If It Walks Like a Cop…

Late last month, the head of Connecticut’s Freedom of Information Commission issued a ruling that, if upheld by the full Commission, will require the Yale University Police Department to release records pertaining to the Department’s exercise of police powers. This development is a heartening step forward in a cause this newspaper has consistently advocated for: Deputized campus police departments must allow open access to their records equivalent to what is already required by law from municipal police departments.

The Connecticut ruling is especially relevant at Harvard, where the issue of free access to campus police records has been disputed for years. The Harvard University Police Department (HUPD) is, in terms of delegated state authority, almost identical to its Yale counterpart: Though operated by Harvard University, a private entity, HUPD officers are deputized by the Commonwealth of Massachusetts with “special state police powers.” HUPD officers can and do carry firearms, make arrests, execute warrants, and otherwise avail themselves of any standard police power at the disposal of a Boston police officer or Massachusetts state trooper. From the standpoint of a private citizen, there is simply no practical difference between a HUPD officer and a Cambridge officer.

It is well understood that police departments are required, upon request, to surrender records related to the exercise of their police powers, such as arrest and incident reports. Public scrutiny of such records is an indispensable tool for monitoring, and thereby preventing, any potential abuse of police powers. Nevertheless, campus police departments across the country—including HUPD—have argued that they, as subsidiaries of private entities, should not be bound by the same freedom of information standards that govern so-called “public” police departments. Accordingly, HUPD publicly releases only general statistics and sanitized event logs rather than original police reports—reports that would be unhesitatingly released by any other governmental police department.

In 2003, The Crimson sued HUPD on this point, arguing that because HUPD is vested by the state with full police powers—powers which hold jurisdiction over all citizens, not just those affiliated with a private institution—it essentially operates as an agent of the state, and should thus be forced to surrender police records upon request just as any other police department would. The University disagreed, arguing that since HUPD’s records are the property of the University, a private entity, they are beyond the reach of public record release laws.

Though we don’t believe that, for example, a private security firm with no police authority should have to release its internal records to the public, HUPD—like any other deputized campus police department—represents a patently different case. The distinction in this matter should not, as Harvard maintains, rest on who signs an officer’s paycheck, or to whom an officer answers, or which insignia an officer wears on his sleeve. Rather, it should rest on which powers are delegated by the state and applied by the agency, since this is the only distinction that materially affects the general public. If a law enforcement agency, irrespective of who maintains it, is empowered by the state to hold police authority indiscriminately over all citizens of the state, then the citizenry should be entitled to review that agency’s application of its delegated powers. And when a law enforcement agency, even a private one, accepts public police privileges, common sense dictates that it must waive some measure of its legal autonomy. To argue otherwise, as the University has, is to subvert the importance of public oversight of government authority.

Some University administrators worry that campus police records contain sensitive student information that, if distributed to members of the campus press, might breach these students’ privacy. Certainly, we recognize that HUPD performs many sensitive tasks—sometimes involving students who have not committed crimes—that a conventional police department would not. But the fact remains that any consideration for these other roles and their sensitivity is vastly outweighed by the need for public oversight over HUPD’s potent police powers.

Though The Crimson’s 2003 lawsuit was ultimately defeated in the Commonwealth’s highest court, the door was left open for the Legislature to modify state law so that all campus police departments in Massachusetts would have to comply with existing freedom of information standards. Thus far, the Legislature has largely remained stalemated on this issue, which is disappointing. If the Commonwealth’s legislators are truly committed to maintaining genuine oversight over those to whom it delegates extensive power, then they must work without delay to obligate all deputized campus police departments to open their records to full public inspection.