Bill making BYU police force subject to state open-records law sails through committee with the university’s support

(Rick Egan | The Salt Lake Tribune) The police station at Brigham Young University on Tuesday, Feb. 26, 2019.

Brigham Young University may not have a police department after Sept. 1. But if it does, the department would be explicitly subject to Utah’s public-records law under a bill that earned committee approval on Tuesday.

The Senate Judiciary Committee voted unanimously for SB197, following statements in support of the legislation by BYU’s general counsel and police chief.

“We have no issue with being held to the same government requirements as other law-enforcement agencies,” said BYU Police Department Chief Chris Autry.

But the department has taken issue with various requests for documents made under the state’s Government Records Access and Management Act, or GRAMA, arguing that it is exempt from transparency requirements because of its affiliation with a private university.

Litigation on the public or private status of the BYU police force is currently pending before the Utah Supreme Court, after BYU lawyers appealed the ruling of a 3rd District judge that the university police department is a government entity and must follow the same rules as other police departments.

“We agree that university police should be subject to the same level of transparency and accountability as any other law enforcement office in the state,” BYU general counsel Heather Gunnarson said Tuesday.

Because SB197 is not retroactive, its potential implementation would not pre-empt a judicial resolution of the Salt Lake Tribune case, according to the bill’s sponsor Sen. Curt Bramble, R-Provo.

“That will be resolved however the courts resolve it or the parties resolve it,” Bramble said.

The lawsuit stems from allegations that BYU had disciplined students who reported sex crimes if they were violating the school’s code of conduct at the time of the assault. BYU police provided some records to The Tribune but refused to release communications between the department and the school’s Honor Code and Title IX offices.

Brigham Young University is owned and operated by The Church of Jesus Christ of Latter-day Saints.

Bramble said his bill does not necessarily target BYU, as other private campuses could potentially create a state-certified police force. But police powers include the ability to infringe on individual liberties, he said, which must be accompanied with “sunshine," or transparency.

The committee vote was held on the same day that Utah’s commissioner of public safety announced the decertification of the Brigham Young University Police Department. The department has stated it intends to appeal that decision, and Bramble said there is a need to address the ambiguity in law independent of whether that appeal is successful.

“Whether it works out or not,” Bramble said, “we need to have this statute in place.”

Salt Lake Tribune editor Jennifer Napier-Pearce said she was “thrilled” by the committee vote.

“I think that the committee recognized that openness and transparency should be the be-all and end-all of government,” she said.

SB197 will now move to the full Senate for consideration, and must pass that chamber and the Utah House before the legislative session concludes on March 14 to take effect this year.

Michael O’Brien, a media lawyer representing The Tribune in its lawsuit against BYU, said the paper maintains its position — affirmed by the 3rd District Court — that BYU’s police force is subject to GRAMA under current law. But future records requests will be evaluated based on the law that exists at that time, he said, be that the 3rd District ruling, a potential Supreme Court ruling or SB197 if the bill is ultimately approved by the Legislature.

“If you made a GRAMA request today,” O’Brien said, “you’d have to rely on all those great arguments I made in court to show how BYUPD is covered [under GRAMA].”