Utah records board orders BYU to let them see police emails

(Rick Egan | Tribune file photo) Hundreds of students gathered in April on the campus of Brigham Young University, for a rally to oppose how the school’s Honor Code Office investigates and disciplines students. Utah's Record Committee on Thursday ordered BYU's campus police to produce key correspondence between its employees and the Honor Code office, for a review to determine if they should be released to the public.

Utah’s Records Committee ordered Brigham Young University’s campus police Thursday to produce copies of emails between key law enforcement officers and the Provo school’s Honor Code Office.

On a vote of 6-0, committee members agreed they needed to study the documents in closed session to determine whether they were law enforcement records and should be released under a public-records request filed by The Salt Lake Tribune in May.

Attorneys for BYU, owned by The Church of Jesus Christ of Latter-day Saints, said it was unclear if the private university would comply with Thursday’s decision, including a demand that BYU create a log of the records, estimated at between 100 and 1,000 separate pieces of correspondence. Instead, the university may appeal the matter, moving it into the courts.

According to BYU lawyer Sam Straight, some of the documents contain “very sensitive” information and should instead be shielded as confidential student and educational records. Releasing the records — even for an in-camera review by the committee and even with redacted names and other personal details — threatened to compromise student privacy, he said.

“A student could be really upset if we even gave them to you,” Straight told the panel.

But record committee members said they could not decide whether they were public police records or private student-related files based solely on the handful of messages Straight decided to bring with him to Thursday’s hearing. In the notice announcing the hearing, the committee had already requested that BYU bring all the records and its attorneys did not comply.

“I’m not persuaded these [records] were all done for law enforcement, but I’m not persuaded the other way either,” committee member Patricia Smith-Mansfield said. “I don’t really think we can make a determination unless we look at them.”

Committee Chairman Tom Haraldsen said the records “probably weren’t just for law enforcement purposes. I’d still like to see them.”

The public-records request in question, filed by Tribune reporter Jessica Miller in May, is a revised and expanded version of one the newspaper first submitted in 2016.

Miller and other Tribune reporters sought the records then amid reports BYU was disciplining students who reported sex crimes if they were found to have violated the school’s Honor Code when they were assaulted. The code, among other things, bans alcohol and coffee, premarital sex and “homosexual behavior,” imposes a dress code and regulates visits between male and female students.

While BYU provided some of the documents initially sought by The Tribune, it also denied portions of that request and argued that, as a private university, it was not subject to the state’s public records laws. The Tribune has appealed in a case now set for oral arguments in early October before the Utah Supreme Court.

But a new state law, SB197, took effect in May stating that while BYU is a private university, its police department is considered a governmental entity, and is therefore subject to public-records requests like every other law enforcement agency. Miller and reporters with KUTV-Channel 2 in Salt Lake City then separately filed new requests to BYU.

“The state of Utah has given BYU’s law enforcement entity enormous and powerful policing powers,” Miller argued during Thursday’s hour-long hearing. “But with that power comes a duty to the public of transparency and accountability.”

With its order, the records committee appeared to turn aside arguments by BYU that the latest Tribune request was duplicative of its filing in 2016 — and that the new state law didn’t apply to BYU records created before SB197 went into effect in May 2019.

Smith-Mansfield and other members said the state’s Government Records Access and Management Act, known as GRAMA, applied to any records that are “prepared, owned, received, or retained” by a governmental entity. That, they said, covered records currently retained by BYU, irrespective of when they were produced.

But Straight argued that prior to SB197, BYU produced records on the assumption they would remain private. Its employees at times may have co-mingled police and educational activities, he said, the new law should not be read to now make those documents public.

The Tribune is seeking access to emails sent to or from BYU police officers and seven BYU staff members, between 2011 and 2017. It has also requested emails to and from former BYU Lt. Aaron Rhoades, who is suspected of passing information from other police departments’ private records to university officials, including Honor Code enforcers.

The Tribune obtained internal BYU records in 2016 that indicated that an Honor Code worker in one case asked Rhoades for information on a woman who had reported a rape to Provo police. Rhoades used a shared digital storage system to review Provo’s police case documents and then share them with Honor Code enforcers, including intimate details from the woman’s sex assault medical exam records.

Prosecutors have since declined to charge Rhoades, who left the police department in 2018 and has given up his police certification.

BYU currently is appealing an attempt by Utah’s commissioner of public safety to decertify its entire police force over what state officials say are multiple violations stemming from the Rhoades case, including an alleged failure to investigate officer misconduct.

If the state follows through with that action, it would be the first time a Utah police department has been decertified.