In this podcast discussion, Jack Greiner, a media lawyer from Cincinnati, discussed his successful case where the Ohio Supreme Court determined that private universities had to disclose police reports.
Frank LoMonte: Hi everyone and welcome to another monthly edition of the Student Press Law Center’s podcast, an update on legal developments affecting the rights of those working in and around student media. The Student Press Law Center is an advocate for the First Amendment rights of those working in student journalism, and there’s much more information about what we do, and you can get legal help, on our website splc.org. We hope you also follow us on social media, Twitter is @splc, and connect with us by using the firstname.lastname@example.org email line if you’ve got a question about your own legal rights.
We’re here talking with Jack Greiner, a media lawyer from Cincinnati, who has represented student journalists in a groundbreaking open government case that may prove to be a harbinger for other states. Dozens and dozens of college campuses across the country maintain police forces that look indistinguishable from city or county police exercising the same level of government authority, including the power to arrest and even to use deadly force but with one important distinction — when the campus is private, many of these institutions maintain that they need not obey the same public disclosure laws that would apply to a city or county police force or even a police force at a public college or university. That’s because state open records laws typically don’t apply to the activities of private organizations. But there is change in the wind. Just since 2012, the law has evolved in three states to require greater disclosure on the part of police at private colleges — North Carolina, Texas, and as our guest Jack Greiner will explain to us, Ohio as well, thanks to a case that he brought on behalf of a college student editor at Otterbein University, who, I might add, Anna Schiffbauer was also an intern with us at the Student Press Law Center.
Jack Greiner is a partner with the Graydon Head law firm, he’s based in Cincinnati. He’s a graduate of Notre Dame law school, he’s very eminent in the field of media law and has represented clients that include the Cincinnati Inquirer, ESPN, and many others in his career. He’s been an advocate for open government and speaks and writes frequently on that subject, and we’re really delighted to have him here joining us. So, Jack, thanks for joining us and thanks for your work on Anna Schiffbauer’s case, which I would love for you to explain to the folks who are listening. If you don’t mind, just give us a set up on how that case came about.
Jack Greiner: Sure. You know, I’m sitting trying to here remember exactly, but I recall talking to Hillary Warren, the faculty adviser (for the student newspaper, the Tan & Cardinal) at Otterbein generally about the topic. I had a little bit of experience here in Cincinnati at Xavier University that maintained a police force and we were attempting to get some records. As I recall from that, we did not pursue litigation with Xavier but I was generally familiar that private campuses had the ability to maintain police forces and that they had the same kind of powers as public police forces, so we were talking about it and Hillary mentioned that some of her student journalists were running into a little bit of a brick wall with Otterbein on incident reports that had to do with sexual assaults. And there was some concern — and I’ve seen this on other campuses — there was some concern that sexual assault complaints were being sort of shuffled off to the student disciplinary court and not really treated as crimes. That was the concern of the Otterbein student newspaper, and they were just trying to get various incident reports from the Otterbein police force.
So we started talking about it and when Hillary was explaining to me the issue, it just seemed to me that this was ridiculous and it would be a good time to challenge it, so we did. The way you proceed in a public records dispute in Ohio is that you file what’s called a petition for a writ of mandamus, and it gets the name really if you just think about it, essentially from the concept that you are mandating or the court is mandating that another court do something that they’re obligated to, i.e. follow the law. Mandamus is just sort of a fancy name for that. You ask a higher court here to mandate that another public official follow the law. And in Ohio, you can initiate a mandamus suit as an original action if you choose to do so in the Ohio Supreme Court. You can start it off at any of the levels of the courts, which would mean you could start the trial section, the common pleas section or you could start at the immediate appellate level, or you can just go ahead and start it in the Ohio Supreme Court. The effect of starting it in the Ohio Supreme Court is that you cut off any appeals, it is kind of a one-shot deal at this point. In my view, when I think a case is going to end up in the Ohio Supreme Court, I start in the Ohio Supreme Court, and make the process go a little quicker.
That is what we did, we filed against the university and we named a vice president of discipline and we named the Otterbein police chief. Initially, the case was aside the Ohio Supreme Court and I don’t honestly know why they do this, but they have a habit or a practice that they’ve developed over the past few years of sending mandamus cases, public records cases, to their in house mediation service. I don’t have a problem generally with the concept of mediation and certainly if something can be worked out, that’s great. What I find though is that these types of cases are very difficult if not impossible to work out, because there’s just not a lot of room for common ground. I think I’m entitled to it, you think I’m not, how do we resolve that?
LoMonte: What would be the halfway point between yes and no?
