Episodes

Radio Free Mormon: 180: Ruling of the Utah State Records Committee

Today is the big day when the Utah State Records Committee issued its ruling on RFM’s public disclosure request for the emails directing BYUPD to withhold information relating to the Joseph Bishop rape investigation!

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33 thoughts on “Radio Free Mormon: 180: Ruling of the Utah State Records Committee

  1. RFM,

    Thanks for your hard work on this! Are you planning to appeal to district court?

    • I am in protracted meetings with my advisors on this very subject sequestered away as we are in my underground bunker.

  2. I wonder how unbiased these individuals were with their rulings, when they are probably mormon themselves. Unfortunately cult the mentality is to protect the cult at all costs. How easy it must be for the church to just sway anybody they want when you can hold their eternal salvation over their heads. Maybe some of them weren’t mormon… but I won’t hold my breath.

    • Bill Reel here – I actually thought committee demonstrated fairness through all of this.

      • 100 percent agree, Bill. I too see nothing but fairness and diligence in the record.

        Whether they reached the correct legal decision with respect to the existence of privilege, we cannot know because we can’t look at the documents.

        But I think we have have confidence that the committee took their responsibilities seriously and proceeded fairly.

    • While the possibility is always there, I think that the committee in total has been extremely professional and unbiased throughout this whole process. We have no reason to think otherwise, so it’s only fair to give them the benefit of the doubt.

  3. I share your sentiments on the committee’s decision to not disclose the emails in question – shocked but not surprised. However, while we may have been shut out, we don’t necessarily have to count this as a loss. On the contrary, the discomfort of the entire committee validates our feelings that something “isn’t quite right” with a private company having the potential to influence a public entity. Their decision today was to uphold the current classification, but it’s my guess that they will all keep a better eye out in the future for the possibility of meddling of this sort. Thanks RFM for the hard work you put in to furthering the cause of truth. Truth is what matters, and it will hopefully be truth that comes out on top in the end.

    • I actually thought the Committee’s expressions of discomfort over what they saw in the emails was worth more than finding out what was in the emails themselves.

      I already know basically what is in the emails.

      Knowing the Committee members were uncomfortable with it was significant, I think.

  4. Radio Free Mormon,
    You are my hero! I appreciate how hard you have worked to bring light and clarity to the dark areas of this organization. You have spent countless hours, I am sure, to expose their dirty secrets. Bravo!
    I so enjoyed ALL of the episodes you produced during the covid shutdown. Everyday I looked forward to hearing from you.
    Concerning todays ruling my questions are….
    1.Can you appeal the committees decision? 2.How were the committee members chosen? 3.How can a public functioning police force avoid transparency?
    Best wishes,
    An anonymous fan

    • Thanks for the kind words, Susan!

      1. Yes, I can appeal the Committee’s decision. I have thirty-days to file a notice of appeal with the district court in Utah should I decide to do so.

      2. I am not sure how the Committee members were chosen. I expect there is an appointment process of some sort.

      3. The way they did in this case!

      Thanks for listening!

      RFM

  5. I think it’s important to note that the universe of emails was defined by BYU/BYUPD/LDS Church. BYUPD compiled the privilege log which defined the sample of documents which the committee reviewed. I’m skeptical that the privilege log was a comprehensive record which thoroughly documented all the correspondence which took place. As such, I think the real incriminating correspondence never hit the privilege log, and therefore never made it to the committee to review.

    The Mormon Church didn’t get rich by being stupid. I think it’ll redouble its efforts to obfuscate nefarious activities on behalf of BYUPD or any of its other affiliated entities. It was successful in keeping a seer stone hidden for a century and a half, and it’ll no doubt utilize those capabilities to keep other inculpating information under wraps.

    Thank you RFM for your efforts. The only way to get the Mormon Church to change is to send it an unequivocal signal that someone is watching. With the hearing, you gave them a shot over the bow. Now let’s hope that the Trib can be successful in their longstanding efforts to get access to a separate set of BYU PD documents.

    • I think this is a big win for BYU and they are doubtless celebrating accordingly.

      Me? I am happy with the fact the Committee stated on the record they are not comfortable with the way BYU handled this.

      And I am busy laying plans for my next move . . .

  6. This is one of those situations where literally everyone involved on both sides knows what’s going on yet disagree on next steps. BYU and the Church have very good reasons for fighting transparency. RFM has very good reasons for wanting to bring light to the situation. Both sides know exactly what BYU did here.

    • I think that is very good synopsis of the entire situation, Josh!

      Thanks for adding that to the discussion.

