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Appeals court: Private college police not covered by N.C. open records law
Ruling also raises questions at public campuses
June 5, 2012

NORTH CAROLINA — Private university police departments in North Carolina are not subject to the state’s open records law, the North Carolina Court of Appeals ruled Tuesday.

The court’s holding both affirms and expands a lower court ruling issued in July 2011. At that time, Durham County Superior Court Judge Mike O’Foghludha held that Elon University and the state attorney general’s office had provided adequate information to a former student when he requested police records from Elon’s Campus Safety and Police Department.

Nick Ochsner — a former student who reported for the campus TV production Phoenix14News — sought a complete incident report from police following a fellow student’s arrest in March 2010.

After several requests, campus police released part of the incident report that included the suspect’s name, date and location of arrest, charges and bond amount, but the report contained only “skeletal information,” Ashley Perkinson, Ochsner’s attorney, told the Student Press Law Center last year.

Ochsner then filed a request for the narrative portion of the police report with the attorney general’s office, citing a North Carolina statute that names the attorney general the “legal custodian” of campus police records.

The office denied that request, saying that it did not have the records in question.

Though O’Foghludha’s ruling last year held that Elon had provided adequate information to Ochsner, a three-judge panel of the Court of Appeals took that decision one step further Tuesday. Writing for the unanimous panel, Judge Cressie Thigpen directly addressed the issue of whether state open records law applies to campus police at private universities.

“We conclude the Campus Police Department at Elon University, which is a private university, is not subject to the North Caroline Public Records Act, and the dismissal of [Ochsner’s] complaint ... was proper,” Thigpen wrote.

The court also held that, contrary to Ochsner’s claims, the attorney general’s office is not required by law to maintain all records of campus police departments.

Ochsner said he is “very disappointed in the Court of Appeals for a ruling that is a major step backward for the state of open records in North Carolina.”

“We filed this to set a precedent in North Carolina hoping it’d benefit student journalists, and so far it has not,” he said.

While Ochsner is still weighing the option of whether to appeal the case to the state supreme court, he said he is also considering bringing his battle to North Carolina’s legislature.

Perkinson was not available for comment before press time.

Elon applauded Tuesday’s ruling as an affirmation of the argument its lawyers made in front of the lower court.

“Elon University is pleased that the North Carolina Court of Appeals has upheld the decision of the trial court, and affirmed that the university followed the law in release of campus police investigation information,” Elon spokesman Dan Anderson said in a statement on behalf of the university. “Elon’s campus police office has consistently shared more records than are required and did so in this case as well.”

He declined to comment further.

Under state statute in North Carolina, a public law enforcement agency is defined as “a municipal police department, a county police department, a sheriff’s department, a company police agency commissioned by the attorney general ... and any state or local agency, force, department or unit responsible for investigating, preventing or solving violations of the law.”

Ochsner pointed to the latter portion of this definition as “clear evidence” that the legislature considers police departments at private colleges to be public law enforcement agencies, and thus subject to state open records law. He called the court’s disagreement with this claim “baffling.”

Although Ochsner initially filed suit to set a precedent on whether student journalists could gain access to the narrative portion of police reports at private colleges, he acknowledged that Tuesday’s ruling created an entirely new set of issues that he had not considered relevant to the case.

He added that the presence of multiple high-profile state law enforcement groups on an amicus brief in the case reaffirms his belief that “there are some police departments in the state that will do everything they can to give you as little information as possible.”

Student Press Law Center Executive Director Frank LoMonte agreed with Ochsner’s take on Tuesday’s decision.

“It’s disappointing that the court overreacted to decide on an issue that they necessarily didn’t have to decide on,” he said.

While LoMonte is confident that the scope of the ruling is limited to private universities, he is hopeful that the state supreme court will take up the case in order to clarify part of the appeals court’s holding.

The court wrote that “we believe if the legislature had intended for campus police departments to be subject to the Public Records Act, it could have listed campus police departments as public law enforcement agencies.”

LoMonte said this was not “optimal wording,” as it could send the ambiguous message that public college police departments are also exempt from the state’s open records law.

“Getting more information about crime into the public’s hands does nothing but good,” LoMonte added. “There’s no good argument why a crime that takes place in the quad of a private college should be kept secret, while the same crime would be public if it took place in the middle of a Pizza Hut.”

Ochsner, now a television reporter for KAMC in Lubbock, Texas, agreed.

“The court has effectively created a scenario by which they’re giving an agency arrest power and telling them that they can do it in secret. That’s just wrong,” he said. “I’m frightened by this, and anybody who values access to government records should be frightened.”

By Seth Zweifler, SPLC staff writer

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© 2012 Student Press Law Center

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