NORTH CAROLINA — The North Carolina Supreme Court considered Wednesday whether private school police records are public under the state’s open records law.
The court agreed to hear a former Elon University student journalist’s case last August after the state’s appellate court unanimously ruled that the police departments of all private schools in the state are not subject to the open records law.
Nick Ochsner, a former reporter for the campus TV production at Elon, had requested the complete incident report of a student’s March 2010 arrest and received minimal details — no narrative of the arrest. The police department claimed the incident report was not a public record, a decision Ochsner has been fighting.
“Our main issue is the court of appeals is in error,” said Ann Ochsner, Nick Ochsner’s mother and an attorney who is representing him. “It concludes that the Elon campus police is not subject to [public records law] because it’s not a public law enforcement agency.”
Ochsner gave the main presentation Wednesday on behalf of her son during the first round of oral arguments. She was joined by Amanda Martin, a media law attorney who represents many news organizations in the state.
“The principle at play is much larger than any single university,” Martin said. “The state has ceded certain police powers to these campus police departments, so the idea that the private university police department would have that authority without the transparency that should come with it … is insensitive to the idea of an open government and public safety.”
Ochsner has argued that the law defines “public law enforcement agencies” as all those commissioned by the state Attorney General. The initial lawsuit named both Elon University and State Attorney General Roy Cooper as defendants.
At the oral arguments Wednesday, Christopher Jones represented Elon University and David Elliott represented the Attorney General’s office. Neither Jones nor Elliott could be reached for comment.
Ann Ochsner said the university’s argument was chiefly that Nick Ochsner should be at the statehouse advocating for a change or clarification in the law rather than claiming the school failed to follow the rules. Ann Ochsner said that at one point during the hearing, Supreme Court Justice Paul Newby asked her if she was trying to “expand the definition” of public law enforcement agencies.
“I said, ‘No, Justice Newby, we’re not expanding it, because the language in the legislation was written expansive,’” she said, citing the state’s “catch-all” designation of a public agency. “‘Any state or local agency, force, department or unit responsible for investigating or solving violations of the law.’ How broad is that?”
Ochsner said a state power of arrest — “state with a capital S” — must also be under the same state laws of transparency. Had this arrest had involved the county sheriff’s office, she argued, there would be no question that the records were public.
“My hope is, campus police units in this state and other states will be subject to the same transparency and disclosure requirements as any other law enforcement agency,” she said.
Nine media groups, including the Student Press Law Center, have signed briefs in support of Nick Ochsner’s efforts to open private schools’ police records. Ann Ochsner said she felt optimistic after Wednesday’s hearing.
“We all felt pretty good when we left there,” she said.
State supreme court rulings typically are not released until several months following the arguments, so there is no firm timetable for a decision.
By Daniel Moore, SPLC staff writer. Contact Moore by email or at (703) 807-1904 ext. 127.