Experts say Indiana’s private university police transparency law has no teeth





INDIANA—Margaret Hynds, editor in chief of the Notre Dame Observer, noticed last November that HB 1019, a law former Indiana governor Mike Pence signed, classified private university police departments as public agencies.

So, naturally, the student newspaper requested case documents from the University of Notre Dame Security Police. Notre Dame’s general counsel denied the requests. The Observer filed a complaint with a higher power, Indiana Public Access Counselor Luke Britt. Britt sided with Notre Dame, saying HB 1019’s language was in error and a bill to correct it would soon pass.

A law recently enrolled by the Indiana General Assembly, House Enrolled Act 1022, ostensibly requires private university police departments to release case documents to the public if requested. But experts say the law will still hold private departments to different standards than public ones.

“It really doesn’t make private university police departments generate or retain any kind of documentation they wouldn’t have had to before,” said Britt. Britt calls the law “transparency in name only” but asserts his responsibility to uphold it.

“Nothing’s really changed for us,” Hynds said.

The law comes in the wake of the Indiana Supreme Court’s decision that private university police don’t need to provide records to the public from ESPN’s lawsuit against the University of Notre Dame.

In 2014, ESPN reporter Paula Lavigne requested complaint records involving student athletes from athletic powerhouse Notre Dame’s police department. The department denied the request, and ESPN sued. The case worked its way through the Indiana court system, at one point with an appeals court deciding in ESPN’s favor and determining private police departments had the same open records obligations as public ones. In November, the Indiana Supreme Court ruled against ESPN, but the ruling could be made moot by the law.

Last year, the bill sailed through the Indiana General Assembly with bipartisan support, the ESPN suit in the background the whole time. Indiana state representative B. Patrick Bauer, a South Bend Democrat, authored the bill. Bauer couldn’t be reached for comment.

“I believe it was a misunderstanding by legislators as far as what standards they were creating,” Hoosier State Press Association executive director Steve Key said.

Once it reached then-Gov. Mike Pence’s desk, however, the future vice president put the kibosh on the effort.

“Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency. While House Enrolled Act 1022 provides for limited disclosure of records from private university police departments, it would limit the application of the Access to Public Records Act (APRA) following the Court of Appeals decision and result in less disclosure,” Pence said in a statement following his veto last March.

The legislature disagreed, and overturned his veto during this session as Pence was settling into Washington, D.C. The override means that the bill preserving the secrecy of college police records will now become law over the governor’s opposition.

“We thank the General Assembly, whose members carefully vetted this bill, passed it through both Chambers after determining that it appropriately balanced the public’s right to know about criminal matters with students’ right to privacy in non-criminal ones, and have now formalized it as part of Indiana code,” said the Independent Colleges of Indiana (ICI), the organization representing Indiana’s private colleges in Indianapolis.

Gerry Lanosga, a professor at Indiana University Bloomington and a board member of the Indiana Coalition for Open Government, said the law likely won’t require anything of the state’s private schools that they don’t already provide under the federal Clery Act. The Clery Act requires all institutions of higher education which accept federal assistance to publish a log of crimes reported to them, an annual security report, and federal crime statistics.

“The new law incorporates the requirements of the federal Clery Act, which are more general than those in Indiana’s Access to Public Records Act. The Clery log requires only nature, date, time and "general location" of a crime. Indiana has also stipulated that victim names must be redacted from this record. On the other hand, public police departments (including those at public universities) have to maintain a more detailed log,” Lanosga said.

“I’ve seen some headlines saying that private university police departments now have to open their records to the public, I just think that’s an erroneous take on this, they’ve always had to open their records to the Clery Act,” Lanosga said.

Katie Goodrich, editor in chief of The Butler Collegian, said Butler University had been treating open records requests as if they were a public university since before the legislation was passed, and that she wasn’t sure if it would substantially affect the Collegian’s coverage of crime at Butler. Before, she said there was no formal process to obtaining Butler University Police Department documents.

“We have gotten access to documents which they haven’t necessarily had to release, which was good, but now there’s an actual legal process in place that we can complain if they don’t give us something we request. But I still don’t know how it’s going to technically pan out with us putting an APRA request,” Goodrich said.

Still, Goodrich says she thinks the legislation is a good start for transparency in the state.

“I think the fact that the legislature is acknowledging this as an issue, and segmenting the part of the private university that deals directly with the public aspects of the law, I think that segmenting the police departments out is a good step in the right direction of getting the information journalists really need out to the public,” Goodrich said.

SPLC staff writer James Hoyt can be reached by email or (202) 478-1926.

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