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N.C. Supreme Court issues divided opinion on issue of private school police records
State appeals court ruling will stand, but won't set precedent
March 8, 2013

NORTH CAROLINA — The North Carolina Supreme Court split evenly today in a ruling that leaves unresolved the openness of private college police records.


Nick Ochsner, a former student journalist at Elon University, asked the campus police department for a report related to the arrest of another student, but was given little information. Ochsner went to court to determine whether the report was a public record.

In the opinion, the court said it was split 3-3 after Justice Barbara Jackson recused herself. The prior court of appeals decision in the case “is left undisturbed and stands without precedential value,” according to the opinion released Friday.

The court of appeals ruling determined that private schools’ police departments are exempt from North Carolina’s public records law.

Ochsner said he was disappointed by the ruling but the fact that the court of appeals decision will not be a precedent is “a silver lining.” He said he’s hopeful recently proposed legislation in the state will still make private school police records more open.

“And when you partner that with the new legislation pending ... we’ve got the ball rolling in the right direction,” he said.

The legislation, House Bill 142, was filed last month and would make some private universities’ police department records — such as incident reports — accessible to the public. It would not make all records public. Salary information, emails or internal memos would not have to be released under the proposed legislation.

House Bill 142 would also shift the custodianship of records from the state attorney general to campus police departments themselves.

The legislation was drafted by a coalition of private schools in the state and introduced only days after the state Supreme Court heard oral arguments in Ochsner’s case.

Ann Ochsner, Nick Ochsner’s mother and an attorney who represented him, said on hearing the court’s decision, she worried the legislation might be dropped. But because Elon University has said from the beginning that the issue should be handled by the legislature, Ann Ochsner said she hopes private colleges will maintain their support for the bill.

“If they want what they said, they should go forward with this bill and not solicit its withdrawal,” Ann Ochsner said.

A spokesman for the university issued the following statement on behalf of Elon President Leo Lambert: "Elon University is pleased that the North Carolina Supreme Court has affirmed the rulings of the North Carolina Court of Appeals and Alamance County Superior Court in this case. Elon has always maintained that the question of public access to records of private college police departments is most appropriately dealt with in the General Assembly, rather than in the courts. To that end, we have partnered with the North Carolina Independent Colleges and Universities to propose legislation that would provide the same kind of access to law enforcement records at private schools as is allowed at North Carolina's public universities. We support passage of this sensible bill."

Amanda Martin, a media law attorney who filed an amicus brief in the case on behalf of several newspapers in the state, said she was “very disappointed” in the court’s decision.

“First I feel like the public should have access to this information and so I’m disappointed that the court would permit institutions to deny access to significant criminal information,” Martin said. “On a more broad or fundamental basis, I’m disappointed that the court did not clarify that any body that is carrying out significant governmental functions is accountable to the public under the public records law.”

No matter where a crime occurs, the public should be able to obtain information about it, Martin said.

“Elon University is located in the town of Elon, and so what we argued to the court is it should not matter whether a crime takes place on the campus of Elon University or the streets of that town, the public should have the same [right of] access to that information,” she said.

Ann Ochsner said she also has not given up on her son’s court case.

“I’m going to see if there are other appellate procedural mechanisms available to me,” she said.

By Sara Tirrito, SPLC staff writer. Contact Tirrito by email or at (703) 807-1904 ext. 124.

Editor's note: The original post was updated to add the statement from Elon PresidenLeo Lambert

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