Records of Private College Police are Public Records

John Greiner & Benjamin Greiner

In State ex rel. Schiffbauer v. Banaszak, the Ohio Supreme Court ruled that police officers employed by private colleges are subject to the Ohio Public Records Act. Therefore, the department can be compelled to produce public records. Anna Schiffbauer was the student journalist who brought the suit. Anna worked on the staff of the Tan & Cardinal, the student newspaper at Otterbein University in Westerville, Ohio.

Otterbein is a private university, but several years ago, it decided to employ a campus police department made up of officers trained as state police officers. An Ohio statute grants these campus police officers the same authority as municipal police officers or county sheriffs. This authority provides the campus police officers the ability to search and confiscate property, to detain, search, and arrest persons, to carry deadly weapons, and, in this case, pursuant to an agreement between the school and the city of Westerville, make arrests off campus.

When Anna asked for criminal incident reports from the Otterbein Police, however, they refused to provide them, stating that as a private institution Otterbein was not subject to the Ohio Public Records Act. Anna filed a mandamus action in the Ohio Supreme Court to get the records.

Police incident reports are unquestionably public records under Ohio law. But when an entity won’t comply with their duties under the law, the requesting party may initiate a mandamus action in the Ohio Supreme Court to make the entity obey the law.

Despite Otterbein’s intense foot dragging and other attempts to delay, the Supreme Court issued a “peremptory writ” compelling the Otterbein police to hand over the records. Interestingly, the Supreme Court ruled before the parties field briefs or presented oral arguments. The Court grants a peremptory writ only when “the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it.

Otterbein argued that the campus police department is not a public office, subject to the Ohio Public Records Act, because Otterbein University is not a public entity and the campus police department is a subdivision of the university. However, the Supreme Court has held: “that a private corporation may be considered a public office for purposes of public records when it performs a government function.”

This passage from the Court’s decision gets to the heart of the matter: “The department is created under a statute for the express purpose of engaging in one of the most fundamental functions of the government: the enforcement of criminal laws, which includes power over citizens as necessary for that enforcement.” The power to arrest and kill is the ultimate expression of the state’s power. With this great power comes great responsibility. It is reasonable that citizens who are subject to this power have the right to check up on the actors who exercise it.

This is an important decision for students, not only at Otterbein, but at all universities. Colleges inform students and prospective students of every statistic and fact which paints the school in the best light. These statistics can range from student GPAs, students’ ability to find jobs after graduation, best professors, the percentage of students in fraternities or sororities, and many more. But for many students some of the most important statistics are campus safety and criminal statistics for the city or town in which the college is located. Having a private campus police department which is immune from public record requests can lead to these important safety statistics being skewed.

Students deserve to know how safe their school and towns are. This decision will help present students with a clearer picture of their safety by allowing the media and concerned citizens to directly view crime statistics and reports before schools are able to adjust them to paint the school in the best possible light. This decision may make the always sunny university seem a little gloomier, but students deserve to know the truth.

And hats off to Anna.  She stuck with this case even after she graduated and stopped working for the Tan & Cardinal. It was a privilege to represent her.