The University of Utah says it shouldn’t have to release the counseling records of student-athlete Lauren McCluskey — who spoke to a school psychologist in the days and hours before she was killed — arguing in a new lawsuit that those should be considered confidential even in death.
The filing in state court Monday comes after Utah’s State Records Committee ordered the U. last month to release the reports to McCluskey’s parents and their attorneys. The school, though, is now appealing that decision shortly before it was supposed to turn them over.
“Mental health records often contain highly sensitive and personal information, the disclosure of which would constitute a gross invasion of personal privacy,” the U. argues in its lawsuit.
The counseling records have become the latest focal point in how McCluskey’s concerns were handled by the university. McCluskey’s parents, who are separately suing the university for $56 million, say the school didn’t take their daughter’s concerns seriously. That focuses largely on the campus police department, which did little to investigate Lauren McCluskey’s multiple calls for help when she was being harassed and extorted by someone she had briefly dated.
But her parents believe other school officials, including those in campus housing, were aware of the threats against McCluskey and similarly failed to act. McCluskey, for instance, went to the counseling center twice — once on Oct. 15, 2018, three days after she first talked to police, and again on Oct. 22, 2018, just hours before she was murdered by the man she had reported.
“We believe she went to the counselor on the day of her death to express her concerns,” said Jim McConkie, the attorney representing the family. “It’s really relevant” what she said in that meeting.
There does not appear to be any record of the school psychologist calling police, though, based on what McCluskey told her that day. The family suggests that points to negligence on the part of the counseling center to intervene and keep McCluskey safe when she was at risk of harm. Her parents also want to know if McCluskey told the counselor anything new about her concerns that hasn’t already been relayed.
“The idea that a parent could not see the medical records of their deceased daughter seems unjustifiable, especially in this case where a crime has occurred,” McConkie added.
The family first asked for the counseling records in December 2019 through a public records request. The school denied that. After appeals, the attorneys representing the McCluskeys took the case to the State Records Committee, which oversees and rules on disputes over public documents and evidence.
They argued that because McCluskey’s mom, Jill, is now her daughter’s legal representative in death, she should be able to access the counseling reports. Utah state code allows for such an exception, stating: “The authorized agent of the client or patient” has the same rights to medical records as a patient does.
In June, the committee agreed and ruled 5-1 to have the school turn over the records.
The U.‘s lawyers, though, had countered that the reports should be considered both “private” and “controlled” under state records law and releasing them would “violate ethical standards for patient confidentiality.
“All adult students deserve the right to seek mental health counseling knowing that what they disclose in confidence with a therapist or counselor, including concerns about school, parents, family or friends, will remain private,” the school said in a statement.
In challenging the committee’s decision with the new lawsuit, the U. also argues that releasing McCluskey’s counseling records after her death could have “a chilling effect” on other students who may choose not to seek help from a therapist if they know that what they say could later be released. Patient privacy shouldn’t be ignored in death, the lawsuit states. And McCluskey never granted permission for anyone to look at the records while she was alive.
“Absent direct student consent or court order, the university does not release student counseling records and has no intention of doing so in the future,” the U. added in a statement Monday. It also believes that the attorneys for the McCluskeys should have gone through the courts and the legal discovery process to get records rather than through the committee.
Additionally, the school argues that it cannot even confirm whether any counseling records exist for McCluskey. But McCluskey’s parents, as well as an independent review commissioned by the university, have confirmed that McCluskey went to a counselor at least twice before she was killed.
The case will now be heard before a 3rd District judge.
Meanwhile, McCluskey’s parents have filed two lawsuits that are pending in the courts, one in the state and one in the federal system. Those argue that the school could have done more to protect their daughter, including taking her concerns seriously when she reported to campus police.
McCluskey, a 21-year-old student-athlete, was killed outside her dorm by Melvin S. Rowland. He later died by suicide.
The U. has denied any responsibility.