Same Game, Different Rules

Felicia is a student journalist at a public university. She is writing an article about crime on her campus and is interested in researching an armed robbery that occurred at her school last fall. The university police arrested the perpetrator, who is awaiting trial. Alicia visits the university police department and under her state’s open-records law, requests a copy of the arrest report, which the university police turn over.

Geoffrey is also a student journalist. He too is writing an article about crime on his campus. He is investigating the same type of crime Alicia is investigating, but when Geoffrey visits his university police department, which like Alicia’s has official law enforcement authority, the officer on duty refuses to turn over the arrest report.

The scenarios are identical except for one significant detail: Geoffrey attends a private university.

Like Geoffrey, many student journalists at private colleges and universities are routinely denied access to their schools’ police records because the schools claim that as private entities, they are not bound by state open-records laws typically written with government agencies in mind. Student and professional media, attorneys and open-government advocates have responded to these claims with lawsuits and protests that challenge ‘ with mixed success ‘ those schools’ interpretation of the laws.

The Harvard Crimson, a student newspaper, was thwarted in its effort to obtain police records from the Harvard University Police Department when a court threw out the paper’s lawsuit against the university in March. Middlesex County Superior Court Judge Nancy Staffier found no language in state law that supported the newspaper’s claim that HUPD should be subject to the Massachusetts Public Records Law even though the officers gain their authority from the government.

The case began when The Harvard Crimson sued the private university in June 2002 after HUPD denied the paper’s request for police records. The Harvard Crimson wanted to investigate several crimes that students were accused of committing, including embezzlement of university funds. The paper said that because HUPD officers are deputized by county authorities and have all the powers of a municipal police officer, the department should have to comply with state open-records law. Harvard disagreed, arguing that because it is a private school, it is not obligated to comply with the Massachusetts Public Records Law.

Staffier agreed with Harvard and ruled that the language of the state’s statute ‘simply does not provide this court with the authority to compel entities that are private but granted the authority to perform public functions to disclose records.’

The Massachusetts court’s decision is the exact opposite of the decision in a similar case involving police records at Mercer University in Georgia. In that case, a state court ruled that the police department at the private university must comply with the state’s open-records law since the department performs a ‘public function.’

The court battles have sparked interest in the mechanics of law enforcement on university campuses and have raised questions about the status, power and responsibility given to campus police officers at private schools.

The trend of private colleges and universities creating their own police departments has grown in recent years, said Carolyn S. Carlson, vice chairwoman of the Society of Professional Journalists’ subcommittee on campus crime.

In the past, ‘private schools had private security forces, and when there was a serious crime on campus, they called the local police department, and the police department handled the crime, and their records were public, as all records were public,’ Carlson said.

All colleges and universities, whether public or private, that receive any type of federal financial assistance are required to meet a minimum standard of campus police records disclosure as set out in the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, commonly called the Clery Act.

The Clery Act is named for Jeanne Clery, who was a 19-year-old student at Lehigh University when she was brutally raped and murdered in 1986. The Clery Act requires schools to compile police logs, the daily accounts of police activity, and make them available to the public. But those logs only have to include the nature, date, time and general location of each crime and the disposition of the complaint, if known. State open-records laws typically require public police agencies to release much more.

The Department of Education, the governmental agency in charge of administering and enforcing the Clery Act, may fine schools that do not comply with the law up to $27,500 for each violation or take away the school’s federal funding.

The Clery Act seeks to contribute to safety on campuses across the country. But incident and arrest reports generated by university police departments are not covered by the Clery Act. At a public university police department or a municipal police department, those records are public under state open-records laws. When it comes to police records at private colleges and universities, though, the application of the laws can be unclear.

During the past 10 years, more private colleges and universities have upgraded their campus safety personnel from security guards to state-deputized police officers with the power to arrest. Government-sanctioned police officers at private universities have the same powers or ‘law enforcement authority’ as their counterparts in the public sector, including in many cases the right to carry firearms and make arrests.

Law enforcement authority through state law

There are two ways a private college or university may have its own police force with law enforcement authority. The first is a provision in state, city or county law that allows for the creation of such a force at the private university. Those provisions are often referred to as ‘enabling statutes,’ and their requirements vary among the states that have them.

For example, Ohio’s statute gives private colleges and universities the option of adopting a police force with law enforcement authority. Delaware grants private university police law enforcement authority on a school-specific basis, said Douglas Tuttle, instructor and policy scientist at the School of Urban Affairs and Public Policy at the University of Delaware.

The police department at Princeton University, a private university in New Jersey, also is allowed to have law enforcement authority under a state law, said Steven Healy, director of public safety and chief of police at Princeton.

