Ohio Supreme Court rules in favor of student journalist, opening private university police records

OHIO — The Ohio Supreme Court ruled in favor of a former student journalist Thursday, determining that police departments at private universities are public entities and must release records under the state’s open records law.

In a 4-3 decision, the Court ruled the Otterbein University Police Department can be compelled to produce public records because it employs sworn, state-certified police officers, who have the same arresting authority as municipal police or a county sheriff.

“The mere fact that Otterbein is a private institution does not preclude its police department from being a public office for purposes of the Public Records Act,” according to the ruling, which said the private university’s police department serves in a role that is “historically a government function.” Because the ruling was issued through a peremptory writ, the Court did not require additional briefing or oral arguments.

Anna Schiffbauer, who at the time was a news editor of the student-run Otterbein360 news website (and later became an intern with the Student Press Law Center), sent a letter in January 2014 to the university’s director of campus police requesting access to specific police reports. About a week later, Schiffbauer received an email from the institution’s vice president and dean for student affairs, denying her request for records.

Schiffbauer filed suit in February 2014, arguing that the Otterbein Police Department was established by Ohio law and exercises a governmental function, therefore binding it to Ohio Public Records Act requirements. State law allows private universities’ boards of trustees to hire police officers who have completed formal training from the Ohio Peace Officer Training Commission.

“If you are empowered by a state statute that gives you the right to make arrests, to carry deadly weapons and even make arrests off campus, you are a public entity although you happen to be located at a private facility,” attorney Jack Greiner, who represented Schiffbauer, said.

Mike DeWine, the state’s attorney general, agreed. In August 2014, DeWine filed a brief asking the Court to side with Schiffbauer, arguing the police department “was created by the government and could not exist independent of the government.”

Otterbein spokeswoman Jenny Hill said in a statement the institution police chief, Larry Banaszak, will comply with the Court’s order to release the records Schiffbauer requested.

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

Although Schiffbauer has since graduated from Otterbein, she said current Otterbein360 staff will have access to the documents she receives. Prior to 2011, when the university established a fully commissioned police department in place of a security force, Schiffbauer said the news organization got police reports and other records from the city police department when an incident occurred on campus.

After the change, however, Schiffbauer said the campus police department did not provide information beyond police logs required by the federal Clery Act, “but that’s so little information that you really, you know, you can’t report on what’s happening with that.”

Although she doesn’t have any plans for the records, Schiffbauer said the suit was more about setting a precedent of openness for all residents — including student journalists — in Ohio.

“When you think of some of the issues that have come up nationally — with Ferguson, with Baltimore, etcetera — there is a real need for police to operate in a transparent fashion,” Greiner said. “Whether they are at a private university, whether they are municipal police, it really doesn’t matter, and I think the important thing here is the Court implicitly recognized the importance for police to operate transparently.”

Ohio is the second state this week to move toward public access to police records from private colleges. Earlier in the week, Texas lawmakers gave final passage to a measure that entitles the public to review records of law enforcement activity by police at private institutions.

Last month, an Indiana district judge ruled in a similar lawsuit against Notre Dame brought by sports network ESPN that private universities in Indiana do not have to disclose records of the activity of their police officers.

Contact SPLC staff writer Mark Keierleber by email or at (202) 833-4614.