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Case: B&F vs. Mercer University

Georgia Judge Orders Private University to Release Police Records

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.

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, had a hearing Feb. 23, 2004 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.

“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 Society of Professional Journalists’ 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.”

Opening the books

Bill would make colleges release crime reports
Andrea Jones – Staff
Friday, March 18, 2005

A bill working its way through the Georgia Legislature could shine a brighter light on campus crime at private colleges.

Police departments run by Georgia’s private universities are the only ones in the state not required to release their incident reports to the public. Some schools are fighting to keep it that way.

The Georgia Court of Appeals ruled last month that private colleges’ police forces are exempt from the state Open Records Act. That means a student seeking a written report of a rape, assault or arrest could be denied the documents, even if they themselves are the victim. Parents looking for police records to help find out how safe their child’s campus is could also be turned away.

The February ruling reversed a lower court decision ordering Mercer University in Macon to release incident reports on campus sexual assaults to an Atlanta attorney who sued the school for access. Eleven private colleges in Georgia have their own police departments.

Amanda Farahany represents students at Mercer, Berry College in Rome and other schools around the nation who have brought lawsuits against their colleges accusing them of failing to protect them from rapists on campus.

While the federal Clery Act requires all colleges to keep daily police logs of incidents, it does not require detailed reports. Farahany said colleges routinely under-report sexual assaults and other crimes on campus, in part because the Clery Act is only sporadically enforced. Opening individual incident reports to the public would serve as a check to ensure colleges are reporting all crimes, she said.

“Police at private colleges have the same arrest and investigation powers as all other sworn officers around the state,” Farahany said. “There is no reason that their reports should not be made public.”

Debated in other states

Sen. David Adelman (D-Atlanta) agrees.

Adelman co-sponsored Senate Bill 153, which would require private colleges and universities with their own campus police department to follow the state’s Open Records Act. The legislation passed unanimously in the Senate last week and is headed to the House floor. The House Judiciary Committee passed the bill Thursday.

“The bottom line is that the employees, students and neighbors of private colleges deserve the same benefits of Georgia’s open records laws as those at the University of Georgia or Georgia Tech,” Adelman said. “It’s that simple.”

The battle over whether private colleges’ police reports should be made public isn’t just being fought in Georgia, said Daniel Carter, president of Security on Campus Inc., a national nonprofit watchdog group. Court cases are pending in New York and Indiana, and the Massachusetts legislature is considering a bill to open records this session.

Carter said private colleges need clearly defined laws relating to their police forces.

“Private colleges should not be allowed to establish police departments, funnel crimes into it, and keep them from the public,” he said.

Hollie Manheimer, executive director of the Georgia First Amendment Foundation, said the Senate bill would clear up any ambiguity relating to campus crime.

“In light of all of the secrecy bills proposed this session, SB 153 is a positive development for the public interest,” she said. “It is a simple, but much needed, clarification to the definition of police records.”

One of Farahany’s clients, a former Mercer student who says she was raped in a dorm room in October 2000, said holding private college police forces to the same public standards would “do away with the secrecy” about crimes on campus.

The 23-year-old woman, who is not being identified because she is an alleged victim of sexual assault, contends Mercer police were not responsive to her allegations.

“I felt very alone, very isolated,” she said. “If I had known there were other students going through the same thing, it would have helped me tremendously.”

Emory backs bill

Officials at many of Georgia’s private colleges say they do not have a problem with releasing records. Still, Morehouse College, the Savannah College of Art and Design and Wesleyan all filed briefs supporting Mercer’s right to keep police documents from public view.

An attorney for Emory University, the state’s largest private college, attended the House committee meeting Thursday to support the bill.

Elaine Justice, a spokeswoman for Emory, said earlier this week that the college had traditionally complied with records requests.

“If the legislation passes, Emory will certainly comply with it,” she said.

Portia Manning, a freshman at Spelman College, said private colleges should be subject to the same open records laws as their public counterparts.

“If it’s your report, you should definitely be able to see it,” she said. “Why would any school want to hide it?”

Links To News Articles

Student Press Law Center, January 28, 2004
Court orders police at private Ga. University to comply with open-records law

The Badger Herald (Feb. 8, 2004) – Request for campus police records stirs controversy
http://badgerherald.com/news/2004/02/18/request_for_campus_p.php

The Ithacan – (Feb. 26, 2004) Campuses battle open-records laws
http://www.ithaca.edu/ithacan/articles/0402/26/news/3campuses_bat.htm

Judge Orders University to Turn Over Crime Records The Chronicle, February 27, 2004

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