Police records can be hard to get at OCCC

April 13, 2012 Latest

(Editor’s Note: In part one of a two-part series, Senior Staff Writer Sarah Hussain, Special Projects Reporter Joey Stipek, and Online Reporter Mike Wormley investigate whether OCCC is in compliance with the state’s Open Records Act when it comes to what records are being released by campus police. To read part two, click here.)

Citizens seeking police records on campus may find barriers to that access, Pioneer reporters have found.

National experts say OCCC seems to withhold records that should be available according to the state’s Open Records Act, Title 51 of Oklahoma statutes.

The law ensures citizens access to their government or its institutions. The Open Records Act states its purpose 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.”

In Section 24A.8. Law Enforcement Records—Disclosure, the Oklahoma Open Records specifically states which police records must be made available for public inspection.

It reads, in part, “Law enforcement agencies shall make available for public inspection, if kept, the following records: A chronological list of incidents, including … a brief summary of what occurred.”

The law also requires that if a person is arrested, the person’s name, date of birth, address, race, sex, physical description, and occupation be provided.

In an incident on campus Feb. 23, a student reportedly was sharpening his knife in class and threatened his classmates and the professor when they questioned what he was doing.

Campus police came to the scene and took the student, Isaac Ward Jr., to the campus police office. There he was arrested by Oklahoma City police officers and later charged with two criminal felony counts of assault with a dangerous weapon.

When campus police provided the report to the Pioneer staff for the first time three weeks later, Ward’s name and other information was blacked out.

To get more information Pioneer reporters called Master Sgt. Gary Knight of the Oklahoma City Police Department who sent a copy of their report by email within five minutes of receiving the phone call. The required information, including the name, was part of the report.

In other campus incidents, Pioneer reporters find the redaction of public information to be a common practice for college police.

College attorney Nancy Gerrity explained OCCC’s position regarding these records in a message she described as “for educational purposes only” and “not legal advice.”

She wrote: “The Family Educational Rights and Privacy Act (FERPA) protects the privacy of students … . (A) college may not release ‘personally identifiable information’ derived from education records … . An ‘education record’ under FERPA is any record maintained by the college that is directly related to a student.”

Student Press Law Center Attorney Advocate Adam Goldstein sent his response via email from his office in Washington, D.C.

He took a different stand on the matter.

“FERPA applies to educational institutions, but has an exception (1232g)(a)(4)(B) that says it doesn’t apply to records in the possession of campus law enforcement.”

OCCC police also respond to accidents and injuries on campus, involving both students and employees.

Pioneer reporters are regularly denied any record where OCCC police or security officers are on the scene as first responders. These are reports of incidents such as dizziness, vomiting or cut fingers.

Media Relations Coordinator Cordell Jordan cites both FERPA and the Health Insurance Portability and Accountability Act (HIPAA) as reasons to redact information from those reports if it involves students.

Jordan will send the Pioneer general information but not give Pioneer reporters the actual incident report. He then instructs reporters to contact him for more information.

Jordan cites the Americans with Disability Act (ADA) if the incident involves OCCC faculty or staff as the reason for denying reporters those records.

He said, in an email, that medical records involving employees are protected from release under ADA.

“On medical reports involving students, it would more likely be protected under FERPA instead of HIPAA.

“The ‘law enforcement records’ exception to FERPA applies only to records made and maintained for law enforcement purposes.”

Jordan said on medical call requests, student reporters will be given information on a “case-by-case basis, because if the record is not an employee or a student, and the record is not a sole medical response (administration of medical care under HIPAA) then, we can release the report.”

Gerrity also defends that practice.

“The Americans with Disabilities Act … requires employers to treat any medical- or health-related information voluntarily provided by an employee or obtained from an employee as a result of an employer inquiry as a confidential medical record,” she wrote.

Pertaining to HIPAA, Gerrity wrote: “The HIPAA Privacy Rule imposes confidentiality requirements on covered entities, and applies to all forms of an individual’s health information, whether written, oral or electronic.

“Covered entities include health care providers, paraprofessionals such as EMTs and paramedics, and health care plans.”

Gerrity’s four-page response can be read in its entirety online at here.

Goldstein argues neither HIPAA nor FERPA apply to campus police records.

“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.”

Goldstein said every time a person in campus law enforcement cites FERPA or HIPAA as the basis for not disclosing a record, “that person is misinformed, lying, or both.”

He said the same applies to ADA.

“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 with Goldstein, saying HIPAA and FERPA are never valid reasons for a college to withhold police department reports. LoMonte provided his comments in an email message.

“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.

“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,” LoMonte said.

“Congress amended FERPA in 1991 to say that records created for law enforcement purposes are not FERPA records. `

“If [OCCC] is relying on FERPA as a reason for releasing only partial crime reports, then the college is in violation of the Oklahoma Open Records Act.”

LoMonte said citing ADA as a “justification for withholding public records is so frivolous that it almost seems like it must be a joke. “

“There is absolutely, positively nothing in the Americans with Disabilities Act that says government agencies are not to release police reports.”

Joey Senat, Oklahoma State University associate professor for the School of Media and Strategic Communications and former Freedom of Information Oklahoma president, reviewed several of the emails where Jordan refused to provide requested records and his reasons for doing so.

In an email response, Senat said, “Any OCCC official using FERPA, HIPAA, and the ADA as excuses to withhold information in police reports either doesn’t really know these laws or is hoping you don’t.”

When Jordan was asked to respond to the same set of questions as the other sources in this story, he made the following statement in an email:

“It doesn’t matter if I personally agree or disagree with the information. OCCC has to remain in compliance with all applicable state, federal and local laws, as does any other agency or individual.”

To learn more, read part two of the Pioneer’s Open Records investigative coverage in next week’s newspaper.

Find out what experts had to say regarding the law when it comes to timeliness in filling Open Records requests and the availablity of employees during business hours to fill the requests.

Additional information also is available at the Pioneer Online at www.occc.edu/pioneer.

To contact Sarah Hussain, email seniorwriter@occc.edu.

To contact Joey Stipek, email onlineeditor@occc.edu.

To contact Mike Wormley, email onlinewriter@occc.edu.

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