In 2014, Paula Lavigne, a reporter for ESPN’s Outside the Lines program, began investigating college athletes and the justice system. Lavigne wanted to know whether prominent athletes receive preferential treatment during criminal inquiries, and to that end, she requested incident reports involving football and basketball players over a five-year period from campus police departments at 10 universities. After some haggling, she ultimately received documents from nine of them—but she got nothing from Notre Dame, the only private school on her list.
Lavigne didn’t give up readily. She obtained an advisory opinion from Indiana’s Public Access Counselor, whose office helps citizens and government agencies navigate the state’s sunshine laws, that concluded the Notre Dame police force should be subject to the state’s open-records law. When campus police rebuffed her request a second time, she got another advisory opinion, this one concluding that the department likely had violated the law. Finally, in January 2015, Lavigne and ESPN sued Notre Dame for the documents in state court, arguing that because the department exercises police powers granted by the state, including the power to investigate crimes and make arrests, it is a public agency.
At the trial court, they lost. State lawmakers could declare that campus police at private universities are subject to public-records laws, wrote Superior Court Judge Stephen Hostetler, and perhaps they should: “[T]here are indeed persuasive reasons why the statute should be amended to read the way ESPN desires.” But for now, he ruled, the press and public have no right to Notre Dame police records.
In a sense, the case is just one battle in the broader conflict over how to apply public-access laws to privately-run entities that either partner with the government or exercise powers traditionally reserved for the government. Charter schools, private prisons, private foundations created to support public universities, and even the public-private partnerships that manage tourism or stadium districts: all have been the subject of open-records controversies. The underlying issues can be difficult, and when such cases go to court, the outcome can be unpredictable—because FOI laws vary from state to state and don’t contemplate every type of public-private arrangement. “These cases are not only state-specific—they’re fact-specific,” says Adam Marshall, a fellow at the Reporters Committee for Freedom of the Press.
But these controversies also recur because agencies sometimes exploit the statutory ambiguities to withhold information that—from the perspective of many journalists and transparency advocates—should plainly be public.
That includes the records of private university police forces, which often have the authority to make arrests and use lethal force but are not always clearly covered by FOI laws. Those limitations represent “an obvious hole in public-records access,” says Frank LoMonte, executive director of the Student Press Law Center, which advocates for greater transparency and has coordinated FOI litigation against colleges and universities.
For journalists and others with an interest in transparency, it’s essential that our public-records laws catch up to all the ways in which non-governmental entities are acting in the government’s place. In recent years, private-college records have become a focal point of this broader debate, with litigation or legislative action in at least half a dozen states. As the issue gains prominence, some progress toward closing that hole is being made—but it’s often slow, piecemeal work.
When campus police aren’t limited to campus
At Notre Dame, the department’s website says it is “fully authorized as a police agency by the State of Indiana” and that its officers “have the same legal authority as any other police officer in Indiana.” Hostetler, the trial court judge in the ESPN case, commented that Notre Dame’s officers “may not be exactly like other police officers, [but] they do have the authority to exercise the most critical police functions on and around the … campus.”
That arrangement is not uncommon. According to a 2015 Department of Justice report, officers at 38 percent of private colleges and universities have full arrest powers. Thirty-six percent of those schools have armed police, a 20 percent increase since 2005.
In some cases, the jurisdictions of these departments extend off campus. At the private University of Chicago, according to local news coverage, the police department’s “extended patrol area” spans 6.5 square miles, and encompasses 65,000 people—many of them residents of neighborhoods on the city’s predominantly black south side with no connection to the school.
One reason the department has such a large jurisdiction is that nearby residents asked for it, hoping it would fill needs left by an unreliable municipal police force. (Similar arrangements have developed in other cities, such as Detroit, New Orleans, and Philadelphia.) But there is also longstanding tension between the university and its neighboring communities, and residents and students have raised concerns about racial profiling by campus police.
Activists have pushed for greater access to police records, in part as a way to document those concerns, and the university has moved to increase transparency. University police now make available a daily crime log, arrest records, and information on traffic stops and field interviews, according to Jeremy Manier, a university spokesman.
The issue has reached the statehouse. In April 2015, the Illinois House passed a bill that would make campus police records subject to the state Freedom of Information Act if the records relate to a department’s “exercise of the powers of municipal peace officers or county sheriffs.” Reports on traffic stops and arrests, daily crime logs, and radio communications would be covered.
But the bill has stalled in the Senate. A severe state budget crisis, along with apparent university cooperation, made the measure a low priority, said Jonah Newman of the Chicago Reporter.
‘Difficult to imagine a function more governmental than policing’
Matt Topic, a government transparency lawyer in Chicago, says there’s a legal argument to be made that private university police departments in Illinois are already subject to the state FOIA. “It is difficult to imagine a function more governmental than policing,” he wrote in an email.
In Ohio, such an argument proved to be a winner. In that case, Anna Schiffbauer, a student journalist at Otterbein University, requested records in 2014 from the private school’s police department. Her request was denied. Eventually, however, the Ohio Supreme Court took the case and held that the department is a public office under the state public-records law and thus obligated to release the records. The high court reasoned that the department is public because its officers are “sworn, state-certified police officers who exercise plenary police power.”
In two other states, meanwhile, the legislature has passed laws to similar effect. In 2013, the North Carolina enacted a law expanding access to police records at private universities, after a case on the issue, brought by a student journalist at Elon University, reached the state Supreme Court. And in 2015, Texas approved a measure that made private-campus departments subject to public records laws “with respect to information relating solely to law enforcement activities.”
Even these developments, though, highlight how murky the law remains. In Ohio, for example, when Schiffbauer asked the state supreme court for attorney fees and statutory damages, she was denied. The court held that it was “reasonable” for the department to believe that it was not subject to the public-records law. In dissent, Justice William O’Neill said that was “disingenuous,” adding, “The whole purpose of awarding attorney fees and statutory damages in public-records cases is to encourage compliance with the law and to compensate those who have had to file a lawsuit to force compliance.”
And in Texas, when Lavigne, the ESPN reporter, recently sought police records from private Baylor University, the department declined to release them; earlier this month, the state attorney general’s office ruled that the records should be withheld. The AG’s decision cited rulings designed to protect the privacy of sexual-assault victims, and it rejected arguments from the school that could have gutted the new law. But until it’s clear that private-school police departments have started routinely disclosing records as appropriate, it’s premature to count this as a full transparency win.
There’s at least one other state where the law is in flux: Indiana, where ESPN and Lavigne haven’t dropped their case against Notre Dame. After the trial court dismissed the suit, ESPN filed an appeal, picking up support from the state attorney general. The court case seems to have gotten the attention of state lawmakers: The Indiana House passed a bill last month that would require police departments at private universities to share more records.
But the bill would exempt some documents that public police departments must disclose, so while it would provide more transparency than the status quo, it would be less far-reaching than a court ruling in ESPN’s favor—a point that the network’s lawyers made when a state appeals court heard oral argument last week. It’s unclear whether the court will rule while the bill is pending.
LoMonte, of the SPLC, says it shouldn’t be this complicated. “Most states’ open-records laws already cover a private organization using governmental authority to perform a governmental function,” he says. “We shouldn’t have to file 50 lawsuits to prove that.”
Instead, he says, legislatures should clarify their position in favor of disclosure. As long as the law leaves room for doubt, many institutions will err on the side of less transparency—and that means that the press and public can’t provide needed scrutiny. Without records, he said, “we’re working on an honor system—we’re being asked to blindly trust.”