Private practice

Should private university records be made public?

By: David Taube

Posted: 2/5/08

The Syracuse Police Department is required to release the names of those who commit crimes in public records, while the Department of Public Safety at Syracuse University can withhold names of students who violate the law.

This creates a double standard between two institutions with similar jobs.

Open records laws, or sunshine laws, require public officials to make public records available under the Freedom of Information Law. Campus officials at SU cite exemption to this law because SU is considered a private institution. But some experts don't know of any court rulings in New York that makes this defense legitimate.

"Unlike a municipal police department, which is subject to open records laws, we have a little more control over what we can and can't and should and shouldn't release because we're a private institution," said Anthony Callisto, Jr., chief of DPS.

SU officials prevent public disclosure of student names in DPS incident reports - including incidents occurring on off-campus property - citing the Family Education Rights and Protection Act of 1974 (FERPA) to protect student privacy. Institutions that do not comply with FERPA face the risk of losing federal funding.

"We're cautious because of the potential for litigation," Callisto said.

But some legal experts said the school should not have the right to employ the act.

"There's really no justification for a private university to withhold records of a crime that would be public record if the crime took place anywhere else but on the campus," said Frank LoMonte, executive director of the Student Press Law Center, a non-profit organization founded in 1974 in Arlington, Va.

Georgia state legislation in 2005 specifically addressed this double standard. But first there was a legal battle.

A Georgia Court of Appeals decision ruled in favor of Mercer University, which refused to release police reports to Amanda Farahany, an attorney representing a female student who alleged to have been raped on campus.

To respond to this concealed practice, Georgia enacted legislation to make private campus law enforcements agencies like Mercer's subject to the same open records laws of police departments at public universities.

Legislation like this has not been made in New York, which explains why SU can withhold the names of students in public records. Callisto said if there were, they would comply.

In a similar case in 2006, the Massachusetts Supreme Judicial Court ruled against The Harvard Crimson, Harvard University's newspaper, finding the Harvard University Police Department is a private entity not required to release police reports. Massachusetts proposed a bill similar to Georgia's last year.

"Why should a Harvard, a Yale or another private institution be able to project a false image of a safe, crime-free campus when the competing public university across town is held to a different standard?" said LoMonte, whose organization provided legal counsel for The Crimson.

Congress addressed the criticism of withholding information by police agencies by passing the Jeanne Clery Act in 1998, LoMonte said. This legislation was drafted after the rape and murder of Jeanne Clery in her Lehigh University dormitory.

As a result, institutions are required to provide timely alerts, publish an annual crime statistics report and maintain a daily crime log.

Mandating the release of detailed police reports of private institutions under open state records laws has been limited to states leading legislation that treat public and private campus law enforcement agencies equally.

"What the legislature in Georgia became convinced of, is that campus police departments at private institutions are performing a function that is so similar to what an ordinary police department does, that there's no reason to treat them differently for open records purposes," LoMonte said.

Eight states have enacted legislation to essentially make private campus police departments subject to the same open records laws as public campus police agencies, LoMonte said. New York is not among those.

"We believe students on campus and in their community have the same right to obtain records as other individuals," said Daniel Carter, vice president of Security on Campus, Inc., which was founded by the parents of Jeanne Clery.

"It's a civil rights issue," he said, regarding campus police agencies that do not provide any records.

DPS releases information that would not reveal a student's name or personally identifiable information.

Privacy, the public's right to know

The names of those involved in an incident report or daily crime log are public information in municipalities like the Syracuse Police Department, as long as releasing names would not jeopardize an on-going investigation, reveal victims of rape cases, disclose the names of juveniles, compromise a sting operation or reveal a surveillance operation.

DPS does not need to adhere to these criteria.

Advocates of the public's right to know say these closed records in educational institutions leave agencies unaccountable in their positions of public trust. But administrators and law enforcement officers see themselves as complying with federal law.

"The Clery Act outlines information that we have to disclose relative to criminal incidences that occur on and around campus, and then there's (the Family Education Rights and Protection Act of 1974,)" said Anthony Callisto, chief of DPS, "which is restrictive with regard to records related to students."

In general, FERPA does not allow the release of student records unless a student signs a written consent waiver. But there are exceptions.

"Congress in 1992 amended FERPA specifically because police agencies were trying to hide behind FERPA to refuse to turn over reports that they should otherwise have turned over," said LoMonte, who added that the public loses its role as watchdog when law enforcement agencies start withholding key facts from the people.

Chapter 99 section three of the act states "education records" do not include "records of the law enforcement unit of an educational agency or institution," but stipulates police records must be created and maintained for law enforcement purposes and kept "separate and apart" from educational records like disciplinary files.

Disciplinary files are private records.

Director Leroy Rooker of the Family Policy Compliance Office, a U.S. Department of Education administrative unit that exclusively oversees FERPA, said "at many institutions, this is a dual track," in which a campus law enforcement agency will document an incident that will in turn hand a copy over to a dean of students or judicial affairs.

"But if it was initially created for a law enforcement purpose, it doesn't matter that it's later used for a disciplinary purpose. In the hands of a law enforcement unit, it's still not an education record," he said. "In the hands of the dean of students, it is."

Marti Ellerman, senior counsel at the State University of New York noted the protection of disciplinary records, but does not consider campus police records subject to FERPA, as DPS maintains.

SU general counsel Thomas Evans declined to comment for this story.

Actions that violate minor restrictions of a university code of conduct but would not result in one's arrest, like smoking in one's dorm or "[bringing] your dog to class," could be protected under this federal law, LoMonte said.

"The fact that a student is involved in a crime doesn't in and of itself turn it into an educational record," he said.

Nevertheless, SU officials at DPS cite FERPA much more broadly, subjecting the release of campus police records to the redaction of student information.

"The logical next step would be to have a national recognition that police reports by private campus departments are to be treated the same as police reports of any other police agency," LoMonte said.

dmtaube@syr.edu

The press

Police department responses to public record requests vary depending on whom you ask.

Two dispatchers at SUNY Upstate Police Department said the agency's daily crime log was only available to those involved in the incident, but Chief Frank Tees said it was available as mandated by the Clery Act.

The Clery Act, which applies to postsecondary institutions, requires private and public campus police departments to provide access to the log upon request, which includes the location, date time and type of incident and status indicating whether the case is open or closed.

Police agencies that violate the Clery Act face up to $27,500 for each infraction.

Eastern Michigan University faced more than $350,000 in fines last December after the Department of Education found the university guilty of 13 violations.

One of the counts was the university's concealment of a student's murder in her dormitory, which was announced in a public statement declaring she died of asphyxiation without foul play.

Two personnel from the Records Access Office at Syracuse Police Department said detailed police reports were only available to those involved in the incident, but Deputy Chief Michael Kerwin, a Freedom of Information officer at SPD, said they were subject to the Freedom of Information Law (FOIL).

Web sites offer pre-filled forms of FOIL requests (such as http://www.dos.state.ny.us/coog/emailrequest.htm), and agencies have five days to respond. Kerwin said that answer could be one of three options:

• "Here's your document"

• "It's going to be awhile to put together your request because it is so voluminous, so we're going to put it together, but it's going to take about 30 days."

• "We've examined your request, and we do not believe under the existing law that we have to comply with it."

Exemplars

Frank LoMonte, executive director of the Student Press Law Center, cited eight states that, to varying degrees, have enacted legislation to make the records of private campus police departments subject to the same open records laws as all other police agency reports:

California

Georgia.

Kentucky

Massachusetts

Pennsylvania

Tennessee

Virginia

West Virginia