Public Records and the Occidental Sexual Assault Controversy

Last Friday afternoon, I received an email from Tyler Kingkade, an associate editor at The Huffington Post who has been covering the issue of sexual assault on college and university campuses. Kingkade was asking about FIRE’s case at Occidental College, where a student was found “responsible” for sexual assault despite the fact that the district attorney refused to charge him with any crime, and text message evidence indicates that both parties consented to having sex.

That student sued Occidental in February for what he feels is a wrongful guilty finding. Documents related to Occidental’s investigation of the student were entered as exhibits in his complaint back on February 13. Court filings are public records, accessible to anyone.

The names of the accusing and accused students were redacted by attorneys when the exhibits were filed in February. In May, the accused student’s attorney and the presiding judge agreed to further redactions at the request of the accusing student’s attorney. (This further redacted version is the version FIRE has posted.) In June, the judge denied an additional request by Occidental to seal and redact the court record further. The request was opposed by the Los Angeles Times, which has been covering the case.

When FIRE issued a press release highlighting the lawsuit and criticizing the finding of “responsibility,” we posted those court documents on our website, as they contain the evidence of Occidental’s wrongdoing. FIRE always posts primary sources when available. Doing so is necessary to provide proof to our readers, ensure the accuracy of our claims, and promote transparency.

Yesterday, Kingkade published a story on The Huffington Post insinuating that by posting the investigation report, FIRE had published a confidential document. That is incorrect. As a court filing, the document is part of the public record and has been accessible since February.

Kingkade claims that the document became public only after FIRE’s press release, writing that “after the FIRE's involvement,” the report “has since been submitted to Los Angeles Superior Court.” Again, this is incorrect. As a court filing, the document has been publicly available to anyone since February, continued to be publicly available (with further redactions) at the time of FIRE’s press release, and is publicly available today.

Below, FIRE has reprinted for the record the original email from Kingkade and my reply. We will have more on the Occidental case here on FIRE’s website soon.

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Kingkade’s email:

On Fri, Jul 18, 2014 at 2:07 PM, Tyler Kingkade <tyler.kingkade@huffingtonpost.com> wrote:

Hey guys,

I wanted to reach out about the Occidental case. I'm working on a story about some of the harassment the witnesses named in the investigator's report are receiving following FIRE's publishing of the document. I had a couple questions.

Was there a reason you elected to disclose all the witnesses who participated in the adjudication? Some of them are noting that because you're identifying who was a roommate and where they lived, it provides enough clues to identify the alleged victim and the accused.

The witnesses and professor named in the documents say they started getting violent messages online after FIRE publishes the PDFs. One email to the professor said she should "nail her pussy shut." Any comment there?

I also heard Occidental has tried to get you to remove the documents from the website, is that true?

Let me know if you're able to respond via email or wish to hop on the phone.

Thanks,

Tyler

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Tyler Kingkade
Associate Editor | The Huffington Post
New York, NY
tyler.kingkade@huffingtonpost.com
Follow me on Twitter: @tylerkingkade

My response:

Tyler,

Thanks for writing.

As an initial matter, I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case. As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity.

To be clear: The court filings we posted are public records that are accessible to any member of the public. The names of the accused and the accuser were redacted by the attorneys in the case and, so far as I know, have not become public.

Occidental did attempt to return to court to seal one of the documents last month, but its motion was denied by the judge, who said, “I don't understand why [it] is so pressing in June when it wasn't so pressing in February." Indeed, Occidental had four months to request further redaction of the documents or sealing of the documents. It did not do so.

Occidental’s motion was opposed both by the accused student and by the Los Angeles Times itself, which asserted the well-established interest of the public in transparency in judicial proceedings. FIRE agrees that the public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case. We therefore also declined, and continue to decline, to remove these public records from our website.

It is very telling that the investigation report has apparently become an issue only after Occidental’s inexcusable contempt for due process in this case came under fire in the media, and particularly only hours after the operator of the Occidental Sexual Assault Coalition’s Twitter account tweeted at a large number of people yesterday (including you) in an obvious attempt to pressure the Times and reporter Teresa Watanabe not to publish a follow-up story on the case.

I hope that in any report you publish on this situation, you will also explain the underlying case and the due process dispute that is at its heart. As far as I can tell, you have not so far chosen to report on this particular Occidental case. I confess this omission surprised me, as you generally do a thorough job of reporting on campus sexual assault cases. Given this will be your first reporting on the case, I am sure your readers would appreciate being brought up to speed on what is happening and why.

Robert

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Robert L. Shibley
Senior Vice President
Foundation for Individual Rights in Education (FIRE)
170 S. Independence Mall W., Suite 510
Philadelphia, PA 19106
Ph: 215-717-3473 Fax: 215-717-3440
robert@thefire.org
Twitter: @rshibley