Private colleges win, public loses


By Steve Key
Hoosier State Press Association

The Indiana Court of Appeals ruled that private university police departments are subject to the state’s Access to Public Records Act just like any other police department.

Unfortunately, the General Assembly two weeks ago passed a bill that will exempt private university police forces from the requirement to provide detailed information about crimes reported.

They will get to operate under a different rule of law than all other state police agencies, including public university police forces.

“Curiouser and Curiouser!” cried Alice (in Wonderland).

Judges Rudolph Pyle III, Nancy Vaidik and Margret Robb agreed with ESPN in its lawsuit brought against the University of Notre Dame Security Police Department.

ESPN argued that by virtue of operating with full police powers, including the ability to arrest, private universities are subject to the same accountability as other police departments through the state’s records access law.

The back story

ESPN is seeking police records concerning Notre Dame athletes connected to crime reports.

The university denied all requests, claiming it wasn’t subject to the Access to Public Records Act as a private institution.

HSPA Foundation and Indiana Attorney General Greg Zoeller filed amicus briefs supporting ESPN’s contention that the Notre Dame police department should be subject to the access law.

“The court’s ruling is a qualified victory for public access and transparency,” Zoeller said. “The public has the right to transparency and accountability when police power is being exercised, and we look forward to further judicial clarifications on the scope of the public’s right to know in future decisions by our courts.”

The appeal decision

The Court of Appeals decision ordered the case back to the trial court judge to determine which Notre Dame records should be made available to ESPN to fulfill its records request.

As a law enforcement agency, Notre Dame police will have records that fall under the “investigatory records” provision. That gives the school the discretion to keep those files confidential if they choose.

The three-judge panel heard oral arguments on the case Feb. 24.

Maggie Smith of Frost Brown Todd in Indianapolis presented the case for ESPN and the amicus briefs.

Legislative action

Two days earlier, the Senate Civil Law Committee passed H.B. 1022 – exempting private university police departments – in its journey to eventual passage by the state legislature.

Rep. Pat Bauer, D-South Bend, introduced H.B. 1022, though he publicly criticized Notre Dame for keeping crime information secret when ESPN filed its lawsuit in January 2015.

Bauer asked the Indepen­dent Colleges of Indiana, which lobbies for private university interests – to write the bill.

Prior to its first committee hearing in the House Government and Regulatory Reform Committee, he told HSPA that the Independent Colleges of Indiana told him the legislation put private university police department reporting requirements on par with other police agencies.

HSPA corrected him on that point to no avail.

Lobbying force

Private university officials testified in favor of the bill before the committee, and HSPA countered their position, pointing out that the bill specifically excludes private universities police departments from IC 5-14-3-5(c).

The code, part of the state Access to Public Records Act, requires police, when a crime is reported, to make available the time when calls for help are received, who is dispatched to the scene and when, the reported time and location of the alleged crime, the victim unless it’s a sex crime, the factual circumstances surrounding the incident, and general description of any injuries, property or weapons involved.

H.B. 1022 will require private universities to give these details only if an arrest is made. But most crime reports don’t end with an arrest.

The bill has similarities with the federal Clery Act, which limits daily police reporting requirements to the nature of the crime, general location and disposition by the police.

Still, the House committee moved the bill, 13-0. It then passed the House, 95-0 with the support of co-authors Reps. Casey Cox, R-Fort Wayne; Tim Harmon, R-Bourbon; and Christina Hale, D-Indianapolis.

Different requirements

Sen. Sue Glick, R-LaGrange, was the bill’s sponsor. While she seemed sympathetic to HSPA arguments, she said Bauer was pushing for passage of the bill without significant changes.
HSPA suggested language that would have included private university police under 5(c) while recognizing that the Clery Act prohibited the release of victim information.

During the Senate Civil Law Committee hearing, the Independent Colleges of Indiana continued to assert the bill equalized the reporting requirements.

HSPA continued to point out the limited information private schools would be required to release.

The committee passed H.B. 1022, 7-0.

Independent Colleges of Indiana representatives told HSPA that H.B. 1022 was not related to the ESPN v. Notre Dame case, even though the language inoculated private colleges from the potential of an adverse ruling in the case.

Amendment denied

Glick didn’t offer the HSPA-suggested amendment on the Senate floor, and the bill passed 49-1.

Co-sponsors were Sens. Dennis Kruse, R-Auburn, and John Broden, D-South Bend.

The lone dissent was from Sen. Liz Brown, R-Fort Wayne.

Glick told HSPA she believed Bauer was going to file a dissent, which would give time to improve the bill in a conference committee. Instead, Bauer filed a concurrence immediately, and the House approved the concurrence March 3 with a 93-0 vote.

H.B. 1022 now is awaiting a signature from Gov. Mike Pence – and Notre Dame has indicated it will appeal the Court of Appeals decision.

Questions unanswered

The story leaves unanswered questions:

• If Bauer was critical of private university secrecy, why ask the private university lobby to draft the bill?

• Why do legislators not believe the public needs the same insight into crime at private universities as they do in the rest of the state?

I understand universities’ desire to keep crime information under wraps. Crime creates a marketing issue for them.

But there is no justification to deny communities, students and parents the ability to scrutinize the professionalism of private university police or protect themselves and their children from becoming crime victims.

The Court of Appeals got it right, so what were the legislators thinking?

Steve Key is executive director and general counsel for the Hoosier State Press Association.