Bauer v. Kincaid

• Decision Date: 14 March 1991
• Docket Number: No. 90-3027-CV-S-4.,90-3027-CV-S-4.
• Citation: 759 F. Supp. 575
• Parties: Traci BAUER, Plaintiff, v. Paul K. KINCAID, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

759 F. Supp. 575

Traci BAUER, Plaintiff, v. Paul K. KINCAID, et al., Defendants.

No. 90-3027-CV-S-4.

United States District Court, W.D. Missouri, S.D.

March 13, 1991.

Addendum March 14, 1991.

Douglas W. Greene, Springfield, Mo., and Daniel J. Dodson, Roger G. Brown and Associates, Jefferson City, Mo., for plaintiff.

John F. Black, Ellis, King, Ellis & Black, Springfield, Mo., for defendants.

ORDER

RUSSELL G. CLARK, District Judge.

Jurisdiction

Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1331 in that Counts I and II are filed under 42 U.S.C. § 1983, Count IV seeks a declaratory judgment based on a federal statute and jurisdiction of additional counts is pursuant to pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Findings of Fact

1. Plaintiff is an adult, being over the age of eighteen years, is a citizen of the United States, and of the State of Missouri, is a student at Southwest Missouri State University, hereinafter referred to as "SMSU," and is the editor in-chief of the Southwest Standard, a student newspaper at SMSU.

2. Defendant Kincaid is the Director of University Relations at SMSU.

3. Defendant Batchelder is the Director of the Safety and Security Department at SMSU.

4. Defendant Gordon is the President of SMSU.

5. Defendant Patton is Vice President for Administrative Services at SMSU.

6. Defendant Lunday is Vice President for Student Affairs at SMSU.

7. Defendants Pinegar, Miller, Cantwell, Ferguson, Fowler, and Hall are members of the Board of Regents at SMSU, and, as Board of Regents, are vested with the general control and management of the University.

8. Defendant Maurice E. Edwards is no longer Custodian of Records of SMSU, and Marilyn M. Dennis is now Custodian of Records.

9. Southwest Missouri State University is a public educational institution located in Springfield, Missouri, and as such, receives funds from, among other sources, the State of Missouri and the United States Government for education and related purposes.

10. Crimes have occurred, and in the future are likely to occur on the campus of SMSU, which have involved, and will in the future involve, SMSU students as victims or suspects of criminal activity. Defendants have recognized the importance of and have the intent to promptly forward to the proper law enforcement authorities reports of all actual or suspected criminal activity occurring on campus that has been brought to the attention of defendants or their agents, so that criminal activity may be promptly and properly investigated by law enforcement authorities.

11. The SMSU Safety and Security Department has no curricular educational function, and is not a commissioned law enforcement agency.

12. The SMSU Safety and Security Department performs functions that include the search of students rooms, the investigation of suspected criminal activity on campus by students and non-students, and the preparation of criminal investigation reports, which the department and the university denote as "incident" reports.

13. The "incident" reports made by employees of the SMSU Safety and Security Department are reports of investigations by such department of suspected or reported crimes, including sexual assault, robbery, criminal assault, burglary, stealing and other crimes allegedly committed by students and non-students on the SMSU campus.

14. As a part of its function, the SMSU Safety and Security Department makes, keeps, and maintains the "incident" reports, and other reports concerning crimes occurring on campus. In most of those reports, students are alleged victims or suspects. In some they are not.

15. Plaintiff has in her possession, or may obtain in the future, verbatim copies of criminal investigation reports prepared by the SMSU Safety and Security Department which were obtained in the past or may be obtained in the future by plaintiff from collateral sources, which reports may contain the names and addresses of student victims or suspects.

16. The SMSU Safety and Security Department is a functioning arm of SMSU, subject to the general control and policy of the SMSU Board of Regents, and the defendants Batchelder, Lunday, Patton, and Gordon.

17. On July 31, 1989, defendant Kincaid distributed a policy regarding release of Security Office records which include the "incident" reports, under which policy verbatim copies of such reports are withheld from the public and the media by the defendants; and that plaintiff, in her capacity as a student, a journalist and a citizen, has requested of defendants that they allow her to inspect and copy such reports, and that defendants have refused her request.

