While the Ohio Supreme Court ruled in a 4-3 decision last week that private colleges’ police forces must make their…

While the Ohio Supreme Court ruled in a 4-3 decision last week that private colleges’ police forces must make their records available to the public upon request, ESPN is appealing an Indiana court's ruling that the sports cable channel was not entitled to obtain police records from the University of Notre Dame.

St. Joseph Superior Court Judge Steven Hostetler wrote that a state Public Access Counselor was incorrect in determining that ESPN was entitled to records from Notre Dame’s police department.

“ESPN’s position assumes that the Indiana Legislature has the constitutional authority to require a private person or entity that is not funded to produce its records under [the Access to Public Records Act],” Hostetler wrote. “Such a requirement would certainly give rise to grave concerns about the right to privacy and the right to be free from unreasonable searches and seizures.”

A federal court in Indiana had previously considered the issue of whether private college police officers' actions constituted “state action” under Indiana law in Torres v. University of Notre Dame du Lac in 2012. That case involved alleged violation by Notre Dame campus police officers of a protester’s First Amendment rights. The judge concluded that because the state of Indiana gave Notre Dame the police power, Notre Dame assumed the responsibilities to which other police departments are held.

“The broad grant of power to police officers for private universities leaves little to differentiate them from any other police officer in the state of Indiana,” the judge held in the 2012 case.

ESPN spokeswoman Keri Potts said she could not comment on the ongoing litigation

Frank LoMonte, executive director of the Student Press Law Center, said the Indiana ruling made little sense.

“[If] you can task arrest authority to people who can hold you for no reason, for unlimited amounts of time, without any grounds, without ever giving any explanation why, that cannot conceivably be the law,” LoMonte said. “The judge got hung up on the idea, somehow, that you couldn’t separate the police department from the university and this was an all-or-nothing question. . . . There are certainly parts of Notre Dame that are private, and legitimately so, but the part of Notre Dame that makes arrests is not one of them.”

The Ohio Supreme Court’s decision that Otterbein University’s police department must turn over requested law enforcement records to the editor of a campus news outlet was based on the theory that the state’s delegation of powers to a private institution confers special responsibilities on those institutions.

In the Otterbein case, a campus news editor had sought records related to the arrest and detention of a student who had been in class and had been told by the campus police not to disclose why he had been detained.

“We have held that a private corporation may be considered a public office for purposes of public records when it performs a governmental function,” the justices wrote. “The mere fact that Otterbein is a private institution does not preclude its police department from being a public office for purposes of the Public Records Act.”

Otterbein spokeswoman Jenny Hill said that Otterbein’s chief of police would comply with the ruling and that Otterbein agreed that the ruling establishes a new precedent.

Cilia Shindell, director of media relations for the University of Dayton, which is a private institution, said the University of Dayton was still studying the ruling in order to determine how to comply with it.

Jim Hutchins, chief of police for Wittenberg University, said Wittenberg was still working to understand the court’s ruling “within the context of our students’ federally-protected right to privacy in particular matters.”

Other states have also been grappling with issues of public access to campus police records.

In Texas, Senate Bill 308, which would require private colleges to disclose law enforcement records in the same way that public agencies do, is awaiting the signature of Gov. Greg Abbott.

The bill was prompted by Rice University’s refusal to disclose records to state senator John Whitmire about a use of force incident by Rice police, Whitmire aide Larance Coleman said.

The bill received unanimous support in both chambers of the state legislature, and Coleman said he expects Abbott to sign it into law.

“It’s really hard to find someone to say, ‘Why we arrest people is none of the public’s business,’ ” LoMonte said. “The argument just falls back on the argument of last resort of all entities facing disclosure, which is, ‘We’ve always done it this way.’ ”

The Illinois House of Representatives recently passed a bill similar to the one in Texas, which was spurred in part by the protests of the Campaign for Equitable Policing against the University of Chicago Police Department’s refusal to disclose records and, more generally, allegations about its policing practices.

Georgia, North Carolina, Virginia, and Ohio are currently the only states where private colleges are required to disclose law enforcement records, although Texas could soon become the fifth.

There is unlikely to be a comprehensive federal ruling on the matter, LoMonte said, so any further expanded access would have to come from states themselves.

"The Supreme Court told us in the Virginia public records case two terms ago that there's not a constitutional entitlement to public records," LoMonte said, referring to McBurney v. Young. "If that's the case, then this is going to have to be a combination of legislation and litigation."

Related Reporters Committee resources:

· Access to Police Records