Gov. Mike Pence has a government transparency dilemma on his hands.
The Indiana Court of Appeals’ unanimous ruling on Tuesday that private university police departments should not be “able to circumvent public records requirements” established a new level of openness for private campus police that freedom of information advocates say have been inappropriately operating in secret.
But awaiting Pence’s signature is a newly passed piece of legislation that purportedly increases the transparency of such departments by requiring them to make public certain arrest records, while carving out a few exceptions that private universities say protect college students.
Now, if Pence signs House Bill 1022 into law, public access experts say it could actually be a step backwards on the transparency of those departments. That's because the bill would likely trump the Court of Appeals opinion in ESPN Inc. and Paula Lavigne vs. Notre Dame Security Police Department. Advocates are asking for his veto.
“That’s the best argument for why it deserves to be vetoed,” said Frank LoMonte, a First Amendment lawyer and director of the Student Press Law Center, which advocates for the rights of student journalists and open government. “The Legislature clearly expressed its intent to make more records accessible and it would be ironic for the bill to result in the opposite effect."
Cynthia Baker, a clinical professor at the Indiana University Robert H. McKinney School of Law, said both the Court of Appeals decision and HB 1022 seem to be trying to achieve increased transparency.
“Both branches are trying to achieve the same goal, which is to make it clear that even though the private university is not a public agency, that a private university police department does become a public agency for purposes of access to public records without making the entire private university a public agency,” Baker said.
But the bill, said Indiana’s public access counselor Luke Britt, who provides advice and help interpreting the state’s public records and open door laws, “carves out some additional exceptions from what they would have to disclose.”
“They would have to do less than a municipal police force or a public university police department,” Britt said.
First Amendment advocates are crying foul because the bill makes public the private university police department records that are “created solely for a law enforcement purpose.”
Baker said the word “solely” being included in the bill could limit the records ultimately made public.
“I’d have to agree that word could be concerning,” Baker said.
LoMonte said that’s a problem because of the tendency of university police departments to open campus disciplinary investigations into student offenses—which he said wouldn’t be covered under the law.
“Colleges always take the position that their records are both criminal and disciplinary, that they never use them solely for law enforcement,” LoMonte said. “The records that are much more important are the cases where serious crime happens and no arrest is made. The public really needs to know whether colleges are sending violent felony crimes into disciplinary boards where people can emerge with a secret slap on the wrist."
Mary Ellen Hamer, vice president of the Independent Colleges of Indiana, said a key reason for withholding disciplinary records is to protect students from “something silly they did in college.” She said the legislation is a genuine attempt by private colleges to be more accountable to the public.
"(Campus police) play both roles of being sworn police departments and being student affairs,” Hamer said.
Hamer flatly rejected the idea that Indiana’s private colleges would sweep serious crimes under the rug by handling them through campus disciplinary boards.
“I believe they take their duties seriously,” Hamer said. “We have faith in the institutions to do the right thing.”
Indiana Democratic Rep. Pat Bauer, who authored HB1022, said he stands by the language.
But as the issue of campus sexual assault has gotten more attention nationwide, news organizations are exposing how universities across the country sometimes handle disciplinary cases.
Just last week, Inside Higher Ed reported that when Gustavus Adolphus College in Minnesota found a student committed sexual assault, the student was forced to write a 500-word essay about consent.
Freedom of information advocates say students at private universities shouldn’t be held to a different standard than those at public universities.
“There’s no reason why the reputation of somebody at Notre Dame is of more importance than somebody at Indiana University,” LoMonte said. “These are not children and these are not youthful mistakes. We’re not talking about minor personal frictions. We’re talking about potentially violent felonies that would land you in prison if you committed the crime anywhere other than a private college campus."
Britt, the public access counselor, agrees.
“These police forces have the power to create arrest records and detain and create probable cause for the prosecution to bring charges,” Britt said. “If they can do that to a Butler student or anyone driving through campus, then they should be held to the same standards of accountability and transparency of other police departments."
Will Pence veto?
It is unclear whether Britt’s opinion on the issue, or the Indiana Attorney General’s opinion on the ESPN case, will influence the governor.
Occasionally, Britt said he provides subject matter expertise to both the administration and the Legislature, but that he tries to let his advisory opinions stand on their own. Britt said the Pence administration has appropriately “kept him at arm’s length.”
“They don’t really influence my decisions and I don’t really influence their actions,” Britt said. “They view my office as autonomous.”
Indiana Attorney General Greg Zoeller, whose office last year filed an amicus brief in the appeals court in support of ESPN, called this week’s ruling a “qualified victory for public access and transparency.”
Attorney General spokesman Bryan Corbin said the office does not comment on proposed legislation.
Spokesman Matt Lloyd said Pence would give the bill careful consideration.
“Gov. Pence is studying the issue carefully,” Lloyd told IBJ.
For his part, Pence has an interesting history when it comes to freedom of information issues. When he was in Congress, he continually sponsored shield law legislation, which would provide protections for journalists in federal courts. Pence at the time said those protections were vital for protecting the public’s right to know.
But under his tenure as Indiana’s governor, the state also received an F for access to public records by the Center for Public Integrity in 2015, and Pence was criticized for his office’s attempts to create a state-run news service, Just IN, which his gubernatorial opponent John Gregg has called a “taxpayer-funded propaganda machine to control what information reporters and the public have access to.”
The Just IN idea was short-lived, though, and didn’t ultimately come to fruition, with Pence saying he would reject any plan that compromised a free and independent press.
Gerry Lanosga, an assistant professor of journalism at Indiana University, said he believes the “best outcome” from Pence would be a veto.
“This system, as it’s been up until this point, resembles a secret police system,” Lanosga said. “If you’re arrested across the street from campus by South Bend police, all of that information is public. If you’re arrested by Notre Dame police, that’s secret. That doesn’t really comport with the values we have about public policing, citizenship and open information in a democracy.”