18. Police authority and jurisdiction over the SMSU campus and persons on campus lies with the Springfield, Missouri, Police Department.

19. A number of SMSU student victims of alleged crime do not make their initial complaint as crime victims to the Springfield Police Department or the Greene County Sheriff's office, but make such complaints to the SMSU Safety and Security Department.

20. The Director of the SMSU Safety and Security Department directs his security officers when investigating alleged criminal activity to advise students and provide them written notice that the Security Department is not a commissioned law enforcement office, and to encourage the students to report the matter with the Springfield Police Department.

21. Plaintiff claims that because of the delay of filing of the "incident" reports with the Springfield Police Department, or, in some cases, not filing such reports with the Springfield Police Department, the police are unable to promptly investigate oncampus crime, which deprives plaintiff of the quality of police protection she would receive if she were a non-student living off campus. Further, plaintiff claims that she is entitled to the "incident" reports in question, and all other criminal investigations reports prepared by the SMSU Safety and Security Department, by reason of the provisions of Mo.Rev.Stat. Chapter 610 claiming that SMSU is a "public governmental body" and the criminal investigation reports in question, including the "incident" reports, are not classified as closed records by § 610.025 or any other provision of Chapter 610 and further claiming that for such reason she is entitled to inspect and copy such records.

22. Defendants claim that the provisions of 20 U.S.C. § 1232g, et seq., and/or Mo.Rev.Stat. Chapter 610 prohibit and prevent SMSU from releasing to plaintiff, any member of the public, or any member of the press, verbatim copies of the "incident" reports, or any other type of criminal investigation report or summary that contains the name of any SMSU student.

23. The Family Educational and Rights of Privacy Act ("FERPA"), 20 U.S.C. § 1232g(a)(4)(A) defines "Education records," with certain exceptions, as those records, files, documents, and other materials which contain information directly related to a student, and which are maintained by an educational agency or institution or by a person acting for such agency or institution.

24. 20 U.S.C. § 1232g was enacted by Congress to protect the privacy of students and their parents by limiting access to student educational records maintained by an educational institution.

25. It is the policy of SMSU that personnel of the Safety and Security Office do not have access to Education Records as defined in Paragraph 23.

26. It is the policy of SMSU that the records and documents of the Safety and Security Office are kept apart from Education Records described in Paragraph 23 and remain solely for law enforcement purposes, and are not made available to persons other than the Springfield Police Department.

27. On approximately a weekly basis, at the request of the student newspaper for which plaintiff is student editor, defendant Batchelder orally advises the student newspaper of alleged criminal activity occurring on the SMSU campus within the past week, but advises in such a manner to not provide the names, addresses or other personally identifiable information contained in said records regarding students at SMSU.

28. It is the policy of SMSU to make available to the Springfield Police Department, upon request of the Springfield Police Department, any and all records of the Security Office maintained separately and apart from education records, as described above in paragraph 23.

29. It is the policy of the SMSU Security Office to notify the Springfield Police Department by telephone of suspected felony criminal activity and sexual assault of any classification, to allow the Police Department to conduct its own investigation at that time if the Police Department so desires.

30. The telephone number of the SMSU Safety and Security Department is listed on some campus telephones, along with the emergency "911" telephone number to contact the Police. On some campus telephones, particularly those that are restricted to campus telephone numbers, the SMSU Safety and Security Department phone number is listed. The "911" number could not be accessed by those campus telephones.

31. The Board of Regents, and the individual members of the Board of Regents, are not provided and do not review the security records, including the "incident reports" requested by plaintiff. Defendant Batchelder, as Director of the Safety and Security Department, and defendant Patton, as defendant Batchelder's immediate supervisor, are the only defendants that routinely have access to the security information reports.

32. Defendant Patton, as Vice President for Administrative Services, is involved with administrative support, and is not a professional educator.

33. It is the policy of the SMSU Safety and Security Department, on a weekly basis, to provide summaries of all suspected criminal activity on the University campus to the Springfield Police Department, including the SMSU incident report...