Student journalists struggling for access to private school police records

The staff of The Tan & Cardinal used to have no problems getting information about crimes on its Ohio campus. 

The Otterbein University student newspaper had a working relationship with Westerville city police, who patrolled alongside campus security officers. Getting information was as easy as asking for the incident reports.

Then, in 2011, the security team at Otterbein, a private university, was converted into a commissioned police force. The force now handles incidents on campus that the city police once did, but their relationship with the student newspaper is completely different.

Initially, campus police would not release any information, not even the reports required under the Jeanne Clery Act, said Tan & Cardinal co-adviser Hillary Warren. The Clery Act requires any college or university that receives federal funding to maintain a daily police log, release timely reports and produce an annual report on campus safety.

For awhile, campus police consented to release “really short, abbreviated reports,” Warren said, along with what the Clery Act required. Then the situation got worse in fall 2012.

“When the student came back this year, the police notified them that there would be no reports period,” she said.

Warren and the paper’s staff met with the police, but were told that as a private institution they did not have to release anything besides what the Clery Act requires. Now, information has trickled down to brief descriptions, like “stolen bag of pretzels” or “sexual assault.”

As colleges public and private have assumed greater control for policing on campus, situations like the one facing The Tan & Cardinal are becoming more common. Numerous private universities have declared their police forces to be private entities as well, even when they have the same powers of arrest as local police.

And among both private and public colleges, many incorrectly fall back on the Family Educational Rights and Privacy Act to restrict access to police records, even though Congress amended the privacy law in 1992 to specifically exempt law enforcement records from the act.

Society of Professional Journalists President Sonny Albarado said from what he’s seen, private police forces have a case of mistaken identity.

“The overall situation today is that campus police forces still think of themselves as private security forces,” Albarado said. “Their loyalties lie with the administration and the universities, and their general view is that public relations is more important than informing the public.”

A case waiting on appeal in North Carolina could set a precedent for what records private school police must disclose.

In 2010, Nick Ochsner, then a student reporter for the campus TV station, filed a lawsuit against Elon University after campus police would not release information about an arrest.

“I knew there had been a chase, the student had tried to run — the town police officers had told me that,” Ochsner said. “That was nowhere on the forms they gave me, and I went back and forth with the police chief, but he said they gave me all the law required them to give me. I said ‘no, you didn’t.’”

The debate in North Carolina lies in a statute that organizes police units in the state into different categories of transparency based on what power they wield. Ochsner — and the Student Press Law Center, which filed a friend-of-the-court brief in his support — contends that Elon has a full-force police department subject to the greatest transparency requirements of the law.

“It’s frightening to think of an agency out there with arrest power, and that they can be arresting people and don’t have to be telling the public about it,” said Ann Ochsner, Nick’s mother and the attorney who is representing him.

Both the district court and the North Carolina Court of Appeals ruled in Elon’s favor. Ochsner appealed the case to the state’s Supreme Court, which agreed to hear the case last fall. Oral arguments in the case are expected this spring; a decision would be binding for private college police in North Carolina but would likely influence future challenges elsewhere.

Besides asserting their status as a police force at a private college not subject to open records laws, many have turned to FERPA as a way of restricting access to records.

S. Daniel Carter, director of 32 National Campus Safety Index for the VTV Family Outreach Foundation, said that police departments have been more forthcoming with records since the 1992 amendment passed. Still, there are often problems with schools misusing the law, he said.

In September, editors at The Butler Collegian received reports that a basketball player had been released because he broke team rules, followed by rumors that he had shot a student with a pellet gun. Jill McCarter, The Collegian’s editor-in-chief, said the school’s public safety director immediately told them the report was protected by FERPA.

McCarter said the school’s chief of police blocks all of the paper’s attempts at getting police records, even those detailing reports of sexual assault.

“He literally laughed at me when I said ‘We’re not releasing the victim’s names, why won’t you guys release it?” McCarter said. “He laughed and said, ‘Because I don’t have to.’”
Student journalists at public colleges also frequently report getting the FERPA excuse when seeking police records. The University of Memphis initially withheld incident reports from an on-campus rape until it relented after pressure from The Daily Helmsman and the SPLC.

And a Hudson Valley Community College in New York, campus police refused to release information about an incident where a student pulled a knife on another student.

“No one would say anything, people were coming up with excuses like FERPA,” said Zach Hitt, The Hudsonian’s editor-in-chief. “Then we started looking into it, and we realized FERPA did not cover criminal records.”

After Hitt met with college’s vice president and presented the laws governing open records for public colleges, police relented and released the records.

Absent legal precedents, student journalists have only a few options open to them, Albarado said. One is to work towards informing police of what information they should be releasing, as the Hudsonian did.

Carter agreed with Albarado, and said that it can be done through forging a relationship with campus police.

“I realize it’s difficult for a student journalist to build a relationship with their police department, but having a contact where they can reach out to each other and having a relationship is the most important,” Carter said.

Albarado said the second option — legal action — isn’t as nice, but may be the only way some student journalists can obtain information.

“If the education doesn’t work, you just have to sue them,” Albarado said. “Suing is always a roll of the dice. You never know if you’re going to get the result of a roll you’re seeking.”

The student editors all suggest a third option: public shaming.

“You print it, you print every single time they say they’re not going to give you something,” McCarter said. “You just keep putting it in their face that they’re not doing it right.”

“We’re not going to stop asking for them, just because I was told by one person that they’re not going to tell me what happened when a kid committed sexual assault on another student. It’s not going to end there. It’s just not going to end.”

By Jordan Bradley, SPLC staff writer.