Testimony: Senate Bill 2820, Oct. 15, 2013

October 15, 2013

TESTIMONY by Richard J. Doherty, President, AICUM,

Opposing S. 2820, which would classify on-campus police reports as public records

Joint Committee on State Administration & Regulatory Oversight

 

Senate Bill No. 2820

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My name is Richard Doherty, and I am the President of the Association of Independent Colleges and Universities in Massachusetts (AICUM).  AICUM represents the interests of 60 independent colleges and universities throughout the Commonwealth, the 250,000 students attending those institutions and the nearly 100,000 people working at those institutions.  Our members include large nationally renowned research universities, smaller, highly regarded liberal arts colleges, religiously affiliated institutions, and colleges with special missions focused on business, music or allied health services.

 

Today, I am testifying in opposition to Senate Bill No. 2820, a bill which would classify as public records – subject to mandatory disclosure under the Massachusetts public records law – all reports and records prepared and received by police officers employed by colleges and universities who have been appointed as special state police officers under § 63 of M.G.L. c. 22C.  AICUM opposes the bill for two fundamental reasons.  First, there is no discernible public safety justification or rationale that is served by making such records subject to mandatory disclosure.  Second, implementing such a dramatic change in the state’s public records law is fraught with unintended consequences that will adversely affect the unique relationship that exists between college students and the school administrators and police officers charged with ensuring their personal safety and well-being on campus.

 

No Public Safety Purpose Served by this Legislation

 

Colleges and universities in Massachusetts already are required to disclose publicly vast amounts of information about criminal activity on campus.  M.G.L. c. 41, §98F, requires every college and university police department with officers appointed as special state police officers under MGL c. 22C, §63 to maintain a daily log that provides a chronological listing of all responses to valid complaints received, crimes reported, and the names and addresses of all persons arrested and the charges filed against such persons.  The statute specifically deems that the daily log is a public record.  Similarly, regulations promulgated by the Massachusetts State Police require such colleges and universities to submit monthly reports detailing every search or arrest warrant issued by a court in response to the school’s submission of affidavits or sworn statements and listing all felonies which occurred on campus during the previous month. [See 515 CMR 5.07].  These monthly reports also are public records.

 

I have submitted for the Committee’s review copies of the daily log maintained and publicized by the Harvard University Police Department [HUPD].  The log entries illustrate the depth and specificity of information – both criminal and non-criminal – disclosed by the university on a daily basis.  Moreover, these logs are available for the entire world to view at any time because they are posted on the HUPD’s web site.

 

Finally, on the Federal level, the Clery Act mandates annual and other timely disclosures of campus crimes and crime statistics, as well as the publication of security policy statements.  Taken together, these statutes and regulations impose significant reporting requirements on all Massachusetts colleges and universities, and provide a wealth of information to students, prospective students and their families.  S.2820, however, will not improve or otherwise strengthen the public safety interests served by these reporting requirements.

 

It would seem self-evident that records in the custody of a private institution are by definition not “public records”.  As recently as January 2006, the Massachusetts Supreme Judicial Court addressed the very question of whether certain police records in the custody of a private college or university constitute “public records” subject to disclosure under Massachusetts’ public records law.  In the case of The Harvard Crimson v. President and Fellows of Harvard College, et al., 445 Mass. 745 (2006), the Court unequivocally ruled that records prepared by college police officers appointed as special state police officers under M.G.L. c. 22C, §63, are not public records.  The filing of S.2820 constitutes an effort simply to circumvent the SJC’s ruling in the Harvard Crimson case.

 

The additional information that would be subject to public disclosure under S.2820 is either redundant to what is already disclosed under existing statutes and regulations or entirely irrelevant to any legitimate interest that students or the general public have in information regarding the investigation of criminal and non-criminal events.  College and university police officers frequently respond to non-criminal incidents and “well-being checks”.  A typical example of a “well-being check” could involve a parent calling campus police to express concern that he or she has not heard from his or her child in four days.  Making public the reports resulting from such calls does nothing to protect the safety of other students and, more significantly, creates the real risk of an invasion of the privacy of the student and his family.  In this YouTube and Facebook era, disclosing such information for public consumption unnecessarily exposes a student to unwarranted embarrassment, scorn, hurtful conduct or just unwanted humor.

