                  This opinion is subject to revision before final
                       publication in the Pacific Reporter

                               2019 UT 68

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

    THE SALT LAKE TRIBUNE and its reporter, MATTHEW PIPER,
                          Appellees,
                                      v.
                    STATE RECORDS COMMITTEE,
                            Appellant,
                                     and
                   BRIGHAM YOUNG UNIVERSITY,
                     Intervenor and Appellant.

                            No. 20180601
                       Heard October 4, 2019
                       Filed December 4, 2019

                On Appeal of Interlocutory Order

                     Third District, Salt Lake
                    The Honorable Laura Scott
                         No. 160904365

                                Attorneys:
   Michael Patrick O’Brien, Mark D. Tolman, C. Michael Judd,
                  Salt Lake City, for appellees
   Sean D. Reyes, Att’y Gen., Brent A. Burnett, Asst. Solic. Gen.,
                   Salt Lake City, for appellant
       James S. Jardine, Samuel C. Straight, Salt Lake City,
       Steven M. Sandberg, David M. Andersen, Provo, for
                      intervenor-appellant

   JUSTICE PETERSEN authored the opinion of the Court, in which
   CHIEF JUSTICE DURRANT, JUDGE ORME, JUDGE MORTENSEN, and
                      JUDGE HAGEN joined.
    Having recused themselves, ASSOCIATE CHIEF JUSTICE LEE,
 JUSTICE HIMONAS, and JUSTICE PEARCE do not participate herein;
COURT OF APPEALS JUDGES GREGORY K. ORME, DAVID N. MORTENSEN,
                    and DIANA HAGEN sat.
        THE SALT LAKE TRIBUNE v. STATE RECORDS COMMITTEE
                        Opinion of the Court


   JUSTICE PETERSEN, opinion of the Court:
                         INTRODUCTION
    ¶1 The court of appeals certified this interlocutory appeal to us
to determine whether the Brigham Young University Police
Department is a “governmental entity” subject to the Government
Records Access and Management Act (GRAMA). 1 However, after
certification, the legislature amended the statute to explicitly define
the police departments of private universities as governmental
entities subject to GRAMA, with Brigham Young University’s
support. And the Salt Lake Tribune has made a new GRAMA
request for the contested records under the amended statute.
Accordingly, answering the question presented will not have any
precedential value for future cases, and it is not clear that doing so
will materially affect the final decision in this case or the ultimate
determination of whether the Tribune gets the documents it seeks
here. We therefore conclude that it will better serve the
administration and interests of justice to remand this case back to the
district court where the proceedings can be finalized and any
remaining appellate questions can be handled on direct appeal.
                          BACKGROUND
    ¶2 In 2016, the Salt Lake Tribune (Tribune) began investigating
allegations that Brigham Young University (BYU) was mishandling
victims’ reports of sexual abuse. Specifically, the Tribune was
exploring claims that BYU’s Police Department (University Police)
was aiding the BYU Honor Code Office in investigating and
disciplining students who had reported sexual abuse for possible
ecclesiastical discipline.
   ¶3 As part of this investigation, the Tribune’s reporter Matthew
Piper sent a GRAMA request 2 to the University Police. He sought

_____________________________________________________________
   1  GRAMA is set out in Utah Code sections 63G-2-101 to -901. We
cite to the 2016 version of GRAMA because it was the law in effect at
the time of the Salt Lake Tribune’s initial request. See Schroeder v.
Utah Att’y Gen.’s Office, 2015 UT 77, ¶ 9 n.1, 358 P.3d 1075.
   2 Under GRAMA, a person has a right, subject to some
exceptions, “to inspect a public record free of charge.” UTAH CODE
§ 63G-2-201(1)(a). To do so, that person must submit a written
request that includes, among other things, “a description of the
                                                         (continued)
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                        Opinion of the Court

three categories of documents: (1) all police records since 2011
referencing the term “honor code”; (2) all GRAMA responses from
the University Police to the BYU Honor Code Office or Title IX Office
since 2011; and (3) all emails between the University Police and six
specified email addresses.
    ¶4 The University Police provided documents related to the
first two categories, but it refused to provide documents related to
the third category. According to the University Police, it did not
have any “such law enforcement/public safety records related
email” “[w]ithin the scope of the [Tribune’s] GRAMA request.”
   ¶5 The Tribune appealed the University Police’s denial to the
Utah State Records Committee. After determining that the
University Police was not a “governmental entity” within the
meaning of GRAMA, the Records Committee concluded that it
lacked jurisdiction and ultimately denied the appeal.
   ¶6 The Tribune timely petitioned the district court for judicial
review of the Records Committee’s decision. The Records Committee
moved to dismiss that petition, arguing that neither BYU nor the
University Police is a “governmental entity” subject to GRAMA.
BYU intervened in the action and joined the motion to dismiss.
Following a hearing, the district court issued a written order denying
the motion.
    ¶7 After completing discovery, the Tribune and BYU filed
competing motions for summary judgment. The district court
granted the Tribune’s motion, concluding that the University Police
is a “governmental entity” under GRAMA. It denied BYU’s motion.
    ¶8 BYU petitioned for permission to appeal the district court’s
interlocutory order. The court of appeals granted the petition and
then certified the case to us.
    ¶9 Subsequently, during the 2019 legislative session, the
legislature amended GRAMA to include the University Police as a
“governmental entity” subject to the statute’s disclosure provisions.
See UTAH CODE § 63G-2-103(11)(b)(vi) (2019); see also id.
§ 53-1-102(1)(c)(i)(C). At oral argument, the Tribune acknowledged
that it has made a new GRAMA request for the contested records to
the University Police under the amended GRAMA statute. Oral



