Private police? Judge reviews Tribune lawsuit for access to BYU police records

A Utah judge is reviewing arguments from lawyers for Brigham Young University and the Salt Lake Tribune who are fighting over the release of police records. (Photo: Jeremy Harris / KUTV)

(KUTV) – A Utah judge is reviewing arguments from lawyers for Brigham Young University and the Salt Lake Tribune who are fighting over the release of police records.

Both sides were in court Monday morning to present their cases to Judge Laura S. Scott, whose ruling could determine how the public accesses BYU Police internal records.

“[BYU] desperately wants to escape from the implications of [public records laws], but I think that’s impossible in this case,” Tribune lawyer Michael O’Brien told Judge Scott.

BYU denied a Salt Lake Tribune public records request in 2016 asking for communications between the department and the University’s Title IX and Honor Code offices.

BYU’s Honor Code office investigates and disciplines students who violate the school’s code of conduct. The Honor Code prohibits behaviors including alcohol consumption, extra-marital sexual activity, swearing, and dishonesty.

The Tribune sought the records as part of its coverage of campus sexual assaults and the case of Maddie Barney – who claimed she was investigated for sexual misconduct by the Honor Code office after reporting an off-campus sexual assault to Provo Police.

The Government Records Access and Management Act (GRAMA) requires public entities – like police departments – to provide public access to department records, including communications such as e-mails, memos, and text messages.

BYU denied the Tribune’s request for records between BYU Police and the Honor Code Office in 2016. The Tribune appealed the denial to the State Records Committee. The Committee denied the appeal, citing that BYU Police is not a “governmental entity” and hence not subject to GRAMA.

“I think it’s a terrible precedent to have somebody exercising police power and not having a check or review on that,” O’Brien said.

The Salt Lake Tribune appealed the State Records Committee denial by filing a lawsuit for the records in November 2016.

In court Monday, BYU lawyers again argued that the school’s police department is not subject to GRAMA. While BYU employs state-certified police officers, the school's Deputy General Counsel Steven M. Sandberg argued the agency is not a government entity because it was established by a private university.

“University Police is unique in Utah, but it’s not the only one that could exist,” Sandberg said.

In his arguments, Sandberg says GRAMA laws only apply to agencies which were created by and administered by qualifying government entities.

The BYU Police have functioned as a state-certified law enforcement agency since the late 1970’s. Before that time, the officers with BYU Police were sworn Provo City officers, and previously were sworn deputies of the Utah County Sheriff’s Office. BYU Police is now a state-certified law enforcement agency.

Sandberg argued extensively that because BYU Police is a creation of the University, it is not a public entity.

“We are an agency of Brigham Young University,” Sandberg said.

In questioning Sandberg, Judge Scott said it appeared BYU “wanted it both ways.”

“Isn’t this a definition that cuts both ways?” Scott questioned Sandberg. “When you don’t want to release records, you’re not a government entity … can you really have it both ways?”

Judge Scott took the arguments under advisement and said she may issue a ruling on the case in June or July.

Regardless of Judge Scott’s ruling, it is assumed the losing side will appeal.

“I think it’s impossible for them to squirm out of the implications of [GRAMA],” O’Brien said. “I think that BYU Police operate with integrity, so do many other police departments and part of the reason they do is because they are subject to public review and public accountability.”

Disclosure: KUTV 2News is a media partner of the Salt Lake Tribune. KUTV is also appealing a GRAMA denial from BYU Police for records regarding a sexual assault investigation at the Missionary Training Center in Provo. BYU Police have jurisdiction over the MTC.

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