 

Proposed Legislation May Undermine Student Safety

 

The college campus is not the same environment as a city street or town center.  The unique in loco parentis relationship that exists between a college student and school administrators, professors and campus police charged with ensuring that student’s well-being is dependent upon the ability of school officials to communicate with one another.  When it comes to student behavior and safety, campus police must share information openly with administration officials, who also must maintain reciprocal lines of communication with professors and other employees.  S.2820 is troubling because of the chilling effect it may have on the willingness of others to share information with campus police.  Campus police chiefs with decades of law enforcement experience, including more than 20 years with the MA State Police, have told us that S.2820 would have a chilling effect on the sharing of information on campus and jeopardize the “trust factor” that exists on campus.

 

 

One only has to consider situations involving concerns about a student’s mental health or problems caused by college drinking to better understand the adverse – but likely unintentional – consequences associated with S.2820.  Will a fellow student or professor share any concerns about another student’s erratic behavior if the information provided to campus police could appear in the school newspaper the following week?  Will students summons campus police when their roommate passes out in the bathtub after a night of heavy drinking if there is the likelihood that information is soon making its way through internet sites and campus blogs?  If there is even a remote chance that the answer to either question is “no”, then the safety of students and the entire college community is not being served.  In fact, it is being undermined.  In the absence of a legitimate and discernible rationale as to how S.2820 would further the public safety of students and their families, this Committee should reject efforts to put the interests of “gotcha journalism” before the interest of student safety.

 

In 2007 the Board of Higher Education, the Executive Office of Public Safety and the Executive Office of Health & Human Services co-hosted a symposium at UMass-Boston called Campus Safety in the 21st Century.  This important event grew out of the tragic events that occurred at Virginia Tech in April 2007.  Mental health providers from colleges and universities throughout the Commonwealth attended the symposium, and they talked about the critical importance of sharing information between university administrators, professors, mental health providers and law enforcement personnel.  These same mental health professionals expressed concern about legislation like S.2820 because of the real risk that such bills would impose barriers or otherwise reduce the possibility of a student contacting college or university police officers to report troubling behavior – behavior that could be critical to assessing whether another student poses a threat to himself or others.

 

The Report to the President on Issues Raised by the Virginia Tech Tragedy, dated June 13, 2007, also stressed the importance of sharing information amongst education officials, healthcare providers and law enforcement personnel.  The Report cautions that “informational silos” within educational institutions impede appropriate information sharing, and that this problem is exacerbated by confusion about the laws governing the sharing of information.  We believe that S.2820 would increase the “silo” effect on information sharing and add to the confusion about whether information shared with a college’s police officers will subsequently be made public and possibly used against the person providing the information.  S.2820 would not foster cultures of trust and open communication on campus.  Much to the contrary, this bill sends the message to educators and students alike that providing information to campus police could very well come back to haunt you.  We should be encouraging an environment in which information is shared between and amongst the people who can do something to assess and deal with the potential risk posed by a student or staff person.

 

Some have tried to connect this bill with recent media stories about the handling of sexual assaults on college campuses.  It is important to remember that this bill will not change the statutory protections currently offered to victims of sexual assaults, whether that assault takes place on a campus or a shopping mall.  Under MGL c. 41, §97D, all “reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality”. Police reports on sexual assaults currently are not public records, and such reports will not become public records if this law passes.  So if the general public or media think that it will have access to university police reports about sexual assaults, that is incorrect information

 

All colleges and universities strive to provide an environment where students are safe to learn and grow as students and engaged citizens.  All of the independent colleges and universities in Massachusetts are committed to protecting the safety of the students committed to their care, and they will support legislation that furthers that critical goal.  Unfortunately, S.2820 does nothing to improve public safety on our campuses.  To the contrary, this bill poses the real risk of undermining a school’s ability to safeguard its students.  Therefore, AICUM and its member institutions oppose S.2820, and we respectfully request that members of this Committee vote that the bill ought not to pass.