BYU creates new security department that it says will not be subject to Utah’s open records laws

(Rick Egan | The Salt Lake Tribune file photo) The police station at Brigham Young University on Tuesday, Feb. 26, 2019. The university says it is now creating a separate security division.

Brigham Young University announced Thursday that it has created a security department that will “function separately” from its police — forming a new division that the Provo school says will specifically be exempt from the state’s open records laws.

The surprising move comes after years of legal battles over whether officers at the private religious school had improperly shared police evidence, including while investigating student reports of rape. In response to those accounts, legislators passed a law explicitly requiring, as of May 2019, that BYU’s police department be required to share its reports publicly under the same rules that govern public universities.

In an email, BYU spokesperson Carri Jenkins confirmed that the school does not intend for the security division to have to respond to public records requests under the Government Records Access and Management Act, or GRAMA, because it is “not policing."

She said, “They will operate independent of the BYU Police Department and, like any private security company, will not be subject to GRAMA."

Instead, security personnel will monitor buildings and “have responsibility for campus parking," she said. Their role, overall, is described as more about oversight of safety than law enforcement.

Unlike police officers, they will not have the authority to make arrests or conduct traffic stops. And they will not have access to police databases, which were at the heart of the transparency issue with records at BYUPD.

“They will not have law enforcement authority,” Jenkins said, though she noted that the 10 full-time staffers will be armed.

Sen. Curt Bramble, R-Provo, who sponsored the bill that required police forces at the state’s private universities to comply with public records laws, said it comes down to that distinction of duties.

He believes it’s “perfectly proper" for BYU to have separate police and security divisions as long as they stick to the appropriate tasks, he said. And security officers, under that scenario, wouldn’t need to share records with the public, he said. Essentially, they’re not dealing with significant public safety issues, he said, but rather internal university affairs.

And, because BYU is owned by The Church of Jesus Christ of Latter-day Saints, it doesn’t have to share that information, Bramble said. “Any private entity, whether it’s a university or a company, is free to have their own internal security department,” he said Thursday. “That doesn’t bother me at all.”

Asked whether he was concerned that campus police might transfer issues or cases over to security if the university didn’t want the topic to be public, Bramble said, “that would leave a trail.”

Mark Tolman, an attorney who represents The Salt Lake Tribune in a lawsuit that contends BYU police records were subject to GRAMA before May 2019, cautioned that if the security staff does any police work, then it should be subject to public requests for that information.

“This should not be an end run around GRAMA," he said.

Tolman added that he wants to give the university the benefit of the doubt and hopes that creating the security department is “a recognition from BYU that they have been blurring the lines previously."

The security announcement also was made while the state is in the process of attempting to decertify BYU’s police department altogether. But it doesn’t appear as if the move to establish a separate security division will affect the Department of Public Safety’s decertification effort.

“We recognize the efforts of what they’re trying to do,” said DPS spokesperson Joe Dougherty. “We’re not in a position to comment, pending administrative action Commissioner [Jess Anderson] has taken to decertify the agency.”

Jenkins added, too, that the security department would “not be impacted by any further external decisions.”

She said the move to create the new division was discussed with the Department of Public Safety years ago. And, she believes, it “alleviates concerns DPS has expressed that BYU should not use government law enforcement authority to perform internal security functions.”

Public safety officials first announced in February 2019 they would seek to decertify BYU police over a failure to investigate misconduct involving an officer passing sensitive information to the school’s Honor Code Office. But after BYU appealed, the effort essentially stalled. Nearly two years later, an appeal hearing is expected sometime this fall.

Meanwhile, the scope of BYUPD’s improper access of police databases has still never been fully disclosed.

It’s been kept under wraps because of a secrecy order that a judge signed three years ago as state officials began investigating the record-sharing issues. Though the Department of Public Safety finished its investigation in 2018 and prosecutors declined to file any charges, the secrecy order remains in place to this day. The Tribune is seeking to have the records unsealed, but a hearing has been delayed because of the courts being shut down due to the COVID-19 pandemic.

Utah officials spent two years investigating BYUPD’s record-sharing practices, ultimately concluding that a lieutenant looked at private police reports created by other Utah County law enforcement agencies, and passed on information to university officials — including those working in the Honor Code Office. The office enforces a set of strict administrative rules that students and staff must follow, including a requirement that those on campus remain chaste before marriage.

The Utah Attorney General’s Office decided not to prosecute Lt. Aaron Rhoades for any crimes, though.

A police officer must be investigating a crime or have a legitimate law enforcement purpose for accessing police databases. Officers can be disciplined by Utah’s police licensing agency for improperly looking at criminal histories in a statewide database, but the laws aren’t as clear for records kept in a countywide database, like the one Utah County uses.

Public records show Rhoades looked at thousands of records from other agencies during a two-year period and often focused his searches specifically on sex crimes.

Rhoades' attorney, Derek Williams, has said his client had been looking at sex assault reports to understand the trends and occurrences in nearby areas to help him prepare for a women’s self-defense class he taught. He never downloaded or disseminated those reports or shared confidential information in his classes, according to Williams.

The Department of Public Safety says BYU police did not conduct an internal investigation into these allegations of misconduct that arose in 2016 — which is one of the reasons why DPS says the university police should be eliminated.

It was that same year that The Tribune obtained BYU documents that showed Rhoades had accessed a countywide database and passed on intimate details about a rape case to an Honor Code staffer who wanted to investigate the alleged victim, who was a student.

Tolman added that if the security division is used to transfer information from police to the Honor Code Office, then “we’re back at square one.”

“What we’re going to have to watch for," he said, “is the same traps that BYU fell into before."

Jenkins said that wouldn’t happen. She said: “Honor Code issues are not the responsibility of the BYU Security Department.”

Then-Police Chief Larry Stott, along with Provo police, asked for a review of the department’s record-sharing practices. But DPS contends that the university did not conduct its own internal investigation — a requirement of certified police agencies.

The state department also says BYU police failed to respond to a subpoena issued as police regulators were investigating Rhoades for misconduct.

BYU fired back in its appeal, saying the DPS decision to strip its department of policing powers was an “extreme and unprecedented action” that was “factually and legally baseless.”

The university said in the appeal that it could not initially conduct an internal investigation because a secrecy order prohibited police officials from participating in or conducting its own investigation. But the order was modified, and the university then hired a lawyer to sift through thousands of pages of documents and interview witnesses. The lawyer concluded that Rhoades had violated university policy by sharing nonpublic information.

BYU also blamed the secrecy order for rebuffing subpoenas from police regulators who were about to embark on their own investigation of whether Rhoades should be able to keep his police license. That investigation didn’t go far, however, after Rhoades retired from BYUPD last fall and gave up his police certification.

If the state decertified BYU police, the campus would fall under the jurisdiction of Provo’s police department.

The department currently has 17 full-time and sworn officers, as well as 10 part-time officers. The security division would have 10 full-time employees and more than 300 student employees, according to the news release; the student staff, Jenkins said, will not carry firearms or Tasers.

The former chief of the police department, Chris Autry, has been tapped to oversee both police and security in a supervisory role. And a new police chief is expected to be named shortly to replace him. Both will then report to BYU’s administration vice president and CFO, Steve Hafen.

He said in a statement Thursday: “The new police and security structure will fully separate law enforcement functions from internal security functions to effectively protect our campus community and allow BYU Police to focus solely on law enforcement activities.”