INDIANA — As the Indiana Court of Appeals prepares to weigh in on opening police records at private universities, the state House took a small step toward transparency by unanimously approving a piece of legislation last week that would publicly disclose a small number of private campuses’ police records.
But some transparency advocates say that the bill, which is backed by private college officials, wouldn’t include important records like the name of the student who committed the crime and doesn’t go far enough past what the private universities are already required to release under federal statute.
House Bill 1022 would require that Indiana private university police departments release records related to arrests or incarcerations for criminal offenses. Police records created in compliance with the federal campus crime law would be open to the public. The bill would still allow the departments to withhold investigatory records or the name of a crime victim, unless the victim authorized the release.
The bill was authored by Rep. B. Patrick Bauer, a Democrat, with input and support from the Independent Colleges of Indiana, and was co-authored by three other legislators — two Republicans and one Democrat.
Under current law, these police departments are exempt from Indiana’s Access to Public Records Act. Each state has a public-records law requiring state and local government agencies to disclose upon request the documents they maintain, but in the vast majority of states, this does not apply to private universities, despite their police officers having the power to make arrests. This exemption allows officials to conceal the identity of students who were involved in crimes and other applicable information.
Stephen Key, general counsel and executive director of the Hoosier State Press Association, said the language of the House bill more closely resembles the federal Clery Act than the more inclusive state APRA.
Under the Clery Act, all colleges and universities receiving federal funds (which includes private universities) are required to publish an annual statistical report on campus crime, as well as a daily crime log open to the public. This federal statute does not require the release of specific information — such as the names of those involved and the factual circumstances of the crime — that would appear in an incident report at a traditional police agency.
Public entities, however, are required to release those records under APRA. The House bill does not apply APRA to private universities.
“[The bill] is codifying in state law what is already covered in federal law under the Clery Act — which is nowhere close to what you would expect of public universities and public police departments,” Key said.
Still, Richard Ludwick, president of the Independent Colleges of Indiana, which represents all of the state’s private and nonprofit colleges and universities, said he thinks that the bill would go a long way in improving transparency and accountability.
Ludwick said the association acknowledged this bill would institute a large change in the way private universities operated and wanted to be in the conversation from the beginning. He said the legislation would provide greater access to information that reporters and the public are interested in.
“I think [state private universities] will react favorably to the bill because those administrations are the ones asking for it,” he said. “We’re willing to share those records, our outcomes and other metrics because it helps us be better, and others will understand the value of our institutions.”
University of Notre Dame spokesman Dennis Brown said the university offered its assistance to the Independent Colleges of Indiana while it worked with Bauer to open police records while maintaining compliance with federal regulations regarding student privacy.
Ben Hunter, chief of staff to Butler University President James Danko, said Butler was also consulted on the initial legislation and supported increased transparency.
“I was present [at the bill’s hearing] and testified in support,” Hunter said. “We look forward to implementing new policies when this bill becomes law.”
At the start of 2015, ESPN filed suit against Notre Dame, alleging the university violated Indiana’s public records law when it withheld police incident reports about student athletes. ESPN argued that Notre Dame’s police should be covered by APRA to the same extent as city or county police because the department has state-delegated police authority, like the ability to make arrests, create criminal records and exercise the state’s police powers.
St. Joseph’s County Superior Court Judge Steven Hostetler ruled against ESPN in April, saying that state law granting private universities the power to hire campus police officers does not make the police department a separable part of Notre Dame, which is not subject to APRA.
ESPN is appealing the ruling. In August, Indiana Attorney General Greg Zoeller filed a brief urging the Indiana Court of Appeals to make police incident reports at the Notre Dame public because campus police perform “an almost exclusively public function,” he wrote.
“[Notre Dame officials] have taken seriously the opinions of Judge Hostetler in his decision in favor of Notre Dame last year, Rep. Bauer and others [who say] that some aspects of APRA should apply to private university police departments,” Brown said.
Ludwick said this legislation presents an instance where two branches of government — the courts and the legislature — have the opportunity to work together in a way where the public good would be served.
But Key said he believes some of Indiana’s private universities may be trying to inoculate themselves from the possible negative outcome of the ESPN lawsuit against Notre Dame by preempting the decision.
House Bill 1022 will next move to the Indiana Senate for consideration. Key said this will offer another opportunity for amendments to the bill, and he would like the bill to mirror the language and requirements of APRA more closely.
Transparency in private universities’ police departments has become a nationwide movement in recent years as several state judges and legislators have weighed in on the issue.
In a similar case brought by the news editor at Ohio’s Otterbein University, Ohio Attorney General Mike DeWine filed a brief to help persuade the state Supreme Court to open the records of the university police department to the public. The Ohio Supreme Court ultimately ruled in favor of the student journalist in May 2015, determining that police departments at private universities in the state are public entities and must release records under the state’s open record law.
“We’re changing the law where there isn’t an openness of those records to one where there is,” Ludwick said. “[Private universities] help create journalists, and we understand that transparency is a part of living in an open society.”
SPLC staff writer Kaitlin DeWulf can be reached by email or at (202) 974-6317.
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