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Campus crime information in public records is in a class of its own.
From the Summer 2005 issue of The News Media & The Law, page 23.
By Amanda Groover
Harvard's 200-year-old Hasty Pudding Theatricals is famous for its student-run drag shows and annual roasting of famous actors. But things turned serious in 2002 when campus police charged two student members with embezzling almost $100,000 from the organization.
The Harvard Crimson, the daily student-run paper, was eager to report the story. But getting information from the Harvard University Police Department was impossible. Its officials flatly denied requests for incident reports and other documents, claiming the department is a private entity exempt from Massachusetts open records law.
Amit Paley, a student journalist who later became president of The Crimson, found the scenario all too familiar. His investigation into alleged racial profiling by campus police hit a dead end when police refused to turn over records.
The Crimson sued, arguing that university police should be considered a public entity for open records purposes because campus officers are deputized by the county, carry firearms and make arrests. The Crimson lost at trial, and the Supreme Judicial Court of Massachusetts will hear the case this fall.
Lack of access to campus crime records is not unique to Harvard. This year, students and journalists also have fought to obtain access to campus crime records at private universities in Georgia, Indiana and New York.
Federal law not enough
The 1986 rape and murder of 19-year-old Lehigh University student Jeanne Clery in her dormitory sparked a fight for safer colleges campuses and ultimately the battle for access to campus crime reports. The university investigated Clery's death, issuing a report declaring the school safe and not negligent despite the fact that the killer entered Clery's room through a series of doors that had been propped open.
Clery's parents discovered that 38 violent crimes had occurred on the Lehigh campus in Pennsylvania in the three years before their daughter's murder and that the school was under no obligation to report this data to anyone. The Clerys turned to Congress. In 1990, it passed "The Clery Act" requiring all colleges and universities to annually publish crime statistics and campus security policies as well as provide a public crime log and warn the campus community about ongoing crime threats. Despite the law, journalists, students and campus safety advocates increasingly are concerned that the statistics are not enough.
Without access to the underlying incident reports, the data contained in campus crime logs cannot be verified. Atlanta lawyer Amanda Farahany discovered firsthand that statistics provided in the campus crime log at one private Georgia university didn't match the school's shrouded crime reports.
A student at Mercer University in Macon, Ga., hired Farahany after she allegedly was raped at a campus fraternity party. Campus police investigated, but the Bibb County District Attorney's Office declined to prosecute. Farahany tried to obtain incident reports of other sexual crimes on campus. Her requests were denied.
Farahany won an initial lawsuit against Mercer for access to the incident reports after a county judge in January 2004 ordered the school to comply with the Georgia Open Records Act because its police department is certified by the Georgia Police Officer Standards and Training Council. A state appeals court reversed earlier this year, and the Georgia Supreme Court declined to review Farahany's case.
Farahany obtained the incident reports through an avenue not available to reporters: discovery in her client's case. She discovered that the school's crime logs, which reported no rapes on campus for at least three years, did not account for at least two sexual assaults that were reported in incident reports.
"We know that one in four college women is a victim of sexual assault," Farahany said, citing several surveys, including a 1991 study of 7,000 college students by researchers Mary Koss and Mary Harvey. "When universities are reporting zero rapes on campus, we know that just isn't possible."
Accurate information about campus crime might have made Farahany's client more cautious about campus dangers. In a March interview with The Macon Telegraph, the unnamed former Mercer student explained her frustration.
"They made it look like nothing bad happened at Mercer, like it was a quintessential little college," she said. "But it wasn't that way for me."
Digging up non-Clery Act crimes
The Clery Act does not cover all crimes, only murder, manslaughter, sex offenses, arson, vehicle theft, robbery, burglary and aggravated assault. Although this list may seem exhaustive, Bruce Estes, managing editor of The Ithaca Journal in New York, discovered some newsworthy crimes are not covered by the act.
Estes became interested in a possible surge in campus hate crimes at Ithaca College after several students were racially insulted and a gay pride flag on campus was stolen twice. The school refers to such occurrences as "bias incidents," but does not disclose them on the campus crime log. Estes requested the incident reports from the school, which denied his request, claiming privacy issues. A police official read selected parts of certain reports to him. But Estes has no idea what information the officer decided to read to him, what was not read to him, or why.
"There are issues going on here beneath the radar, and the public has absolutely no way of knowing," Estes said. "Parents and students need to be able to find out how often these crimes are occurring and what the school is doing to resolve the problem."
Pessimistic about his chances of a successful lawsuit, Estes used his paper's editorial page to ask readers, every day for a month, to consider the gravity of the problem and remain vigilant in efforts to persuade the school to release the reports. Estes may ask the New York Legislature to fix the problem.
Legislators in Georgia and Massachusetts are working on bills that would require police records of private universities to be public as they are in Virginia. At the private University of Richmond, campus police, like those at Mercer and Harvard universities, are deputized by the county, carry guns, and investigate campus crime. But university police have been releasing incident reports to the public since 1994 when Virginia legislators changed the state's open records law.
The 1994 change in policy was not the result of a court ruling, but the result of an amendment passed to the Virginia Freedom of Information Act. Access advocates are realizing that the best place for change may be the statehouse, not the courthouse. Legislators in Georgia and Massachusetts are working on bills that would expressly include police records of private universities in state public records laws.
Georgia Sen. David Adelman (D-DeKalb) said his legislation similar to Virginia's is crucial for campus safety.
"Campuses are like small towns where people live, work, play and study," he said. "But campuses are the only place in Georgia where citizens can be arrested and not look at their own records."
The bill won easy Senate passage, but the 2005 session ended before the bill could advance in the House. No one has opposed the bill publicly, leaving Adelman optimistic that it will pass when the legislature reconvenes in January.
The Massachusetts bill, which also has received no public opposition, is expected to face a vote this fall.
"Part of public safety is having information disseminated," said Rep. Alice Wolf (D-Middlesex), one of the bill's sponsors. "Members of every community should have access to these records. It should not matter that you happen to live in a college community."
Weighing privacy interests
Harvard contends that keeping incident reports confidential helps shroud information that cannot be disclosed publicly under the Family Educational Rights and Privacy Act. The act exempts information contained in law enforcement records created for a law enforcement purpose, but campus police sometimes perform duties that fall beyond the scope of "law enforcement," such as investigating conduct code violations or escorting students at night.
Redacting private information from the reports would be "a time-consuming process" that would "divert resources away from core [campus police] activities," according to a 2004 report issued by a Harvard University advisory group, which was chaired by a Harvard vice president and consisted of administrators, an independent journalist and four Harvard students. The report concluded that the privacy interest of students outweighs the possible benefit of releasing information in incident reports.
Three of the students wrote an addendum to the report explaining their disagreement with the report's conclusion. The overwhelming need for student privacy is "unpersuasive," wrote the students, concluding that "the value to student safety far outweighs the minimal operational cost necessary to disseminate this crime information to the community."
Paley, one of the student members of the panel and president of The Crimson at the time, wonders how the administration came to its conclusions after hearing the students' overwhelming concerns for campus safety and law enforcement accountability.
"They're saying it's student privacy they're so concerned about, but the students on the panel were saying that privacy isn't the only important thing," he said.
Some private universities may also be motivated to keep the incident records closed because they want to protect student perpetrators from being identified, said Daniel Carter, senior vice president of Security on Campus, a nonprofit group that strives for safer campuses.
"There's this idea that if you're smart enough to go to Harvard, you deserve to be shielded from public scrutiny," he said. "We definitely see a certain expectation of privileged handling of criminal offenses. These students can get away with things other people can't."