Baylor University has released three heavily redacted reports in response to a Tribune-Herald request for records of sexual assaults reported to Baylor police during the past 15 years.
Vanessa Gonzalez, an Austin attorney hired by Baylor to fight the newspaper’s request, said early Thursday morning that she could not explain the small number of cases released by Baylor without getting permission from Baylor officials to respond. Thursday afternoon, she said she had not heard from Baylor and again declined to explain for attribution Baylor’s response to the information request.
The three reports released — two from 2013 and one from 2014 — contain large black chunks of text that have been redacted and offer limited information about the incidents.
The release of the reports comes after the Texas Attorney General’s Office ruled last month that Baylor can withhold certain aspects of police reports that involve alleged student privacy issues but must release information because a new law makes law enforcement records from private universities’ police departments subject to public information laws.
The Tribune-Herald requested on Feb. 9 reports received by the Baylor University Police Department of sexual assaults and other improper sexual conduct during the past 20 years.
Gonzalez asked the Tribune-Herald on Feb. 22 to limit the scope of its request. The Tribune-Herald agreed to narrow the request by five years, and then Baylor sought an attorney general’s opinion March 10 about whether the documents are subject to open records laws.
Assistant Attorney General Ellen Webking wrote in her opinion that portions of some documents submitted to her office by Baylor must be released. Webking wrote that other records Baylor claims must be withheld under the Federal Educational Rights and Privacy Act were not ruled on because Baylor did not submit examples of those reports based on student privacy concerns.
The opinion does not clarify which aspects of the reports should be withheld.
“The (Baylor police) department asserts the remaining requested information is subject to FERPA and has not submitted this information to our office for review,” Webking wrote in her opinion. “Because the department has not submitted this information to our office for review to determine if this information consists of a law enforcement record to which FERPA does not apply, we must rely on the department’s assertion this information is subject to FERPA.”
The Tribune-Herald requested the information after women came forward charging that Baylor mishandled allegations that they had been sexually assaulted. Those allegations came in the wake of Baylor defensive end Sam Ukwuachu’s conviction in August for sexually assaulting a now-former Baylor student.
Former defensive end Tevin Elliott also was convicted of sexually assaulting a Baylor student in 2012, and former defensive end Shawn Oakman, Baylor’s all-time sacks leader, was arrested in April and charged with sexually assaulting a Baylor graduate student at his off-campus apartment.
A new law from the past legislative session, co-authored by Sen. John Whitmire, D-Houston, amended the Education Code to say a “campus police department of a private institution of higher learning is a law enforcement agency and a governmental body for purposes of the Public Information Act, only with respect to information relating solely to law enforcement activities.”
Baylor sought to circumvent this amendment by asserting to the attorney general that its police department’s offense reports do not relate solely to law enforcement activities because the reports are shared with the university’s Judicial Affairs Office and Baylor’s Title IX Office.
“Nevertheless, the previously requested offense reports involve investigations by the department of possible criminal violations,” the AG’s opinion says. “Therefore, we find these previously requested reports relate ‘solely to law enforcement activities’ for purposes of . . . the Education Code, and thus, are subject to the Act.”
Donnis Baggett, executive vice president of the Texas Press Association and a former Tribune-Herald publisher, said Baylor’s position and the attorney general’s willingness to allow the university to decide which records should be kept private based on its interpretation of FERPA guidelines is “of great concern.”
“It seems to give the university the authority to decide what records should be open even though they have not submitted anything for the attorney general to review,” Baggett said. “That is a huge dodge. It allows Baylor to do what they want without any accountability by just blaming it on FERPA.”
Baggett said he is talking to key legislators about a “legislative fix” for the perceived loophole that appears to be opened by the attorney general’s ruling.
“This ruling by the attorney general’s office absolutely flies in the face of the intent of the bill that was passed last session,” Baggett said. “It is ironic that an immediate past president of Baylor is calling for transparency on this investigative report by the law firm that Baylor hired and yet Baylor as an institution is basically shrugging off a brand new law that would seem to apply directly to cases like this where transparency is in the public good.”
Ken Starr, who was removed as Baylor president in the wake of the sexual assault scandal, has called on Baylor to release the full report from Pepper Hamilton, the law firm hired by Baylor to review how the university responded to sexual assault allegations.
Whitmire did not return phone messages Thursday. But, a Whitmire staff member, who spoke to the Tribune-Herald anonymously last month because he is not authorized to speak for the office, said Baylor and the AG’s office are “playing silly games” with their interpretation of public information laws.