Newspaper gets records hearing in sexual assault investigation of Utah State University
UTAH—In a months-long records battle with Utah State University, Alex Stuckey of the Salt Lake Tribune said she considers her January 12 hearing with the Utah State Records Committee a “half-win” as they promise a result by mid-February.
Stuckey published her first story on allegations of sexual assault by former USU football player Torrey Green in July of 2016. While she did not originally name Green or even identify him as a student-athlete in her story, he has since been charged with multiple counts of rape as well as kidnapping and forcible sexual abuse. The Tribune subsequently named him as the attacker identified by their sources.
Stuckey’s story raising questions about how the university handled reports by three different USU students of Green’s sexual violence – which would be considered a potential continuing threat to students under Title IX – seemed to spark an internal investigation by the school immediately after the article’s publication in July.
The inquiry by USU’s in-house legal counsel about the administration’s handling of reports about Green generated eight recommendations for improving the university’s response to sexual assault, which were published on the university’s website in late August.
The findings published with the recommendations state broadly that “No one at Utah State discouraged any victim from reporting an incident of sexual assault, and no one at Utah State discouraged any victim from pursuing an investigation into any incident of sexual assault. No one at any level covered up evidence of university wrongdoing in these cases,” and, “No athlete received preferential treatment from anyone in athletics or from any office at the university.”
Stuckey is after the remaining records of the inquiry, specifically a document on the scale of two inches in thickness and a PowerPoint presentation, which were presented by the investigating attorney to the USU Board of Trustees.
This is not the first time USU has denied Stuckey access to records. When she requested copies of emails regarding Green’s disciplinary record, they were denied under the Family Educational Rights and Privacy Act since Green was still a student.
Green has since graduated and moved on to a brief stint in the NFL for the Atlanta Falcons before his arrest, but USU is still citing FERPA, a federal privacy statute regarding student records, in their refusal to provide Stuckey with documents.
In a brief submitted to the Records Commission by Assistant Utah Attorney General Morris O’Haggerty, the university argues that information generated during the investigation into Green’s behavior qualifies under FERPA’s confidentiality requirement for “education records.”
It states, “The Tribune articles suggest that information provided by victims was not investigated, that wrongdoing was covered up, and that athletes receive preferential treatment in cases of sexual assault. Such allegations require examining the education records of specific students thus the files of USU’s attorney contain FERPA protected education records of specific students.”
Stuckey proposed agreeing to accept a redacted document with student names and details removed or a legal summary, citing precedent in similar records released by Baylor University and the University of Minnesota during her presentation to the Records Committee.
She wrote in her inquiry appeal to the records committee, “The Tribune would accept a redacted document that omits the names of any students interviewed or discussed in the report.”
The university, in turn, argued that even with the names redacted, Stuckey would be able to identify the students mentioned in the report.
A footnote of the same brief from O’Haggerty states, “Redaction of such records is not possible in this matter. Due to the media coverage of this case and because the Salt Lake Tribune knows the identity of the students whose records are at issue, it is not possible for USU to redact all personally identifying information.”
During the records committee hearing, O’Haggerty referenced pictures published with the Tribune’s article that show the identifiable features of the victims’ appearances. Stuckey said those pictures were approved, along with the newspaper’s telling of their stories, by the victims.
Stuckey says she isn’t looking to expose information about the survivors of Green’s attacks, whom she knows as sources.
“I’m not interested in those girls’ counseling records,” Stuckey said. “I already know them and I’ve talked to them about what happened.”
What Stuckey is looking for, she’s not quite sure she’ll find.
“We don’t really know what’s in what we requested,” Stuckey said of the Tribune’s inquiry.
In her appeal, she argues hypothetically that information regarding the failure of a mandatory reporting system would not identify the students involved more than they have been by previous statements released by the university.
“I think the thing to look at here is that this investigation was not gone about in the right way. This stuff should be public,” Stuckey said in the records committee hearing. “We should know what happened to allow a potential serial rapist to continue to remain on campus, essentially unchecked. It’s totally possible that we learn that the university did some things right and that’s something the public should know, too. This is a public institution; people should know what’s happening on that campus.”
Should such information exist, O’Haggerty argued that it is protected against disclosure by attorney-client privilege, because in-house counsel prepared the report in anticipation of litigation by the victims involved or administrative proceeding by the Office of Civil Rights in the Department of Education.
“The attorney did the investigation because this has multiple ramifications, these allegations that have been going on,” O’Haggerty said during the hearing. “The attorney did the investigation, in part, because we could see lawsuits; they were imminently pending, we knew that was going to happen. And, when an attorney does a lawsuit, one of the side effects is that investigation is protected, what the attorney does.”
O’Haggerty went on to argue that the Tribune’s suggestion of impropriety was, itself, improper; pointing out that conducting an internal investigation is merely another possible method of handling the allegations.
“It’s not wrong for USU to do it another way, to protect that by the attorney-client privilege, by the attorney product doctrine, and then communicate the results to the board of trustees as an attorney-client communication.” O’Haggerty said.
“That’s a different way to do it and one of the reasons you do it that way is to gain those protections, is to keep those from being public documents. Then the board of trustees can decide and the administration can decide, what exactly does they want to make public, and in this case, they’ve chosen not to make that investigation public. They’ve chosen to make the recommendations public, and that’s the public document.”
As yet, no legal action against the university has been taken by Green’s alleged victims, who, according to Stuckey, were not interviewed for the internal investigation.
Of the 246 sexual violence cases under Title IX investigation by the Department of Education at 195 postsecondary institutions, three are in Utah – at Westminster College, Brigham Young University, and University of Utah.
An Education Department spokesman said they “can’t comment on possible or pending litigation.”
The state records committee plans to review the documents in closed session before its February 9 meeting, and Stuckey is optimistic they will vote in her favor.
“They were well aware what was going on with the school not wanting to look bad,” Stuckey said.
The committee came close to ruling to release some of the documents that they had already reviewed, but chose not to issue a final ruling for the simplicity of not having two separate appeals periods after their rulings.
SPLC staff writer Molly Cooke can be reached by email or (202) 785-5451
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