Battles for access to campus crime records in Georgia are being waged ontwo fronts. Proposed Senate Bill 153 would redefine theGeorgia Open Records Act to include police records at private schools, whilea case involving Mercer University may progress to the Georgia Supreme Courtand set a legal precedent for crime records disclosure.
The state Open Records Act defines materials subject to disclosure as “all documents prepared and maintained in the course of operation of a public office or agency” or documents received “on behalf of a public office or agency.” Astate trial court ruled that private Mercer University had to turn over therecords of its campus police department–which operates with officiallaw enforcement authority–under the Open Records Act. An appellatecourt reversed that decision.
Amanda Farahany, the attorney who spearheadedthe case against Mercer University, submitted a request asking the statesupreme court to rule on the matter. She said that if the court refuses tohear the case, it would leave reform up to Senate Bill 153.
“The case as it stands [would] actually be the law unless the bill passes next year,” shesaid.
Farahany also said that predicting which cases the court will hear isdifficult.
“I think that our Supreme Court does not often deal with openrecords issues and I hope because of that they will want to handle the openrecords issues here,” Farahany said. “I don’t know which cases they take andwhich cases they don’t.”
In 2003, Farahany, a partner in the Atlanta law firmBarrett & Farahany, requested copies of crime records from the schoolbecause she was representing a female former student who was raped at afraternity party in 2002. When the school denied Farahany the documents, shefiled to have the court compel their release.
A trial court sided withFarahany in February 2004 and ordered Mercer to release the documents. Theschool appealed and the Court of Appeals reversed the ruling, concluding thatthe records were not subject to the Open Records Act because Mercer’s campuspolice department was not a public agency.
“To be considered a ‘publicoffice’ or ‘public agency’ pursuant to the Open Records Act, an entity mustgenerally either be a political subdivision of the state, be a city, countyregional or other authority established pursuant to law, or receive a specifiedamount of funding from the state,” according to the ruling. “There is no disputethat Mercer University is a private institution and not a public office oragency, and that Mercer University does not receive funding from thestate.”
The ruling also said that because Mercer University police officersreceive compensation solely from a private institution, they do not constitutepublic agents.
In briefs filed in the case, Farahany argued that Mercer’s campus police officer’s exercise “delegated public powers” because the state’sCampus Policemen Act grants officers employed by schools full law enforcement authority under the Georgia Peace Officer Standards and Training Act.
Theappeals court called Farahany’s argument “compelling,” but ruled that “there isnothing in the plain and unambiguous language of the Open Records Act thatsupports such an outcome.”
“The mere fact that MUPD officers are givenauthority to perform certain functions by the Campus Policemen Act, and theGeorgia Peace Officer Standards and Training Act, does not make them officers oremployees of a public office or agency,” according to the ruling. “The statutorylanguage simply does not provide this court with the authority to find privateentities delegated certain authority by the state to be public offices oragencies.”
On Feb. 23, Farahany filed a petition requesting the GeorgiaSupreme Court to rule on the case. The court has no deadline to decide to takethe case, but Farahany predicts the court will answer “probably some time in thenext couple months.” She said the process would work much like it did in theappellate court.
“The arguments will probably be very similar from bothsides, although there’s different things the Supreme Court can look at,”Farahany said. “The Supreme Court can change the law in a way the appellatecourt cannot. Once the briefing is done the court actually will set it for oralarguments and then we will be waiting for the court’s decision.”
If theGeorgia Supreme Court does decide to hear the case, a ruling would come within ayear of the docket date, Farahany said.
To prepare, Farahany said she wouldconduct “significant review and also research to see if there’s been any new lawor any other things that might affect [the case].”
Mercer Universityofficials did not return calls seeking comment.
In a similar case againstHarvard University, student reporters at the Harvard Crimson studentnewspaper sued for access to 10 campus police files. A Massachusetts trial courtdismissed the case in March 2004, and the Crimson appealed. A hearingbefore the Massachusetts Supreme District Court, the state’s highest, isscheduled for the fall.