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Bill seeks to change appellate court rule shrouding private university crime logs

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    News Media Update         GEORGIA         Freedom of Information         Feb. 28, 2005    

Bill seeks to change appellate court rule shrouding private university crime logs

  • One week after a state appellate court ruled that a private university’s crime logs could be kept from a female student seeking information about sexual assaults on her campus, a Georgia state senator has introduced a bill that would open the records to public inspection.

Feb. 28, 2005 — The Georgia Open Records Act would require private universities’ police departments to open their crime logs for public inspection, under a state Senate bill introduced five days after an appellate court ruled that the open records law bans public access to such records at Mercer University in Macon.

The bill, introduced Feb. 8 by state Sen. David Adelman (D-Decatur) came as the appellate court’s ruling was appealed to the state Supreme Court.

The open records dispute grew out of a female student’s lawsuit against Mercer University. She said the school had been negligent in failing to protect her from an alleged rape at a sorority party. In gathering evidence, her lawyers at Barrett & Farahany LLP requested campus police crime records relating to other sexual assaults.

The private university refused to produce the records, claiming immunity to the open records law’s disclosure mandate. Barrett & Farahany sued, arguing that the open records law applied because Georgia state law vests the university’s armed police force with state police powers, including the right to arrest and press charges.

In a January 2004 ruling that the Georgia First Amendment Foundation hailed as “unprecedented,” trial court Judge Levis A. McConnell Jr. agreed that the records should be released because the school’s police force has the “same law enforcement powers, including the power of arrest, as a law enforcement officer of the local government.” McConnell also noted that the Georgia Peace Officer Standards and Training Council, a state body, certified Mercer University’s police force. The university appealed.

Judge Edward H. Johnson, writing for a three-judge panel of the Court of Appeals of Georgia, reversed, holding that Georgia’s legislative grant of police powers to Mercer University’s police officers did nothing to make its police department a public body subject to open records law. “The statutory language simply does not provide this Court with the authority to compel entities that are private, but are granted the authority to perform public functions, to disclose their records,” the court concluded.

In other Georgia cases where outsourcing public functions to private entities resulted in the application of open records law, “the court’s ruling has hinged on a factual finding that the private entity carried out some public purpose at the express request of a public office or agency,” which, Johnson noted, was not the case with the Mercer University police force’s activities.

Barrett & Farahany has appealed to the Georgia Supreme Court, which likely will decide sometime in April whether it will hear the case. Amanda A. Farahany, a partner at the law firm, said that the litigation has implications not just for Mercer University, but for any private entity’s ability to “exercise state powers without oversight.”

Five public interest organizations filed a friend-of-the-court brief written by the Georgia First Amendment Coalition.

Charles N. Davis, executive director of the Freedom of Information Center at the University of Missouri, summarized the media’s interest in the case for AScribe Newswire in January 2004: “If they’re cops, then their records should be open insofar as any other cops’ records are open. Otherwise, they should be security guards and call in the real cops when something serious goes down, in which case the records would still be publicly available.”

(The Corporation of Mercer University v. Barrett & Farahany LLP; Media Counsel: Amanda Farahany; Atlanta)RL

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