Utah Supreme Court sidesteps public records question in BYU-Salt Lake Tribune legal fight

Brigham Young University’s campus police must hand over public records from May 2019 forward under a new state law, but what about those created before then? Those records include emails between police and Honor Code Office staffers that The Salt Lake Tribune has sought for three years.

The private university and The Tribune wanted Utah’s Supreme Court to weigh in and decide if BYUPD has always been a public entity.

But in a Wednesday ruling, the justices decided not to.

This shifts the ongoing legal dispute, which began in 2016, back to district court where the two sides will continue to debate whether those records and any others are public or private. It also leaves in limbo several other records disputes that had been put on hold pending the high court’s decision in The Tribune’s lawsuit.

Justice Paige Petersen wrote in the five-page ruling that while the question was “important,” there have been substantial developments since the justices first decided to take up the case in August 2018.

The biggest change involves the new state law. Earlier this year, the Legislature decided that the private university’s police force was subject to Utah’s Government Records Access and Management Act (GRAMA).

That law went into effect in May 2019.

Attorneys for BYU and The Tribune had both urged the high court during oral arguments in October to weigh in on the issue of whether BYU was subject to the records law prior to 2019. But the Utah Supreme Court didn’t see a reason to.

“... the administration and interests of justice are not served by analyzing whether the University Police was a ‘governmental entity’ under the now-obsolete 2016 version of GRAMA,” Petersen wrote. “Now that the University Police’s status as a ‘governmental entity’ under GRAMA is beyond dispute, the parties might resolve the contested request without further litigation.”

Tribune Editor Jennifer Napier-Pearce said Wednesday’s decision brushed aside BYU’s assertion that it can operate as a secret police force when it comes to giving up public records.

“This decision tells BYUPD two things,” she said. “Abandon the distracting and erroneous claims that BYUPD is the only police in Utah not subject to the Utah open records law and apply GRAMA the same way all other police agencies in Utah must apply it.”

BYU spokeswoman Carri Jenkins gave this statement in response to the ruling: “BYU recognizes the Utah Supreme Court’s decision not to decide the case in favor of either party, and BYU looks forward to presenting its arguments to the lower courts.”

The case will now be remanded back to the district court, where 3rd District Judge Laura Scott is expected to decide whether the records in question should be considered public under GRAMA.

Scott ruled in The Tribune’s favor last July, finding that BYU has to follow the same rules for transparency as other police departments across the state. BYU appealed the decision to the Utah Supreme Court. The university is owned by The Church of Jesus Christ of Latter-day Saints.

The legal dispute stems from a 2016 records request that a Tribune reporter filed 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 emails between the department and Honor Code Office employees.

BYU responded to the broader 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 lawsuit continued.

After the law was clarified this year, The Tribune submitted another request for similar emails between police and Honor Code employees, arguing the records should be released because the department is still retaining them.

BYU has argued that it does not have to release the records because the campus police was not covered by the law when the correspondence took place in 2016. They also argued that the emails contain sensitive information about students that are private under federal law.

The state Records Committee had ordered BYU police to let them see the emails in a closed session — a typical process during a public records appeal — but the university balked. It instead appealed the case to district court, arguing the records are private and should not be disclosed even to the records committee in a private review.

Three other lawsuits that BYU filed last year over records disputes had been put on hold pending the Utah Supreme Court’s decision, and it is not clear how Wednesday’s ruling will affect those cases.

The three separate legal actions challenge a ruling by the State Records Committee that an interview between a BYU police officer and a former leader of the Missionary Training Center accused of sexual assaulting a woman in the 1980s should be made public.

Lawyers paused those suits last September to see how the high court ruled in The Tribune’s case.

BYU police has refused to release the records, once again saying the department was not subject to state records laws before 2019.

The Tribune obtained a copy of the recordings of the conversation between BYU police officers and Joseph Bishop in June. The former church leader admitted that during his tenure as Missionary Training Center president, he asked to see a female missionary’s breasts and she complied. He has also said he touched another female missionary inappropriately during a back rub.

He also told police that he immediately told his church leaders about the inappropriate behavior — but still maintained his position overseeing thousands of young men and women who came to Provo in the 1980s to train as religious missionaries.

Editor’s Note: Salt Lake Tribune Editor Jennifer Napier-Pearce is married to Utah Supreme Court Justice John Pearce. Because of that conflict, the justice recused himself from this case.