Crimson Lawsuit at State Supreme Court

Massachusetts’s highest court heard The Crimson’s appeal yesterday in its two-year lawsuit to force Harvard University Police Department (HUPD) to release more detailed crime reports.

Crimson lawyer Frances S. Cohen argued before the Supreme Judicial Court (SJC) that because the state endows HUPD officers with “special state police powers,” such as the right to make an arrest and obtain and execute a search warrant, HUPD must release more detailed crime reports.

Massachusetts public record law requires public police forces to release reports filed in response to calls, unless these reports are specifically exempted from public record.

But the University contends that these laws do not apply to them because they assert HUPD is a private entity and because the University has an overriding legal obligation to protect the privacy of those students victimized in crimes or medical emergencies.

“The Crimson has never claimed that they want every piece of information,” Cohen argued. She said the paper only wants documents “necessary and appropriately incidental to the power to make an arrest.”

“If HUPD can arrest people like a state police, they should have to also make the reasons behind these arrests public, like all police forces,” Crimson President Lauren A. E. Schuker ’06 said.

But University spokesman Joe Wrinn said Harvard is “on the right side of this.”

“It strikes a good balance between obeying the laws, which we follow, being transparent, and protecting the privacy of our students, faculty, and staff when activities do not involve criminal behavior,” he said.

The Crimson’s claim hinges on the issue of the point at which HUPD ceases to be a private entity and becomes a public one.

Justice Robert J. Cordy suggested repeatedly throughout the hearing that the turning point comes at the point of an arrest.

“Why isn’t this clearly a public record when [an HUPD officer] makes an arrest?” he asked HUPD lawyer Jeffrey Swope.

“A public record is only a public record when in the hands of a public entity,” Swope replied, suggesting that HUPD is rarely, if ever, a public entity.

But Cohen said drawing the line between private and public at the point of an arrest provides too narrow a definition of HUPD as a public entity. She added that drawing the line at the point of arrest would limit The Crimson’s ability to run certain investigative stories as thoroughly and objectively as possible.

“You might want to know why a decision was made not to make an arrest,” Cohen said, alluding to a methodology that is commonly used in racial profiling investigations.

Schuker said that in order for The Crimson to investigate issues like the possibility of HUPD racial profiling and ascertain the frequency of sexual assault in the community, it would need reports that are not currently available.

Justice Martha B. Sosman suggested that because the Massachusetts State Legislature passed the law requiring university police departments to publish daily crime logs, it should be up to the legislature to resolve this dispute.

“Hasn’t the legislature already drawn that line and drawn it at logs?” Sosman asked Cohen.

The Crimson’s suit was previously dismissed by Middlesex Superior Court Justice Nancy Staffier on March 17, 2004 on similar grounds, asserting that it is a legislative issue.

If The Crimson loses the appeal, its only recourse will be through the legislature. Under that circumstance, “if newspapers like The Crimson want these records, they’ll have to get the legislature to change the public records act,” said Leonard M. Singer, a lawyer who wrote an amicus brief siding with The Crimson.

This is a possibility: in late 2004, Mass. State Sen. Jarrett T. Barrios ’90, D-Cambridge, introduced a bill that would force campus police departments to release crime reports.

Sarah Wunsch—a lawyer representing The Crimson from the American Civil Liberties Union of Massachusetts—said there seemed to be “a lack of concern from the Justices of the immense power that people with police power have.”

The Court’s Chief Justice, Margaret H. Marshall­­, recused herself from the case because of a conflict of interest resulting from her service as former Vice President and General Counsel of the University.

Four of the seven SJC justices have graduate degrees from Harvard, including three from Harvard Law School.

The Court will likely deliver a ruling by next April, according to SJC First Assistant Clerk Jane K. Lewis.