St. Edward’s seeks second attorney general opinion on open records

Jacob Sanchez

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Editor’s Note: This story has been updated throughout.

St. Edward’s University is seeking a second Attorney General’s opinion in response to an open records request from Hilltop Views.

The newspaper’s editors made the request for any and all police reports concerning sexual assault and rape on Oct. 28. The request initially specified that victims’ names be redacted. The editors submitted an amended request on Nov. 1 specifying that additional information, such as student identification and Social Security numbers, also be redacted.

In response, the university notified Hilltop Views on Friday that it seeks to withhold the reports’ front-page synopses, the narratives, information that identifies or tends to identity the victims of sexual assault, Social Security numbers motor vehicle information and student ID numbers. The university has asked Attorney General Ken Paxton to rule on this request.

“Because these reports concern sensitive allegations of sexual assault, these reports pertain to active investigations and prosecutions, and we are seeking to withhold information beyond what the request stated could be redacted, we thought it best to let the Attorney General review and determine the full scope of what can and can’t be released from these reports,” Risk Management Director Rebekah Desai said.

Private university police departments like St. Edward’s UPD are now considered to be governmental bodies in relation to Texas open records laws, according to Senate Bill 308, which the Legislature passed last session. Under the law, which took effect Sept. 1, incident reports generated by UPD are now subject to the state’s open records laws. Anyone may file an open records request as long as he or she pays the fees associated with it.

The latest request is the second AG opinion being sought by the university. The first AG opinion request came on Oct. 27, nine business days after Hilltop Views asked for any and all police reports between Oct. 12 and Oct. 13 as well as reports and other documentation of incidents involving drugs and alcohol from Jan. 1, 2010 to Sept. 1, 2013.

Hilltop Views Faculty Adviser Jena Heath, associate professor of English Writing & Rhetoric-Journalism, said student journalists must weigh a number of competing and important interests when they report the news.

“Hilltop Views editors are mindful of the critical need to protect the privacy of those who report sexual assault and other violations to the University Police Department. That is why they amended their Nov. 1 request to urge withholding of identifying information,” Heath said. “They are also mindful of the critical need for full, transparent and accurate reporting of crime and safety issues on college campuses.”

When asked about whether the passage of S.B. 308 and, with it, greater transparency about campus crimes is a good or bad thing, Desai said she was not able to speak on behalf of SEU about it — despite writing both requests to the attorney general for the university. 

“I’m not able or prepared to speak on behalf of the university with respect to S.B. 308 and greater transparency being good or bad for private universities. I’ll forward your question on and see if anyone is prepared to give a statement,” Desai said.

Originally, St. Edward’s asked the Texas Attorney General’s Office to decide if UPD has the right to withhold certain police reports and information before fulfilling an open records request by Hilltop Views.

The university’s request — filed on Oct. 27 by Desai on behalf of UPD — came nine business days after Hilltop Views requested any and all police reports between Oct. 12 and Oct. 13 as well as reports and other documentation for incidents involving drugs and alcohol from Jan. 1, 2010 to Sept. 1, 2013. This was Hilltop Views’ second open records request.

What St. Edward’s is asking the attorney general to weigh in on is if it can:

• Withhold one report in its entirety because it concerns a suspect who was a juvenile

• Redact certain confidential information in several reports.

• Release only the basic front page information of reports that concern active prosecutions and closed investigations that did not result in a conviction or deferred adjudication.

• Redact student identification numbers, Social Security numbers, license plate numbers, vehicle identification numbers and driver’s license numbers.

“By law, the Attorney General’s Office is charged with this duty [of issuing an opinion when requested] and it’s a civil procedure,” Kelley Shannon said, executive director of the Freedom of Information Foundation of Texas, an organization that promotes open government and the First Amendment. “They’re telling that governmental body — in your case, the St. Edward’s Police Department — they’re telling them, ‘Yes, you need to release the info or no you don’t have to.’”

The attorney general’s decision will come within 45 business days after SEU asked for a decision.

Hilltop Views is requesting incident reports in order to analyze patterns and give the campus community a clearer idea of safety issues. A third open records request has been filed by Hilltop Views to UPD for any police reports concerning sexual assaults and rapes on campus.

Redacting information

UPD has asked the attorney general if it may redact confidential information, such as student IDs and Social Security numbers.

“If UPD wishes to withhold certain information based on an exception to [the Public Information Act], UPD is required to refer the matter to the attorney general for a ruling on whether an exception applies,” Desai said. “Requesting an Attorney General ruling is a common procedure for those government bodies subject to the Public Information Act.”

In a previous article, Desai said that because of the newness of the law “there are procedures we are still establishing to address these requests,” which explained why the first police reports received by Hilltop Views were heavily redacted.

After consulting with its lawyer, St. Edward’s decided to give Hilltop Views the police reports with only confidential information, like student IDs, redacted. On Oct. 3, UPD Capt. Dan Beck wrote a letter explaining why UPD would be redacting information.

“Normally, we must request a ruling from the Texas Attorney General before we can withhold any of the information you requested. However, sections 552.136, 552.147 and 552.130 allow us to withhold this specific information without requesting a ruling from the attorney general,” wrote Beck in the letter.

What has changed between then and now that would make UPD ask for the attorney general to weigh in on what to withhold?

“Our understanding of the Act and appropriate procedures have evolved as we’ve received and responded to these requests. We have received more training and consulted with our attorney as well,” Desai said.

Juveniles

In Hilltop Views’ first open records request, UPD released five police reports that contained six people under 18.

However, information about juveniles may be released as long as the juvenile is a complainant, witness or individual party not the suspect or offender, according to section 58.007(c) of the Texas Family Code.

Of those juveniles released in the first round of open records, two were witnesses and four were subjects.

One of those subjects was a male student, 17, who was arrested for possession of marijuana, drug paraphernalia and consuming alcohol as a minor, according to the police report from Sept. 8, 2013.

“As we worked to address the first request, we were unable to meet this 10-day deadline and subsequently forfeited our right to seek an opinion and to withhold information,” Desai said. “The release of information concerning that minor was inadvertent and we are working to ensure we address all disclosure exceptions thoroughly moving forward.”

According to section 58.007 of the Texas Family Code, “ … law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public … ”

Police report data

In 2014, there were 107 alcohol and 35 drug referrals, according to St. Edward’s Clery Crime Statistics. When you look at police reports, though, there were only 17 cases where UPD was involved.

A total of four cases resulted in arrests in 2014. Of those four, three had drugs involved and one was related to alcohol, according to the police reports. None involved the arrest of a St. Edward’s student.

One arrest was of a male Bon Appetit employee, 21, for possession of drug paraphernalia on the fourth floor of the parking garage.

Another was of a man, 29, who was arrested between apartment buildings one and two for possession of drug paraphernalia — two syringes and a heroin cooker. A homeless man, 45, was arrested on University Circle near Main Building for possessing 13 grams of marijuana.

Finally, a man, 19, was arrested near apartment building 15 for consumption of alcohol by a minor. He would be released to his parent.

Of the 31 police reports given to Hilltop Views, 21 were alcohol related, eight drug related and two related to both drugs and alcohol. These police reports range from Sept. 2, 2013 to Aug. 28, 2015.

In 2015, no arrests were made relating to drugs or alcohol on campus prior to Aug. 28, according to police reports.

After September 2013, UPD made four arrests for the remainder of the year.