When a surveillance video of two Rice University campus police officers beating an accused bicycle thief with batons surfaced in August 2013, and a University of the Incarnate Word student was shot and killed by a campus police officer in December of the same year, questions about use of force prompted public records requests from both the media and a Texas legislator.
Both universities declined to release documents about the incidents, arguing that as private institutions, their records were exempt from public disclosure.
State Sen. John Whitmire responded with legislation.
Whitmire, a Democrat whose office had requested the documents, proposed a bill to amend the Texas Education Code to require police departments at private colleges to follow the state’s public records law, just like other law enforcement agencies across the state. In September 2015, the bill passed with little resistance and was signed into law.
But a Student Press Law Center investigation has revealed that private universities and colleges wishing to withhold public information are still doing so, exploiting a loophole in the law.
Texas public records law requires that state agencies — which now include police departments at private educational institutions — seek an opinion from the attorney general if they receive a request for public records and believe that the records are exempt from production. This process can legally push the agency’s response time back by as much as 45 days.
Kelley Shannon, the executive director of the Freedom of Information Foundation of Texas, said the requirement can delay transparency from private universities.
“There tends to be too much leaning toward secrecy at universities and university systems, especially in private school situations,” she said. “This request system is used as a way to delay information from being released.”
Although this provision in the law is meant to be used sparingly as a check, institutions have begun requesting opinions from the attorney general routinely, leaving journalists with no choice but to watch the time run out on deadline-sensitive projects.
ONE OUT OF 10
For this investigation, the SPLC requested copies of front page police reports and arrest reports for on-campus drug and alcohol violations from the 10 largest private universities and colleges in Texas between the dates of September 1, 2015 and February 1, 2016.
Only Abilene Christian provided the documents within the initial 10 days of the request without asking for an opinion from the attorney general’s office.
Rice provided one record and St. Edward’s provided 10 records, but both schools ultimately requested an opinion from the attorney general’s office regarding a portion of records that they claimed were not strictly related to law enforcement activities because they also fell under the category of university judiciary violations or Student Code of Conduct violations.
Similar claims came from the other seven universities as well, all of which argued that the requested records contained information not relating solely to law enforcement activities and were, therefore, ineligible for release under the new law. They took this position even though the Texas attorney general had already stated that a police report does not cease being a public record even if used by another office within a university.
On February 8, the day before the SPLC requested its records, Texas Attorney General Ken Paxton addressed this argument in an opinion to the Baylor University Police Department, saying that even though the offense reports are maintained in duplicate by Baylor’s Judicial Affairs Office, which handles campus discipline, the reports involve investigations of possible criminal violations.
“Therefore, we find these reports relate ‘solely to law enforcement activities’ for purposes of section 51.212(f) of the Education Code, and thus, are subject to the Act,” he wrote. “Accordingly, this information must be released, unless it falls within an exception to public disclosure under the Act.”
Section 51.212(f) of the Education Code is the result of Whitmire’s bill. It states that private campus police departments are a governmental body for the purposes of the Public Information Act with respect to information relating solely to law enforcement activities.
The universities also claimed in delaying their response to the SPLC that records could be withheld under the Family Educational Rights and Privacy Act (FERPA), a federal student privacy law that restricts the disclosure of personally identifiable information contained in “education records.”
Texas Attorney General opinions have stated that FERPA is not applicable to records created by campus police for law enforcement purposes or that are maintained by a law enforcement unit. In fact, Congress amended FERPA in 1992 specifically to provide that records created for law enforcement purposes are not confidential, even if law enforcement is not the sole purpose for which the records are used.
In his February 8 opinion letter to Baylor, Paxton rejected the university’s argument, writing that law enforcement records are maintained separately and apart from educational records.
“Further, the request for information was made to the [police] department, and the requestor seeks law enforcement records created and maintained by the department, rather than student records maintained by the [disciplinary] office,” he wrote. “Accordingly, the submitted information is not encompassed by FERPA and none of it may be withheld on that basis.”
Additionally, Paxton wrote that only information that identifies or could identify victims of sexual assault or other sex-related offenses may be withheld on the basis of common-law privacy.
Despite having just been told in February that police reports are subject to disclosure, Baylor’s police department again wrote to the attorney general on April 28, through an outside law firm, seeking a ruling that it could withhold records requested by investigative reporter Paula Lavigne of ESPN.
Lavigne’s request asked only for a blank copy of a Baylor police report form.
RESULTS AND DELAYS
The SPLC made a series of identical records requests to Texas’ 10 largest private universities on February 9. Nine of them notified the SPLC between February 9 and February 19 that they believed — despite the new Texas statute — that the records were exempt from production and that they’d be requesting an opinion from the attorney general.
On April 13, the first opinion was released — Brian Berger, assistant attorney general, responded to the University of the Incarnate Word. He ruled that the university must release the police reports, with a few exceptions.
