Published Sept. 18, 2012
Butler University Police Department refused to release the full incident report of a pellet gun shooting that occurred Sept. 11 at Apartment Village.
Officials initially cited the Family Education and Privacy Rights Act as the reason the report could not be released.
The federal law, known as FERPA, is overseen by the U.S. Department of Education. It was created to prevent the release of educational records.
In 1992, Congress added a section to the law that outlines what does and does not constitute an educational record.
The U.S. Department of Education clearly states, “’Law enforcement unit records’ are not ‘education records’ subject to privacy protections of FERPA. As such, the law enforcement unit may…disclose law enforcement unit records to third parties without the eligible student’s prior written consent.”
When asked about the federal department’s definition of a law enforcement document, Ben Hunter, chief of staff and executive director of public safety, told The Collegian in an email that since the case had been turned over to student affairs, it was no longer a law enforcement document and is now a disciplinary issue.
Adam Goldstein, an attorney advocate with the Student Press Law Center based in Virginia, said that if a document is created for any law enforcement purposes, it is not protected by FERPA.
He said anyone using the federal law to keep such information secret was running the risk of violating the law and could be fined.
“Just because it’s moved to a different department doesn’t mean that the incident report doesn’t exist,” Goldstein said. “There’s no reason for the department to say that the report is covered. That’s no excuse.”
Hunter then told The Collegian that since Butler is a private institution, records kept by the department did not fall under the same public records laws as public institutions.
Since Butler police officers have arresting powers, they can be considered as the functional equivalent of a public agency and must follow open records laws.
“These are not special officers,” a representative with the Indiana State Police Department told The Collegian. “They have to follow the same rules that every other officer in the state has to follow.”
The Butler University Police Department’s website on Monday read, “Officers are appointed under statutes of the State of Indiana with full police powers, sharing concurrent jurisdiction in the boundaries of Marion County with the Indianapolis Metropolitan Police Department.”
On Tuesday, this statement had changed. The website now reads, “Our police patrol supervisors and police officers are appointed under the statutes of the State of Indiana with full police power and are available 24 hours a day throughout the year. They are graduates of the Indiana Law Enforcement Academy.”
When asked about the department’s jurisdiction, Hunter said that the department made no arrests, nor did it send the case to a government prosecutor. Therefore, he said, the case was not public record.
Until the department presents a case to a government agency, Hunter said that the records are private.
STUDENT CONDUCT SYSTEM
Most incidents at Butler are not charged in the criminal court system. Instead, the Office of Student Affairs handles incidents.
As outlined by the residence life guidelines in the 2012-13 student handbook, residents may not possess or store firearms—including pellet guns—in their rooms or in any other place in residence halls or university apartment buildings.
Anyone possessing such items is subject to severe student conduct action, which may include suspension or dismissal.
University rules of conduct state that a student can be subject to sanctions if he or she is involved in behavior that could or does result in the physical injury of another person and if a student possesses firearms.
The university’s conduct system consists of administrative reviews and dispositions, administrative appeals, a student conduct board, a university appeals board and appeals to the president.
While most offenses committed on campus will normally result in student conduct action by the university, the handbook states that students can be accountable to both civil and criminal authorities and to the university for acts that constitute violations of such laws.
CRIME IN INDIANA
Both the redacted incident report and the crime report on the Clery log have the incident listed as “criminal recklessness.”
Under Indiana law, criminal recklessness includes a person who recklessly, knowingly or intentionally inflicts serious bodily injury on another person.
Hunter said the officers who answered the call and filed the report submit what charge should be connected to an incident. Hunter said that he wouldn’t have submitted the report as criminal recklessness, which can result in jail time, fines or community service.
It is unlikely that the incident report from last week’s pellet gun shooting will be released, Hunter said. The case is “victim-driven,” and its release is dependent on if the victim decides to press criminal charges.
As of press time, the victim has decided to not press charges and to keep the suspect’s consequences at the university level.
FERPA states that there are exemptions to the release of an incident report.
The most common exemptions are records that would compromise an ongoing investigation.
Hunter said the victim has roughly a year to decide if she wants to press charges. Until then, he said, the case could remain open.