OPEN SEASON: Private police facing greater public scrutiny
An attorney’s frustrating quest to obtain documents needed to defend her client has highlighted the difficulty that many across the nation experience in accessing police records at private universities and colleges.
Private and public colleges are both subject to the Clery Act, a federal law that mandates disclosure of some basic crime information in the form of statistics and a log but does not require the release of detailed information, such as incident reports, that would give narrative accounts of crimes at a college.
The ability to access such records is essential for crime reporting, but police forces at most private colleges and universities are not required to disclose as much information as their public counterparts ‘ and often will not release it voluntarily.
The recent decision at Yale University, however, advances the cause of creating a culture of openness at all private schools that have a police force.
Yale opens the lid
Janet Perrotti was a New Haven public defender who was investigating possible misconduct of two officers who arrested her 16-year-old client. The teenager was riding his bicycle on a public sidewalk near Yale University when university police arrested him and charged him with breach of peace.
Perrotti suspected police misconduct when the youth’s account of the incident differed from that of the two officers involved. Perrotti then filed a state open-records request in June 2007 with the Yale police department for copies of the personnel files of the two officers involved in the arrest.
The Yale police department denied the request in a July 2007 letter, stating “Yale University and its police department are private entities and are not subject to the Freedom of Information (‘FOI’) Act.”
Perrotti contested the university’s claim that its police department was a private entity, and she filed an appeal with the Connecticut Freedom of Information Commission, a state agency that resolves disputes involving the state’s open-records laws.
In December a hearing officer rendered an initial decision in favor of Perrotti, ruling Yale’s police department was a public agency. In February 2008 the FOI commission upheld that decision.
The commission employed a four-pronged legal test to determine if the Yale police department was the “functional equivalent” of a public agency: whether it performed an essential government function, whether it was created by a government, the level of government funding it receives, and the level of government involvement and regulation.
The commission concluded the Yale police department was a public agency, especially because the Yale police department uses its police powers beyond Yale’s campus, throughout the city of New Haven. The decision means that Yale is subject to Perrotti’s Freedom of Information request and must release the personnel files that she originally requested.
Yale announced in a press release April 11 that it would not appeal the Freedom of Information Commission’s 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,” the statement said.
“As Yale Daily News has been saying, it is the right move both legally and ethically,” said Andrew Mangino, editor in chief of Yale Daily News, the student newspaper at the university.
Mangino said the paper already can receive some important records from Yale police, such as arrest reports, but that the decision introduces a new level of transparency for the department.
“I’m pleasantly surprised that Yale officials in dropping the appeal did not just say ‘we are doing so because we can’t win,’ but ‘we are doing so because we shouldn’t,’” Mangino said. “It is a key decision that speaks well of Yale administration and will hopefully be a guide to other universities throughout the country.”
“It is a big decision,” said Mike Hiestand, legal consultant for the Student Press Law Center. “This is something that is a no-brainer to most people; the reality is that Yale police act like any other public police force when they are patrolling on and near the Yale campus. If you are going to give them that police power, you need to hold them to the same standards of accountability as other police departments.”
Hiestand said the decision is helpful in states where a judge could be on the fence in deciding whether a private university’s police department should be considered a public agency and subject to state open-records laws.
Some open-government advocates say this is a positive development; others wonder about the applicability of the case to other situations. Mitchell Pearlman, former executive director for the Connecticut Freedom of Information Commission and current treasurer for the Connecticut Council for Freedom of Information, a non-profit advocacy group, said Yale’s situation was unique.
“Yale is located in the heart of New Haven. For some reason, unlike just regular campus police this police department has the power to police on the streets of New Haven itself,” Pearlman said.
Pearlman believes that the ruling has some precedential value in situations where campus police departments can exercise police power beyond the campus into the local municipality, but he is not sure this has many implications for private colleges in general.
But Pearlman did note that most states use a legal test similar to Connecticut’s to determine if an agency is considered public for the purposes of open records requests.
Corinna Zarek, freedom of information director for the Reporters Committee for the Freedom of the Press, said the decision is not as binding as a court ruling but also is not a purely symbolic outcome.
“It may or may not be applicable to other private schools in Connecticut and other states, but it definitely does help the argument that private police records should be open to the public.”
From the ‘Crimson’ ashes…
Disagreements over access to police records are not a new phenomenon.
In 2003 the student newspaper at Harvard University, The Harvard Crimson, filed a lawsuit against the school after it was denied access to police incident reports. Harvard argued its police department was not a public entity and not subject to the Massachusetts open-records laws.
Several appeals and three years later, the Massachusetts Supreme Judicial Court decided for Harvard.
After the case ended, open-government advocates began to lobby lawmakers to pass a bill that would give the public access to records “made or received by special state police officers and educational institutions,” which would have included universities like Harvard.
Versions of this bill were introduced in the Massachusetts House and Senate in 2005, but both eventually died in committees.
Two state legislators, Rep. Carl Sciortino Jr. and Sen. Patricia Jehlin, reintroduced the bill in both the state House and Senate in January 2007; both bills have been sitting in a joint House and Senate committee since then.
But the bill’s proponents say the Connecticut ruling has begun to cause a stir in the Massachusetts legislature.
“Yale and Perrotti really got the committee moving,” said John Doherty, a former board member for advocacy group Security On Campus, who approached the two state legislators about sponsoring the bill.
Both chambers of the Massachusetts legislature voted in early April to set a deadline for the bill to leave committee, and the State Administration and Regulatory Oversight committee favorably reported the bill to the Senate April 18.
“In Massachusetts the committee report is the most important part of the legislative process and it is a huge victory to us,” Doherty said. “I cannot understate how proud we are of the Massachusetts legislature.”
Doherty said that minor provisions were changed in the bill’s text that mainly related to accessing records at special schools or hospitals, but the most significant portions of the bill were untouched.
Doherty said the bill’s passage might have implications for other states as well.
“In New England, traditionally, when a state like Connecticut takes that kind of action it has a tremendous spillover effect. If Massachusetts passes [the bill], I could see it happening in Rhode Island and Vermont,” Doherty said.
If the bill passes, Massachusetts will join two other states in which groups lobbied for a legislative remedy after lawsuits to access police records were unsuccessful.
In 1993 The Collegian, the student newspaper at the University of Richmond in Virginia, filed a lawsuit against the school after the campus police department stopped releasing names of students who had committed crimes. The paper lost the suit but later successfully lobbied for Virginia legislation to allow access to private university police records.
A more recent example began in 2003, when a law firm representing a student who alleged she was sexually assaulted at Mercer University requested a copy of the report on the assault.
Mercer refused to release the report, and the attorney for the student filed a lawsuit against the school. As in Virginia, the case proved unsuccessful. But in 2006 Georgia passed a law opening access to private police records.
Today many legal experts regard those two states, Virginia and Georgia, as having some of the best laws in order to secure access to records of public and private university police departments. But even those laws do not guarantee that requestors will get all the information they want.
In the SPLC’s informal open-records test, held in honor of Sunshine Week, only one private school out of four in Virginia and Georgia sent the SPLC all the records requested.
It is doubtful that the issue of accessing private police records will go away anytime soon. For now, open-government advocates and private colleges continue to engage each other in courtrooms and state legislatures.
“They [private institutions police departments] are withholding valuable and important information from community members, student press and the general press,” Doherty said. “The public power they have should also accompany how well they are accomplishing that job.”
reports, Spring 2008