Former Elon student asks N.C. Supreme Court to open police records at private colleges

Nick Ochsner, the former Elon University student journalist who was denied access to records held by the private school’s police department, is taking his case to the state Supreme Court.

Ochsner filed a petition Tuesday to have his case against the university and the state attorney general’s office heard by the North Carolina Supreme Court. In doing so, he hopes to reverse a June appellate court ruling in which held that private university police departments in North Carolina are not subject to the state’s open records law.

In 2010, Ochsner, now a television reporter for KAMC in Lubbock, Texas, worked for the Elon campus TV production Phoenix14News. Following a fellow student’s arrest, he sought a complete police incident report. The initial records Ochsner received from the campus police department, however, contained only “skeletal information,” according to the petition filed Tuesday.

Ochsner was given access to only the suspect’s name, date and location of arrest, charges and bond amount. He then asked the attorney general’s office for a copy of the narrative portion of the incident report. Despite a state statute that names the attorney general the “legal custodian” of campus police program records, the office responded that it did not have the records in question.

Last month’s ruling both affirmed and amplified a lower court opinion issued in July 2011. The North Carolina Court of Appeals held that “the Campus Police Department at Elon University, which is a private university, is not subject to the North Caroline Public Records Act, and the dismissal of [Ochsner’s] complaint … was proper.”

North Carolina defines a public law enforcement agency as “a municipal police department, a county police department, a sheriff’s department, a company police agency commissioned by the attorney general … and any state or local agency, force, department or unit responsible for investigating, preventing or solving violations of the law.”

Tuesday’s petition argues that the appellate court’s decision is a misreading of the North Carolina Public Records Act, and that failing to reverse the ruling could have a chilling effect on the public’s right to be informed about local crime.

“Access to descriptive information from police reports is the backbone of effective journalistic reporting on crime,” the petition reads. “Without such descriptive information, it is impossible for a journalist to keep the public fully informed about the nature of criminal activity in the local area and about the effectiveness of the police response.”

Ochsner’s mother, Ann, a North Carolina attorney, filed the petition with assistance from the Student Press Law Center.

The request for review goes on to argue that the court’s decision was not consistent with previous rulings. It cites State v. Yencer, which held that the state, and not the school, retained ultimate control of the police power at Davidson College, a private institution.

“If a state agency can sidestep the Public Records Act by deputizing private parties to perform core governmental functions, it requires no imagination to foresee the evasion tactics that inevitably will follow,” the petition reads.

Ochsner said that last month’s ruling was “not something I could let stand.”

Though he acknowledged that the state supreme court takes a limited number of cases every year for review, he is hopeful that the issue of open records will be compelling enough to be heard in front of the high court.

“Do I think it’s a slam dunk that they’ll take it? No,” he said. “Do I think it’s one of the few cases that they’d take on discretionary review? Absolutely.”