Ga. appeals court: Police at private university not subject to open-records law

GEORGIA — Mercer University is not required to release its campus police records to the public, the Georgia Court of Appeals ruled Feb. 3. The decision reversed a trial court’s January 2004 order requiring the central Georgia university to release the records under the Georgia Open Records Act.

After learning of the appeals court decision, state Sen. David Adelman introduced a bill on Feb. 8 to compel private universities to disclose all police records. Under proposed Senate Bill 153, “‘Public record’ shall also mean all such items received or maintained by an educational facility … that employs campus policemen, that relate to the duties, activities, and functions of such campus policemen.”

Adelman said campus police exercise public authority even if employed by a private agency.

“Police departments such as those employed by colleges and universities are quasi-governmental because they use the state’s police powers to arrest and detain people, and they exercise jurisdiction outside of campus boundaries,” he told the Fulton County Daily Report.

The appeals court ruled that the private university’s police department is a private agency because it receives no state funds and does not act on behalf of any public agency. Private agencies’ records are generally not subject to the Georgia Open Records Act, but campus police officials at Mercer have official law-enforcement authority under state law. The Student Press Law Center and other media and First Amendment groups filed a brief with the court in support of public access to the records.

The rulings came after Amanda Farahany, a partner in the Atlanta law firm Barrett & Farahany, requested copies of the university crime records in 2003. She was representing a female Mercer student in a lawsuit holding the university accountable for an alleged sexual assault on campus. When the school denied Farahany the records, she filed a request for a court order citing the open records law.

The request led to the state court classifying the university police department as a public agency in 2004 because Georgia law grants it the authority to arrest and detain crime suspects. The court of appeals overturned this decision because the court did not consider the department’s law enforcement authority to be “public powers,” according to the opinion in The Corporation of Mercer University v. Barrett & Farahany.

Farahany said the appeals court ruling endangers those campus police seek to protect.

“Not allowing students, prospective students, parents and the public to know about what is happening on campus and allowing the police to use the powers of the state unfettered is of great consequence to people,” Farahany said. “If people are unable to see what kinds of crimes are happening, they’re unable to take action to make themselves safe because they don’t know what the problems are on campus.”

The federal Clery Act mandates that all colleges and universities receiving federal funding publish the number of crimes on campus each year and maintain open police logs. The act does not require schools to release the individual incident reports that detail each crime.

“Without open records being applicable [to private colleges], there’s no way to tell if [the number of crimes published] is accurate under the Clery Act,” Farahany said.

Carolyn Carlson, co-chair of the Society of Professional Journalists’ campus crime committee and board member of the Georgia First Amendment Foundation, said the appeals court decision hinders accurate campus and community reporting.

“Journalists are recognizing that it’s a problem to have a private police force with no public oversight,” she said, calling the appeals court decision a “dangerous precedent.”

Farahany said she will petition the appeals court for reconsideration by Feb. 14 and is prepared to follow the case to the Georgia State Supreme Court.

The Society of Professional Journalists will grant Farahany $1,000 to aid in pursuing the case, Carlson said.

The Mercer University case and Georgia senate bill mirror similar open-records efforts in Massachusetts. The Harvard University Crimson student newspaper filed a lawsuit against the university in 2003 after the school refused to release police records. The case was dismissed in March 2004 and is currently before a state appeals court.

Massachusetts state representatives introduced House Bill 1709 in December, which proposes making all records collected by private universities and colleges available to the public.

–By Kate Campbell

CASE: The Corporation of Mercer University/Mercer University Police Department v. Barrett & Farahany, LLP, No. A05A0186 (Ga Ct. App. Feb. 3, 2005)

Download the decision

Read previous coverage: