Utah Supreme Court will consider whether the BYU Police Department should be subject to open-records laws

Steve Griffin / The Salt Lake Tribune Campus police offices at Brigham Young University in Provo, Wednesday, June 1, 2016.

Utah’s highest court will soon consider the question of whether Brigham Young University’s Police Department should have to comply with the state’s open-records laws.

The Utah Supreme Court will hear the appeal filed by BYU lawyers earlier this month after a 3rd District judge ruled that the private university’s police force is a governmental entity that has to follow the same rules for transparency as other police departments across the state.

The ruling comes in a 2016 lawsuit filed by The Salt Lake Tribune, which has argued that the BYU police force should be open to public record 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 Provo 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.

BYU lawyers initially appealed to the Utah Court of Appeals, but the appellate judges moved the case to the Utah Supreme Court, according to court papers filed Tuesday.

“This appeal presents an important question of law which has not been, but should be, settled by the Supreme Court,” the order reads.

No court dates have been set yet. It’s likely that at least two of the justices will recuse themselves from hearing the case because of conflicts of interest: Justice Thomas Lee was a full-time professor and continues to lecture at BYU, according to his biography, and Justice John Pearce is married to Tribune Editor Jennifer Napier-Pearce.

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 countered 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 scrutiny.

The case stems from a public records request submitted by a Tribune reporter 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 school’s Honor Code and Title IX offices.

The private university is also involved in another records dispute in which it has filed lawsuits asking a judge to block an order from the State Records Committee to release a recording of a 2017 interview between a BYU police officer and a former leader of the church’s Missionary Training Center who was accused of sexually assaulting a woman in the 1980s.

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 rape. But there has been little consistency so far in how a state Supreme Court will rule on the issue.

For example, the Indiana Supreme Court ruled in 2016 in a lawsuit involving the University of Notre Dame that a private university can maintain a police force not subject to the state’s open-records laws.

In contrast, 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 Utah, BYU is the only private university with its own police force. Other private institutions, such as Westminster College, may hire security officers but largely rely on the city’s police department.