A BYU attorney and BYU’s police chief told legislators they support a bill that would require private university police departments to comply with the state’s open records access law.
The statements supporting the proposed legislation came only days after news broke that the state is planning to decertify the BYU police department, in part because state officials say the department has not complied with past demands for police records that municipal policing agencies must make publicly available.
Sen. Kurt Bramble, R-Provo, introduced legislation that would subject private university police departments, including BYU, to open records requests. A senate committee heard discussion on the bill Feb. 26 and passed it unanimously. No one at the hearing spoke in opposition to the bill.
Salt Lake Tribune attorney Michael O’Brien and editor-in-chief Jennifer Napier Pierce both attended the hearing and supported the bill. O’Brien is a media lawyer who represents the Utah Media Coalition and acts as the counsel for the Salt Lake Tribune in a lawsuit concerning BYU’s denial of a records request from the Tribune in 2016 that is now before the Utah Supreme Court.
BYU attorney Heather Gunnarson and Police Chief Chris Autry thanked Bramble for his work on the bill and expressed support for the changes it would make. “We agree that university police should be subject to the same level of transparency and accountability as any other law enforcement office within the state,” Gunnarson said.
The statement seems to clash with the tone of a formal statement issued by BYU Tuesday, stating the university’s intention to appeal the decertification decision made by the Utah Department of Public Safety.
That statement said in part, “BYU finds this decision confounding and disagrees with the grounds for seeking decertification. The Department of Public Safety believes that University Police failed to meet criteria for an internal investigation and a response to a subpoena. BYU, however, believes that University Police met all applicable criteria and is surprised that the commissioner is issuing a letter on these technical grounds.”
The university has said it will appeal the decertification decision.
Bramble’s proposed legislation follows the Utah Department of Public Safety’s decision to decertify the BYU Police Department by September 2019.
According to a letter dated Feb. 20 to BYU President Kevin J Worthen from Public Safety Commissioner Jess L. Anderson, the university police are to be decertified after failing to conduct an internal investigation between April 2016 and April 2018 regarding specific allegations of misconduct against a BYU police officer, believed to be former Lt. Aaron Rhoades.
According to court documents, The Salt Lake Tribune’s lawsuit was first filed on July 12, 2016, after BYU police refused to release internal documentation the Tribune requested. The lawsuit followed allegations from the Tribune that Rhoades had accessed case files from the Provo City Police Department for an honor code investigation into a student who was the victim of sexual assault.
According to the Tribune, Rhoades began accessing police records from Provo and Orem Police Departments for the Honor Code Office in August 2014 and stopped in June 2016 after the state announced its investigation into the BYU police department.
A March 7, 2018 letter from the Utah Attorney General’s office says Rhoades would not be prosecuted following a Justice Division panel’s review found the Department of Public Safety’s investigation lacked “a reasonable likelihood of conviction.” Rhoades voluntarily gave up his police certification and left University Police in October 2018, the Tribune reported.
The letter also says BYU failed to comply with a subpoena during a Peace Officer Standards and Training investigation regarding the misconduct allegations. Additionally, Anderson says in a letter to the BYU Police Chief that the BYU police department is expected to be subject to and compliant with the Government Records Access and Management Act, known as GRAMA.
BYU’s statement in response to the state’s decertification letter expresses surprise at the decertification order and says the university felt it had acted properly.
“BYU intends to pursue all available agency action and legal processes to remain in a position to keep its students safe,” the university statement says.
The state’s decision to decertify BYU police follows a years-long dispute between the university and the Salt Lake Tribune over open records laws.
According to a motion for summary judgment filed by the university’s legal representation in a lawsuit with the Salt Lake Tribune, the university argues BYU is not a government organization, thus making its police department immune from GRAMA, which allows for public access to records.
BYU’s lawyers also argued in the Jan. 30, 2018, summary the university was also not responsible for the investigation into the allegations of misconduct since it is a private university, not a government organization.
In a Feb. 28, 2018, motion for summary judgment, the Salt Lake Tribune noted the Third District Court had ruled on Jan. 20, 2017, that the BYU police department is subject to open records laws because it was established by the government “to carry out the public’s business of policing.”
The Tribune also noted 86 “undisputed facts” in support of its position, and that the BYU Police Department does not dispute 28 of those facts.
According to O’Brien, Third District Judge Laura Scott ruled in favor of the Tribune on July 13, 2018, after the newspaper appealed the Utah State Records Committee’s decision that BYU’s police department was not required to follow open records laws.
“Judge Scott ruled that BYU as a law enforcement agency is subject to the state open records law,” O’Brien said. “That decision has been appealed by BYU to the Utah Supreme Court, and we’re in the middle of briefing that right now.”
O’Brien also said that a hearing date with the Supreme Court has not yet been scheduled.
The Honor Code investigation into the student victim began after Utah County Sheriff’s Deputy Edwin Randolph delivered the student’s case to BYU’s Title IX office, which then referred the case to the Honor Code Office, according to the Tribune. Randolph later helped the suspect in the case obtain legal counsel and stated he was trying to help the victim by reporting her to the university. Following a Peace Officer Standards and Training investigation into his conduct, Randolph retired.
Following the Salt Lake Tribune’s Pulitzer Prize-winning reporting and an internal study, the university accepted 23 recommendations made by the Advisory Council on Campus Response to Sexual Assault. The Daily Universe previously reported that President Worthen announced on Oct. 26, 2016, that the university would physically separate the Title IX office from the Honor Code Office, hire a full-time Title IX coordinator and extend protections from Honor Code investigations to sexual assault victims.
BYU was later required by the Utah State Records Committee to release a BYU police audio interview with former Missionary Training President Joseph Bishop, who was accused of raping a sister missionary in 1984, according to KSL. The university appealed the ruling after arguing that it had released partial documents regarding the interview.
In October 2018, Bramble announced his intention to sponsor SB197, which would clarify the laws applying to private institutions with police powers.
The bill would require BYU and other private institutions with police powers to comply with GRAMA requests and redefines these agencies as a government entity in regard to that situation alone, according to Bramble.
“If you’re going to have police powers of the state, then you have to be subject to all the provisions that any other police agency are subject to,” Bramble said. “This applies to a private institution or private entity that is delegated police powers by the state.”
Bramble also said BYU’s Honor Code and Standards Office would not be subject to the same level of transparency. He said if the situation is a BYU Honor Code policy issue, the police should have nothing to do with it. “If it’s a police action in a criminal investigation that’s where the transparency has to apply.’
“If we are going to delegate the police powers of the state, which is the power to infringe upon citizens’ liberties: they can handcuff, they can incarcerate, they can investigate, they can cite, etc. just as any law enforcement officer can, that has to be done with sunshine,” Bramble said. “That’s what this is all about.”
During the hearing, Bramble said the bill would not act retroactively. Bramble said the legislation would not impact the lawsuit between the Salt Lake Tribune and BYU, and those issues would be resolved independently by the courts.
However, O’Brien said the legislation would not retroactively require BYU to give the Salt Lake Tribune the documents at the center of their lawsuit. “There still may be a dispute there, which the Tribune will vigorously fight,” O’Brien said. “We’ll have to wait and see what happens.”
Bramble said he introduced his legislation rather than repealing the provision he says currently allows BYU to deny GRAMA requests because “BYU has had a successful police department for over 35 years.”
“They are the only entity that I know of right now that has that, but it’s been working very well in partnership with Provo, Utah County and with our public safety,” he said. “The question is whether the statue is clear on compliance with GRAMA.”