!

    I was looking through the other petitions in front of the committee, and found this gem (https://archives.utah.gov/src/appeals/2020-23.pdf), Relief Sought #4 “Couple of nights ago, with this case racing through my head, I woke up with the tag lines with popped into my head, “Don’t Douchebag, Clean Up!”. So fitting 🙂

    Paco

    • Shortly after the hearing was over, I called up opposing counsel on the phone.

      He wasn’t available so I left him a voice message telling him I thought he did a good job arguing his side of the case; that it has been a pleasure working with him; and that I hope we get the chance to work together sometime in the future.

      Every word of which was true, by the way!

      RFM

      • Very interesting hearing. Respondent’s counsel argued that BYU PD was not a public agency. He argued via citation to authority on the issue. I didn’t hear you push back on that argument. Maybe I missed it? In prior podcasts you were very persuasive that BYU PD was a public agency. This seems to be the lynchpin of your case. Is there a reason you did not focus on that issue?

  15. This was surprisingly riveting, and I know little about the law. I expected dry and mundane. But as the BYU lawyer was playing his cards for attorney-client privilege, I started arm-chair coaching the committee saying “tell them to show you the emails so you can determine if they qualify!” Then the judge said they’d need to see the emails in-camera and I fist-pumped my telepathic victory (I’m a dolt and I know it, so I don’t actually take telepathic credit). Then the BYU lawyer pops off a really desperate-though-almost-condescending comment about “asking for the email for in-camera review isn’t the right play here”, which the judge sounded really pissed about in her response. And the kid essentially says “give us your order and we’ll decide what to do about it”. It really really sounded like they had something to hide. If there was not something really harmful to the church/BYU, why not just give all those emails over and prove it – which would also result in keeping the email out of the GRAMA response? If there was nothing embarrassing or damaging, it seems the church’s interests would be best served by providing them without objection to the committee?

    • This is the dilemma in which BYU finds itself.

      They can either turn over the emails to the Committee, or they can choose to not do so and appeal the Committee’s order.

      If they don’t turn over the emails, it does look for all the world like there is stuff in those emails that is very damaging to them.

      In fact, I would wager that there is nothing in the emails themselves that would be more damaging than a continued effort by BYU to hide what is in the emails!

  16. These thoughts are from someone who has now spent more money to collect a civil judgment than the judgment was actually for, so don’t take this too seriously, but I believe in following up and following through. Of course, that’s easy to say when the attorney is working pro bono, but it’s been fascinating to hear RFM flex his legal muscles in the clear and convincing manner to which we have become accustomed. I can only imagine with horror what abuses might occur should any church be able to whisper in the ear of those in charge of responding to a grama request.

  17. Winning! Keep it up, RFM!

    Actually, I have a comment about the MTC President remaining untouched by the law nor the church. He simply had his calling of election made sure.

    • I have heard that theory espoused about why no disciplinary action was taken against Joseph Bishop.

      While that is a possibility, I can think of another scenario that strikes me as more likely.

      The LDS Church is still currently in a lawsuit against McKenna Denson in which she claims the LDS Church knew, or should have known, about Joseph Bishop’s sexual predations and did nothing to prevent it.

      Under the circumstances, it could then be seen as an admission on the part of the LDS Church if they had disciplined Joseph Bishop.

      I do not think that any discipline would be admissible in evidence at trial, and I think that under the circumstances it would have been the proper and correct thing for the church to do, just based on what Joseph Bishop admitted to.

      But this is, in a nutshell, why it is I think the church took no action against Joseph Bishop’s membership.

      Or maybe he did have his calling and election made sure!

      I don’t know!

      I don’t have access to the “Book of Life” to see whose names are written there.

      I am just betting my name didn’t make the cut. ;^)

      • According to Joseph Bishop the church DID know about the “event” because he mentions (podcast at 7:17) that he received a call from Carlos Asay’s office about it. So the sticking points are First, Does Carlos Asay qualify as “the church” as a member of the first quorum of the seventy? I say absolutely. The wikipedia article on Asay says there is no evidence that Asay knew of the event, but Bishop himself says he received a phone call from Asay’s office regarding the event, so there’s some evidence. Non events don’t warrant a phone call. The second sticking point is what was the “event”? While it may not have been rape, per se, it must have been something disturbing to warrant a call from Asay. As for my own opinion, Denson, despite her proclivity for telling untruths, did not magically appear in the secret back room. There was only one way for her to be there—Bishop took her there. Whatever happened there was highly improper, heck even being separated from her companion is a violation of protocol. The “church” knew this guy was dodgy and hid it.

        • Replying to myself, oy vey. What I just wrote isn’t really relevant to the Denson/church lawsuit, I just needed to pop off.

  18. RFM, you savage legal panther! That was the verbal equivalent of a curb stomp on your crippled foe, getting the committee to add your motion to their order at the end. If any defense attorneys are going to heaven, you’re the one.

    • Heaven was going to have a baseball game with hell.

      St. Peter told the devil, “How can you possibly hope to win? We have all the great ball players! Babe Ruth! Joe DiMaggio! Ty Cobb!”

      “You’re forgetting one thing,” the devil replied. “We have all the umpires.”

  19. BYU PD counsel argues “There is no challenge that the underlying documents are privileged unless the Committee accepts” a couple of arguments that BYU PD counsel asserts RFM was making.

    Is that accurate? Is there no general challenge to the classification of the documents are privileged that is independent of those two arguments?

    I would expect that the two arguments to which BYU PD counsel refers were alternative to a general request that non-privileged documents should be released, that is, *even assuming for the argument only* that the documents would be privileged, they should be released because the privilege was waived or there is a strong public interest in reviewing the private company’s undue influence on a public agency.

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