Salt Lake Tribune sues, says BYU police should have to release records
Law enforcement • Private colleges in other states are grappling with similar issues.
Steve Griffin / The Salt Lake Tribune
the campus police offices on the campus of BYU in Provo Wednesday June 1, 2016.
The Brigham Young University Police Department has "full-spectrum" law enforcement authority under state law: Sworn officers may stop, search, arrest and use physical force against people.
But BYU police do not face the same requirements for transparency as officers across the state: The department is not subject to the state's open-records laws, according to a decision by state record administrators.
Describing the BYU Police Department as a "private institution," the state Records Committee has declined to review an appeal by The Salt Lake Tribune for records of communication between BYU police and the Mormon school's Honor Code and Title IX offices.
The Tribune on Tuesday appealed the decision in 3rd District Court.
"The BYUPD would not exist as a police force without the blessing and approval of the state of Utah," said Mike O'Brien, attorney for The Tribune. "If BYUPD is going to exercise delegated police powers, it also should be subject to the Utah open-records law — like every other law enforcement agency — so the people can assess if those police powers are used properly."
The power to arrest or use deadly force is "the ultimate power of the state," said Frank LoMonte, executive director of the Student Press Law Center in Washington, D.C., which has challenged similar rulings on records held by police departments for private colleges in multiple states.
"When you voluntarily assume that authority, you necessarily have to accept the accountability that goes with that," LoMonte said. "There is an overriding public interest, never clearer than it has been [recently], in knowing how police use their governmental authority. If you don't want to have state government authority, you can operate a campus security department and ... call in city or county police when an arrest needs to be made."
Tribune reporter Matthew Piper requested the records amid allegations that BYU disciplines students who report sex crimes if they were violating the school's Honor Code at the time of the assault
. The code bans alcohol, coffee and premarital sex, and it regulates students' appearance and interactions with the opposite sex.
BYU police have said they do not conduct investigations for the Honor Code Office. However, The Tribune has obtained internal BYU documents that show a police lieutenant for the school used his access to Provo police records, via a countywide law enforcement database, for an Honor Code investigation
into the conduct of then-student Madi Barney. Barney told Provo police in September that she had been raped in her off-campus apartment.
The state Department of Public Safety (DPS) is investigating how BYU police access and share other departments' records.
BYU police have provided numerous records in response to requests by The Tribune. However, the department replied there were no "law enforcement/public safety-related" emails between campus police and the Honor Code and Title IX employees specified by Piper. Title IX offices investigate sexual misconduct on college campuses.
A lieutenant said that the department chooses when to voluntarily abide by public-records laws in the interest of openness, but he added that an appeal of its decisions would fail because the state Government Records Access and Management Act (GRAMA) does not apply to a private police department, Piper wrote in his appeal.
The State Records Committee's director and lawyers agreed with the lieutenant, writing in a letter denying Piper's appeal that the BYU Police Department is not a "governmental entity" subject to the law.
In a brief statement, BYU spokeswoman Carri Jenkins didn't comment on the school's records stance, but she pointed out that Utah law "specifically provides that state-commissioned peace officers may be employed by a private university."
Balancing public and private power • Privately owned police departments face an unusual risk that officers could misuse policing powers, LoMonte said, because they exist to serve both the private interests of their employers and the public interest of law enforcement.
"It raises a new set of questions when governmental authority is being used to enforce compliance with religious standards," he said. "If that were happening on a regular or routine basis, it would raise real questions about whether the university deserves to continue retaining its state certification."
In her statement, Jenkins emphasized, "University Police enforce public law and safety on campus, not the Honor Code."
But school documents leaked to The Tribune and police files show a BYU lieutenant reviewed Barney's rape report after an Honor Code investigator requested information on the case, and that he shared with the Honor Code investigator intimate details from the medical records of Barney's sexual-assault exam.
The documents, verified by Provo police, indicate that the lieutenant specifically agreed to review Barney's file for evidence of consensual sexual contact — not a crime, but a violation of the Honor Code. BYU credits the code with maintaining "an atmosphere consistent with the ideals and principles of The Church of Jesus Christ of Latter-day Saints," its owner.
The LDS Church declined to comment for this story, referring questions to BYU.
Law enforcement officers who access records can run afoul of the Fourth Amendment protection against unreasonable searches and seizures, civil rights experts note.
A Utah judge last year ruled that a West Valley City police officer conducted an unreasonable search
of a driver simply by entering his license plate number into the state's driver-license database without evidence he had committed a crime.
