By Madeline Will, SPLC staff writer. Records originally requested by Mark Keierleber. First published on www.splc.org.
In August, Northeastern University’s chief of police came across a public records request from the Student Press Law Center for the records of 12 motor vehicle theft incidents in 2013. He meant to fire off a quick note to a colleague, but instead, he accidentally emailed the SPLC.
“Lisa, another public records request,” Michael Davis wrote. “I assume that per mass law we are not required to respond. Am I correct?”
Davis is correct — though open government advocates across the country are seeking to change that rule. In all but a handful states (Connecticut, Georgia, North Carolina, Ohio, Texas and Virginia), private campus police departments are largely exempt from public records requests — despite the fact that their officers have the power to make arrests and, if needed, use force.
“There’s very little that’s more important in society than the safety and welfare of our citizens — those that enforce the law are generally armed and they can deprive you of your liberty. That’s not inconsequential in any way,” said Ken Paulson, president of the Newseum Institute’s First Amendment Center. “It is surprising that in some states, there is no right to inspect records that would be clearly public in the hands of municipal police. That’s a disturbing gap. The responsibilities are not much different and the stakes are not higher — especially in the matter of life and death.”
Just this week, Indiana’s Court of Appeals handed down an opinion that said the University of Notre Dame’s police department qualifies as a public agency subject to the state public records law — but a bill is headed to the governor’s desk that would supersede the ruling and allow private universities to keep most police records private. There have been a couple of legislative attempts in Illinois and Massachusetts to open private university records, but the bills have stalled in committees.
In the meantime, private universities’ police chiefs remain close-fisted with their records. The Student Press Law Center submitted public records requests to 30 private colleges and universities across the country. Three released the records. Seventeen rejected the request. Ten did not respond to multiple requests and reminders.
A sliver of sunlight
For each of the schools, the SPLC had requested records from crimes laid out in their 2013 Clery Act report. The Clery report cracks a sliver of sunlight into private universities’ police forces, as all universities that receive federal funding, which includes federal financial aid, must release a daily crime log and an annual campus security report.
The reports contain campus crime statistics for crimes and violations like homicide, sex offenses, robbery, aggravated assault, burglary, motor vehicle theft and arson. Schools must also report statistics on liquor and drug law violations if an arrest or disciplinary referral was made. Crimes must be broken down based on whether they occurred on campus, in a student residence hall, in a non-campus building or on public property.
Still, the federal statute does not require the release of specific information — such as the names of those involved and the factual circumstances of the crime — that would appear in an incident report at a traditional police agency.
From the 30 private colleges, the SPLC requested 2013 incident reports on motor vehicle thefts, aggravated assault or campus robbery. Yale, Duke and Emory Universities were the sole schools that released the records.
Emory, in Georgia, released five incident reports of motor vehicle thefts. Georgia’s Open Records Act states that “the fact that campus police are employed by a private educational institution does not alter their obligation to produce investigative records where required.” Initial incident reports and initial police arrest reports are subject to disclosure, along with any supplemental or narrative report.
The crime reports provided by Emory to the Student Press Law Center included the date, time and location of the theft, the name, race, sex and age of the victim, and a several-paragraphs-long description of the theft.
Yale, in Connecticut, provided 14 incidents of motor vehicle thefts. In 2008, the state Freedom of Information Commission ruled that Yale police records should be open to the public, and the university decided not to appeal the decision.
“We are doing so because Yale recognizes the unique and public law enforcement role that its officers play in the city of New Haven,” a statement released by Yale at the time read. “Yale takes extremely seriously its relationship to the public in performing its police work in the city.”
The police reports released to the Student Press Law Center included details like the time, date and location of the motor vehicle theft, the name and contact information of the victim and the car’s registered owner and a brief description of the theft. (For example, “Vehicle was parked and owner left keys in the back door. No witnesses. Report by phone.”)
Duke, in North Carolina, provided nine incident reports of robberies. In 2013, North Carolina’s legislature amended the Campus Police Act to say that private universities’ police forces must disclose incident reports. Salary information, emails and internal memos, which would be accessible as public records from state or local police, still may be kept private.
The bill was non-controversial within the state General Assembly, said Jonathan Jones, director of the North Carolina Open Government Coalition, and private universities didn’t publicly oppose the bill — rather, they helped draft the legislation.
Legislators introduced the bill around the same time as a related court case went before the North Carolina Supreme Court. In 2011, Nick Ochsner, a student journalist from Elon University, had sued the private college over access to an incident report detailing a fellow student’s arrest in 2010. In his suit, he claimed that the department was a public agency with a state power to arrest and cited a law that names the state’s attorney general as the custodian of all campus police records.
