The North Carolina Supreme Court agreed Friday to review a North Carolina Court of Appeals ruling that North Carolina Public Records Law is not applicable to state-commissioned police departments of private universities within the state. Briefs will be filed sometime in September, and a hearing may be subsequently scheduled.
The June 5 appellate court ruling both upholds and extends a decision of the Durham County Superior Court to dismiss a complaint filed April 2011 by former Elon University student Nick Ochsner. The complaint alleged the Elon Campus Safety and Police Department “violated the North Carolina Public Records Law by refusing to provide to (Ochsner) the documents related to (a fellow student’s) arrest,” according to the court ruling.
Upon examination of the North Carolina Public Records Act, which applies to all public law enforcement agencies within the state, the Court of Appeals determined the Elon campus police department is not subject to public records law because the statute does not explicitly list campus police departments among the organizations qualifying as public law enforcement agencies.
In adamant opposition to the ruling, Ochsner petitioned the North Carolina Supreme Court to take the case on discretionary review. He filed his appeal July 10, citing a recent Supreme Court ruling on a case involving the campus police department of Davidson College. The court ruled that while the private college holds the right to oversee some aspects of the campus police department, the department is ultimately held accountable to the state and its laws. The petition argues this ruling is contradictory to that of the North Carolina Court of Appeals.
Ochsner is encouraged by the court’s acceptance of his case.
“I think it’s a good first sign that they granted review, that’s an extremely tall hurdle to jump over,” he said. “I hope they will look at it favorably but the one thing I’ve learned from all of this is you can never count on the legal system to do one thing or another.”
The battle began March 2010, when Ochsner, then a Phoenix 14 News reporter, requested a complete incident report on the arrest of Stephen Connors, a student at the time.
“The campus police handled the arrest, even though it was made off-campus,” Ochsner said. “I wanted to get the narrative because it showed that the student ran from the police and was tackled to the ground. If you look at public records law, police must disclose circumstances surrounding arrests, and I felt that the foot chase warranted the need to make the narrative public record.”
But the campus police department released only the arrest report and the first page of the incident report. Ochsner then wrote to Chuck Gantos, Director of Campus Safety and Police, to request the full incident report, in which he listed the report’s qualifications as a public record under North Carolina law.
His request was not granted, but Ochsner stood his ground. With a grant from the Society of Professional Journalists, he filed a lawsuit at the trial court level, but the court determined “Elon University did not violate the North Carolina Public Records Act by producing to Plaintiff only the subject arrest report and first page of the investigation/incident report,” according to the court ruling, and the complaint was dismissed.
Ochsner appealed, and the case took a new turn.
“We sent our briefs to the Court of Appeals, and Elon responded and got the help of four special interest groups to file an amicus brief arguing that Elon’s campus police department was not subject to public records law,” Ochsner said.
The question then became not whether the Elon campus police department was in compliance with North Carolina Public Records Law, but rather “whether Defendant Elon University, a private university, is subject to the North Carolina Public Records Act,” Judge Cressie Thigpen wrote in the court ruling.
Because the wording of the Public Records Act does not clearly define campus police departments as public law enforcement agencies subject to public records law, the court ruled in favor of Elon University.
“We believe if the legislature had intended for campus police departments to be subject to the Public Records Act, it could have listed campus police departments as public law enforcement agencies,” Thigpen wrote.
Elon administration felt the ruling was just.
“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,” said Dan Anderson, vice president of University Communications, in a statement on behalf of the university. “Even though Elon’s campus police is not an entity covered under the state public records act, the university has consistently shared campus police investigation report information as it understands public law enforcement agencies do. Elon did in this case as well.”