record requested that identifies the record with reasonable
specificity.” Id. § 63G-2-204(1)(a)(ii).


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        THE SALT LAKE TRIBUNE v. STATE RECORDS COMMITTEE
                        Opinion of the Court

Argument, Piper v. State Records Committee             (Oct.   4,    2019)
(https://www.youtube.com/watch?v=-4FZ9pU0yzQ).
   ¶10 We exercise       jurisdiction   under   Utah    Code        section
78A-3-102(3)(b).
                             ANALYSIS
   ¶11 This case comes to us on interlocutory appeal. The decision
to grant a petition to review an interlocutory order is discretionary.
See UTAH R. APP. P. 5(g). “[I]t is not an appeal as a matter of right.”
Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT
56, ¶ 14, 428 P.3d 1133. Utah Rule of Appellate Procedure 5(g)
provides that we “may” grant a petition for interlocutory appeal
“only if it appears that the order involves substantial rights and may
materially affect the final decision or that a determination of the
correctness of the order before final judgment will better serve the
administration and interests of justice.”
   ¶12 The court of appeals certified this case to us to resolve the
important question of “whether or under what circumstances the
Government Records Access and Management Act may apply to a
private university’s police department.” But since that time, there
have been substantial legal and factual developments that have
changed the rule 5 analysis.
    ¶13 First, the legislature amended GRAMA in 2019 to
unequivocally include the University Police as a “governmental
entity” subject to the statute’s disclosure provisions. See UTAH CODE
§ 63G-2-103(11)(b)(vi) (2019) (defining “[g]overmental entity” to
include “a law enforcement agency, as defined in [s]ection 53-1-102,
that employs one or more law enforcement officers”); see also id.
§ 53-1-102(1)(c)(i)(C) (defining “[l]aw enforcement agency” to
include “an entity or division of . . . a private institution of higher
education, if the entity or division has been certified by the
commissioner [of public safety]”). There is no question that after the
effective date of these amendments, the University Police is subject
to GRAMA. Accordingly, any decision we rendered here would
have no precedential value for future cases.
   ¶14 Second, the Tribune argues that the amended statute also
resolves the dispute here. The Tribune asserts that even if we were to
determine that the University Police is not a “governmental entity”
under the 2016 GRAMA statute, the 2019 statute would require it to
turn over the contested records in this case. This is because GRAMA
(which now clearly defines the University Police as a “governmental
entity”) requires such entities to turn over any records they

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                         Opinion of the Court

“prepared, owned, received, or retained.” Id. § 63G-2-103(22)(a)(i)
(emphasis added). And the University Police currently “retains” the
disputed records. So arguably, even if we answered whether the
University Police is a “governmental entity” under the 2016 statute,
it may not materially affect the final decision in this case. See UTAH R.
APP. P. 5(g).
   ¶15 Finally, it is unlikely that a determination of the correctness
of the district court’s interlocutory order would better serve the
administration and interests of justice. See id. The Tribune’s new
GRAMA request seeks the same records that are contested here.
Accordingly, if the University Police were to disclose the contested
records in response to the new request, it would seemingly end the
dispute in this case. If it did not disclose the records and the Tribune
appealed, the Records Committee and the district court, if necessary,
would determine whether any contested records must be disclosed
based on other provisions of GRAMA rather than the 2016 definition
of “governmental entity.” And from our current vantage point, we
can only guess what those remaining questions might be and
whether an appeal would even be necessary.
   ¶16 So the administration and interests of justice are not served
by analyzing whether the University Police was a “governmental
entity” under the now-obsolete 2016 version of GRAMA. Now that
the University Police’s status as a “governmental entity” under
GRAMA is beyond dispute, the parties might resolve the contested
request without further litigation. And if there is further litigation, it
would not center on the question presented here but on other
currently undeveloped issues that we would be better-positioned to
resolve on direct appeal. See Manwill v. Oyler, 361 P.2d 177, 178 (Utah
1961) (stating that we may refuse to entertain an interlocutory appeal
where the matters in dispute “may become moot; or where they can,
without involving any serious difficulty, abide determination in the
event of an appeal after the trial”).
                            CONCLUSION
    ¶17 Accordingly, we exercise our discretion to decline to decide
the issue presented in this interlocutory appeal. We remand to the
district court for such proceedings as may be appropriate.




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