The North Carolina Court of Appeals ruled that private university police departments are not subject to the state’s open records law. Ochsner appealed to the state Supreme Court, which ultimately issued a divided opinion that left the issue unresolved. One of the justices had recused herself from the case, so the court was split 3-3 and the appellate court’s decision stood for Ochsner’s case — but will not be a precedent.
Meanwhile, legislators had passed a bill drafted by a coalition of private universities in the state to amend the Campus Police Act to mirror the language of the state’s open records law for all universities so that any person can obtain a narrative of the arrest beyond the basic date, time and location of the incident.
“It’s taking some time for private universities to fully understand what the new Campus Police Act requires,” Jones said. “There were a couple of incidences here at Elon where the campus police department didn’t release everything they were required to.”
For example, he said, last academic year there was a hazing incident at Elon. Reporters from the student newspaper, the Pendulum, had some difficulty getting the victims’ names from the campus police department, which are required to be released under the Campus Police Act.
The police department had cited a piece of the law that allows for temporary withholding of identifying information for the personal safety of the victims. Jones said to his knowledge, the student reporter never got the information — and the reporter has since graduated.
More recently, Duke Chief of Police John Dailey was quoted by the student newspaper, the Duke Chronicle, as saying that he did not have to provide a complete police report to the Chronicle because “it is not a public record by state code and DUPD is a private agency.”
The Chronicle had obtained the front page of the report in question, which was particularly sensitive as it involved an incident where a senior Duke administrator, Tallman Trask, hit a parking attendant with his car. The attendant has alleged that Trask used a racial slur immediately afterwards, which Trask has denied.
While the state public records law was not amended to apply to private universities’ police forces, the state Campus Police Act does apply — prompting questions about Duke’s understanding and compliance with the law, Jones said.
But in an interview with the SPLC, Dailey denied that he meant the campus police force did not have to provide records at all.
“We can’t always believe what’s in a student newspaper,” he said, adding that the Chronicle already had the information required to be disclosed under state law. “Nobody releases the full report.”
The front page of the report, which the Chronicle has included in its article, lists the victim’s name, the time, date and location of the incident, and the nature of the violation (“concerned behavior”).
“We want to try to provide the information that we can,” Dailey said. “[Complying with the amended Campus Police Act] hasn’t been a burden at all.”
Amrith Ramkumar, the Chronicle’s editor-in-chief, declined to comment for this story, given the complexity of the original story and the follow-ups reporters are currently pursuing.
The robbery incident reports Duke released to the Student Press Law Center were sparse on details — the time, date and location of the incident were included, but in some of the reports, the victim’s name was redacted and the information was boiled down to basic details (like race, age and gender). The arrest reports provided had more details — the name, address and identifying features of the person arrested (including their social security number), along with the place of arrest and the charges.
For the most part, Jones said, “police departments are getting used to [the change in the law] and doing a good job. … In the day to day, at least here in Elon, there’s been a general improvement in how much information has been coming out of the police department.”
Still, he said, “there’s a huge amount of information [police forces in general] are allowed to withhold, and I think that’s a major problem in our state.”
Getting the information another way
The National Association of Independent Colleges and Universities has not taken a formal position on the issue of private campus police forces and public records laws, spokesman Paul Hassen said. The association generally focuses on federal issues, and this question will be decided state-by-state.
The answer is often determined by whether the campus police department is recognized by a state or local police agency and has arrest powers or if it is more like a private security force, he said.
Bill Taylor, president of the International Association of Campus Law Enforcement Administrators, said his association also has not taken a stance on the issue.
Taylor, now the chief of police at Collin College in Texas, a public institution, said he’s worked at private institutions in the past, and he would have liked to release the same amount of information as public campus police forces.
But it wasn’t up to him, or anyone at the campus police department, he said.
“It’s usually determined by the [university’s] administration,” he said. “Attorneys think they’re better off with less exposure.”
Still, he said, even at private colleges, the information is obtainable under certain circumstances — it would just require a subpoena as part of a lawsuit or criminal prosecution.
“I think the thought is, ‘oh my God, you can’t get the information!’” Taylor said. “The fact of the matter is, you can get the information. It just has to be through a legal process.”
The First Amendment Center’s Paulson said getting a subpoena is “no small matter” — it’s expensive and it would require a judge’s signature.
“The basics of law enforcement should be readily available to any citizen who walks in off the street,” he said. “We shouldn’t need a judge to intervene to make public information available.”
The 17 private colleges that refused to directly provide records to the SPLC were: the University of Pennsylvania, George Washington University, Tulane University, Vanderbilt University, Georgetown University, Boston University, the Massachusetts Institute of Technology, Cornell University, Catholic University of America, Loyola University Maryland, Tufts University, Smith College, Suffolk University, American University, Duquesne University, Loyola University Chicago and the University of Notre Dame.
