School says police report about pellet gun shooting is protected by FERPA
After learning of a fight at an apartment complex involving a pellet gun, The Butler Collegian asked the Butler University Police Department for a copy of the incident report. The police department declined to turn over the police report, citing FERPA. When questioned further, the police department said the incident report was not a law enforcement record because the case had been referred to Butler’s student affairs department.
Source: The Butler Collegian, Suspect name not released in incident (Sept. 19, 2012).
Former SPLC Executive Director Frank LoMonte: This one’s not even close.
When the police respond to the scene of a reported crime (in this case, an assault) and create a writeup, that’s a law enforcement record, not an “education record.”
Congress specifically amended FERPA in 1992 to exclude “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement” from the definition of confidential FERPA records. See 20 U.S.C. Sec. 1232g(a)(4)(B).
We constantly hear the excuse that, even if police initially created the record for law enforcement purposes, it magically transforms into an education record if the decision is made to handle the crime as a disciplinary case and not a criminal case. Follow that logic, if you can.
What happens if the student who got shot by the pellet gun changes his mind and decides, two weeks later, that he wants to press criminal charges after all? Does the report then magically revert back to being a law enforcement record? Or what if the district attorney learns of the crime and decides campus discipline isn’t enough punishment and opens a criminal investigation – does the report then magically transform into a law enforcement record? You see how silly this could get.
What matters under FERPA is the purpose for which the record was created, not the manner in which it is later used. In this case, police with full state-delegated arrest authority responded to investigate a report of a violent crime. That’s a law enforcement activity, period.
The purpose of exempting law enforcement records from FERPA is to allow students to take precautions against crime to keep themselves safe. So it makes no sense to treat a burglary differently just because it is punished with a suspension rather than jail time. (“Oh, I heard a car got broken into last week, but that was just a disciplinary burglary, so I guess I’ll leave my MacBook right here on the passenger seat.”)
Police reports are never FERPA records, period.
(As a bonus, Butler police also claimed they’re exempt from the Indiana Access to Public Records Act because the university, being private, isn’t a state agency. But the Butler University Police Department is different. Its website boasts that Butler police officers “are appointed under the statutes of the State of Indiana with full police power and are available 24 hours a day throughout the year." Those Indiana statutes give police officers at private colleges “[g]eneral police powers, including the power to arrest” and “[t]he same common law and statutory powers, privileges and immunities as sheriffs and constables.” When you ask for state authority to carry out a state function, you’d best be prepared to accept the disclosure responsibilities that go along with it.)
We rate this: not protected by FERPA at all