Appeals court: Private college police not covered by N.C. open records law

NORTH CAROLINA — Privateuniversity police departments in North Carolina are not subject to the state’sopen records law, the North Carolina Court of Appeals ruled Tuesday.

The court’s holding both affirms and expands a lower courtruling issued in July 2011. At that time, Durham County Superior Court JudgeMike O’Foghludha held that Elon University and the state attorney general’soffice had provided adequate information to a former student when he requestedpolice records from Elon’s Campus Safety and Police Department.

Nick Ochsner — a former student who reported for the campusTV production Phoenix14News — sought a complete incident report from policefollowing a fellow student’s arrest in March 2010.

After several requests, campus police released part of theincident report that included the suspect’s name, date and location of arrest,charges and bond amount, but the report contained only “skeletal information,”Ashley Perkinson, Ochsner’s attorney, told the Student Press Law Center lastyear.

Ochsner then filed a request for the narrative portion ofthe police report with the attorney general’s office, citing a North Carolinastatute that names the attorney general the “legal custodian” of campus policerecords.

The office denied that request, saying that it did not havethe records in question.

Though O’Foghludha’s ruling last year held that Elon hadprovided adequate information to Ochsner, a three-judge panel of the Court ofAppeals took that decision one step further Tuesday. Writing for the unanimouspanel, Judge Cressie Thigpen directly addressed the issue of whether state openrecords law applies to campus police at private universities.

“We conclude the Campus Police Department at ElonUniversity, which is a private university, is not subject to the North CarolinePublic Records Act, and the dismissal of [Ochsner’s] complaint … was proper,”Thigpen wrote.

The court also held that, contrary to Ochsner’s claims, theattorney general’s office is not required by law to maintain all records ofcampus police departments.

Ochsner said he is “very disappointed in the Court ofAppeals for a ruling that is a major step backward for the state of openrecords in North Carolina.”

“We filed this to set a precedent in North Carolina hopingit’d benefit student journalists, and so far it has not,” he said.

While Ochsner is still weighing the option of whether toappeal the case to the state supreme court, he said he is also consideringbringing his battle to North Carolina’s legislature.

Perkinson was not available for comment before press time.

Elon applauded Tuesday’s ruling as an affirmation of theargument its lawyers made in front of the lower court.

“Elon University is pleased that the North Carolina Court ofAppeals has upheld the decision of the trial court, and affirmed that theuniversity followed the law in release of campus police investigationinformation,” Elon spokesman Dan Anderson said in a statement on behalf of theuniversity. “Elon’s campus police office has consistently shared more recordsthan are required and did so in this case as well.”

He declined to comment further.

Under state statute in North Carolina, a public lawenforcement agency is defined as “a municipal police department, a countypolice department, a sheriff’s department, a company police agency commissionedby the attorney general … and any state or local agency, force, department orunit responsible for investigating, preventing or solving violations of thelaw.”

Ochsner pointed to the latter portion of this definition as“clear evidence” that the legislature considers police departments at privatecolleges to be public law enforcement agencies, and thus subject to state openrecords law. He called the court’s disagreement with this claim “baffling.”

Although Ochsner initially filed suit to set a precedent onwhether student journalists could gain access to the narrative portion ofpolice reports at private colleges, he acknowledged that Tuesday’s rulingcreated an entirely new set of issues that he had not considered relevant tothe case.

He added that the presence of multiple high-profile statelaw enforcement groups on an amicus brief in the case reaffirms his belief that“there are some police departments in the state that will do everything theycan to give you as little information as possible.”

Student Press Law Center Executive Director Frank LoMonteagreed with Ochsner’s take on Tuesday’s decision.

“It’s disappointing that the court overreacted to decide onan issue that they necessarily didn’t have to decide on,” he said.

While LoMonte is confident that the scope of the ruling islimited to private universities, he is hopeful that the state supreme courtwill take up the case in order to clarify part of the appeals court’s holding.

The court wrote that “we believe if the legislature hadintended for campus police departments to be subject to the Public Records Act,it could have listed campus police departments as public law enforcementagencies.”

LoMonte said this was not “optimal wording,” as it couldsend the ambiguous message that public college police departments are alsoexempt from the state’s open records law.

“Getting more information about crime into the public’shands does nothing but good,” LoMonte added. “There’s no good argument why acrime that takes place in the quad of a private college should be kept secret,while the same crime would be public if it took place in the middle of a PizzaHut.”

Ochsner, now a television reporter for KAMC in Lubbock,Texas, agreed.

“The court has effectively created a scenario by whichthey’re giving an agency arrest power and telling them that they can do it insecret. That’s just wrong,” he said. “I’m frightened by this, and anybody whovalues access to government records should be frightened.”

By Seth Zweifler, SPLC staff writer