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SALT LAKE CITY — The Utah Supreme Court may help decide whether Brigham Young University must publicly release correspondence between its police department and its Honor Code Office.
Nobody — not even the university — disputes that BYU police are now subject to Utah’s open records law. A 2019 act of the Utah Legislature clarified that a private university’s police department must follow the law.
But both parties want the justices to rule on an earlier version of the law as BYU fights the release of the messages. The legal battle continued Friday in arguments before the Utah Supreme Court, which did not immediately rule Friday and indicated it may ultimately may choose not to decide the case at all.
The school has resisted the Salt Lake Tribune’s efforts to obtain the documents since 2016, when a BYU officer gathered information from a police database and shared it with the Honor Code Office and other administrative offices at the university. Reports of the officer’s conduct sparked protests on the Provo campus and in part led the university to overhaul its protocol for handling sexual assault in recent years.
BYU, which is owned by The Church of Jesus Christ of Latter-day Saints, requires its students to sign an honor code promising to be honest, live chaste lives, obey the law and campus policies, abstain from drinking alcohol and regularly participate in church services, among other things.
Though the Utah Department of Public Safety certifies the university’s police agency, BYU police do not fall under the umbrella of DPS agencies like the Utah Highway Patrol or the state’s Bureau of Investigations, argued BYU attorney Steven Sandberg.
“We are not an entity of them, because they don’t claim us in any way,” he said, adding that no other private university in Utah has its own police force.
Chief Justice Matthew Durrant saw it similarly, saying it was hard to “shoehorn” BYU police into the category of an executive department.
But unlike other professions that are regulated by the state, BYU’s law enforcement arm is carrying out a public service, said Tribune attorney Michael O’Brien.
“‘Shoehorn’ suggests it’s hard to fit them in there, and we would argue the foot fits right into the shoe,” he said.
Justice Paige Petersen also drew a clear distinction.
“It’s clearly an agency exercising government power. They can search, they can seize, they can shoot, they can investigate,” Petersen said. “The state has to give them that power.”
Now that the 2019 Legislature has made it clear that a private university’s police department is subject to the law, some of the justices questioned why they should decide on the earlier, out-of-date version.
After the new law took effect, the Tribune again asked the university for the same records it had in 2016, plus additional documents in a new request. Petersen suggested that settled the matter.
“Why isn’t this moot?” she asked.
But if the court doesn’t rule, Sandberg said, “it will leave a lot of muddied issues out there.” Both sides said they had concerns about possible mischief in the future if the justices don’t provide an answer.
The 2019 law doesn’t apply retroactively, but it does apply to documents that have been retained, pointed out Chief Justice Matthew Durrant.
Three justices recused themselves Friday and were replaced by judges from the Utah Court of Appeals. The recusals came from Deno Himonas; Thomas Lee, a faculty member at BYU Law School; and John Pearce, who is married to Tribune editor Jennifer Napier-Pearce.
Napier-Pearce told reporters outside the courtroom she hopes the court will understand the gravity of the issue.
“I hope that the court sides with our side and understands that entities — officers having police powers — that’s a powerful thing, and that the citizens of Utah deserve what is in these documents,” she said.
Earlier this year, Utah’s Peace Officer Standards and Training investigations bureau released its findings that onetime University Police Lt. Aaron Rhoades accessed police reports between August 2014 and June 2016 and shared them with BYU administrators.
The officer gave up his certification following the investigation but denied allegations of misconduct. The Utah County Attorney’s Office declined to bring a criminal charge of misuse of protected information, a class B misdemeanor.
The university has also appealed a DPS move to decertify the school’s police department, which was based in part on its finding that BYU police did not conduct its own investigation into Rhoades’ conduct.
In April, hundreds of students gathered on campus in a protest of the Honor Code Office following a collection of Instagram posts from the account @HonorCodeStories, which detailed how several felt the office mishandled their cases and drew widespread attention.
In July, the Honor Code Office announced the latest wave of updates to the office, which include presuming students are not in violation until a determination is made and allowing a student to have a support person to accompany them to meetings.
