This spring, courts in Indiana and Ohio issued opinions regarding whether police departments maintained by private colleges must disclose documents pursuant to requests made under state access to public records laws. Despite similar laws in both states regarding access to public records and a private college's ability to appoint campus police officers, the courts reached opposite conclusions, with the Indiana court finding the private college did not have to respond to such requests, while the Ohio court determined the private college must disclose records under the Ohio public records law.
First, an Indiana trial court determined the University of Notre Dame did not have to disclose records that were maintained by its police department. In this case ESPN sent a request under Indiana's Access to Public Records Act to Notre Dame's police department seeking incident reports involving Notre Dame student-athletes. Notre Dame denied the request. ESPN sought an advisory opinion from Indiana's Public Records Access Counselor who determined that, despite prior opinions providing such police departments were not subject to the Act, Notre Dame's police department is a public law enforcement agency subject to the Act because its police powers come from the State of Indiana, not Notre Dame.
ESPN then filed a lawsuit in St. Joseph County Superior Court, where Judge Steven Hostetler disagreed with the Counselor and decided Notre Dame's police department was not subject to the Act. Judge Hostetler reasoned that the police department was not a separate legal entity and, while an Indiana statute permits Notre Dame to appoint campus police officers, this statute did not convert Notre Dame into a "public agency" subject to the Act. Judge Hostetler indicated that if such records are to be subject to the Act, then the Indiana legislature should pass a law specifically providing so.
ESPN has appealed the decision. On August 14 the Indiana Attorney General filed a "friend of the court" brief supporting ESPN's position, arguing disclosure of the records will create more transparency and accountability within the criminal justice system. The Indiana Court of Appeals will likely issue its opinion on ESPN's appeal in the next six to nine months.
Second, the Ohio Supreme Court determined Otterbein University had to disclose records maintained by its police department. In State ex rel. Schiffbauer v. Banaszak, the editor of a student-run media website asked the chief of Otterbein's police department to produce certain criminal reports related to both students and nonstudents pursuant to the Ohio Public Records Act. After Otterbein denied the request, the editor filed a legal action to compel disclosure of the records. In a four to three decision, the Ohio Supreme Court determined that a campus police department is a public office subject to the Act because, like in Indiana, Ohio law allows private colleges to appoint campus police officers. The Ohio Supreme Court reasoned that, because policing is a public function, the fact that Otterbein is a private institution does not shield its police department from the Act.
There is a national movement to pass laws specifically providing that records maintained by private college law enforcement units are subject to access to public records laws. Texas passed such a law this spring with unanimous approval. The Illinois legislature considered a similar law this year but it failed to make it out of committee.
These cases and laws raise an important question: are records maintained by a college's law enforcement department confidential "education records" under the Federal Educational Rights and Privacy Act (FERPA)? The answer to this question is, in most situations, "no," which avoids a conflict between state public access and federal privacy laws. Under federal regulations, records maintained by campus law enforcement are excluded from the definition of "education records," and thus are not confidential under FERPA, if they are (1) created by a law enforcement unit; (2) created for a law enforcement purpose; and (3) maintained by the law enforcement unit. See 34 CFR § 99.8(b)(1). More guidance regarding FERPA's application to law enforcement records can be found in a paper published by the Department of Education in 2011 entitled "Addressing Emergencies on Campus" available here.
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