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A court’s secrecy order blocks access to the investigation into a BYU police lieutenant who shared info with the Honor Code office

-Jessica Miller Salt Lake Tribune Originally published Friday, March 8, 2019

A lieutenant with Brigham Young University’s police department took information
from private records created by other Utah County law enforcement agencies and
passed it on to university officials investigating students for breaking school rules.
His actions sparked a criminal investigation that lasted more than two years and has
been done for months.
So, how many records involving how many students did Lt. Aaron Rhoades access?
That information is not public.
Neither are the answers to questions like these: At whose direction did he look at the
nonpublic police databases? What kind of information did he share? How did the
university use that information?

Greg Ferbrache — a former prosecutor with the attorney general’s office who is now in private practice — said the secrecy orders are not intended to keep the public from knowing about what happened. He said it is most often used to protect the constitutional rights of those who are accused.
“Its purpose is not to keep an investigation under secrecy forever,” he said.
But in the investigation into BYU police, it’s not clear why the records would remain under seal.

When will Utahns get to know these answers? Possibly never.
Since authorities began investigating BYU police in 2016, the state Department of
Public Safety and the Utah attorney general’s office have remained tight-lipped, and
have blocked The Salt Lake Tribune’s records requests seeking that information.
Officials publicly acknowledged for the first time this week their reason why: A Utah
judge issued a secrecy order in the investigation nearly three years ago at the request
of prosecutors — an order that remains in place to this day.
What judge is keeping the investigation behind closed doors?
That, too, is a secret.
“This cannot stand,” said Tribune Editor Jennifer Napier-Pearce. “This investigation
was conducted by the state of Utah and should be available to the public.”
She said the newspaper is exploring its options, including possible legal action, to get
access to records it has been fighting for since 2016.
“While we’re happy to finally know why they haven’t turned over their findings to us,”
she said, “we’re very concerned to learn that a secrecy order is in place.”
The Tribune on Wednesday received a response to a records request in which the
attorney general’s office explained why it can’t release information on the completed
investigation.
“Beginning in July 2016, secrecy orders have been entered at the request of the state
of Utah,” the denial reads. “These secrecy orders entered at the request of the state of
Utah remain in place.”
The Tribune asked BYU for comment and a spokeswoman said all they could do is
A report released last week gave a hint at the scope of the investigation — that state
authorities believe Rhoades accessed private police reports from Orem police, the
Utah County Sheriff’s Office and Provo police over a two-year period. He took
information from those reports and shared them with BYU’s Dean of Students Office,
the Title IX office and the Honor Code Office.
State prosecutors could not speak about the court action, citing the secrecy order. But
Criminal Deputy Craig Barlow, with the attorney general’s office, explained the
process generally, saying a prosecutor’s request for secrecy is not all that unusual. He
estimated that investigators make dozens of these secrecy requests every year —
usually to not alert a potential suspect to the police’s efforts.
Secrecy orders are also often used in financial crimes, Barlow explained, where
investigators may want a bank to hand over records without telling a suspect. They
are also frequently used in investigating drug-trafficking operations.
There are no expiration dates on these orders.
This means some investigations could remain under seal indefinitely, though Barlow
said investigations are most often made public if prosecutors decide to file charges.
The law “is almost silent about what happens when you get to the end,” Barlow said.
“There really is no guidance about how to go about an exit strategy.”

Greg Ferbrache — a former prosecutor with the attorney general’s office who is now in private practice — said the secrecy orders are not intended to keep the public from knowing about what happened. He said it is most often used to protect the constitutional rights of those who are accused.
“Its purpose is not to keep an investigation under secrecy forever,” he said.
But in the investigation into BYU police, it’s not clear why the records would remain
under seal.

There is no pending investigation, and the attorney general’s office announced in
October that prosecutors had decided months earlier to not file criminal charges
against Rhoades. A panel of prosecutors had decided the case against him “lacks a
reasonable likelihood of conviction,” the office said.
The Tribune obtained BYU documents in 2016 that showed Rhoades accessed a
countywide database to collect information from another police department for an
Honor Code investigation of an alleged sexual assault victim.
The documents show an Honor Code investigator contacted Rhoades in 2015 asking
him for information in the rape case. The lieutenant looked at the records that same
day, and relayed intimate details back to the investigator.
The Honor Code at BYU — which is owned by The Church of Jesus Christ of Latterday Saints — is a set of administrative rules that forbids alcohol and coffee, restricts
contact between male and female students, imposes a strict dress code, and bans
expressions of romantic affection between people of the same gender.
Rhoades retired from the BYU police department last fall, according to his attorney,
and later gave up his police certification after the state’s Peace Officer Standards and
Training (POST) began its own investigation. He had been a police officer in Utah for
34 years, according to POST records.
The criminal investigation is at the heart of why BYU may lost its police force entirely,
after it was announced last week that state officials are seeking a historic
decertification.
In a letter to BYU, state officials say they want the university to lose its policing
powers because the department did not conduct an internal investigation into
allegations of misconduct by a specific BYU police officer during a two-year period
ending in April 2018. The letter doesn’t name the officer or the specific misconduct
allegations, but the timeframe covers the same period DPS was investigating
Rhoades.
DPS officials also say that BYU police failed to respond to a subpoena that was issued
as state regulators were investigating an officer for misconduct. A December letter to
BYU police instructed the agency to allow DPS access to all “records, personnel and
electronic data” so investigators could assess how its officers use a police records
database, the command structure at BYUPD and “the powers, authority and
limitations” of BYU police officers.
BYU has said it plans to appeal the state’s decision to decertify its police force, which
would take effect Sept. 1.
An issue also at play is the ongoing debate about whether BYU police should be
subject to Utah’s record laws like every other police department in the state. The
Tribune has sued to force BYU police to abide by the Utah Government Records
Access and Management Act, or GRAMA. The newspaper received a favorable ruling
from a state district judge, but BYU has appealed to the Utah Supreme Court. A
hearing has not been scheduled.
Attorneys for the campus argue in court papers that as a private institution, BYU
should not be subject to records laws meant for government agencies.
But BYU officials have supported legislation that would require its police
departments to be subject to open records laws. That bill, if passed, would not be
retroactive and wouldn’t necessarily settle the ongoing litigation.