CONTACT:
Irwin Gratz, SPJ President, (207) 874-6570 at work or igratz@spj.org

ATLANTA – The Georgia Supreme Court has refused to hear an appeal in the lawsuit against Mercer University seeking to open the private school’s police records under the state Open Records Act, effectively ending the litigation with a loss.

The denial of cert by the Supreme Court means that the Georgia Court of Appeals ruling from February 2005 will stand. The Court of Appeals ruled that the state law was not written so that it could be applied to records developed and maintained by a private school’s police department, even though the department’s officers were state certified.

The Society of Professional Journalists’ Legal Defense Fund had awarded the plaintiffs in the case a $2,000 grant to cover expenses. SPJ also filed an amicus curiae or friend of the court brief on behalf of the plaintiff in the appeal to the Georgia Court of Appeals.

“We are sorely disappointed that the Georgia Supreme Court failed to see the merits in the appeal,” said Charles Davis, co-chair of the SPJ Freedom of Information Committee and its Campus Crime Subcommittee. “We thought the Court would want to ensure that all police forces in Georgia, including those on private college campuses, operated in the sunshine.”

Supporters of the litigation now turn their efforts to gaining passage of a bill currently pending before the Georgia Legislature expanding the Georgia Open Records Act to cover private college police records.

The litigation had stemmed from a suit in which a former student of the Macon, Ga., school claimed the school was responsible for her being sexually assaulted on campus by another student. Lawyers for the plaintiff learned that Mercer officials would not release police records on sexual assaults because, they claimed, they were not public records.

The law firm, Atlanta’s Barrett & Farahany, filed a separate suit asking a judge to declare whether the Georgia Open Records Act applied to police forces of private universities. Senior Judge Levis A. McConnell Jr. ruled for the plaintiffs, saying the records should be covered because the Mercer University Police Department performs public law enforcement duties and the officers are certified by the state.

In the appeals court ruling, a three-judge panel rejected McConnell’s reasoning and Barrett & Farahany’s “compelling” argument in support.

“The statutory language simply does not provide this Court with the authority to compel entities that are private, but are granted the authority to perform public functions, to disclose their records,” Presiding Judge Edward H. Johnson wrote for the panel.

The judges acknowledged “the public benefit of requiring disclosure in a case such as this” and noted that the General Assembly required similar records to be disclosed by public police agencies. But extending coverage of the law to private police forces such as Mercers was “a matter best left for the Legislature to consider,” Johnson concluded.

Sen. David Adelman, D-Atlanta, introduced such legislation in the 2005 session of the Georgia Legislature and guided it through the Georgia Senate. The bill stalled just short of passage in the Georgia House of Representatives in the waning hours of the state’s 40-day annual session. It remains alive for consideration in the 2006 session beginning in January.

Similar legislation also is pending in the Massachusetts legislature, where litigation between Harvard University and its student newspaper, The Crimson, is pending before that state’s Supreme Court. The high court is expected to hear the case next fall.

The Society of Professional Journalists works to improve and protect journalism. SPJ is dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, and based in Indianapolis, SPJ promotes the free flow of information vital to a well-informed public, works to inspire and educate the next generation of journalists, and protects First Amendment guarantees of freedom of speech and press.

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