This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Should Brigham Young University's police department be subject to Utah's open records laws?
The law enforcement arm of the private university, owned by The Church of Jesus Christ of Latter-day Saints, has contended that it doesn't have to comply with state records laws, and the Utah Records Committee has agreed.
But The Salt Lake Tribune is scheduled to argue in court Monday that because the state granted the department full policing powers — the same as any other public law enforcement agency in Utah — it should be open to public scrutiny.
After BYU police refused to release records of communication between the department and the Mormon school's Honor Code and Title IX Offices, the records committee declined to review the newspaper's appeal. The Tribune filed a challenge to that decision in 3rd District Court.
Attorneys for the state are asking 3rd District Judge Laura Scott to toss the case, arguing that the school and its police force are private — contending that exempts the department from the Government Records Access and Management Act (GRAMA) and means the records committee doesn't have jurisdiction to consider an appeal.
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'Public business' • Thirty-five years ago, lawmakers approved legislation that allowed BYU to change its campus security department into a police force. This gave the university's sworn officers the same powers as any other officers in the state: They can stop, search, arrest and use physical force against people both on and off campus.
Tribune attorney Michael O'Brien argued in court papers that because those powers came from this legislative action, the state created the department — and it is therefore subject to public records requests.
He points to state law that defines a governmental entity as one that is "funded or established by a governmental entity to carry out the public's business."
"The BYUPD, like other law enforcement agencies in Utah, is a creation of the Utah Legislature and the Utah Department of Public Safety, established to carry out the public's business," O'Brien wrote. "[W]ithout the enabling actions of the Utah Legislature and the State of Utah, the BYUPD could and would not exist."
But the records committee said it has no jurisdiction over the appeal because BYU is a private institution that does not receive state funding. Attorneys wrote in their motion to dismiss that the role of the Utah Department of Public Safety (DPS) is limited to certifying the law enforcement agency.
"The fact that [DPS] certifies the [BYU] department or that the department employs [state]-certified officers to provide security on the BYU campus, does not automatically convert BYU or the [BYU police] department into a 'governmental entity' subject to GRAMA," wrote Paul Tonks, an attorney with the Utah Attorney General's Office who is representing the state records committee.
O'Brien wrote in a response that the state's arguments imply BYU officers are the only police in the state not subject to GRAMA.
"This argument simply makes no sense," he wrote, "when considered in light of how BYUPD was established as a police department conducting the public's business, or when considered in light of the clear purpose of GRAMA, which is to allow the public to access those records that show how public business is conducted."
Brigham Young University has joined the request to dismiss the case, denying it is subject to GRAMA and supporting the committee's arguments.
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BYU police and the Honor Code • The transparency of private college police departments has come under scrutiny nationwide during high-profile use-of-force controversies, as well as rising attention to campus crime, especially sexual assault.
Courts in other states have been split on their rulings. The Indiana Supreme Court ruled last week that Notre Dame University's police department was not a public agency and not subject to open-records statutes. But the Ohio Supreme Court narrowly ruled in 2015 that the police department at Otterbein University, a private school, performs a "governmental function" and must comply with open-records laws. In other cases, courts have ruled that the states' public records laws exclude private college police.
Tribune reporter Matthew Piper requested records of communication between BYU police and the school's Honor Code Office in June, amid allegations that BYU disciplines students who report sex crimes if they were violating the school's Honor Code at the time of the assault. The code bans alcohol, coffee and premarital sex, and it regulates students' appearance and interactions with the opposite sex.
In October, BYU announced sweeping changes in how it responds to students who report sexual assault, saying it will restructure its Title IX Office and grant amnesty to victims who disclose Honor Code violations. Title IX offices investigate sexual misconduct on college campuses, under federal law.
The advisory council that suggested the changes did not address the school's police department. BYU police have said they do not conduct investigations for the Honor Code Office.
However, The Tribune has obtained internal BYU documents that show a BYU police lieutenant used his access to Provo police records, via a countywide law enforcement database, for an Honor Code investigation into the conduct of then-student Madi Barney. Barney, who has agreed to the use of her name, told Provo police in September that she had been raped in her off-campus apartment. She was forbidden from enrolling in classes after she refused to cooperate with the Honor Code investigation while the rape case is pending.
DPS is investigating how BYU police access and share other departments' records.
BYU police have provided numerous records in response to requests by The Tribune. However, the department replied there were no "law enforcement/public safety-related" emails between campus police and the Honor Code and Title IX employees specified by Piper. A lieutenant said that the department chooses when to voluntarily abide by public-records laws in the interest of openness, but added that an appeal of its decisions would fail because GRAMA does not apply to its private police department.