Court says campus police records are open
Here’s an important message for Ohioans, especially college administrators: Law enforcement records held by a public university are public records.
That point was at the heart of a recent order by the Ohio Court of Claims that the University of Cincinnati had to release police records about a former student and that the records are not protected by the federal Family Education Rights and Privacy Act.
That’s important because of the need for transparency and public accountability in how university police agencies and disciplinary boards handle campus criminal complaints.
A Cincinnati Enquirer reporter requested investigation materials and UC law enforcement records in January after the university gave a graduation award to a student with a sex offender conviction, for which the university faced backlash and was publicly criticized.
The university denied the records requests, saying that they were too vague and that law enforcement records in the investigation were “education records” protected by FERPA.
Reporters and other members of the public — including victims of crimes on college campuses — have heard that line many times as college administrators and their lawyers have improperly twisted and stretched the shield of FERPA far beyond its intended purpose.
FERPA was enacted to protect student academic records.
A police department incident report and documentation of the investigation of a criminal complaint are not academic records.
The court ruled that the fact that UC police shared the records with a university employee in another office, outside the university police department, “did not transform the copies retained by
UCPD into ‘education’ records, and did not strip them of their status there as public records.”
The court action should not have been necessary. The U.S. Department of Education website includes this clear directive about such records:
“‘Law enforcement unit records’ (i.e., records created by a law enforcement unit at the educational agency or institution, created for a law enforcement purpose, and maintained by the law enforcement unit) are not ‘education records’ subject to the privacy protections of FERPA. As such, the law enforcement unit may refuse to provide a parent or
eligible student with an opportunity to inspect and review law enforcement unit records, and it may disclose law enforcement unit records to third parties without the parent's or eligible student's prior written consent.”
The Dispatch documented the bastardization of FERPA in a 2009 investigation that showed many major-college athletic departments kept their NCAA troubles secret behind a thick veil of black ink or Wite-out.
Alabama. Cincinnati. Florida. Florida State. Ohio State. Oklahoma. Oregon State. Utah. They all censored information in the name of student privacy, invoking the 46-year-old federal law whose author said at the time had been twisted and misused by the universities.
Former U.S. Sen. James L. Buckley told The Dispatch that Congress needed to rein in the Family Educational Rights and Privacy Act, which he crafted to keep academic records from public view.
The results of the six-month Dispatch investigation stunned Buckley, by then a retired federal judge from Connecticut, who said he crafted the law to shield students' report cards and transcripts.
In fact, Congress had amended FERPA in the mid-1990s to say that records about students found responsible by a campus judiciary for committing violent acts are public and not shielded by FERPA. Those violent acts include sexual assault, physical assault, homicide, arson and vandalism.
The Court of Claims also swatted down another claim used by the University of Cincinnati to deny access to public records — that the request was “too vague.”
We hear those words and “overly broad” far too frequently when reporters are denied access to public records they seek on your behalf. We don't go on fishing expeditions. We work diligently to craft records requests to be as specific as possible, and as limited in scope as possible, to avoid unnecessary work for custodians of the records and so that we can push back — in person or in court, if necessary — against any public official who might try to claim a request is “too vague” and “overly broad.”
The decision in the Enquirer case against the University of Cincinnati is important for making a clear statement in support of transparency and public accountability.
Alan D. Miller is editor of The Dispatch. amiller@dispatch.com @dispatcheditor