Greiner: Right. It wasn’t like I was satisfied with getting every other incident report or something. So this ultimately went as most cases do — however Otterbein, i think in an effort to just delay things, expressed much interest and optimism in the prospect of settling the case. I never shared that optimism and I remained a little wary of their enthusiasm. But we did engage for several sessions in an effort to settle and we were unable to do so. The mediator finally agreed that we weren’t going to get this case settled so she returned the case to the regular docket, meaning the Court could now rule on the case.
I sensed some discovery and in fact asked — I wanted to take the depositions of the police chief because I wanted to get an understanding of how they operated, how they handled their documents, their incident reports, etc, and I got some resistance to that proposal. We wound up not ever really resolving that issue, because the Supreme Court — much to my surprise to be perfectly honest with you, and it was a pleasant surprise — but it granted before we even got to the point of doing any discovery, it granted a peremptory writ of mandamus in our favor.
I meant to add that once the case was returned to the regular docket, we got in my estimation a somewhat pleasant surprise in that the Ohio Attorney General asked to intervene in the case in our side. So I was pleasantly surprised by that development, I wasn’t really counting on that. I had some previous cases recently with the attorney general on the other side and I did not get the impression that he was a real big public access advocate, but for whatever reason they came in and filed on our behalf an amicus brief. I think that helped quite a lot and so then as I said, before we got to the point of really even needing a discovery, the Supreme Court issued a peremptory writ. And that’s kind of a significant word, peremptory. The peremptory writ under Ohio law means that — I just pulled it up, so I’d have it — “When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court may allow a peremptory mandamus.” What the Supreme Court really said is that Otterbein had no excuse for not providing these records, that it was absolutely clear that they were required to provide these records. Which was to me a pretty significant ruling and validated our position I think in a very real way.
LoMonte: Just to get into the rationale for it, right, one rationale that people typically urge in these types of cases where you have a private agency on the other side, an agency that doesn’t directly receive its funding from the government, wasn’t created by the government, but is doing a governmental function — typically the argument goes that these folks are operating as an arm or an extension of the government, were doing so under such close government supervision that they’ve essentially been deputized as agents or an extension of the government and that’s sort of the route that you’ve elected to take, right?
Greiner: Somewhat. There’s some bad law in Ohio on that — the Ohio Supreme Court in 2009 adopted something that they call the functional-equivalency test and it’s a test that is applied when a private entity takes on the duties of a public entity. It’s a four factor test, and the problem with it is that it almost guarantees in my mind that the records will be deemed private rather than public. And I say that for this reason — the four factors are: does the government primarily fund the operation? And typically it does. The case in which the Supreme Court came up with the functional-equivalency test was a case where a private operator ran a county prison. A county prison was obviously a public function. That part of the test was easily satisfied.
The first question is: is it a public function? Again, a county prison is clearly a public function. The next question is, how is it funded? Frequently it is indeed funded by tax dollars. Then the third question is, does the public entity retain day-to-day control over the operation and the answer to that typically is no. That’s kind of why the public entity outsources it. Then the last question is, was this done simply to avoid the public records act? Again the answer usually is no, that is not the primary purpose. Typically, it’s typically to save a little money, etc.
So the court says the requesting party for some reason has to prove, has to satisfy the functional-equivalency test with clear and convincing evidence and the problem is it usually winds up being a two-to-two tie. You’ve usually established it as a public function and the public paying for it, but more often than not, the public doesn’t retain day-to-day control and it’s not set up solely to evade the public records act. It’s almost like playing tic tac toe — it winds up in a tie most of the time.
Since the Supreme Court decided that since the requesting party had the clear and convincing duty, the requesting party ends up losing. So I had to face that and Otterbein, you know, pushed that position pretty hard, the functional-equivalency test, but my counter argument was that this was a case where that didn’t apply because the functional-equivalency test occurs when a public entity delegates to a private entity. My argument was here that in fact the private entity was delegating to the public entity, so it was a different situation and one in which the functional equivalency test had no bearing. And the Supreme Court, you know, essentially agreed with my argument there. And you know what I think the Supreme Court really decided and what motivated the Supreme Court to rule the way they did: just the fact that you know this is the ultimate state power that these people are exercising. When you can deprive someone of their life and or their liberty, you are exercising state power and you can’t do that behind closed doors. You have to be transparent about that. The records of how that power is used have to be available for public inspection, and I think it really just came down to somewhat of a common-sense type of ruling but I think it was justified by the statute. Because if Otterbein wanted to keep these records private, they could have done that. They simply could have maintained a private security force. They opted to set up a police force that had police powers. they just weren’t — they couldn’t have it both ways. And I think they were trying to have it both ways. They wanted the power of the state with the privacy of a private institution. I just don’t think the Ohio Supreme Court was willing to let them get away with that.
