Friday, January 25, 2013

Did OSU violate federal law by including victim's name in report on alleged sex video?

Oklahoma State University police are investigating a female student's complaint that her ex-boyfriend had secretly videotaped them having sex in October in an on-campus apartment that the student newspaper says is a football player's residence.
OSU officials redacted the ex-boyfriend's name and other identifying information from the report released to the news media.
The female student's name, address, date of birth and phone number were included in the report released to the news media.
OSU spokesman Gary Shutt defended the decision to redact the suspect's information but leave in the woman's, saying the university was required to by the state Open Records Act.
"The reporting party is public information; suspects and witnesses are not until charges have been filed," Shutt wrote to News On 6 in a Thursday email.
Shutt didn't cite a specific statutory provision requiring suspect names to be redacted from police reports or one requiring complainant names to be included.
Under the Open Records Act, the public is entitled to a "chronological list of incidents, including initial offense report information showing the offense, date, time, general location, officer and a brief summary of what occurred.” (OKLA. STAT. tit. 51, § 24A.8(A)(3))
Typically, I would agree that the names and identifying information for both complainants and suspects should be included in police reports.
However, OSU also is subject to the federal Clery Act, which requires all colleges and universities that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection.
The federal statute prohibits schools from identifying victims in the crime log.
As a U.S. Department of Education 2011 handbook explains:
Many institutions are also required by state law to maintain a log. If your institution maintains such a log, you may use it for your daily crime log as well, providing it meets all Clery Act requirements. However, if the state crime log requires the victims’ names to be listed, for Clery purposes those names must be redacted for public inspection. The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim. This takes precedence over state crime log laws.” (p. 90)
Oklahoma's Open Records Act doesn't distinguish between "crime logs" and "incident reports."
As state attorney general, Drew Edmondson had emphasized that access to law enforcement information does not depend on the record title used by the agency.
"The department doesn't have to call it a jail register. If it is a jail register, then it's a public record," Edmondson said in a police training video. "They don’t have to call it a radio log. If they keep a log of radio traffic, then it's a public record."
Bottom line: It seems contradictory for the Clery Act to supersede state laws on "crime logs" in order to prohibit the release of the victim's name by the university but not to override state laws on "incident reports" and thus allow the release of the name by the university.

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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