Some of them — Boston University and George Washington — suggested the SPLC file a subpoena or go through a “valid legal process.” Others — like Vanderbilt and American — directed the SPLC to file a request with the metro police department.
Meanwhile, the Court of Appeals of Indiana ruled on Tuesday in ESPN v. University of Notre Dame Security Police Department that Notre Dame’s police force is a “law enforcement agency” as defined in the state’s public records law, so it qualifies as a public agency subject to the Access to Public Records Act.
The sports news network had argued that the private campus police force must disclose police reports about student athletes because it has state-delegated police authority.
A St. Joseph’s County Superior Court judge ruled against ESPN last year, saying that the police department is not a separable part of Notre Dame, which is not subject to the public records law. ESPN appealed the ruling, and the Indiana attorney general filed a brief in support of the network urging the court to make Notre Dame’s police incident reports public because campus police perform “an almost exclusively public function.” The Court of Appeals has ordered the trial court to determine which of the records that ESPN sought are public under the state’s open-records law, and the Notre Dame police department must produce only those records.
But the state legislature has pushed through a bill that would simply require private campus police forces to disclose certain records that are essentially already public via the Clery Act. Free press advocates have been outspoken against the bill, which is headed to the governor’s desk and will supersede the court’s ruling if signed into law.
“There is a danger that the public will be denied access to important public documents when a private agency is exercising a public function if we construe APRA to categorically exclude such agencies,” the Court of Appeals opinion read. “We are required to liberally construe APRA to implement the legislature’s policy behind enacting APRA, which is that the ‘public is entitled to ‘full and complete information regarding the affairs of government.’’”
A ‘turning point’
The 10 universities that didn’t respond to the SPLC’s repeated requests were: Howard University, University of Southern California, Harvard University, University of Chicago, Syracuse University, Boston College, Northeastern University, Brown University, Northwestern University and Drexel University.
In 2006, the Massachusetts Supreme Judicial Court ruled against the Harvard Crimson student newspaper and decided that the public records statute does not cover university police at private schools. Since then, state legislators have periodically introduced bills that would revise the statute to cover private campus police, but the most recent iteration died in committee last year.
A similar bill stalled in Illinois’ state Senate after passing unanimously in the state House. The bill, motivated by controversy surrounding the University of Chicago’s police force, would require private campus police departments to publicly disclose information that other law enforcement agencies in the state are required to provide.
The bill stemmed from a series of complaints regarding racial profiling by the University of Chicago’s police department. A student-led movement, Campaign for Equitable Policing, sought to open the department’s records after hearing multiple stories about harassment from campus police officers.
“Their experiences made clear that in the absence of meaningful oversight, racial profiling occurs with impunity,” a campaign statement read. “Given their full public police powers, the UCPD must adhere to city standards of accountability. Releasing records of the stops their officers commit is the first step in achieving this.”
In April, the University of Chicago announced that it would begin sharing more information with the public. Now the department puts online details about all traffic stops and field contacts performed — details like the time, date, location and reason for the traffic stop, as well as the race and gender of the person stopped and information about whether a search was conducted.
The university’s voluntary release of this information slowed the bill moving through the state legislature — proponents thought the University of Chicago was making progress, and other private universities had voiced concerns about “opening this door as it relates to freedom of information,” a legislative spokesman told the SPLC last year.
The bill’s sponsor, Rep. Barbara Flynn Currie, said the legislation is still alive and she hopes to see more action this spring. In October, the bill was referred to the Senate Assignments Committee.
There had been a proposed amendment to the legislation that said any person denied access to a record required to be publicly available could file a request for review with the Public Access Counselor in the Office of the Attorney General. The Public Access Counselor would then determine whether further action is warranted.
Currie called the provision a “further safety valve,” but private universities were reluctant to see that amendment take effect, she said, which led to a delay on the bill.
“We have our work cut out for us,” she said.
Across the country, Paulson said, there have been a number of high-profile incidents in which campus police have been questioned regarding their treatment (and choice) of suspects. That has fed the public’s demand for more transparency, he said.
Private college administrators and state legislators should work to meet that demand, he said, adding that he didn’t understand the hesitancy. “Unless their only goal is to cosmeticize crime and violence on their campuses — that’s the only motive I can think of,” he said.
Taylor said he thinks campus law enforcement is at a “turning point” with this issue, and increased transparency will ultimately win out.
“It’s a trend now passing through our profession, and I suspect over time,” private campus police forces will have to release the same records as public campus police forces, he said.