Utah bill that would subject BYU police department to public records law sent to governor’s desk

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A bill that would force campus police to comply with Utah public records law was approved by the state House of Representatives Tuesday. The Senate approved the bill earlier this month, and the measure now goes to Gov. Gary Herbert to sign.

The law would expand the definition of a law enforcement agency to cover any law enforcement entity in Utah that’s certified by state agencies, including those on private college campuses such as Brigham Young University.

Herberts office said in a statement that the Governor needs to review the final bill language before giving his signature, but he agrees with the underlying principle.

“He agrees with the general policy that any police force exercising the police powers of the state, should be subject to the state’s government records laws,” read a statement provided to the Student Press Law Center from a spokesperson. If Herbert signs the bill, it takes effect May 14, 2019.

If there’s anything at all that should be public, it is the records of how police use governmental authority to take people’s freedom away,

BYU’s campus police force is also the subject of an ongoing Utah Supreme Court case, in which The Salt Lake Tribune requested public records from the BYU police, which were denied on the grounds the police were affiliated with BYU, a private university. A lower Utah court ruled in favor of the newspaper, and BYU appealed that decision to the higher court.

The case stems from a 2016 records request from a Tribune reporter, who was seeking records relating to how the Mormon university enforces its restrictive honor code when students report sex crimes to the school Title IX officer.

On the same day the bill passed the legislature, state authorities decertified the BYU police department. The decertification takes effect on Sept. 1, 2019. Investigators found that BYU police failed investigate an officer for alleged misconduct over the course of a three-year review.

BYU officials and representatives are fighting the decertification and the Utah Supreme Court case, but have supported the bill that just passed the legislature.

Laws across the country are largely ambiguous on the question of whether police forces on private campuses are subject to state public records laws, said Frank LoMonte, executive director of the Brechner Center at the University of Florida and a Student Press Law Center Senior Legal Fellow.

Only six states explicitly say, either by state law or by court ruling, that private campus police need to respond to public records requests, LoMonte said. In Indiana, it’s clearly established under state law that the public does not have access.

“So there’s six states where we know that it’s available, one state where we know that it’s not, and everywhere else it’s some kind of a legal grey area,” LoMonte said.

It should be legally clear that any police force — affiliated with a private university or not — is conducting a government function and therefore should be subject to a public records law, LoMonte said.

“If there’s anything at all that should be public, it is the records of how police use governmental authority to take people’s freedom away,” he said. “The idea that you could potentially put someone in custody or even take their life and not have to explain why is just un-American.”

The Brechner Center, a First Amendment think tank, is preparing a letter to the Utah Supreme Court in the BYU police case, LoMonte said.

The new law will likely not affect the case before the court, said Michael O’Brien, a Utah attorney who is representing The Salt Lake Tribune in their case.

“Our lawsuit will be decided on the basis of the law that existed prior to this new bill,” O’Brien said.

Utah law is only applied retroactively when it’s expressly meant to do so in the language, O’Brien said. Lawmakers overwhelming support for the new law may send a message to the Utah justices, but it doesn’t settle the case.   

“This is an expression of what the legislature believes the law should be, but it’s not something that will automatically resolve our case in front of the Utah Supreme Court,” O’Brien said.

Previous coverage here.

SPLC reporter Cory Dawson can be reached at cdawson@splc.org or at 202-974-6318. Follow him on Twitter at @Dawson_and_Co.

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