Indiana governor vetoes controversial bill that would have shielded private university police records

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

Despite strong legislative support for a bill that would have sheltered Indiana private university police departments from disclosing records to the public, Gov. Mike Pence vetoed the measure today to preserve the public’s “right to know.”

“Throughout my public career, I have long believed in the public’s right to know and a free and independent press,” Pence, a Republican, said in a statement. “Limiting access to public records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency.”

He said while the bill would have provided for limited disclosure of private university police department records, it would shield the private institutions from the application of the Indiana Public Records Act, which would ultimately result in less disclosure. Last week, the Indiana Court of Appeals ruled that private campus police records should be subject to the state’s public records law. This bill would have superseded the court’s ruling.

House Enrolled Act 1022 would have required Indiana private university police departments to release a limited amount of records related to arrests and incarcerations, but would have still allowed the police departments to withhold investigatory records and the name of the crime victim, unless the victim authorized the release.

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, the bill sailed through the legislature.

“I am greatly disappointed that Gov. Mike Pence vetoed House Enrolled Act 1022, which would have created greater transparency for private university police records,” Bauer said in a statement on the vetoed bill.

He said the bill would have helped victims of rape, as well as sexual assault and battery, because those criminal acts would have been considered public records.

“[The bill] had unanimous, bipartisan support with only one vote against it during its entire journey through the Indiana House and Senate,” he said. “Legislators in both chambers carefully examined the issue in public hearings and in both chambers.”

The legislation came amidst an ongoing court case brought by ESPN, on behalf of reporter Paula Lavigne, against the University of Notre Dame Security Police Department.

In September 2014, Lavigne 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 the state public-records act — and a trial court agreed.

On Mar. 15, the Indiana Court of Appeals reversed the decision and remanded it to the trial court with instructions. 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.

Notre Dame recently appealed this ruling to the Indiana Supreme Court. The high court’s resolution of the issue will determine whether Indiana private university police departments are subject to APRA. There are only six states where private campus police forces must disclose records upon request.

Many critics of House Enrolled Act 1022 argue the bill was being used to preempt the court’s ruling against Notre Dame. If the bill had become law, it was expected to render moot any court precedent established by the ESPN case.

Still, Bauer said the measure was never intended to influence the lawsuit.

“If [the Indiana Supreme Court] upholds the appellate court decision, then the new law would naturally have had to be reviewed to ensure it complies with the high court’s decision,” he said.

Critics also claimed the bill, touted as a transparency measure, would have kept Notre Dame and other private universities in the state from disclosing information required of public universities’ police departments. The limited number of records the bill would have required to be released are mostly already public via the federal Clery Act or are records created “solely” for a law enforcement purpose, while most colleges take the position that every arrest records is created for both law enforcement and discipline.

“It is much more important that the public have access to the incident reports of crimes that do not result in arrests, because colleges have a well-documented history of sweeping even serious violent crimes into the impenetrable black box of campus discipline from which no information ever emerges,” Student Press Law Center Executive Director Frank LoMonte wrote in an open letter to Pence’s office, urging the governor to veto the bill. “Because the student conduct office is so opaque, the public must have some way of knowing whether colleges are whitewashing serious safety hazards through campus disciplinary channels. That can happen only with access to the police incident reports that [the bill] will withhold from public view.”

Stephen Key, general counsel and executive director of the Hoosier State Press Association, said the group applauds the veto.

“The governor’s veto sends the message that all police departments should be subject to the same level of public accountability,” he said. “Students, parents of prospective students and people who live near a private university campus have the same interest in the professionalism of those police officers and the ability to arm oneself with information to protect against becoming a future crime victim.”

Key said, for example, it is important to know when a sexual assault has been reported whether the attacker broke into a residence, used a date-rape drug or took advantage of a heavily intoxicated victim. He said that information isn’t found in the Clery Act report, but would be part of the reporting requirements under APRA.

The House and Senate can still override the governor’s veto by a two-thirds majority vote in both chambers.

“Hoosiers may be assured that my administration will always be vigilant to preserve government accountability and the public’s right to know,” Pence said.

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