N.C. Court of Appeals rules that private colleges and university policeare not subject to public records laws www.privateofficer.com
In a case from Elon University, the N.C. Court of Appeals ruled today that private colleges and universities — and their campus police departments — are not subject to public records laws.
The unanimous decision, which affirmed a lower court ruling, seems legally air tight.
But it reveals what I hope was an inadvertant oversight when the General Assembly enacted the Campus Police Act in 2005.
The case originated two years ago when Nick Ochsner, a journalism student at Elon and reporter for Phoenix14News, asked for records about the arrest of a fellow Elon student. He was given the arrest report and first page of the incident report but asked for the rest of the incident report, which he asserted contained information deemed public under the state’s public records laws. Elon police said no, and Ochsner sued.
(Ochsner is now a reporter for a TV station in Lubbock, Texas.)
The trial court, and today the Court of Appeals, ruled that, as a private institution, Elon is not subject to the public records laws, and so neither is its police department.
True enough, the law states that “public law-enforcement agency” means “a municipal police department, a county police department, a sheriff’s department, a company police agency commissioned by the Attorney General pursuant to G.S. 74E-1, et seq., and any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law.”
This would include the campus police departments at UNCG and N.C. A&T, but not at Elon.
But here’s the rub: The law covers company police agencies commissioned by the attorney general. Prior to creation of the Campus Police Act in 2005, campus police departments at private colleges were classified as company police agencies and therefore treated as public law-enforcement agencies. When the General Assembly crafted a separate category for campus police departments, it simply neglected to write them into the definition of public agencies. It was an oversight — and one that should be corrected.
All police agencies authorized by the state to enforce the law, investigate crimes and make arrests — whether they are a city police department, the sheriff’s department or a campus police department at a public or private university — should be equally accountable to the public. They all should have to comply with the public records laws.
Elon issued this statement today:
“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 to Nick Ochsner. Mr. Ochsner was an Elon student requesting information regarding an incident involving a fellow student. The court held that the campus police of Elon University, a private university in North Carolina, are not subject to the North Carolina Public Records Act. Elon’s campus police office has consistently shared more records than are required and did so in this case as well.”
I’m not faulting Elon. Good if it routinely releases some of the same records that public police agencies do. The point is that Elon is not required to release any records, and someday it might decide it won’t.
There’s an irony here. Davidson College, and probably some of its North Carolina counterparts, celebrated last November when the state Supreme Court issued a ruling upholding Davidson’s campus police powers. The challenge that led to that decision came from a person who had been arrested by a campus police officer for suspected drunken driving and asserted that a police officer employed by an institituion with religious roots should not be granted arrest power by the state. Doing so violated the separation of church and state, the plaintiff said.
If the courts can affirm the arrest power of campus police departments at private colleges — the same arrest power granted to public police departments — it is unfortunate that the courts cannot hold these same agencies fully accountable to the public they serve.
The legislature should step in and fix this omission. An agency that can arrest citizens of this state must be required to release to the public a full and complete record of that arrest, including the reasons it was necessary. Otherwise, we may be living in a state with pockets where private secret police can operate without full accountability.