"If you're a police officer, and you're looking up information for the freaking hierarchy at BYU, you didn't use it legally," said Greg Skordas, a Salt Lake City attorney who has defended police officers in several high-profile professional conduct cases. "Then it goes to the Fourth Amendment: How did they access the information? What's the victim's expectation of privacy?"
It also raises First Amendment questions, said Erwin Chemerinsky, dean of the law school at the University of California, Irvine. "If they're using government resources like police databases — if they're using their authority as part of the government to gain anything, to turn that over to a religion — [that,] I think, violates the separation of church and state," Chemerinsky said.
A redacted copy of the policy manual for a digital-records system used across Utah County shows that only "authorized public safety officials" may access it, and users are instructed: "No agency will disseminate information involving another agency's case or investigation."
The way Barney's report was used appears to violate the state's public-records law, which says records may not be released if they could compromise a source or if they pose an unwarranted invasion of privacy, said Paul Cassell, a University of Utah law professor and former federal judge.
"Someone who was releasing or engineering a release indirectly of clearly protected records would be violating the restriction," Cassell said. "Obviously, victims of rape are particularly concerned about coming forward and reporting the crime because they're concerned about intimate details of their lives being disclosed to others."
Cassell called for law enforcement agencies to "take a close look at this" and ensure rape victims' information is used only for law enforcement purposes.
Provo police have said they and other law enforcement agencies in Utah County, including BYU police, requested the DPS investigation after detectives discovered "a broader records access issue" involving BYU police.
In her statement, Jenkins noted: "In their enforcement of public law, University Police are certified by the Commissioner of Public Safety and have reached out to the Commissioner and invited an audit. They are presently waiting for the Commissioner's findings."
BYU also has named an advisory council to examine its handling of sexual-assault cases
. The school has said victims are not punished under the Honor Code for being assaulted.
A Utah County sheriff's deputy acquainted with the suspect in her case first called BYU to accuse Barney of Honor Code violations
and later provided her police records to the school.
A national debate • 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.
In Indiana, ESPN and the University of Notre Dame are awaiting a hearing in that state's Supreme Court over whether the Notre Dame Police Department is subject to open-records statutes. 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.
But, in other cases, courts have ruled that states' public records laws exclude private college police.
North Carolina legislators in 2013 rewrote the state's public records law to include private college police departments after a tie at the state Supreme Court upheld a ruling that Elon University's police records were exempt, according to the Student Press Law Center. Similar laws have been adopted in Georgia and Texas.
In Illinois, where the University of Chicago's private police force has jurisdiction over thousands of nonstudents in surrounding neighborhoods and has been the subject of numerous complaints of racial profiling, a bill to open private college police records died last year.
In Utah, BYU police have full police power on campus, and off campus in limited cases — during a fresh pursuit if an officer directly witnesses a crime, or when collaborating with another agency, according to state administrative code governing DPS certification of private college police.
GRAMA covers "governmental entities," described as state government branches and political subdivisions, as well as departments, offices and agencies "funded or established" by them. The Tribune's appeal argues that BYU police are certified by the state and held to the same standards and protocols as other public agencies as they respond to calls on campus and from the community.
BYU has successfully claimed to be a "governmental entity" for another purpose, The Tribune's appeal notes: immunity from a lawsuit.
In a 2014 ruling, the Utah Supreme Court agreed with BYU that its traffic cadets and supervising police officers were performing a "government function" under a Provo ordinance when a 2008 traffic crash near BYU's football stadium led an injured motorcyclist to sue the school. The court threw out the motorcyclist's lawsuit because he had not filed a notice of claim with Provo.
The Daily Universe, BYU's student newspaper, has sought access to campus police records for many years, said journalism professor Joel Campbell. The department provides information for a weekly incident report, or on cases it chooses.
"Probably the only way to change this is to either have the Legislature clarify that BYU police are subject to GRAMA or go to court and have a judge declare that because BYU police are certified by [DPS] and have authority to arrest and conduct police business just as any other agency, they are covered by GRAMA," Campbell wrote in an email to The Tribune.
In a statement, the American Civil Liberties Union of Utah argued that any application of open-records laws needs to acknowledge the importance of personal privacy as well as transparency.
"Whenever agencies use policelike powers, they need to be open to the scrutiny of the public," wrote Leah Farrell, staff attorney. "Gaining access to public records is part of the system of checks and balances necessary to ensure proper accountability."