A sea change for private university police – but not the one they anticipated?

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March 11, 2016 3:52 PM

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The Indiana General Assembly has sent the governor a bill concerning the records of private university police departments. According to the Independent Colleges of Indiana, the bill represents a “sea change” in opening up private college police records to the public. But the South Bend Tribune calls the bill “toothless.”

So who’s right? Actually, maybe both.

ESPN was first to raise concerns about the police departments of private schools. The cable network sued Notre Dame University for refusing to release police reports involving athletes at the school. The university argued that as a private entity it is not subject to public records laws. The problem is, the school’s police department derives its police powers – which include carrying weapons and making arrests – from the authority of the state.

So lawmakers this year drafted a bill that was supposed to put private university policy departments on the same footing as regular departments in terms of the requirement to release records to the public. The bill requires the release of records related to arrests and incarcerations, but it gives such departments a major break when it comes to releasing a daily log of crimes, accidents and complaints. Rather than using the same language that applies to other police agencies, which calls for a detailed listing of times, locations, and circumstances, the legislation simply requires a much-less detailed log that private schools are already required by federal law to release.

The Tribune and other advocates of open government (including this one) are right that the bill will thus do very little in terms of the records of actual police work. At Notre Dame, for instance, the majority of incidents the department deals with don’t include arrests or incarcerations, according to the Tribune. But records of those interactions will not be public.

In other words, the bill is toothless. So where’s the sea change?

Well, at least by my reading, lawmakers may be unwittingly obligating private university police departments to release a host of records not even contemplated in the legislation. That’s because the bill flatly declares that such departments are public agencies under the Access to Public Records Act. That is, it doesn’t exempt them from complying with the general requirements of the Act. So while it lists the aforementioned records as public, it doesn’t expressly exclude others, such as administrative records and police disciplinary records. Public agencies – which will now include police departments of private university – are required to release those records upon request.

Of course, I’m sure the private schools and their allies in government will take exception to my reading of the bill. And I still hope Gov. Mike Pence vetoes it. But if it does become law, I look forward to seeing some creative lawyering to open up these previously secret police departments to more scrutiny than they bargained for.

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