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Arguments Heard in Harvard Police Records Case

By John A. Hawkinson

Harvard’s student newspaper The Crimson and Harvard University argued before the Massachusetts Supreme Judicial Court yesterday in a case that could require the disclosure of arrest records by private university police departments.

The case was originally filed by The Crimson in June 2003, after the Harvard Police Department refused a request to provide access to arrest records referenced in Harvard’s police log. The Crimson claimed those records should be available under the Massachusetts Public Records Act. The Public Records Law is similar to the federal Freedom of Information Act, which allows public access to government records.

Massachusetts Superior Court dismissed the case in favor of the university, and The Crimson is now appealing to the Supreme Judicial Court.

The case hinges on whether the Public Records Law applies to private police departments. The Crimson argues in its brief that Harvard Police officers “are also officers or employees of … public entities under the Public Records Act.”

Harvard University’s brief argues that its police officers are neither state employees nor officers. Harvard also claims that the records in question are “already public,” because arrest warrants are “returned to the issuing court,” with similar provisions for warrantless arrests, such that they may be requested from the relevant court.

The case was argued for The Crimson by Frances S. Cohen of Dechert LLP and for Harvard University by Jeffrey Swope of Edwards Angell Palmer & Dodge LLP. Swope frequently represents MIT.

Both sides performed well in oral argument, limited to 15 minutes each. Cohen, who argued for The Crimson, was questioned by Justice John M. Greaney as to whether a verdict in favor of The Crimson might require Wal-Mart to release similar records if their security forces were deputized. Cohen replied yes, suggesting that would be a desirable result.

A similar case in Georgia, Barrett & Farahany v. Mercer University, was decided in favor of open campus records in February 2004, however, Georgia’s appeals court reversed that decision in February 2005, and the George Supreme Court declined to hear the case.

Chief Justice Margaret H. Marshall recused herself from the case because she has previously represented Harvard University.