Fight Over Private College Police Records

The Indiana Court of Appeals ruled last week that private college police departments are subject to the state’s open records laws, but a bill passed earlier this month by Indiana’s General Assembly could undercut the ruling.

The legislation would require that police departments at private colleges and universities, which have argued they are exempt from public access laws, release records related to arrests for criminal offenses. The bill exempts those colleges from releasing investigatory records, however, as well as detailed information about incidents that do result in an arrest.

Only a record that is “created solely for a law enforcement purpose and relates to arrests or incarcerations for criminal offenses” would be subject to the new law. The legislation has yet to be signed by Indiana’s governor, Mike Pence, who said this week he has reservations about the bill, saying that he's a champion of the "public's right to know."

Advocates for greater transparency in college policing and government records have also said they are concerned.

"It’s a show of transparency, but it in fact results in no net increase of information available to the public," Frank LoMonte, executive director of the Student Press Law Center, said. “The word ‘solely’ is troubling, as campus police reports are created with a dual purpose of criminal prosecution and college discipline. It also only covers records related to arrests, when what we need to see most are records of interactions with police that don’t result in an arrest. If police show up on the scene of a beating or a rape and an assailant is wearing a Notre Dame football jersey and he doesn’t go to jail, those are the cases we need to know about.”

Though the bill’s sponsors deny there is a connection, the legislation was introduced after ESPN sued the University of Notre Dame last year, alleging that the university violated Indiana’s public records laws when it refused to release police reports of incidents involving college athletes.

In April, a superior court judge ruled against ESPN. The judge said that while Indiana state law allows private colleges to hire sworn officers imbued with state powers, 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.

Last week, the Indiana Court of Appeals reversed the superior court’s decision, ruling that Notre Dame’s police department is, in fact, a public law enforcement agency, even if the officers are employees of the private university.

The legislation passed earlier this month would override the appellate court’s decision. The bill was introduced by Pat Bauer, a Democrat who serves on the board of directors of Independent Colleges of Indiana, an organization of which Notre Dame is a member. Independent Colleges of Indiana and its 31 members helped Bauer write the legislation.

In a statement Monday, Richard Ludwick, president of Independent Colleges of Indiana, said he believes that rather than exempting private colleges with sworn police departments from open records laws, the bill is an "intentional opting in" to increased transparency and accountability.

"Although all colleges, public and private, are required to share daily log information about criminal activity, [the legislation] goes beyond this federal requirement, providing detailed police records not currently accessible," Ludwick said. "By making the records related to criminal activity public, while maintaining the privacy of those associated with noncriminal student conduct matters, we believe [the bill] strikes an appropriate balance between the public’s right to know about criminal matters and the privacy and welfare of our students."

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 advocates -- including the former president of the International Association of Campus Law Enforcement Administrators -- argue should result in more states requiring private colleges to unseal police records.

Unlike other sworn law enforcement agencies, sworn police departments at private colleges historically have not been seen as subject to open records laws outside of daily log information, as required by the Clery Act, even though the departments have the same authority as agencies that are required to release records. In recent years, that has begun to change in some states.

In 2015, Ohio’s Supreme Court ruled that that a college being a “private institution does not preclude its police department from being a public office.” The 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.”

Connecticut, Georgia, North Carolina, Texas and Virginia all now require private college police departments to release records. The Illinois House of Representatives considered such legislation last year, but the bill was defeated.

In North Carolina, attempts to create more transparency with campus police records were also met with resistance, though a compromise was reached between private colleges and open records advocates. When the state’s Supreme Court was weighing the issue in 2013, North Carolina’s private colleges lobbied state legislators to fast-track a bill that significantly opened up access to private college police records, while naming the campus police department as the custodian of those records. Previously, the state’s attorney general was named as the custodian.

The change allowed private colleges to still keep salary information and emails private.

“That was a defensible compromise,” LoMonte, of the Student Press Law Center, said. “What’s not a defensible compromise is the Indiana bill. The law would completely undercut the recent ruling, when the court got it exactly right. Police power is the ultimate governmental authority. When you voluntarily assume that level of responsibility, you have to take the accountability that goes with it.”