NC Supreme Court votes 3-3 in Ochsner case

Photo courtesy of MCT Campus.
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The North Carolina Supreme Court voted 3-3 this month on 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. The tied vote leaves the appellate court ruling undisturbed.

The June 2012 appellate court ruling upheld and extended a decision of the Durham County Superior Court to dismiss a complaint filed in April 2011 by former Elon University student Nick Ochsner. In his complaint, Ochsner argued the Elon Campus Safety and Police Department violated the North Carolina Public Records Law by refusing to provide documents related to a fellow student’s arrest.

Although the appellate court ruling was upheld in the Supreme Court, it stands without precedential value. Ochsner said he considers this a glimmer of hope in a disappointing outcome.

“This is not the direction I thought the court would go, not with the energy I’ve felt behind the case regarding open government and open access,” he said. “However, this decision comes with a silver lining. Basically, no one wins. Elon doesn’t have to give me anything else, but the Court of Appeals decision does not set a precedent.”

Ochsner’s case has garnered much attention from universities, legal organizations and news outlets across the nation since it came to fruition nearly three years ago. It inspired a bill proposed to the North Carolina General Assembly last month, Ochsner said.

The legislation, filed Feb. 21, 2013, is “an act to provide public access to certain information maintained by campus police agencies affiliated with private, nonprofit institutions of higher education.” It will be heard by the North Carolina House of Representatives March 11.

The battle began in March 2010, when Ochsner, then an Elon Local 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 in August 2012. “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 wrote to Chuck Gantos, then 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. 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 became not whether the Elon campus police department was in compliance with North Carolina Public Records Law, but “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 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.

At the time, Elon’s 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 issued June 2012.  “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.”

Now, the legal battle is over for Ochsner. He said he does not regret the time he spent pursuing the case.

“I’ve spent almost to the day three years fighting this,” he said. “It’s been time well-spent when you look at the attention that has been drawn to the issue.”

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