“You assert some of the reports do not relate solely to law enforcement activities, and thus, are not subject to release under the Act,” he wrote. “Nevertheless, these reports were created by the department for the purpose of law enforcement. Therefore, we find these police reports relate solely to law enforcement activities for purposes of section 51.212(f) of the Education Code, and thus are subject to the Act. Accordingly, this information must be released.”
The attorney general’s office did approve of withholding some records under the Texas Family Code, which makes confidential certain law enforcement records of juveniles between the ages of 10 and 17.
Berger said police could lawfully withhold certain information about investigations that did not result in convictions; however, basic information about the circumstances of a crime, including the description and identity of an arrested person, is subject to disclosure.
On April 19, an opinion was released to the Texas Christian University police department — again from the same assistant attorney general, Berger.
The opinion again concluded that the university police department is a governmental body for the purposes of the Act and that records maintained by that department are subject to disclosure.
However, Berger also stated that in cases when “the department acts as the investigatory arm for the university and provides information to the Office of Campus Life — Dean’s Office . . . for use exclusively within the university disciplinary process” or when records relate only to “administrative violations of the student code of conduct…[and] no crime is being investigated,” the documents are not subject to disclosure.
Additionally, the opinion stated that the university’s claims that records were exempt from release under the Family Code were unfounded.
“We find you have failed to demonstrate any of the remaining information involves alleged juvenile delinquent conduct or conduct indicating a need for supervision,” Berger wrote.
“Thus, the remaining information is not confidential . . . and the department may not withhold it.”
The attorney general’s office also found that the release of records would violate neither FERPA nor the doctrine of common-law privacy.
Other requests to the attorney general produced similar results directing colleges to release their records:
Assistant Attorney General Cristian Rosas-Grillet told St. Marys University in an April 28 letter that it must entirely produce the requested incident reports about drug and alcohol offenses because the university had cited two contradictory exemptions, claiming both that the records involved unresolved pending cases but also that they involved cases that had ended without a conviction.
On May 2, Assistant Attorney General Rahat Huq told Southern Methodist University that police reports documenting drug and alcohol offenses are not confidential education records, and that details about the nature of crimes and arrests must be disclosed.
Rice University did not attempt to invoke FERPA, but rather, merely argued that the records were not “solely” for law enforcement purposes because a drug or alcohol case might result in disciplinary rather than criminal enforcement. Nevertheless, Assistant Attorney General Rosas-Grillet told the university in a May 2 letter that the records are public because, when a police officer interacts with a student suspect, the officer is potentially investigating a crime, even if in fact no arrest or charge results.
St. Edward’s University sought to withhold the entire narrative description of crimes, but in a May 2 letter, Assistant Attorney General Cole Hutchison told the university that the factual circumstances of a crime are covered by Texas law requiring disclosure of “a detailed description of the offense.” The university was told it could lawfully withhold only dates of birth and driver-license numbers from the police reports.
Dallas Baptist University was told in a May 4 letter from Assistant Attorney General Joseph Keeney that it could withhold one police report pertaining to an open investigation where disclosure might interfere with a pending prosecution, and remove information from driver-license or motor-vehicle records, but must otherwise produce records describing the nature of each crime.
ADDRESSING THE PROBLEM
In 2015, the SPLC documented universities’ misuse of the attorney general’s opinion mechanism as a tool of delay, even when records were known to be covered by the open records act.
It has become common practice for universities to invoke the attorney general’s office to buy time before honoring a request for records, but then to withdraw the request for a legal interpretation just before it is issued. In that way, a university can repeatedly delay producing the very same type of record, such as a police report, by avoiding receiving a ruling from the attorney general that the record is public. Texas A&M University withdraws 31 percent of all of the requests it makes for attorney general guidance, according to the SPLC’s public-records audit.
Although Texas is in the limelight because of the newly enacted statute, excessive secrecy is an issue at campus police departments nationwide.
“I think some administrators have a significant problem realizing that journalism is not public relations,” said Jane Briggs-Bunting, president of the Michigan Coalition for Open Government. “The newspaper is not a promotional body for the school. They ask for high fees and delay records because they don’t think citizens will pursue it. It’s just a way to avoid publicizing what they consider to be bad things.”
In May, a scandal over the concealment of sexual assault at Baylor resulted in the removal of president Kenneth Starr and several athletic-department officials. An independent investigation by the law firm Pepper Hamilton LLP found numerous irregularities, including a separate disciplinary process within the athletic department that resulted in athletes receiving differential treatment for criminal behavior as opposed to ordinary students.
Shannon, of the Freedom of Information Foundation of Texas, said she thinks transparency issues will alleviate as journalists and universities become more familiar with the public records law.
“My advice for now would be for students to keep in mind that large requests will cost more and the best thing to do is make requests as narrow as possible,” she said. “It’s tempting to make large requests for several years worth of information now that it is available, but those are going to be expensive and time- consuming requests. Be narrow.”
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