The Student Press Law Center is a national, not-for-profit corporation established in 1974 to conduct legal research and collect information about the legal problems confronting the nation’s student media and to serve as an advocate for their rights. In that role, the Center hears from and works with hundreds of college and university student editors and reporters each year who are struggling to present to their community an honest picture of campus crime.
In record numbers, these journalists describe the roadblocks to obtaining accurate crime information placed in their way by college and university administrators. One of the most pervasive of those roadblocks is the restriction on access to basic facts about crimes occurring on campus, including access to the campus police or security log. Hundreds of colleges and universities routinely deny access to the same log information that, as a matter of law and logic, local police agencies across the country routinely make available to the media and the public. As a result, the Center has had to assist student journalists in pursuing costly and time-consuming litigation to obtain crime information.
In enacting the Higher Education Amendments of 1998, Congress has recognized the danger of allowing schools to cover up campus crime. Properly implemented, this legislation could help ensure that basic facts about crimes on campus are available to all. However, our experience indicates that some colleges and universities will use their best efforts to thwart the intent of Congress and will continue to hide this information. Thus the regulations ultimately issued by the Department will have a crucial impact on the success of that cover-up attempt.
For that reason, the Student Press Law Center appreciates this opportunity to provide our perspective on the public access to information provisions of Title IV of the Higher Education Act as recently amended.
Campus Crime Log provisions
In Title IV, section 486(e)(6) of the Higher Education Amendments, 20 U.S.C. 1092(f) is amended to require that all schools covered by the Act who maintain a campus police or security department must make, keep and maintain a daily log of criminal incidents reported to that department.
The Student Press Law Center recommends that the regulations clearly state that the intent of this section is to provide meaningful information about campus crime. Thus its provisions should be interpreted in furtherance of that Congressional intent.
Among the items that should be explicitly described:
1) The log must be maintained by the college or university for any security, police or law enforcement agency or department “of any kind” that responds to complaints of criminal offenses on campus, whether or not that agency or department has official law enforcement authority. This should include those campus disciplinary offices or departments that handle criminal offenses. Any other interpretation would give an educational institution an easy avenue for covering up criminal incidents: never report it to an official police agency.
2) All allegations of crimes reported to the educational institution, including misdemeanors and petty offenses, must be included in the log. Schools may not selectively choose which crimes to include; nor may they exclude complaints pending their investigation of the accuracy of the allegation. The log is intended to be a record of criminal complaints made to the institution; it shall not be limited to only those complaints that a police or security department chooses (or is directed) to pursue. Schools must be put on notice that the deliberate omission of any criminal complaint from the log when it does not fall within one of the enumerated justifications will be regarded as a violation of the Act and subject to penalty.
3) The “nature” of each crime reported in the log should include an explicit classification such as those used by other state or local law enforcement agencies in the jurisdiction. The designation should be clear and understandable by the public; it should not include codes, abbreviations or vague terms that cannot be easily understood by the campus community.
4) The “general location” of each crime reported in the log must provide meaningful information about the location of the crime. General locations provided should be reasonably specific (“basement, Alpha Beta fraternity house, 500 Campus Blvd.) not generic (“fraternity house”). Again, “general location” information will be meaningless (and Congressional intent thwarted) if it cannot be used by members of the campus community to protect themselves from becoming victims of criminal incidents.
5) The “disposition of the complaint” reported in the log should describe what action the agency takes in relationship to the complaint including whether the matter is under investigation or has been referred to another law enforcement agency or prosecutor, referred to a campus disciplinary officer, dismissed as without merit or dropped for lack of evidence. As required by the statute, this “disposition” must be updated within two business days as information about a new disposition becomes available. An institution whose log entries all remain with the disposition “under investigation” should be considered in violation of the requirements of the Act.
