Alerts/Articles

Facing increasing demands for disclosure on campus safety concerns, private higher education institutions are confronting requests under state public records acts for the production of their campus security records. In response, private institutions have asserted that they are immune from such requests because they are not public actors. Courts have concluded that the analysis is not so clear-cut. Two recent decisions—one by a divided Ohio Supreme Court and another by an Indiana Superior Court judge—demonstrate the vexing and competing considerations in determining whether private institutions’ campus security departments equate to public actors subject to public records laws.

A divided Ohio Supreme Court finds that the public records law applies

In a 4–3 ruling issued on May 21 in State ex rel. Schiffbauer v. Banaszak, a majority of the Ohio Supreme Court ruled that Otterbein University’s police department is a “public office” for purposes of the Ohio Public Records Act. This is despite the fact that Otterbein University is a private institution, associated with the United Methodist Church since 1968.

An editor of a student-run media website requested that Otterbein produce criminal reports of persons (both students and nonstudents) whose cases the University’s police department had referred to a municipal court. Otterbein denied the request, citing its status as a private institution. The editor sought a judicial writ of mandamus to compel Otterbein’s production of the requested criminal reports, which the Ohio attorney general supported.

Under the Ohio Public Records Act, a “public record” is kept by any “public office,” which includes “any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.” The question before the Ohio Supreme Court concerned whether Otterbein’s police department constituted a “public office,” even though it was formed by and operated as part of a private institution.

The majority’s ruling emphasized that Ohio statutory law delineates the manner in which a private college or university’s board of trustees may establish a campus police department. Ohio law prescribes that only those persons who have completed a training program approved by the Ohio peace officer training commission may be appointed as campus police officers. Under Ohio law, campus police officers are vested with the same powers and authority as a municipal police officer or a county sheriff.

The majority concluded that Otterbein’s police department was established under Ohio law to exercise a governmental function, namely “police power of enforcing laws, and maintaining the peace within its jurisdiction.” The officers have the power to search and confiscate property; to detain, search and arrest persons; and to carry deadly weapons. Consequently, the majority concluded that the mere fact that Otterbein is a private institution does not preclude its police department from being a public office for purposes of the Ohio Public Records Act. Because Otterbein’s police department performs historically governmental functions, the majority ordered the production of the requested criminal reports.

The dissent contended that the majority’s analysis interpreted too liberally the scope of a public office subject to public records disclosure obligations. While the university’s police department was created in accordance with state law, its actual establishment derived from the university—not the Ohio General Assembly. The dissent reasoned that the “genesis” of the campus police department arose from actions of Otterbein’s board of trustees, which should have been the dispositive consideration in protecting its status as private actor immune from the Ohio Public Records Act.

An Indiana Superior Court judge finds that the public records law does not apply

In ESPN, Inc. v University of Notre Dame, St. Joseph County Superior Court Judge Steven Hostetler addressed a request by ESPN and one of its reporters for records maintained by the University of Notre Dame Security Police Department (“ND Security Police Department”). ESPN argued that the ND Security Police Department is a “public agency” under Indiana’s Access to Public Records Act. On April 20, Judge Hostetler ruled in Notre Dame’s favor, and ESPN recently filed an appeal to the Indiana Court of Appeals.

Judge Hostetler held that the ND Security Police Department is not a separate legal entity. Rather, it was created by and acts as an arm of Notre Dame. Thus, in Judge Hostetler’s view, the central question concerned whether Notre Dame, in its entirety, could be deemed to be a “public agency” required to produce all of its records (such as academic, business and financial records) under the Access to Public Records Act simply because it appoints campus police officers.

Judge Hostetler analyzed the statutory definition of a “public agency” under Indiana’s Access to Public Records Act, which provides that its scope includes “[a]ny law enforcement agency, which means an agency or department of any level of government that engages in the investigation, apprehension, arrest or prosecution or alleged criminal offenders . . . .” Judge Hostetler concluded that Notre Dame falls outside of this definition because it is “clearly not ‘an agency or department of any level of government.’”

The inquiry did not end there, as Indiana’s Access to Public Records Act also defines a public agency to include a body “exercising any part of the executive, administrative, judicial, or legislative power of the [State of Indiana].” Judge Hostetler acknowledged that while police officers appointed by Notre Dame “may not be exactly like other police officers, they do have the authority to exercise the most critical police functions on and around the Notre Dame campus, including the authority to investigate criminal activity and make arrests.” The Indiana Supreme Court has held that private universities that appoint campus police officers are “state actors” as to the actions of those officers for constitutional law purposes, subject to constitutional provisions such as the scope of permissible searches and seizures. Analyzing this precedent, Judge Hostetler concluded that it does not follow that Notre Dame is a public agency under the public records act simply because its Security Police Department is a “state actor” for constitutional law purposes. Judge Hostetler again strictly interpreted the definition of a “public agency” under the public records act, reiterating his conclusion that Notre Dame did not fit within its scope.  Judge Hostetler concluded that “two different concepts” apply in judicial determinations of the limits of police powers under the United States Constitution, on one hand, and the statutory interpretation of a public records act, on the other.

Judge Hostetler acknowledged that ESPN offered persuasive policy arguments for the production of the ND Security Police Department records. Exercising judicial restraint, he concluded that the Indiana legislature is the governmental body to prescribe that the police records of private colleges and universities should be subject to public records disclosures, and it has never done so. Ruling in Notre Dame’s favor, Judge Hostetler declined to engage in what he believed would constitute an improper judicial rewriting of the Indiana Access to Public Records Act.

Takeaways from the cases

Careful attention must be given to the precise wording and scope of a state’s public records law. A few states—Georgia, North Carolina and Virginia—expressly require private college or university police departments to release records. Within state legislatures nationally, there are pending bills and ongoing debates as to the roles, jurisdiction and authority of private campus security forces.

The majority of the Ohio Supreme Court focused distinctly on the creation of Otterbein’s police department under Ohio law and its governmental functions in making a discrete determination that the police records were subject to public disclosure, while Otterbein as a private institution may be otherwise immune from such obligations. Judge Hostetler, by contrast, was unwilling to make such a distinction regarding Notre Dame and its Security Police Department. Also, it will be interesting to evaluate whether other courts similarly differentiate between (1) the analysis to determine whether a campus security department is a “state actor” for constitutional law purposes and (2) the statutory interpretation of what constitutes a public body subject to disclosure obligations under a state’s public records law. Private institutions must watch closely judicial rulings and legislative enactments defining whether campus security departments equate to state actors and for what purposes.

We will continue to monitor closely and report on material developments on these issues as they are further considered by legislatures and courts, including the Indiana Court of Appeals’ ruling on ESPN’s challenge to Judge Hostetler’s ruling.