Monday, January 28, 2013

OSU officials say sex video crime not covered by Clery Act, but federal guidelines indicate otherwise

Oklahoma State University officials are saying the Clery Act's privacy protection for victims doesn't apply if the federal statute doesn't require the school to report the crime as an annual statistic.
OSU spokesman Gary Shutt told reporters on Friday night that the school was permitted to include a female student's name in a police report because her allegation of a secretly recorded sex-video wasn't covered by the Clery Act.
"This incident did not fall under Clery, it was not a sexual assault or any other incident that falls under the Clery Act," Shutt told News 9 in Oklahoma City. "In cases that are not a violent crime, the reporting party information is made available. This was not a case that involved bodily harm or was violent."
He similarly told The Daily O'Collegian that the name "did not fall under Clery because it was not an assault or other Clery-covered incident."
OSU police Capt. Richard Atkins made the same claim, telling the newspaper:
It's an invasion of privacy crime, not a sex offense under the Clery Act, so it is not a Clery-reportable crime. It is classified in Clery logs as another state law violation.
Atkins and Shutt are correct that the federal statute lists certain crimes for which annual statistics must be reported. Those statistics must not include the names of victims and suspects.
However, the federal statute also requires the university to keep and make public a log of all crimes reported to campus police.
From the U.S. Department of Education’s 2011 Handbook for Campus Safety and Security Reporting:
The purpose of the daily crime log is to record criminal incidents and alleged criminal incidents that are reported to the campus police or security department. For example, if a student tells your security office that he lost his wallet in the parking lot behind a dorm, it is not a criminal incident, and you aren’t required to record it in the log. However, if a student tells your security office that his wallet was stolen from his dorm room, this is an alleged criminal incident which must be recorded in the log. (p. 90)
How the Crime Log Differs From Other Campus Safety and Security Disclosures
The crime log differs from other disclosure requirements in some important ways:
  • Crime log entries include all crimes reported to the campus police or security department for the required geographic locations, not just Clery Act crimes. (emphasis included)
  • The crime log discloses specific information about criminal incidents, not crime statistics. (p. 91)
The OSU female student reported a crime. It must be in the crime log. So it does fall under the Clery Act.
And the federal handbook says victim names must be redacted from the crime log available to the public.
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."
Moreover, as I noted Friday, 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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