Attorneys for Brigham Young University and The Salt Lake Tribune came to the Utah Supreme Court seeking a definitive answer to one question: Has BYU’s police force always been subject to the state’s open records law?
But the justices on Friday had many questions of their own.
Among them: Who gave the department its policing powers? How does BYUPD fit into state law?
And why should they even weigh in on this dispute, given that state legislators decided earlier this year that BYU’s department is now subject to the records law?
Friday’s hearing is the culmination of a three-year battle between the newspaper and BYU, a private university owned by The Church of Jesus Christ of Latter-day Saints.
BYU's attorney, Steven Sandberg, argued Friday that while the police force is now subject to records laws, the high court should find that it can keep any document created before the 2019 law change secret.
"University police has always been a division of a private university," he argued.
The Tribune’s attorney, Michael O’Brien, argued in response that the police force was always a “government entity” as defined by law and that it should have to follow the same rules for transparency as other police departments across the state. If BYU’s police officers have the power to make arrests, serve search warrants and use deadly force, O’Brien argued, they should be bound to hand over public records like any other police agency.
A district court judge ruled last July in The Tribune's favor, and BYU appealed that decision. The case stems from a lawsuit the newspaper filed in 2016.
A Tribune reporter had filed a records request to the university police that year 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 Honor Code Office employees.
BYU responded to criticism by making sweeping changes to how it responds to reports of sexual assault. And The Tribune won a Pulitzer Prize for its reporting on the issue. Through all that, the legal dispute continued.
After the law was clarified this year, The Tribune submitted another request for similar emails between police and Honor Code employees, arguing that the records should be released because the department is still retaining them.
Justice Paige Petersen questioned Sandberg on this, asking why wouldn't they release the records if they still have them?
"Why isn't this moot?" she asked. "Because under [state law] you are a government entity, and anything you have retained, you have to turn over today."
But attorneys on both sides urged the high court to weigh in on the issue of whether BYU was subject to the records law prior to 2019, each saying they are concerned about the possibility of "mischief" by the other party.
Both sides conceded that it’s unusual for a state law to change between when the high court agrees to take a case and when it actually makes its decision. But O’Brien noted the case has been pending for years, and likened a decision from the Utah Supreme Court to a kid waiting for Christmas morning.
"We've been waiting for Santa Supreme Court to arrive," he said.
The high court took the case under advisement and will issue a written ruling, likely months from now.
Three of the justices recused themselves from hearing the case because of conflicts of interests. 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. Justice Dino Himonas also stepped aside.
In their places, Utah Court of Appeals Judges David Mortensen, Gregory Orme and Diana Hagen heard the case.
The high court asked tough questions of both sides as to how BYU police may or may not fit into the state records statute.
BYU attorneys have argued that its police department was created and funded by a private university and, therefore, should not be considered a “government entity” as defined in state law. 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.
Chief Justice Matthew Durrant expressed some doubt in The Tribune's position, saying that "government power" is not exactly the same as being a government entity as defined in the law.
Napier-Pearce, the Tribune’s editor, said after the arguments that she hopes the high court rules in the newspaper’s favor.
“We’ve been making this argument for three years,” she said. “I hope the court sides with us and understands that entities and officers having police powers is a powerful thing. And the citizens of Utah deserve to know what is in those documents.”
BYUPD is fighting a separate battle to remain in existence. State officials have said they intend to decertify BYU’s police force for multiple violations — and in letters to the school specifically noted the department’s failure to follow public records laws.
The department also did not conduct an internal investigation into misuse of protected police records and failed to respond to subpoenas when state regulators were investigating a BYU officer for misconduct, state officials have said.
BYU has appealed the decertification.
After a two-year investigation, state authorities said they believed a BYU police lieutenant was taking information from other departments’ private records and passing it to university officials, including Honor Code enforcers.
That finding is consistent with internal BYU records The Tribune obtained in 2016, showing that an Honor Code worker in one case asked former BYU Lt. Aaron Rhoades for information on a woman who had reported a rape to Provo police. Rhoades used a shared digital storage system to review the Provo police case documents and then provided Honor Code enforcers intimate details from the woman’s sex assault medical exam records.
Prosecutors declined to charge Rhoades, who retired from the police department in 2018 and gave up his police certification.
Other information from the state’s two-year investigation into BYU police has not been made public because a Utah judge has placed a secrecy order on the findings. The Tribune is currently challenging that secrecy order in court.