But the enabling statute in New Jersey, like those in other states, does not specify whether the police departments at private universities in the state must comply with open-records laws. Princeton’s police department meets the level of disclosure required under the federal Clery Act, but it does not have a hard and fast policy for releasing information under the state open-records law.

‘We [at Princeton] would look at each incident in and of itself and work with general counsel to decide whether it should be disclosed or not,’ Healy said.

Law enforcement authority through local police

The second way private colleges and universities can obtain law enforcement authority for their police departments is by being deputized by local law enforcement agencies. The University of Richmond, a private university in Virginia, has sworn officers who are deputized by Henrico County, but they only have jurisdiction over the university campus.

But unlike many schools that have police deputized by local law enforcement, the police department at the University of Richmond complies with the same rules and regulations as Richmond city and Henrico county police. This includes disclosure of police records under the Virginia Freedom of Information Act, said Sgt. John Jacobs of the University of Richmond Police Department.

Jacobs, who manages the release of information for the department, meets weekly with a campus crime reporter from The Collegian, a student newspaper at the school. The two go over the campus crime logs, and Jacobs answers any questions the reporter may have.

‘There is a really good working relationship between the school [newspaper] editors and [the university police department],’ Jacobs said.

The University of Richmond releases police records because of a 1994 amendment to the Virginia Freedom of Information Act that requires any college police department with law enforcement authority ‘ even those at private universities ‘ to comply with the open-records law.

The amendment stemmed from a lawsuit brought against the school in 1993 by Douglas Hanks III, then-editor of The Collegian, who wanted police records released under the state open-records law. A court decided that the language of the Virginia Freedom of Information Act did not require disclosure of police records at the school, but suggested the General Assembly change the law to make the documents public records.

‘[The amendment] was a real accomplishment,’ said Hanks, who graduated from the university in 1993 and is now a staff writer for The Miami Herald. ‘Our argument was that [the University of Richmond Police Department] is a full-blown police agency that should be subject to the same sunshine laws as any police agency was. Obviously, crime is a major concern on any campus, and our concern was that there would be crimes happening that we’d never hear about because it would be embarrassing to the campus.’

The case for disclosure

Not all private school police forces have been as forthcoming, and it is not clear in some states whether they have a legal responsibility to be.

The court’s decision in the Harvard case recognized the tension between the public and private spheres, but did not invalidate the importance of disclosure. In her decision, Judge Staffier wrote that the issue is an important one and suggested that the state legislature consider modifying the statutory language to include police records at private schools.

Amber Anderson, attorney for The Harvard Crimson, was disappointed by the decision, but happy that the court realized the importance of the issue. The paper filed a notice of appeal with the Appeals Court of Massachusetts April 8 and is planning on filing its brief of appeal sometime this summer, depending on the court’s schedule, Anderson said.

The lack of clarity in state statutes like the one in Massachusetts has concerned journalists and campus crime disclosure advocates, who believe that public power should have public oversight, even at a private college or university.

‘Police power is one of the most fundamental government powers,’ said Carlson of the SPJ. ‘The government can’t just bestow that on a private entity without also transferring the public oversight that is integral to our system of democracy. If they’re going to give a private entity public police powers, the public oversight has to go along with it.’

The argument has also been made that open police records are an integral part of fostering a comprehensive student press, which will then be able to better serve, inform and protect the campus community.

‘[Openness] will provide student journalists at private universities with tools they can use to better serve their audiences with information about crime on campuses. They will be able to better report on crime on their college campus now because they will have more accurate, up to date and thorough information than ever before,’ Carlson said.

Private school, private records?

But many colleges and universities have maintained that because they are private institutions, they are not required to comply with state open-records laws. In many cases, they want to protect their status as non-governmental agencies, arguing that if the police records are public records, what will be next? Some have suggested that all post-secondary schools, public and private, are hesitant to release information that would cause embarrassment by showcasing the inadequacies of the police department. Others have said that schools are concerned about the effect campus crime information may have on enrollment.

Dolores Stafford is president of the International Association of Campus Law Enforcement Administrators, a group that seeks to make campuses safer by educating and training campus police officials. Stafford said that IACLEA does not have an official position on the issue. Stafford, who is also the chief of police at George Washington University in Washington, D.C., said the school does not release its records to the public because it is a private institution, even though it has law enforcement authority.

‘I do not believe that open records necessarily equals ‘public oversight,” Stafford said.

But campus crime disclosure advocates think that ‘open records’ and ‘public oversight’ are virtually synonymous.

