Private campus police forces’ records should be public, Indiana Court of Appeals rules — but legislation seeks to supersede ruling

By Kaitlin DeWulf, SPLC staff writer. Originally published on www.splc.org.

As the Indiana Court of Appeals prepared to deliver its favorable open-records opinion in ESPN v. University of Notre Dame Security Police Department, lawmakers in the state were scrambling to pass a bill that would prevent many private university police department records from being made public.

In September 2014, an ESPN reporter requested incident reports from Notre Dame’s police department concerning 275 student-athletes, including whether they had been named as victims, suspects, witnesses or reporting parties in incidents. Notre Dame denied the request, claiming the police department is a private entity not subject to Indiana’s Access to Public Records Act — and a trial court agreed.

On Tuesday, Indiana appellate judges reversed the decision and remanded it to the trial court with instructions, ruling that Notre Dame’s police department is a public agency subject to the state public records law. The court decision includes an order for the lower court to enter judgment in favor of ESPN, but does not order the police department to immediately produce the requested documents.

Instead, the trial court must evaluate ESPN’s records requests to determine which records the Notre Dame police department is required to produce under public-records law.

Despite the victory, however, ESPN might never see the records and private campus police forces in the state might still get to withhold records on the basis of their private status. The Indiana legislature recently voted unanimously to affirm House Bill 1022, which would require Indiana private university police departments to release a limited amount of records related to arrests and incarcerations, effective July 1. The bill would still allow the police departments to withhold investigatory records and the name of the crime victim, unless the victim authorized the release.

House Bill 1022 was introduced by Democratic Rep. B. Patrick Bauer in January, with input and support from the Independent Colleges of Indiana, an association that represents the state’s private universities, and it has sailed through the legislature ever since.

The bill, which was signed by the Speaker of the House and the Senate President Pro Tempore last week, is now headed towards Gov. Mike Pence’s desk. With his signature, House Bill 1022 would supersede the ruling in ESPN v. Notre Dame and become the standard of law, clearly defined by the legislature. Pence will have seven days to consider the legislation before it becomes law without his signature.

“The governor will give the bill careful consideration,” said Matt Lloyd, deputy chief of staff for communications and strategy in the governor’s office. The bill hasn’t reached Pence’s desk yet, he added.

Critics of the bill claim it is being used to preempt the ruling against Notre Dame, and that it is a tool to keep Notre Dame and other private universities in the state from disclosing information required of public universities’ police departments.

Jack Colwell, an adjunct professor of journalism at Notre Dame, said House Bill 1022 was drafted by and for Notre Dame, and other private colleges in the state, with the aim of preventing many disclosures required of other police agencies.

He said even if the bill isn’t effective until July and the Court of Appeals’ ruling stands until then, the trial court must still decide which records are public — and Notre Dame could easily find ways to delay that decision well past July.

“I don’t think there is any possible chance anything could happen to derail House Bill 1022 before it goes into effect,” Colwell said. “So it will make the trial court decision moot.”

He said Notre Dame rushed to get the bill passed after university officials realized the danger of losing the suit, and legislators didn’t necessarily know what House Bill 1022 really was. It was framed as a vehicle for private campus police forces to release more information to the public — but the records listed in the bill are already mostly public via the federal Clery Act.

“[Indiana legislators] heard the word ‘transparency’ and jumped on to sponsor the bill,” Colwell said. “It wasn’t an issue they cared or knew enough about.”

Details involved in the case

At the beginning of 2015, ESPN filed suit against Notre Dame, alleging the university violated Indiana’s public records law when it withheld police incident reports about student athletes. This came after State Access Counselor Luke Britt said in an advisory opinion in October 2014 that the university should follow the state’s public records law, and noted its police department’s powers come from the state.

“The authority for private universities to create police departments is not inherent. It is granted by the State of Indiana through the General Assembly,” Britt said in his opinion. “Likewise, police power is not inherent to a private entity. Police powers of a state are conferred by the Tenth Amendment to the U.S. Constitution.”

ESPN argued that Notre Dame’s police should be covered by APRA to the same extent as city or county police because the department has state-delegated police authority, like the ability to search, make arrests, interrogate and exercise the state’s police powers.

