Court hears oral arguments in Harvard open records case

MASSACHUSETTS — The question of whether private universities can keep campus police incident records private is now in the hands of the state Supreme Judicial Court.

Justices heard an appeal yesterday from The Harvard Crimson, the student newspaper at Harvard University, in its fight to gain greater access to university police department records.

The paper claims that because the university police force has been given official law enforcement authority by the state, it should be subject to the state open records law.

“The Crimson has never claimed that they want every piece of information,” said Crimson lawyer Frances S. Cohen to the court, according to an article in the Crimson. The student newspaper wants materials “necessary and appropriately incidental to the power to make an arrest.”

Harvard lawyer Jeffrey Swope told the court Harvard police officers are “very different” than other officers with similar powers such as special state police officers and deputy sheriffs, according to The Associated Press.

“A public record is only a public record if it is in the hands of a public entity,” said Swope to Justice Robert J. Cordy, according to the Crimson article.

The justices “aggressively questioned” the Crimson‘s case, said James Herms, a partner at the Student-Alumni Committee on Institutional Policy, a Cambridge, Mass. based non-profit firm that consults schools on security policy.

Justices were more receptive to Harvard’s case and sat back and let Harvard lawyers explain the school’s side, Herms said.

Another campus safety expert who was in the courtroom suggested the court was leaning in favor of the university.

“My impression is that they are leaning towards a narrow application of the law,” said Daniel Carter, senior vice president of Security on Campus, a non-profit organization advocating increased transparency in campus crime records.

Herms warned that a dismissal of the appeal, for which his organization filed a friend-of-the-court brief, could impact the legal system in the state.

The court would be practicing “judicial activism” if it allows Harvard police officers, also registered as deputy sheriffs in two counties, to maintain private police files, Herms said.

The Student Press Law Center also joined in a brief before the court.

Even if the court rules in favor of the university, Carter said, efforts are underway in the state legislature to pass a bill forcing campus police to release all records under public records law.

A decision is expected before April, according to the Crimson article.

by Kyle McCarthy, SPLC staff writer