Fight for Mercer records heats up

Ga. Court of Appeals rules that private campus police are not public agencies; case could move to state supreme court

Battles for access to campus crime records in Georgia are being waged on two fronts. Proposed Senate Bill 153 would redefine the Georgia Open Records Act to include police records at private schools, while a case involving Mercer University may progress to the Georgia Supreme Court and set a legal precedent for crime records disclosure.

The state Open Records Act defines materials subject to disclosure as "all documents prepared and maintained in the course of operation of a public office or agency" or documents received "on behalf of a public office or agency." A state trial court ruled that private Mercer University had to turn over the records of its campus police department--which operates with official law enforcement authority--under the Open Records Act. An appellate court reversed that decision.

Amanda Farahany, the attorney who spearheaded the case against Mercer University, submitted a request asking the state supreme court to rule on the matter. She said that if the court refuses to hear the case, it would leave reform up to Senate Bill 153.

"The case as it stands [would] actually be the law unless the bill passes next year," she said.

Farahany also said that predicting which cases the court will hear is difficult.

"I think that our Supreme Court does not often deal with open records issues and I hope because of that they will want to handle the open records issues here," Farahany said. "I don't know which cases they take and which cases they don't."

In 2003, Farahany, a partner in the Atlanta law firm Barrett & Farahany, requested copies of crime records from the school because she was representing a female former student who was raped at a fraternity party in 2002. When the school denied Farahany the documents, she filed to have the court compel their release.

A trial court sided with Farahany in February 2004 and ordered Mercer to release the documents. The school appealed and the Court of Appeals reversed the ruling, concluding that the records were not subject to the Open Records Act because Mercer's campus police department was not a public agency.

"To be considered a 'public office' or 'public agency' pursuant to the Open Records Act, an entity must generally either be a political subdivision of the state, be a city, county regional or other authority established pursuant to law, or receive a specified amount of funding from the state," according to the ruling. "There is no dispute that Mercer University is a private institution and not a public office or agency, and that Mercer University does not receive funding from the state."

The ruling also said that because Mercer University police officers receive compensation solely from a private institution, they do not constitute public agents.

In briefs filed in the case, Farahany argued that Mercer's campus police officer's exercise "delegated public powers" because the state's Campus Policemen Act grants officers employed by schools full law enforcement authority under the Georgia Peace Officer Standards and Training Act.

The appeals court called Farahany's argument "compelling," but ruled that "there is nothing in the plain and unambiguous language of the Open Records Act that supports such an outcome."

"The mere fact that MUPD officers are given authority to perform certain functions by the Campus Policemen Act, and the Georgia Peace Officer Standards and Training Act, does not make them officers or employees of a public office or agency," according to the ruling. "The statutory language simply does not provide this court with the authority to find private entities delegated certain authority by the state to be public offices or agencies."

On Feb. 23, Farahany filed a petition requesting the Georgia Supreme Court to rule on the case. The court has no deadline to decide to take the case, but Farahany predicts the court will answer "probably some time in the next couple months." She said the process would work much like it did in the appellate court.

"The arguments will probably be very similar from both sides, although there's different things the Supreme Court can look at," Farahany said. "The Supreme Court can change the law in a way the appellate court cannot. Once the briefing is done the court actually will set it for oral arguments and then we will be waiting for the court's decision."

If the Georgia Supreme Court does decide to hear the case, a ruling would come within a year of the docket date, Farahany said.

To prepare, Farahany said she would conduct "significant review and also research to see if there's been any new law or any other things that might affect [the case]."

Mercer University officials did not return calls seeking comment.

In a similar case against Harvard University, student reporters at the Harvard Crimson student newspaper sued for access to 10 campus police files. A Massachusetts trial court dismissed the case in March 2004, and the Crimson appealed. A hearing before the Massachusetts Supreme District Court, the state's highest, is scheduled for the fall.

reports, Spring 2005