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Judge orders private university to release police records


For more information, contact SPJ's Freedom of Information Committee Co-chairs:
Charles Davis: 573/882-5736
Joel Campbell: 801/422-2125
Carolyn Carlson, vice chair of the SPJ subcommittee on campus crime, 404/502-1638

MACON, GA. – When a private university employs sworn police officers who have the power to arrest and press charges against suspects, then the school is serving a public function and must make its police records public, a Georgia judge ruled Monday.

“We hope this ground-breaking decision sets a precedent that will open the records of private university police forces across the nation,” said Society of Professional Journalists President Gordon “Mac” McKerral.

“The work of police in any setting has and always should be recognized as work that comes with a high level of public interest and that deserves a high level of public scrutiny. It makes no difference where that work occurs -- at a public institution of higher education or a private one. I think this ruling clearly recognizes that principle."

Judge L.A. McConnell Jr. ordered Mercer University to comply with Georgia’s Open Records Act, saying Mercer met the law’s definition of a public agency even though it is a private entity because its police force is fulfilling a state function to enforce the law.

The ruling came in a lawsuit filed by an Atlanta law firm, Barrett & Farahany, who had earlier sued Mercer on behalf of a former student who had been raped on campus. In the process of investigating that case, attorney Amanda A. Farahany came to realize that Mercer does not employ security guards but officers sworn under Georgia law with all the duties and authority of police officers employed by local governments.

But Mercer refused her requests for incident reports relating to sexual assaults on campus, saying it was not subject to the Open Records law as a private university.

At least three other private universities across the country are currently involved in disputes over public access to records kept by their police departments.

The student newspaper at Harvard, the Crimson, has a hearing Feb. 23 in its fight to obtain police records there. A commercial newspaper, The Ithaca Journal, is trying to get police records out of Cornell University, and a former student is trying to get police records at Taylor University in Indiana. The schools all argue they are not subject to state open records laws because they are private institutions.

“These campus police have the authority to carry guns, arrest and detain people and charge them with crimes but there’s no public oversight whatsoever,” said Charles N. Davis, co-chair of the Society of Professional Journalists’ Freedom of Information Committee and chair of its Subcommittee on Campus Crime, which helps coordinate efforts against this sort of secrecy.

“If they’re cops, then their records should be open insofar as any other cop’s records are open. Otherwise, they should be security guards and call in the real cops when something serious goes down, in which case the records would still be publicly available,” he said.

“When states delegate a government function to a privately owned body, they cannot remove the obligation for public oversight,” said Carolyn S. Carlson, vice-chair of the Subcommittee on Campus Crime and a former SPJ national president. “When campus police act as public agencies, they must follow sunshine laws, even though their actual employers are private institutions.”

Farahany, in her brief requesting a restraining order, said, “The public has a fundamental right of access to the police reports and investigations to ascertain whether the public’s business is being conducted in accordance with state and federal law. In addition, the public has a right to know of the occurrences of crime so that they can make informed decisions about their safety.

“Although there is no specific constitutional right to police protection, a state may not discriminate in providing such protection. It is unconstitutional under the equal protection guarantee of the Fifth Amendment due process clause and under the First Amendment. By denying one segment of the population access to crime reports, it is denying a segment of the population equal police protection. Moreover, arbitrary interference with access to important information is an abridgement of the freedom of speech (and of the press) as protected by the First Amendment.”

She noted that private universities are obligated under the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, more commonly known as the Clery Act, to maintain a public police log. But she said that Mercer had failed to comply with that law until she filed her lawsuit in November.

“Each day that Mercer continues to be allowed the same authority as every other police force, allowed the opportunity to take away a person’s liberty and freedom and the public has no right to oversight of their operations, the public is irreparably harmed,” Farahany argued. “Mercer’s policy of secrecy about past crimes occurring on its campus must cease.”

SPJ FOI Alert Vol. 9; No. 6

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