The state Supreme Judicial Court ruled Jan. 13 thatHarvard University’s campus police incident records are not subject to the stateopen records law.
The Harvard Crimson, Harvard’s student newspaper,filed an appeal, which was heard by the state’s highest court in November, in anattempt to gain greater access to the private university’s police departmentrecords.
Both the newspaper and open records advocates, including theStudent Press Law Center, which joined in a friend-of-the-court brief in supportof the student newspaper, claimed that because the university police force hadbeen given official law enforcement authority by the state, it should be subjectto the state’s open records law.
The court rejected those arguments.Instead, it simply found that because Harvard University is a private entity,the open records law does not apply to it, even if the campus police departmenthas employees performing state police functions.
“The public recordslaw, and its implementing regulations, are applicable to documents held bypublic entities, not private ones. Simply put, Harvard University is a privateinstitution,” the court wrote. “The fact that some individual HUPD officers havebeen appointed deputy sheriffs, or special State police officers, does nottransform the HUPD, itself, into an agency of the Commonwealth such that itbecomes subject to the mandates of the public records law.”
SPLCView: This outcome is a big disappointment, though not wholly unexpectedfollowing a lower court’s ruling in the case, which also narrowly interpretedMassachusetts’s open records law. We had hoped the case would be an importantfirst step in persuading private school police forces around the country that ifthey take on official, law enforcement responsibilities — such as theauthority to carry firearms and make arrests — they should expect to beheld publicly accountable in the same way that all law enforcement agencies are.(Of course, because the court was only interpreting Massachusetts law, it has nolegal impact on similar situations in other states.)
There may besilver lining to the ruling, however — at least for Massachusetts’students. The ruling leaves no doubt that if public oversight of private campuspolice is important, it must be accomplished through new legislation. The rulinggives renewed urgency to those now working to persuade state legislators toadopt legislation making reports created by special state police officersemployed by colleges and universities public record.
Daniel Carter,senior vice president of Security on Campus, a non-profit organizationadvocating increased transparency in campus crime records, said he hopes thefull senate in Massachusetts will vote to make special state police officersemployed by colleges and universities subject to open records laws sometime inthe next month.
“Legislators that we have met with have been veryreceptive to it,” he said.
Case: Harvard Crimson, Inc. v. President& Fellows of Harvard College, et al., 445 Mass. 745, 2006 WL 60261 (Mass.Jan. 13, 2006).