LoMonte: Well, two points. First of all, we should mention that in addition to Ohio, Texas has now joined the club of requiring private institutions to disclose the reports of police activity by virtue of a state legislative act — one that was motivated by a particular episode at Rice University in the district of an influential state senator who found the police’s refusal to turn over records of an arrest to be particularly outrageous and decided to fix that legislatively. Also in 2012, North Carolina joined the club after a lawsuit that was initiated by a college journalist in that state who was frustrated with his inability to get police reports from Elon University. I should also mention that we are talking in each of these incidents about really core documents about the performance of police business — that is, the incident report, the arrest report, the narrative write-up the officer generates when called to the scene of a crime that would explain the who, what, where and when of what happened. And those really are the bread and butter of effective police reporting.
Without access to that incident report, the journalist would have no idea whether the person who was stopped for drunk driving on campus might be the quarterback of the football team or the president of student government or somebody else whose arrest was newsworthy. They would have very little way of knowing for what reason police are arresting people and if they’re using that arrest power responsibly or not.
Greiner: Right, and I think also the other point that is important here is that there’s a lot of competition for students among colleges, and I think that incoming students, prospective students and their parents, want to know what kind of safety situation they’re getting themselves into. What is the environment like? And I think if those records can be maintained in secret, than the college, the university is better able to obscure the facts, hide the facts of what the real situation is and I think that is really untenable. And frankly, just from a fairness perspective, if state universities can’t because they’re public entities, I think there’s just sort of a fairness kind of thing here in terms of putting the private universities and state universities on equal footing in terms of reporting and disclosing police activity on campus.
LoMonte: Well I should mention the name of the case for those who are interested in looking it up and doing future research, it’s Schiffbauer vs. Banaszak. It is a decision issued by the Supreme Court of Ohio on May 21, 2015. Jack, just with the couple minutes that we have left, even though the journalists of Otterbein are now armed with this excellent ruling from the Ohio Supreme Court, that hasn’t necessarily been the end of the story. It’s not necessarily the case that even when a court directs an institution to comply with state disclosure laws that journalists get immediate and complete compliance.
Greiner: Yeah, Otterbein, for whatever reason, they drag their feet a little bit in terms of providing the records. They said they were studying the application of FERPA, which FERPA does not apply — i mean very clearly FERPA says it does not apply to law enforcement records and defines law enforcement records in a way that I think unquestionably covers these records. And now they’re starting to express concern over the Violence Against Women Act which is a federal statute that I’ve looked at, and again I don’t see any duty or obligation that arises under that statute that would require Otterbein or permit Otterbein to withhold these records. And yet even when they finally turned them over, they went ahead and redacted a lot of material on them, so we’re going to go ahead and, yeah, the case remains. We’re also still in front of the Supreme Court on my request for attorney fees. In a mandamus case, if public office is required to turn over the records then the statute provides for an attorney fee recovery to the requesting party, so we do have that going on, we may have to get in front of the court again on this issue on the redactions, but we’re just still looking at that and trying to make a decision on the proper way to go.
LoMonte: Well I’m hopeful that others will take inspiration from your success in Ohio. There was a failed legislative attempt to add Illinois to the list of states requiring disclosure of private universities and there’s some talk of trying to bring that bill back again next year. It certainly seems like your case provides in some respect a road map for litigators to follow in certain states, understanding that every state’s’ law and the tests applied by their courts might be a little bit different. Just in the minute or so left, any closing thoughts on this issue or where you see this going, if you think we can look forward to more progress and that other states will fall into line?
Greiner: Well I hope so. There was a set back a little bit in Indiana where ESPN filed suit to get similar records from Notre Dame and so far Notre Dame has prevailed. But again it illustrates the point that not every state is exactly the same and as I read that opinion, in the Notre Dame case, the initial opinion, it seemed to focus on the very strict reading of the statute. So every state’s going to be different and it may take legislation in some states, it may take court action in others, but I think it’s important. I think that, you know, again, I think that students, parents, members of the community have a right to know what police are doing when police have the power to deprive someone of their life or liberty. That needs to be done in as transparent a fashion as possible. I think that just makes sense to people. Hopefully as we go forward, we’ll see more and more states fall in line here.
LoMonte: Well, that ESPN case in Indiana is in fact on appeal right now, it’s in front of Indiana’s Court of Appeals and we have some optimism that we may see a reversal there. If you’re interesting in following that case or any developments about the law of public access, we hope that you’ll subscribe to our news alerts at SPLC.org, follow us on social media andgive us a call if you have any question about your legal rights.
I want to thank Jack Greiner of the Graydon Head law firm in Cincinnati for his work on behalf of college journalists and in particular for his work on the Schiffbauer case and for joining us today. So thanks Jack and we’ll look forward to what we hope is a successful resolution on the attorney fee issue and the redaction issue there as well.
Thanks for joining us on the Student Press Law Center podcast, please join us next month for another update on legal developments affecting the rights of student journalists and the advisers who work with them. Thanks for listening.