Open Records Dispute

After a month and three days of debate with University of Memphis Police Services and Legal Counsel, The Daily Helmsman is expected to obtain an incident report of a rape that occurred in Smith Hall in November.

Originally, police and counsel maintained the report was a confidential student record. Though The Helmsman provided them with legislation that stated any document taken for law enforcement purposes is open to the public, they contended the rape report wasn’t written down for police purposes.

“The student does not want to press charges. They do not want to go through with it criminally. It is handled internally as a confidential student matter. At that point it is a confidential student matter. It was not taken for law enforcement purposes,” Associate University Counsel Melanie Murry told reporters in a meeting March 1.

It wasn’t until after the executive director of the Student Press Law Center sent a letter to legal counsel on The Helmsman’s behalf that Counsel agreed to release the rape report.

“We have to disclose the report, but the open records law says we are not to provide any information that would lead to the identity of the student,” Murry said Monday, also noting she still didn’t agree with the releasing of the report.

She said she couldn’t provide the exact citation of the law that allows the redaction of victim and suspect names until she had been advised further. She also said Memphis police do not release the names of rape victims.

In the case of an alleged rape of a student that occurred on campus Monday, Memphis police posted a detailed account of the offense, including the name of the student victim and alleged rapist, in an affidavit database, viewable to the public.

The Helmsman seeks the names of victims, suspects and witnesses on all criminal reports in order to get a further explanation of what occurred, check previous criminal history of those involved and to know whether those involved are people of high importance or well-known to the campus community. The paper’s policy is to never print the name of a victim without the victim’s permission and to not disclose the name of a suspect, unless he or she was charged with a crime.

 In a similar situation in 2007, The University redacted names of a victim, suspect and witnesses in a rape case, citing an exemption to the state’s open records act that they said allowed them to withhold information printed on a driver’s license from police reports.

In response, Lucian Pera, a first amendment lawyer hired by The Helmsman, contended in a letter to University Counsel Sherri Lipman that the exemption did not apply to students or law enforcement records.   

“…it is clear,” Pera wrote, “that what is intended to be made confidential by (that exemption) is very specific and would not extend to all information that appears on a person’s driver’s license.  Rather, it would apply to specific information, such as the driver’s license number and the state that issued the driver’s license.”  

In an interview on Monday, Murry said she interprets the exemption to mean any information listed on a driver’s license, including a name and said Pera’s letter explains his opinion of the law, which she interprets differently.

Helmsman editors said The University not releasing names has been a problem in the past when Police Services declined to disclose reports involving student athletes.

In 2006, two female students reported to campus police that then basketball players Joey Dorsey and Hashim Bailey threatened and assaulted them in a nonsexual manner after a homecoming rally. When the victims tipped off a Helmsman reporter about the incident, the reporter requested the police report, but was told by Police Services that the matter was being handled by Judicial Affairs and was confidential.     

In that case, the student population would not have known the two were involved in an altercation if the victims had not told their story to reporters. The Helmsman does not know who was involved in the case at hand, which was reported to police on November 27.

It was classified as “Sex Offense — Forcible,” and a brief synopsis of the incident stated the victim said she was sexually assaulted by her then boyfriend, who is also a student, in her dorm room in Smith Hall sometime in early October.

Police didn’t send a TigerText about the incident and have said in the past that certain crimes, no matter the seriousness, are not a danger to the campus community because they are isolated and police believe the suspect will not attack again. Such was the case during the Taylor Bradford murder in 2007, when police issued a lockdown of the campus but didn’t send an alert informing people there had been a murder on campus until six hours after the incident.

The federal Clery Act mandates campus police records to be publically available, and requires police to report potentially dangerous situations to the campus community within a relatively short time period of their occurrence.  

According to the year-end Clery statistics, there have been 17 incident reports of rape taken by Police Services between 1995 and 2011. Monday’s reported rape will be included in the 2012 statistics, making it the 18th report. Derek Myers, deputy director of public safety, said in those cases five arrests were made and four cases were declined prosecution by the attorney general. In two cases, police never determined a suspect, and in seven instances the victim refused to prosecute.

 Every report is submitted to Judicial and Ethical Programs, regardless of the results of the criminal investigation, Myers said.