BYU will appeal judge’s ruling that its police department should be subject to Utah’s open-records laws

Brigham Young University will appeal a judge’s ruling that its police department is a governmental entity that should have to comply with Utah’s open-records laws.

Officials with the private university confirmed on Tuesday that it will appeal 3rd District Judge Laura Scott’s ruling in a 2016 lawsuit filed by The Salt Lake Tribune. Their decision comes after the judge on Tuesday filed a lengthier, 33-page analysis supporting her ruling, which was issued last week.

“We intend to appeal,” BYU spokesman Todd Hollingshead wrote in a statement, “and as the Court wrote in today’s ruling: ‘BYU has strong arguments worthy of appellate consideration.’ ”

In 2016, The Tribune filed a lawsuit arguing that the BYU police force should be open to public records requests because it has “full-spectrum” law enforcement authority under state law. This means BYU officers may stop, search, arrest and use physical force against people, just as any other sworn officer in the state.

The law enforcement arm of the university, owned by The Church of Jesus Christ of Latter-day Saints, has contended that it is exempt from the state’s Government Records Access and Management Act (GRAMA) because it is part of a private university.

Scott wrote in her initial ruling last week that “when BYUPD is acting as a law enforcement agency and/or its officers are acting as law enforcement officers, it is a governmental entity subject to GRAMA.”

In her more-detailed ruling Tuesday, Scott wrote that if BYUPD engages in “non-law enforcement” activities — such as security services, parking services or other community programs — it may have an argument that it does not have to release records related to those actions. But the judge noted that these non-law enforcement actions must not depend in any way on an officer’s status as a police officer or require access to law enforcement databases.

The question of whether records related to “non-law enforcement” activities can remain private "is reserved for another day,” she wrote.

BYU attorneys argued in May that the police department was created and funded by a private university and, therefore, should not be considered a “government entity” as defined in GRAMA. Tribune attorneys argued in response that the department was established by the state 35 years ago when the Legislature gave it policing powers, and it should be open to public scrutinity.

Tribune attorney Michael O’Brien said last week that it is likely that Scott will decide whether the underlying records that sparked The Tribune’s lawsuit are public under GRAMA before the case is appealed to a higher court.

The case stems from a public records request submitted by then-Tribune reporter Matthew Piper in 2016 amid allegations that BYU had disciplined students who reported sex crimes if they were violating the school’s Honor Code at the time of the assault. That code bans alcohol, tobacco, coffee and premarital sex, and it regulates students’ appearance and interactions with the opposite sex.

BYU police provided some records but refused to release communication between the department and the Mormon school’s Honor Code and Title IX offices.

The university 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 a student who had reported a sexual assault to Provo police.

The Utah Department of Public Safety spent a year investigating how BYU officers access and share their own reports and the records of other Utah County police agencies. While the investigation was completed last July, the Utah attorney general’s office has been reviewing the case ever since — and the findings have not yet been made public.

It’s not clear what affect BYU’s appeal will have on another records request for BYU police that is currently being considered by the State Records Committee.

The committee ruled last week that a recording of a 2017 interview between a BYU police officer and a former leader of the Mormon Missionary Training Center, accused of sexually assaulting a woman in the 1980s, should be made public. But the committee ordered that the release of the recording be put on hold until the courts decide whether BYU police are subject to GRAMA requests.