05/29/2015

Otterbein decision opens police records across Ohio campuses

By Dennis Hetzel, Executive Director

Memo to Ohio newsrooms: If you have a private college in your area that uses commissioned officers as its police force, start covering them. Put them on your rounds for reporters’ regular stops and calls. You now have the same access to records as you would any other police department.

That’s the result of an Ohio Supreme Court decision last week in favor of some persistent and courageous Otterbein University students, led by former student journalist Anna Schiffbauer, who fought efforts by the campus police to keep records secret.

This was a messy case in one respect because it involved records created by entities that aren’t public bodies.

But the broader issue couldn’t be clearer: Deciding in favor of Otterbein meant the Court would sanction secret arrests, detentions and investigations by officers empowered by government. I can’t think of a more fundamental, basic civil liberty than that.

These officers and the Otterbein University police department have their law enforcement authority granted by the state. These were sworn and commissioned officers, not private security or “rent-a-cops.” The university police also had specific authority to enforce laws off campus in the neighboring Columbus suburb of Westerville. Sworn officers have the authority to arrest and detain anywhere, whether they’re police officers for cities, public universities and, now, private universities.

While we applauded the ruling, I also said we were very disappointed that the court’s vote was 4-3 instead of unanimous.

The reasoning of the minority on the court troubles me greatly. Some of it is simply incorrect. Justice Terrence O’Donnell, writing for the minority, blithely dismissed the concern because “these records are otherwise readily available from a public office that maintains public records, i.e. the Westerville Mayor’s Court.”

What if the department decides not to bring charges? Arrest logs and incident reports – all clearly open records under Ohio law – do not go to the mayor’s court. More serious charges may go to other jurisdictions. Whether some of these records eventually become open in mayor’s court misses the broader point completely.

O’Donnell seemed – at least to me -- to find a way to decide in favor of secrecy. This is the trend we have seen in many Ohio Supreme Court decisions. What’s encouraging is that this is the third good decision in a row from the Court on transparency, so maybe there is a majority now that is embracing the strong presumption built into the law that public records (and meetings) should be open, and the burden is on the government to demonstrate why access should be denied.

Until now, private schools had an advantage over public universities by their ability to keep a lid on any reporting of campus crime. You can’t help but wonder if concern about bad publicity didn’t trump the public’s right to know that might be taught in their political science classes. There was strong opposition by private colleges and private hospitals that also employ sworn officers to bills introduced last year to require such police forces to follow the open records laws. While some of the concerns were understandable, I didn’t hear any issues that couldn’t be resolved while still keeping records open when these departments are exercising their police powers.  

There is less need now for legislation, although the decision only covers private colleges and doesn’t apply to other entities employing sworn officers, so that’s a dispute for another day that probably is more complicated.

Some credit where credit is due: The Ohio Coalition for Open Government, which is an offshoot of our Ohio Newspapers Foundation, donated $1,500 to help defray legal costs in the case. The Society of Professional Journalists’ Legal Defense Fund contributed $5,000. Attorney Jack Greiner in Cincinnati did outstanding legal work representing the students. OCOG counsel Dave Marburger helped the students frame their initial records request to improve the odds of a courtroom victory. Attorney General Mike DeWine’s office contributed an outstanding “friend-of-the-court” brief supporting the students’ position.

Related links:

• Reporters Committee for Freedom of the press article on the Ohio case and a similar battle continuing in Indiana between ESPN and Notre Dame University.
• Columbus Dispatch coverage with links to earlier stories.
• Ohio Supreme Court case page with links to the decision and all other filings in the case.