School says incident report detailing sexual assault is protected by FERPA
The College of Charleston has denied requests for police incident reports related to allegations of sexual assault involving a female varsity softball player. The victim has accused the school of hiding the assault because the four suspects involved are baseball players for the school. Attorneys for the school have said that releasing the incident report and other records related to any internal discipline of the suspects would violate FERPA.
In addition, one attorney for the school said that releasing the records or even confirming whether the suspects are varsity athletes could prompt a school shooting. “There are also safety concerns,” school attorney Thomas Trimboli told The Post and Courier. “You’ve seen stories about the shootings. Do you want to take that chance?”
Source: The Post and Courier, College cites privacy, fear of violence in withholding information (Nov. 18, 2012).
SPLC Executive Director Frank LoMonte: Wow, they totally went there. Write about our athletes being accused of rape, you snoopy journalists, and it’ll be all your fault when they go ballistic.
This is, in its own incredibly stupid and offensive way, a really ingenious response to requests for public records, since it can work in really just about any situation: “You want to see what Vice President Smithers has been charging on his university credit card? Good Lord, man, do you realize how tightly wound Smithers is? The man’s a smoldering volcano of violence – if his wife found out he paid $9.95 to watch ‘Jack and Jill’ on pay-per-view, he might blow us all to kingdom come!”
(Having admitted that they’ve allowed three men whom they suspect of harboring murderous tendencies to continue attending the school, it will be entertaining to see how the College of Charleston’s legal geniuses backpedal if one of the men – perhaps after a particularly frustrating 0-for-5 day at the plate – actually does go off and hurt someone.)
So, leaving aside the facts that (1) there is no “homicidal maniac” exemption in the South Carolina Freedom of Information Act and (2) there is no recorded history of anyone ever machine-gunning a campus in response to an embarrassing newspaper story, is this a valid use of the federal FERPA privacy law?
Not even close.
As we’ve (sigh) said before and (sigh) apparently need to say again, Congress amended FERPA in 1992 to make it unmistakably clear that records created for law enforcement purposes cannot be withheld on the grounds of “student privacy.” A campus police writeup of a student’s rape complaint assuredly falls within this category.
Police incident reports are textbook public records. The College of Charleston’s refusal to honor a request for those records – especially after, as The Post and Courier reports, the criminal investigation is over – smacks of bad faith.
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