‘If the public doesn’t know what actions the campus police force is undertaking, they cannot possibly have the public oversight that you would have of another agency,’ said S. Daniel Carter, senior vice president of Security on Campus, Inc., a campus crime watchdog group.

A victory for disclosure

The ability to withhold information from the public has, in many cases, created a veil of secrecy that recent lawsuits, like the one at Mercer, have attempted to strip away. The Georgia decision offers hope for open-government advocates, who would like to see all states adopt the same approach to private university police departments.

The Mercer case did not begin with a journalist, but with Atlanta-based attorney Amanda Farahany. Farahany filed suit against the school after she encountered a problem while working on the case of a female former student who was allegedly raped in 2000 on Mercer’s campus. Farahany asked the Mercer University Police Department for documents containing information related to campus crime, particularly sexual assault, including crime logs and incident reports.

MUPD refused to give Farahany the information, saying that because Mercer is a private institution, it is exempt from complying with state open-records law. Farahany hoped a court would establish that the university police department is subject to the same rules and regulations as municipal police departments because MUPD gains its authority from the state of Georgia.

‘Each day that Mercer continues to be allowed the same authority as every other police force, allowed the opportunity to take away a person’s liberty and freedom and the public has no right to oversight of their operations, the public is irreparably harmed,’ Farahany wrote in court documents.

The court agreed and ordered MUPD to comply with the state open-records law, saying that although the university is private, its police department serves a public function, including the ‘enforcement of the laws of this state; the preservation of public order; the protection of life and property; the prevention, detection, or investigation of a crime; are all clearly public functions,’ wrote Bibb County Superior Court Judge L.A. McConnell, Jr., in his decision.

Mercer filed an appeal Feb. 12 in the Georgia Court of Appeals. A hearing date has not been set.

Not just a student media problem

The Ithaca Journal, a commercial newspaper in upstate New York, was denied access to police records by the police department at Cornell University, a private university in Ithaca, on two separate occasions. Like The Harvard Crimson and Amanda Farahany before it, The Ithaca Journal may soon be entering the litigation arena to duke it out with Cornell over the New York Freedom of Information Law.

The paper issued a request for documents related to an alleged hate crime that occurred at Cornell in November 2003. The university denied the request, claiming that it has no obligation to disclose the records under state open-records law because it is not a public entity. At The Ithaca Journal‘s request, the New York State Committee on Open Government issued a formal advisory opinion saying that because the university police are deputized by the Tompkins County Sheriff’s Department, they should be subject to the state’s open-records law.

‘When we’re talking about the [university] police, it seems to me that when a person or an entity is given the authority to take away somebody’s liberty ‘ to engage in the authority that a typical police department would have ‘ that there must be accountability,’ said Robert Freeman, the committee’s executive director.

The Ithaca Journal issued another request earlier this year for the records of all the sexual assaults that occurred on Cornell’s campus between 1999 and 2004, said Bruce Estes, the paper’s managing editor. That request has also been denied, and Estes is contemplating legal action as the final remaining avenue to disclosure, something he believes is extremely important.

‘If you ever get arrested, don’t you think that it might be a good idea to be able to access those arrest records?’ Estes asked.

Coming to a consensus

With differing state laws and different interpretations of those laws by different courts, coming to a consensus on the issue is difficult.

The Mercer decision ‘ barring the success of Mercer’s appeal ‘ is only binding in Bibb County and does not affect other states, although it might impact how judges in Georgia approach similar cases. The matter depends largely on the statutory language of open-records laws, which vary from state to state.

‘I think that the proper course of action is for the state legislatures ‘ to go and make sure that any private entity performing such an inherently public function is in fact subject to public oversight,’ Security on Campus’ Carter said.

Approaching state legislatures to clarify whether private university police departments are subject to state open-records laws as suggested by the judge in the Harvard case seems to be the most sure-fire way to resolve what has proven to be an ambiguous issue.

‘In the interest of public safety the best way to do it is to have the legislatures make it clear that the [private university] police records are subject to the same open records requirements as any other police records would be,’ Carter said. ‘There is no legitimate reason that a campus should be able to operate a police force if it operates one any differently than any other police force is operated.’

Barrett & Farahany, LLP v. Mercer University/Mercer University Police Department, Civ. Action No. 03CV22657 (Ga. Super. Ct. Bibb Co. Feb. 4, 2004), notice of appeal filed Feb. 12, 2004

The Harvard Crimson, Inc. v. President and Fellows of Harvard College, No. 03-3137 (Mass. Super. Ct. Middlesex March 8, 2004)

State of New York Department of State Committee on Open Government, FOIL?AO?14396 (Dec. 10, 2003)