University files lawsuit so court will clarify open-records law

Tuesday, December 22, 1998

Southwest Missouri State University has filed a lawsuit in state court against a student reporter in an effort to determine if student judicial records should be made public according to state and federal laws.

“We think it is important that the courts, the media, the students and the university are all clear about which records can and cannot be released,” said Bob Glenn, the university's dean of students. “The purpose of the lawsuit is to seek clarification from the court on these questions.”

On Nov. 20, Patrick Nolan of the Southwest Standard, the school's student newspaper, filed a formal request for records concerning student judicial cases at the Springfield, Mo., university.

University officials said they worried that they might violate the federal Family Educational Rights and Privacy Act if they released certain records about students. But at the same time, officials said they might also violate recently passed amendments to the law that open up many school records concerning campus crime and security.

Five days after Nolan's request, the university filed its lawsuit in Greene County Circuit Court, requesting a declaratory judgment.

University officials note that Missouri's Open Meetings and Open Records Law requires that any governmental body unsure of the legality of releasing a record may file a lawsuit to allow the court to decide. The law — also known as the Missouri Sunshine Law — requires university officials to file the suit against the person making the records request.

“I want to emphasize that this lawsuit is not adversarial,” Glenn said in a statement. “It is our best option under the Sunshine Law to get clarification of the law. … If we would have had the option to file the lawsuit without naming a defendant, we would have.”

Kansas City attorney Blaine Kimrey, who is representing Nolan, agrees that the lawsuit isn't directed at his client.

“They seem to just want a court to construe the law,” Kimrey said. “They've been nothing but congenial with us. We're trying to basically hammer out a mutually agreeable solution.”

In its filing, the university asked the court's permission to release statistics concerning charges filed under the university's student code. Officials also asked the court to determine which other records related to the student code should be open under state law.

Glenn said the university wanted “to make available to anyone who requests them the names of those students who have been found responsible for crimes of violence on campus, as well as all statistical information about all cases processed through the student judicial system.”

Mark Goodman, executive director of the Student Press Law Center, said that a quick court decision would likely set the standard for other colleges and universities trying to figure out how to handle such records.

Goodman says he hopes the court decides to open the records because they “relate to serious criminal offenses on the campus.”

Southwest Missouri State isn't a stranger to freedom-of-information cases.

In 1990, Traci Bauer, then student editor for the Southwest Standard, sought campus police records about a sexual assault in one of the dorms, an assault that allegedly involved a star basketball player. School officials refused to hand over the records.

Bauer took the university to federal court with the help of the Society of Professional Journalists and the Student Press Law Center.

The next year, the U.S. District Court for western Missouri determined in Bauer v. Kincaid that such records should be made public. The school declined to appeal the decision.

Even though the case never progressed out of the state, press advocates hailed the decision as a landmark, noting that it bolstered efforts to break through “the walls of campus secrecy.”

Last Oct. 7, President Clinton signed into law several amendments to the Family Educational Rights and Privacy Act that require universities to “prepare, publish and distribute” information about campus crime.

Such information includes campus police logs, crime statistics and university policies on security and access to campus facilities.