The Legislature speaks: BYU police should no longer be able to keep its records secret

With a final, overwhelming vote in the House, the Utah Legislature has weighed in on a controversy that’s spiraled into criminal investigations and an ongoing Supreme Court case, and the lawmakers’ decision is this: Brigham Young University’s police department has to disclose public records like every other police department.

The bill, SB197, now heads to Gov. Gary Herbert’s desk and if he signs it, BYU police would be subject to Utah’s public records law.

This is a move sought by The Salt Lake Tribune through court action and this legislation. On Tuesday, Editor Jennifer Napier-Pearce celebrated the final vote and thanked Sen. Curt Bramble, R-Provo, the bill’s sponsor, for helping to champion government accountability.

“The Tribune has fought for nearly three years to hold BYUPD to the same standards as every other Utah law enforcement agency, so we applaud today’s vote,” she said. "Today, Utah lawmakers voted wholeheartedly for transparency and all Utahns — but especially BYU students — will benefit.”

Bramble’s bill clarifies that a private university’s law enforcement agency is considered a governmental entity. This means the police department at BYU, which is owned by The Church of Jesus Christ of Latter-day Saints, will soon be bound by Utah public records laws.

That is, if BYU continues to have a police department at all.

State officials announced earlier this month that they intend to decertify the entire BYU police force for violations, including failure to do an internal investigation involving misuse of protected police records and failing to respond to subpoenas issued as state regulators were investigating an officer for misconduct. The state specifically mentioned BYU’s failure to follow public records laws in letters leading up to the decertification.

BYU has said it plans to appeal the state's decision to strip its policing powers, which would take effect Sept. 1.

There was little meaningful debate Tuesday before Utah’s House unanimously gave the bill its final vote.

Rep. Brady Brammer, R-Highland, spoke in support of the bill, saying he has sought records from BYU police in the past and the department said it didn’t have to give him information.

“I felt it was patently unfair,” said Brammer, who works as a civil attorney.

In legislative committee hearings, BYU police officials reversed their long-held stance and said they no longer have an issue with being held to the same transparency requirements as any other law enforcement agency.

“We have no issue with being held to the same government requirements as other law enforcement agencies,” BYU Police Chief Chris Autry said at a legislative committee hearing last month.

For the past few years, BYU has argued that it is not subject to public records laws.

The Tribune sued to force BYU police to adhere to those laws, arguing that the department should be bound to hand over public records because it has “full-spectrum” law enforcement authority. This means BYU officers can stop, search and make arrests just like any other sworn officers from any other police department in Utah.

BYU has contended in court filings that it is exempt from records laws because it is part of a private university.

The newspaper received a favorable ruling from a district court judge, but BYU appealed to the Utah Supreme Court. The case is pending.

SB197 is not retroactive, so this bill won’t settle the ongoing litigation.

Michael O’Brien, a media lawyer representing The Tribune in its lawsuit against BYU, told legislators at a committee hearing that the newspaper maintains its position that BYU’s police force should be subject to open records laws.

The newspaper’s lawsuit stems from a public records request submitted by a Tribune reporter in 2016 amid allegations that BYU had disciplined students who report 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 social interactions.

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

The relationship between those university offices and the BYU police department also sparked a criminal investigation.

After investigating for more than two years, state authorities say they believe a BYU police lieutenant took information from private records created by other Utah County law enforcement agencies and passed it onto university officials investigating students for breaking school rules — including the Honor Code Office.

Prosecutors ultimately declined to file criminal charges against Lt. Aaron Rhoades, who retired from the police department last fall and gave up his police certification.

Other details about what investigators found have never been made public because a judge has a secrecy order in place that prohibits the release of records.