LOGAN — A new lawsuit against Utah State University alleges top administration use private messaging apps to “‘have more candid conversations’ that could not be discovered in an open records request.”
Use of the apps itself is not problematic, a public records expert says, but doing so with the purpose of circumventing access to communication about the public’s business is.
“That’s a serious problem under GRAMA,” says First Amendment and media law attorney Jeff Hunt, who is a long-time advocate for protecting the public’s right to know and helped draft Utah’s open records statute – the Government Records Access & Management Act, known as GRAMA.
In an eight-page civil lawsuit filed Dec. 27, former USU Deputy Athletic Director Jerry Bovee requested transcripts and recordings of Zoom call meetings related to his grievance hearing that were denied by USU. He also stated in the lawsuit that administrators used the messaging app Signal frequently for conversations.
“In March 2024, Ms. Sabau asked Mr. Bovee and other employees to download a messaging app called ‘Signal,'” the lawsuit states, “which deletes communications at the end of each day, so that she could ‘have more candid conversations’ that could not be discovered in an open records request. Ms. Sabau also mentioned that she and the President of USU used it often.
Bovee filed the lawsuit in First District Court the same day as another suit claiming the university violated state law and its own university policy when it terminated him in July last year.
Government Records on Personal Devices (Courtesy: Utah Division of Archives & Records)
He used the open records law (GRAMA) to request these records in October. His request was denied by USU, stating it did not have transcripts of the recordings and the recordings were considered private. USU also denied his right to inspect the records based on the idea that the Zoom call recordings were only accessible by a computer controlled or owned by USU and it couldn’t separate the part of the file it considered private or protected. He appealed it. His appeal was denied in November. Then he filed the lawsuit in December.
Since last July, Cache Valley Daily has requested more than a half-dozen GRAMA requests for records from USU regarding the athletic department. Some have been full or partial denials for records requested. None have included records other than emails.
One of the first requests asked for any emails between Aug. 1, 2023 to July 8, 2024 between USU’s President and/or Athletic Director discussing Blake Anderson and Jerry Bovee with any of the USU Board of Trustees. During the one-year time frame USU said it had only one record responsive to our request. It was an email sent from the President of the USU Foundation, on behalf of President Cantwell, announcing the new Athletic Director Diana Sabau on Aug. 7, 2023. It was emailed to more than 35 different people at non-USU email accounts and cc’d to four in USU administration with work email accounts.
Hunt said using a private messaging app to conduct public business doesn’t make it private, and it could also lead to a state open records law violation if the records are erased sooner than the records retention schedule requires.
“Obviously, immediate deletion is not going to satisfy any retention schedule,” Hunt said. “If you have access, but the government doesn’t retain it .. your right of access is meaningless.”
Popular private messaging apps such as Signal, Snapchat, WhatsApp allow auto-deletion of messages or disappearing messages after 24 hours or longer time-periods. Some messaging apps also allow disappearing messages to be disabled completely. Slack, another popular business organization messaging app, will auto-delete messages every 90 days if the free version is used.
Government Records on Personal Devices (Courtesy: Utah Division of Archives & Records)
Utah’s Division of Archives and Records Services helps monitor, enforce the record-keeping rules and retention schedules for government institutions, including public universities. It states on its website that government records can also exist on personal devices and no matter what the medium, it can be considered a public record “if it documents the agency’s business.”
The state gives requirements for retaining government records created on personal devices.
“Texts, emails, messaging apps … it is still a government record, no matter where it is located,” it states online. “Records follow retention schedules – You can’t just delete a government record, even if it is on a personal device.”
Cache Valley Daily asked USU if its employees use applications such as Signal, WhatsApp, or Slack for conducting university business and, if so, which ones. It also asked what the university’s retention policy or schedule is for messages exchanged on these apps.
USU responded only to say, “Utah State University has 11,000-plus employees, and they utilize many different communications platforms. We take great care to retain business records consistent with Utah public records laws.”
Other public universities in Utah have discouraged staff from using certain messaging apps to conduct any university business for security and public records retention concerns. In 2023, the University of Utah’s IT department posted online to its employees that the free version of Slack (with a 90-day retention) “does not comply with Utah’s Government Records Access and Management Act (GRAMA), which requires the university to provide access to certain records upon request.”
Hunt went on to explain the length of time a record should be retained is decided and approved by a committee based on the content that is discussed in the record, not what platform it was created on.
“If you’re using private phones to conduct public business, those are subject to GRAMA,” Hunt said.
The Records Management Committee was created in 2019 and by law is mandated to approve retention schedules for Utah government agencies and also make recommendations to an agency about the agency’s management of records.
USU has retention schedules listed online with Utah’s Division of Archives and Records Services, but there is nothing posted that relates to messaging apps.