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Oklahoma City University failed to make its updated crime log publicly available in recent months despite being required by federal law to do so, campus journalists reported recently.
OCU officials also refused to provide archived crime logs promptly and failed to publish up-to-date annual crime statistics by the required deadline, reported MediaOCU.com.
The U.S. Department of Education office that investigates Clery Act violations has been sent the students' articles. Schools can be fined up to $35,000 for each infraction of the Clery Act.
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act explicitly requires private universities that receive federal funding and maintain a police department to make a daily crime log available for public inspection during normal business hours. (20 USC §1092(f)(4)(A)(B)))
All crimes must be added to the log within two business days (Monday through Friday, except for school holidays) of their initial report to campus police.
But OCU officials were unable to provide current crime logs on April 2 and April 11 when requested by student reporters. OCU officials said the crime logs were available on the police department's website.
But the students discovered that the most-recent crime log entry was Jan. 31. Madi Alexander's story included a screen shot of the online crime log from April 11.
Not until April 16 did OCU officials correct the online crime log, Alexander reported.
OCU spokeswoman Sandy Pantlik blamed the 10 weeks of missing crime logs on a technical glitch.
In a written statement, Pantlik implied that OCU hadn't violated the Clery Act because the school had sent "crime stats via email on a regular basis to a broad list of campus recipients, including MediaOCU."
"MediaOCU did post OCU crime logs and police reports to the university website throughout February, March and the first of April, making the statistics available through an online source associated with the university," Pantlik wrote.
However, OCU did not send all crime log entries to the student media. Moreover, I'm sure that student media's posting of some crime reports didn't absolve OCU of its statutory obligation to have all crime logs publicly available.
The U.S. Department of Education seems to agree.
"Your log may be either hard copy or electronic," says the department's handbook on complying with the Clery Act. "If your institution has an electronic log and there are technical problems that make it unusable, use a hard copy log as a temporary replacement until the problems are resolved." (p. 95)
OCU officials also refused to provide archived crime logs to Alexander within two business days of her request.
Pantlik said OCU is "not required the Clery Act, by the Clery Act regulations, or by the Handbook to make these archived logs available upon request." Instead, she said on April 19, the records would be provided within 30 days.
But the federal regulations for complying with the Clery Act say portions of crime logs older than 60 days must be made "available with two business days of a request for public inspection." (34 CFR 668.46(f)(5))
Alexander said Wednesday (May 22) that she hasn't received the archived logs.
Alexander also reported that OCU had failed to include its 2011 crime statistics in its 2012 report. The university had included only 2008-2010.
The Clery Act requires schools to publish annual security reports that include crime statistics for the most recent calendar year and two preceding calendar years. (20 USC §1092(f)(1)(F)))
The report must be published and distributed by Oct. 1.
"This is a firm deadline. There is no grace period and there are no exemptions," the handbook emphasizes.
Alexander noted that OCU's security report wasn't corrected until April 21 and only after she and another reporter brought other apparent Clery Act violations to the attention of school officials.
The students had also pointed out that victim addresses were included in 10 crime log reports.
Pantlik said OCU "is not required by the Clery Act or by federal regulations adopted with respect to the Clery Act to remove room numbers from university crime logs."
But the statute says, "All entries that are required pursuant to this paragraph shall, except where disclosure of such information is prohibited by law or such disclosure would jeopardize the confidentiality of the victim, be open to public inspection within two business days of the initial report being made to the department or a campus security authority." (20 USC §1092(f)(4)(B)(i)))
The handbook explains:
[I]f 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)
Pantlik said OCU "does attempt to follow the guidelines set forth in the Handbook." The addresses were later redacted.
OCU officials remain adamant that they have not violated the Clery Act.
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.
The national Society of Professional Journalists has selected Oklahoma State University as the winner of its third-annual Black Hole Award.
Oklahoma State was nominated by the Student Press Law Center for, among other things, ignoring the Clery Act in not notifying students, the public or its own police department that university officials were aware of the presence of an accused serial sex offender on campus. When asked why, OSU officials cited FERPA confidentiality requirements.
SPJ FOI Committee member Don Meyers said:
Using a federal education privacy law that pertains to grades to keep the campus in the dark about a sex offender who appears to be predatory is the textbook definition of egregious. If a municipal police force had pulled that shenanigan, they'd be in trouble on multiple fronts. FERPA was not meant to be a "Harry Potter"-like invisibility cloak that could turn any record that names a student into a protected document.”
(The Board of Regents for Oklahoma State University and the OSU administration were given FOI Oklahoma's Black Hole Award in 2009 for "routinely conducting the public’s business outside the public’s view. Regents secretly discuss proposals among themselves and with college officials prior to public meetings.”
OSU administrators were faulted for claiming public business conducted on personal smart phones is secret, in contradiction to interpretations by attorneys general in several states. An Oklahoma attorney general opinion later said public business is public regardless of whether the government or the official owns the device used to create or maintain the record.)
For information on SPJ's Black Hole Award, contact Linda Petersen, chairman of the national SPJ FOI Committee, at 801-554-7513.
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.
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.
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.
Oklahoma's Open Records Act doesn't require state universities and colleges to keep a public log of reported crimes.
But a federal law does.
The Clery Act requires public and private post-secondary schools that receive federal funding and maintain a police or security department to keep a daily crime log that is open to public inspection and is readily understandable. (34 CFR 668.46(f)) (20 USC §1092(f)(4)(A)(B))
The statute also imposes a number of important conditions on those crime logs that differ from the Open Records Act's requirements for such records, including:
- Crimes must be added to the log within two business days of their initial report to the campus police or the campus security department.
- This time requirement also covers any addition to an entry or change in the disposition of a complaint. For example, federal education officials note, if the disposition of a crime is "pending" and an arrest is made later, the school has two business days to update the disposition on the original entry.
- Schools aren’t required to update dispositions for crimes more than 60 days old.
- A business day is defined Monday through Friday, except for days when the school is closed.
- The only exceptions to this rule are if the disclosure is prohibited by law or would jeopardize the confidentiality of the victim.
- The log is required to include the nature, date (occurred and reported), time and general location of each crime, and its disposition if known.
- The description of the location must mean something to the campus community.
- But the location must not lead to identification of the victim.
- Victims' names must be redacted. This requirement supersedes the state Open Records Act, which has no such provision.
- Schools may temporarily withhold information only if there is clear and convincing evidence that the release of information would:
- Jeopardize an ongoing investigation;
- Jeopardize the safety of an individual;
- Cause a suspect to flee or evade detection; or
- Result in the destruction of evidence.
- The school may withhold only the information that could cause the adverse effect.
- That information must be disclosed once the adverse effect is no longer likely.
- The person deciding to withhold the information should document the reason.
- The crime log for the most-recent 60 days must be open to public inspection, upon request, during normal business hours.
- Schools may not require a written request.
- Anyone may have access to the log, including media not associated with the school.
- Logs older than 60 days must be made available for inspection within two business days of the request.
ADDITIONAL SOURCES:
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