  7. Nobody said what they’re reasoning was. Nobody addressed the fact that BYUPD is considered a public entity in regards to GRAMA. The lady who made the motion just said “I think it’s classified correctly.” No reason why. The closest anybody got was “well it’s sort of uncomfortable, we’re still trying to get our heads around that.” I really didn’t get when he said “if the public entity question was not part of this case we would still make the same decision.” The public entity IS the whole question….????

    • I didn’t understand that last comment, either, Chris.

      It seemed backward from my point of view.

      I mean, obviously they would make the same decision if the private corporation question was not part of the case. (That’s how I understood it.)

      It is because a private corporation is part of the case that takes it outside the run-of-the-mill public disclosure request!

      Maybe that committee member just misspoke and meant to say it the other way round.

  8. I thought I heard in one of the earlier episodes that the GRAMA statute has two prongs: 1) the materials are privileged and 2) the interest of the atty-client privilege outweigh the public’s interest. Am I mistaken or was this hearing only about the first prong or did the committee actually consider both prongs?

    Also, if appealed to the district court, would the district court review the question of atty/client privilege de novo? (I have to think they would because there aren’t many finding of facts on the record, right?)

    Lastly, the Upjohn case merely overturned the “control group test” and thus didn’t create a general rule that all communications with employees are privileged. Even if Upjohn applies, upjohn involved an attorney acting as the employer’s counsel with communications concerning matters “within the scope of the employees’ corporate duties”. I find it strange to consider that a public agency responding to a GRAMA request would be considered “within the scope of the employees’ [private] corporate duties”. As such,

    • [As such,] I wonder whether there is any case law that decided that Upjohn didn’t apply when there is a conflict of interest and/or when the employee is acting as part of a government agency.

    • Hi, Ryan.

      I am pretty sure that the law in Utah is that the district court considers the issue de novo on appeal.

      Which means if appealed, the BYUPD will presumably have to once more submit the privilege log and emails for in camera review.

      A sitting judge may have a different view of the potential conflict of interests involved in this case with multiple lawyers claiming to represent both BYU and BYUPD in this matter.

  9. You can’t expect members of the Church of Jesus Christ of Latter-day Saints to vote against the Church (BYU). They have taken a temple to support the Church. I hope that you appeal.

  10. Utah is the kind of place where you can be thoughtful and deliberate yet still come to the wrong conclusion because you lack the ability to differentiate between a public agency and a private corporation. BYU and BYUPD is a problematic relationship; it begs the question whether BYUPD will enforce the law fairly and impartially. They have a huge conflict of interest. Apparently they still don’t get the distinction between church and state. Hopefully a judge will rule in your favor at some point. Keep up the good work!

    • I think you have put your finger on it, Scott.

      My take on the Committee’s ruling is that they are uncomfortable with BYU telling BYUPD how to respond to public disclosure requests where the information contained in the BYUPD reports could make BYU civilly liable.

      But they nevertheless find the emails are properly characterized by BYU(PD) as attorney-client privileged.

      It is a strange situation indeed.

  11. Radio Free Mormon,

    Although it wasn’t a win today for transparency, I think the light you shined on this conflict of interest, coupled with the apparent uneasiness among several committee members in ruling against your petition, reveals the start of a new breach in the wall of silence that BYUPD, BYU, and their overseers seek to maintain. This is one step further toward waking a critical mass of defectors who will choose to stand up, regardless of any personal profit, even while the Corporation is telling them to sit down.

    Appeal, and let your light so shine.

  12. This was not a unanimous decision. There was an abstention. But regardless, I guess we can expect more skullduggery of the same sort now that BYU has hit the green light once. Smooth sailing ahead.

  13. Yes I didn’t understand how two people could abstain because they didn’t do their homework. Is there a cost involved in this for you in money?

  14. I meant about the abstaining – isn’t this their job? Or is this voluntary and everyone could have abstained?

  15. This feels like a clear example of when the letter of the law and the spirit of the law are in disharmony, as demonstrated by the discomfort clearly expressed by the committee members.

    My understanding is that they are required to follow the letter of the law, regardless of their personal views as to what is right and wrong.

    BYU and the Church of Jesus Christ of Latter-day Saints have an army of expensive lawyers, and do a really good job of ensuring that they are covered legally.

  16. This is just further confirmation that Utah is (as many people claim) a theocracy, and not a state that conforms to general rule of law. It’s also further confirmation that LDS authorities are wise and inspired only in terms of legalities and litigation. It also further confirms that Kirton McConkie are the actual face of the church, and really should be incorporated into the very long and inconvenient name of the church.

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