6) The logs must be open for public inspection during the normal operating hours of the police or security department (which in many cases will be longer than the regular business hours of the institution). The educational institution may not deny access by designating one individual as the custodian of the records and refusing to allow access unless that individual is present. Nor may the institution only read or summarize the log to those who request it. The public is entitled to see a copy of the log (either in print or on-line) and read it. The regulations should make clear that inaccessibility of the log is a constructive denial and is thus a violation of the Act. And to ensure access by those unable to physically come to the police or security office (especially those who are victims of crime), the regulations should provide that the institution must make copies of the log available for a reasonable copying fee (unless access is available on-line). The institution may not charge a requester anything other than a reasonable copying fee for a copy of the log.
7) The requirement that log entries should be open to public inspection “within 2 business days of the initial report being made to the department or a campus authority” should apply to the business days of the police or security agency, not those of other administrative offices of the educational institution.
8) The law requires the logs be open to “public” inspection. Thus any person, whether or not they have an affiliation with the educational institution, should have access to the log. The institution may not require a requester to provide any reason as to why he wants access to the log; nor may it demand any explanation of how the requester intends to use the information contained in the log. Colleges and universities that use intimidation as a means for discouraging public access will be in violation of the Act as well.
9) Although the law does allow police log information to be withheld when it is prohibited by law or when its disclosure would jeopardize the confidentiality of the victim, an ongoing criminal investigation or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, each of those provisions should be interpreted narrowly to ensure the maximum amount of openness. Such a determination should be based on the real and immediate likelihood of such a consequence, not a remote possibility. And such a finding can only be used as a justification for excluding from the log the specific information that would prompt the consequence at issue. The remainder of the log information must be released within the required time period. In other words, campus officials may redact certain information from the log entries when it clearly and imminently meets the requirements of this section. But they may not fail to include a log entry in its entirety unless they can establish that every piece of information in that entry would result in one of the consequences described.
10) Finally, and most important, the regulations should emphasize that the new crime logs provision only creates minimum requirements for disclosure of information by educational institutions. Nothing in this law prohibits institutions from releasing more information about campus crime than the Act requires. And in fact, for virtually all public colleges and universities and private schools in some states, state freedom of information laws dictate that additional information (such as incident reports, individuals names, etc.) must be made available to the public. The Student Press Law Center fears another costly and unnecessary round of litigation between news organizations and educational institutions will result unless those schools who choose or are required to provide more detailed crime information than this new law mandates receive reassurance that they face no penalty under 20 U.S.C. 1092(f) for continuing that disclosure.
Campus Crime Statistics provisions
In Title IV, section 486(e)(1)-(4) of the Higher Education Amendments, 20 U.S.C. 1092(f) is amended to require additional reporting of campus crime statistics.
Even before these amendments to the law were enacted, there was widespread confusion about the definition of “campus security authorities,” those who are required to include criminal offenses reported to them in the school’s annual statistics. In part, this was the result of the definition provided in the existing regulations, which appears to exclude campus officials that “have significant counseling responsibilities.” 34 CFR 668.47(e) Yet in a letter dated September 13, 1996, sent to Moorhead State University, the Department said that “officials of the institution involved in student counseling are not excluded from the institution’s statistical reporting obligations (counselors are excluded only from the timely warning requirements of 34 CFR 668.47(e)). (Emphasis added.) The Moorhead letter reflects the correct and logical reading of the law. Given that statistics themselves are incapable of revealing the identity of a crime victim, there is no rational justification for allowing schools to refuse to include crimes reported to counselors in their annual statistics. Tolerating such a loophole would only encourage schools intent on under-reporting crime numbers to classify a wide range of school officials as having “significant counseling responsibility” and discourage criminal incidents from being reported to the appropriate law enforcement agency.
Conclusion
The intent of Congress to expand crime reporting requirements is clear. Thus the new regulations should emphasize the obligations schools have for complete reporting of criminal incidents on campus. The Student Press Law Center appreciates the opportunity to provide its perspective on this important new legislation.
Respectfully submitted,
Mark Goodman, Esq.Executive DirectorStudent Press Law Center
December 14, 1998