Unsealing Police Records

Ohio Supreme Court rules that sworn police departments at private colleges are subject to open-records laws. A judge in Indiana disagrees.

May 22, 2015

Sworn police departments at private colleges in Ohio are public entities and subject to state open-records laws, the state’s Supreme Court ruled Thursday, saying that a college being a “private institution does not preclude its police department from being a public office.”

The ruling came a day after the Texas House of Representatives passed a bill requiring private institutions’ police departments to release some records, and one month after a judge in Indiana reached the opposite conclusion in a lawsuit against the University of Notre Dame.

“The handwriting is on the wall,” Frank LoMonte, executive director of the Student Press Law Center, said. “This is the direction the country is going in, and in very short order every police department at every private college is going to have to open their records. The legal fig leaf just got a lot smaller.”

The Ohio decision stemmed from a records request filed by a student reporter at Otterbein University in 2014. The university denied her request, saying that, as a private institution, it was not subject to the state’s public-records laws.

The student sued the university, and her argument received the backing of Ohio’s attorney general, who stated that because Otterbein uses sworn police officers, not just campus security officers, its police force is “a fully powered police department.” The Ohio Supreme Court ruled in the student’s favor, though the 4-3 decision divided the court.

“We believe the split decision clearly establishes a new precedent related to private university police departments throughout Ohio,” Otterbein University said in a statement.

Unlike other sworn law enforcement agencies, sworn police officers at private colleges historically have not been seen as subject to open-records laws, even though they have the same authority as the agencies that are required to release records. That was the case at Otterbein, which has used sworn police officers since 2011.

A recent study by the Bureau of Justice Statistics found that nearly 40 percent of private colleges now use sworn, state-certified police officers, a growing trend that LoMonte said should result in more states requiring private colleges to release police records to the public.

While a judge rejected a similar argument in Indiana, LoMonte said he expects that decision to be appealed. In that case, ESPN is suing the University of Notre Dame for access to campus police records regarding sexual assault cases involving athletes.

In April, a Superior Court judge ruled that while Indiana state law allows private colleges to hire sworn officers, those police departments are not separate legal entities from the university. “If Notre Dame is a ‘public agency’ because it appoints police officers, it is a public agency, period,” the judge wrote.

“The Indiana judge just flat got it wrong,” LoMonte said. “He got really hung up on this idea that you can’t separate the police force from the institution. He treated it as an all-or-nothing question where, in order to open the police department, you have to open every record at Notre Dame. I think the judge really got hung up on a nonexistent technicality, and I think that will get corrected.”

Georgia, North Carolina and Virginia are currently the only three states that require private college police departments to release records, the Student Press Law Center notes. The Illinois House of Representatives is considering legislation similar to the bill that passed in Texas this week.

David Perry, the chief of campus police at Florida State University and president of the International Association of Campus Law Enforcement Administrators, said he believes more states should aim to adopt similar laws.

“Any agency that gets their power from their state, which sworn campus police officers do, should be required to make those records public,” Perry said. “I think things are headed in the right direction.”


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