Judge denies BYU's motion to dismiss lawsuit for campus police records

UTAH—The Salt Lake Tribune has scored a win for campus transparency in what attorney Michael O’Brien called the “first round” in a fight for police records from Brigham Young University. A state judge denied a motion to dismiss from BYU and the state’s records committee.

“It’s just the first step, because we were fighting off a motion to dismiss, so it necessarily doesn’t end the case by itself but definitely it’s a very good start to the litigation,” O’Brien told the SPLC.

The court battle over the BYU Police Department’s records is part of an ongoing saga that began when the Tribune reported more than a dozen current and former students said they had been investigated or punished for being sexually assaulted.

Matthew Piper, the case’s plaintiff and part of a team of journalists working on the story, said the police had provided two of the three open records requested, but balked at providing e-mails between the police and the university’s Honor Code Office under the Government Records Access and Management Act (GRAMA).

BYU places strict regulations on dress and doesn’t permit students to drink alcohol or have premarital sex, according to its honor code. Violations of the honor code can result in expulsion.

“We thought, you know, maybe the BYU police department is accessing statewide police records or reporting on non-criminal behavior to the honor code office, maybe something we hadn’t thought of,” Piper said about the three GRAMA requests he filed.

When the Tribune appealed to the Utah Records Committee, the committee refused to hear the case and the newspaper sued. BYU joined the case as a respondent.

O’Brien said the fact that BYU’s police force was established with the assistance of the state is the reason they should be subject to the same transparency laws that metropolitan or public university police forces are.

“BYU can’t establish a police department on its own, it has to have the state’s involvement, the state’s authority and approval and regulation. That means the state is involved in establishing the department as well, at least as a co-establisher or the establisher, which would be enough to bring it under the state records act,” O’Brien said.

BYU officials could not be reached for comment.

Cases dealing with open records from private campus police departments have varied from state to state. In 2015, college editor Anna Schiffbauer won an Ohio Supreme Court case against her private university, clarifying that Ohio private schools need to disclose their police records.

Last year, then-governor of Indiana Mike Pence struck down a bill that would have let private university police departments skate by open records laws. However, the state Supreme Court then made the legislation moot by handing Notre Dame University a victory in a public-records case brought by ESPN.

According to public-records research by the SPLC, most private campus police departments do shield information that would otherwise be subject to open records laws.

O’Brien said no decision had been reached yet on how to proceed with the case.

“I would imagine that BYU is going to want to appeal this. We’ll either file a motion for summary judgment now; the court’s already kind of paved the way for us to do that, or we’ll have some sort of stipulated outcome that will allow the matter to go forward on an appeal.”

SPLC staff writer James Hoyt can be reached by email or (202) 478-1926.

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