St. Joseph’s County Superior Court Judge Steven Hostetler ruled againstESPN in April, saying that state law granting private universities the power to hire campus police officers does not make the police department a separable part of Notre Dame, which is not subject to APRA.

ESPN then appealed the ruling to the Indiana Court of Appeals. In August, Indiana Attorney General Greg Zoeller filed a brief urging the court to make police incident reports at Notre Dame public because campus police perform “an almost exclusively public function.”

“APRA is intended to govern the affairs of government, and when a private entity takes on running the affairs of government, that private entity will be subject to APRA,” ESPN’s Attorney Maggie Smith said during oral arguments on Feb. 24.

Smith declined to comment on ESPN’s next steps or the likelihood of Notre Dame giving ESPN access to the requested records before July, as both parties will have to reappear before the trial court.

The Court of Appeals’ ruling was clear in establishing that a private university’s police force is exercising sovereign power, delegated by the state.

“The Court has … noted the danger of restricting access to documents that would be considered public were a private entity not involved,” the opinion stated, going on to establish that the campus police force exercises a public function. “It would not be appropriate for the police department, having availed itself of its statutory right to exercise these public functions, to then be able to circumvent public records requirements to which all other entities exercising these same functions are required to adhere.”

Open private university police records in other states

Private universities’ police records are open in just a handful of states — Connecticut, Georgia, Virginia, Texas, North Carolina and Ohio. In Ohio, the law stemmed from a court case where a student journalist sued Otterbein University to obtain police records.

In February 2014, Anna Schiffbauer, a former news editor of the student-run Otterbein360 news website, sued Otterbein for denying her access to 47 individuals’ criminal reports — both students’ and non-students’ — necessary for her reporting on a story concerning sexual assaults on campus.

In a 4-3 decision, the Ohio Supreme Court ruled the Otterbein University Police Department can be compelled to produce public records because it employs sworn, state-certified police officers, who have the same arresting authority as municipal police or a county sheriff. The Indiana Court of Appeals cited the Ohio decision in its opinion, calling it persuasive.

Jack Greiner, a media lawyer from Cincinnati who represented Schiffbauer, said though the laws vary from state to state, private university police departments are in every way a police force, and whether the officers work at a private university is irrelevant.

“You can’t have it both ways,” he said. “If a private university wants to keep those records private, they need to hire a private security firm. You can’t invoke the powers of the state and expect to keep those records private.”

But, he said, that is exactly what private universities in Indiana are doing.

He said the Ohio legislature was behind the student journalists while he was arguing against Otterbein, and that many state officials filed briefs in support. This is not the case in Indiana, he said, as the legislature supported legislation that would shield most police records at private universities.

The Indiana legislature touted the bill as a way to bring a degree of transparency to the private universities. But Stephen Key, general counsel and executive director of the Hoosier State Press Association, previously told the Student Press Law Center that the language of House Bill 1022 more closely resembles the federal Clery Act than the more inclusive state public records law.

Under the Clery Act, all colleges and universities receiving federal funds (which includes private universities) are required to publish an annual statistical report on campus crime, as well as a daily crime log open to the public. This federal statute does not require the release of specific information — such as the names of those involved and the factual circumstances of the crime — that would appear in an incident report at a traditional police agency.

House Bill 1022 will make it impossible for citizens and journalists to retrieve investigatory records from private university police departments in the state, much to the concern of free press advocates in the state.

John Twohy, an author of the state press association’s amicus brief in support of ESPN, said he expects the bill to be signed into law, and that the legal precedent from the appeal is destined to be superseded by the statute.

He said once the governor signs House Bill 1022 into law, Indiana free press associations won’t be able to argue for private university police departments to make their records public anymore.

“With the legislature having spoken clearly,” he said, “nothing the courts do will change the outcome the legislature has decreed.”

A cursory look at the bill looks like it takes a step towards transparency in private university police departments, he said. But after careful consideration, one can see that the bill uses language more similar to the Clery Act than a public records law, which does nothing to help these departments be more transparent, he said.

“The devil is in the details,” Twohy said.

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