Friday, April 20, 2012

OCCC officials cite FERPA, HIPAA, ADA as reasons for not releasing information in police records; seem to violate Clery Act by taking weeks to provide crime reports



Oklahoma City Community College's campus newspaper has detailed in a two-part series several apparent violations of the state Open Records Act and the federal Clery Act by school officials. 


Last week, The Pioneer reported that OCCC officials have cited three federal statutes -- the Family Educational Rights & Privacy Act, the Health Insurance Portability & Accountability Act, and the Americans with Disabilities Act -- as reasons for not releasing police records. 


National experts disagreed that those statute prohibit the release of information by campus police. 


For example, FERPA exempts law enforcement records, which the statute defines as records created by the law enforcement unit for a law enforcement purpose and maintained by the law enforcement unit. 


 Such records "are not 'education records' subject to the privacy protections of FERPA," says the U.S. Department of Education. "As such, the law enforcement unit ... may disclose law enforcement unit records to third parties without the eligible student's prior written consent."
 
Meanwhile, the Open Records Act requires that police records provide the name, date of birth, address, race, sex, physical description, and occupation of people arrested. (OKLA. STAT. tit. 51, § 24A.8(A)(1)


Yet, the newspaper reported, OCCC officials blacked out on a police report the name and other identifying information for a student arrested after he was reported to be sharpening a knife in class and then threatening classmates and the professor. 


According to the newspaper, OCCC Media Relations Coordinator Cordell Jordan also has cited HIPAA and the ADA as reasons to redact information or withhold reports when campus police respond to accidents and injuries. OCCC attorney Nancy Gerrity defended that reasoning.


But the Student Press Law Center's attorney said campus officials are "misinformed, lying, or both" if they cite FERPA, HIPAA and the ADA as reasons not to release information in police reports. 


 "HIPAA applies to organizations that have a primary business of providing health care, insurance, or electronic records transactions for those companies; obviously, law enforcement has a primary business of enforcing the law and thus, none of its records are HIPAA records,” Adam Goldstein told the newspaper. 


 "The ADA isn't a privacy statute at all," he said. "It’s an anti-discrimination statute. "It requires employers to treat individuals with qualified disabilities fairly and make reasonable accommodations for their disabilities. 


"It has nothing whatsoever to do with records of any kind or the release of those records. If someone is citing the ADA as a basis for not releasing records, they're not even misinterpreting the law, they're just saying the names of laws they’ve heard that sound kind of official." 


Student Press Law Center Executive Director Frank D. LoMonte agreed that HIPAA, FERPA and the ADA are not valid reasons for withholding campus police reports. 


"First of all, HIPAA is almost always a false justification for refusing to turn over public records. HIPAA applies only to two types of people: Health care professionals, or insurers," LoMonte told the newspaper.


"If the college has someone's medical information because that person, for example, committed a crime or was injured in an accident, the college is in no way restricted by HIPAA from releasing that information. HIPAA is not a blanket health care secrecy law — it applies only to your doctor or your medical insurance carrier, not to colleges. 


"FERPA is never, ever a valid reason for a college to withhold or redact crime reports, period," he said. 


LoMonte told The Pioneer that citing the ADA as a "justification for withholding public records is so frivolous that it almost seems like it must be a joke." 


This week, The Pioneer also reported that OCCC officials have taken weeks and months to provide public records. 


For example, the newspaper said, the police report regarding the student arrested for sharpening a knife in class and threatening others was provided three weeks after the incident. 


The Clery Act, however, requires that such incidences be reported on a publicly available crime log within two business days of their initial report to the campus police or the campus security department. 


The Pioneer also provided examples of lengthy delays for non-police records. 


Under the Open Records Act, "A public body must provide prompt, reasonable access to its records...." (OKLA. STAT. tit. 51, § 24A.5(5)


A 1999 attorney general opinion stated succinctly that "prompt, reasonable access" generally means "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15


Oklahoma public agencies and officials have a "duty" to provide public records to the public. 


Then-Attorney General Drew Edmondson said:
The purpose of the Act is 'to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)
In a 2005 public records training video for police, Edmondson acknowledged that the time in which agencies must respond "varies with the circumstances." 


But he also distinguished between "a detailed request for records that's going to require looking back over the past 12 months and pulling files that may already be in storage" and one for records "that are sitting right there on your desk and all you have to do is go to the copy machine." 


"In most instances," he said, "open records requests should be responded to on the spot."


The Pioneer also noted that all records requests must be made to the OCCC Marketing and Public Relations office, a process that only delays access. 


Funneling all media requests for records through one office runs contrary to a 2005 attorney general opinion requiring that government documents be made available where they "are located in the ordinary course of business." 


"If a public body has more than one office location, its records must be maintained and made available to the public at the office where the records are located in the ordinary course of business," Edmondson said. (2005 OK AG 3, ¶ 10


"The Act does not expressly address at what office location records must be maintained and made available to the public if a public body has more than one office location. It is our opinion that the 'prompt, reasonable access' to records that the public must be provided under the Act indicates the Legislature's intent that the public body's records shall be maintained and available at the office where the records are located in the ordinary course of business,” he said. (Id. ¶ 8) 


LoMonte told the newspaper that delayed access indicates the low level of importance that OCCC officials place on being held accountable to the public. 


It also indicates how little respect OCCC officials have for students, faculty, staff and the general public. 


OCCC administrators act as though they are running a high school or a private college. But this is a publicly funded college. 


Students, faculty and other taxpayers are entitled to know about what happens on campus, particularly when it involves police. 


OCCC officials, however, are treating college journalists with the same disrespect that many high school administrators show for their students. 


Kudos to The Pioneer editors and reporters for standing up for the public's right and need to know. But they'll need help if OCCC officials' attitudes and practices are to change. 


Local and federal officials have an obligation to investigate what the newspaper has reported and to hold OCCC officials accountable for violations of state and federal law.


Local media also have an obligation to help by spreading the word to a larger audience. Back up these college journalists. Don't stand by while they are bullied by government officials. 




Joey Senat, Ph.D. 
Associate Professor 
OSU School of Media & Strategic Communications 


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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