Fired Utah State University deputy athletics director Jerry Bovee alleges two of his ex-bosses — the athletic director and the university’s president — have been using a messaging app that automatically deletes conversations to subvert the state’s open records laws.
It’s a small detail in an 8-page lawsuit, one of two Bovee filed late last month against his former employer. If true, though, it represents a big problem, said David C. Reymann, a media law attorney.
Public officials are supposed to retain records for a long enough period that the public can “meaningfully access them when issues come to light,” Reymann said. This time frame varies per record but is typically a matter of years.
According to the lawsuit, USU athletic director Diana Sabau asked Bovee and other employees in March to download the messaging app, called Signal. Bovee’s lawsuit alleges that messages sent through the app would delete “at the end of each day,” and states that Sabau recommended the app because she could “‘have more candid conversations’ that could not be discovered in an open records request.”
Signal is a free-to-use, end-to-end encrypted messaging app that allows a user to set a retention schedule for messages — deleting them forever anywhere from seconds to weeks after they’re read.
The lawsuit alleges that Sabau and “the President of USU used [the app] often.”
“This is behavior that’s designed to prevent the public from seeing what’s going on in their public institutions,” Reymann said. “And that’s unbelievably troubling, if that’s true.”
On Dec. 27, Bovee filed two related lawsuits against Utah State University. One alleged that Sabau was “hostile” toward him and that the university fired him in July after he reported multiple policy violations.
Rick Egan | The Salt Lake Tribune Jerry Bovee, then the athletics director at Weber State University, speaks with reporters at Vivint Smart Home Arena on July 21, 2016. Bovee has filed a lawsuit against Utah State and athletics director Diana Sabua in the wake of his firing last July.
The second lawsuit, which contains the allegation that officials were using Signal, alleges the university improperly denied Bovee access to open records concerning the formal grievance he filed against the university in August, contesting his termination.
Bovee, through an attorney, declined to comment Friday.
Utah State University spokesperson Amanda DeRito told The Salt Lake Tribune in a statement that “Signal is ubiquitous and widely used by universities for secure communications to prevent hacking.”
The statement added that the university "takes great care to ensure all communication methods are used in adherence with Utah public records laws.“
“We look forward to resolving this case in litigation and continuing to focus on our student-athletes and the success of our athletics programs,” it continued.
As for Bovee’s allegations in his other lawsuit, the university released a statement saying it “stands by its employment decisions and disputes Mr. Bovee’s presentation of events.”
New app, old problem
This specific open records issue may be born out of relatively new technology, but Reymann said Friday that the Utah Government Records Access and Management Act (GRAMA) has already dealt with this issue — whether officials are communicating via personal email addresses, on Snapchat, or elsewhere.
He hearkened back to a 2011 fight over a controversial bill that initially made it so that voicemails, instant messages, video chats and text messages “are not records subject to [GRAMA], with some exceptions.”
The bill, meant to protect lawmaker privacy as cellphone use proliferated, passed and was signed by then-Gov. Gary Herbert. Within weeks — and after waves of public outcry, including protests and front-page newspaper editorials decrying the lack of transparency — Herbert signed another bill to repeal the legislation.
Reymann said the controversy illustrates that the principle of Utah’s law has always been that “as long as you are doing official business, then the record is subject to GRAMA.”
“Whether they are communicating on their official school email addresses, whether they’re communicating by Signal, whether they’re communicating by passenger pigeon,” he said, “it doesn’t matter.”
Reymann added that he was troubled at the allegation that messages were being deleted on a rolling basis.
“There is no question that if a government official is directing people to communicate by an application that ensures that the messages are deleted, and are never available for the public to see, that is a blatant violation of GRAMA,” he said.
Michigan passed a law in 2021 that banned employees in all state departments and agencies from using any app or software that “prevents it from maintaining or preserving a public record as required by law on an electronic device that is used to create a public record.”
The law change happened after the Detroit Free Press reported that high-ranking officials in the Michigan State Police had been using Signal on their state-provided phones, bypassing requirements of the state’s open record laws.
