The Indiana Publisher

Page 8 March 17, 2016 T he Indiana Court of Appeals ruled that private university police departments are subject to the state's Access to Public Records Act just like any other police department. Unfortunately, the General Assembly two weeks ago passed a bill that will exempt private university police forces from the requirement to provide detailed information about crimes reported. They will get to operate under a different rule of law than all other state police agencies, including public uni- versity police forces. "Curiouser and Curiouser!" cried Alice (in Wonderland). Judges Rudolph Pyle III, Nancy Vaidik and Margret Robb agreed with ESPN in its lawsuit brought against the University of Notre Dame Security Police Department. ESPN argued that by virtue of operating with full police powers, including the ability to arrest, private universi- ties are subject to the same accountability as other police departments through the state's records access law. The back story ESPN is seeking police records concerning Notre Dame athletes connected to crime reports. The university denied all requests, claiming it wasn't subject to the Access to Public Records Act as a private insti- tution. HSPA Foundation and Indiana Attorney General Greg Zoeller filed amicus briefs supporting ESPN's con- tention that the Notre Dame police department should be subject to the access law. "The court's ruling is a qualified victory for public access and transparency," Zoeller said. "The public has the right to transparency and accountability when police power is being exercised, and we look forward to further judicial clarifications on the scope of the public's right to know in future decisions by our courts." The appeal decision The Court of Appeals deci- sion ordered the case back to the trial court judge to determine which Notre Dame records should be made avail- able to ESPN to fulfill its records request. As a law enforcement agen- cy, Notre Dame police will have records that fall under the "investigatory records" provision. That gives the school the discretion to keep those files confidential if they choose. The three-judge panel heard oral arguments on the case Feb. 24. Maggie Smith of Frost Brown Todd in Indianapolis presented the case for ESPN and the amicus briefs. Legislative action Two days earlier, the Senate Civil Law Committee passed H.B. 1022 – exempt- ing private university police departments – in its journey to eventual passage by the state legislature. Rep. Pat Bauer, D-South Bend, introduced H.B. 1022, though he publicly criticized Notre Dame for keeping crime information secret when ESPN filed its lawsuit in January 2015. Bauer asked the Indepen- dent Colleges of Indiana, which lobbies for private uni- versity interests – to write the bill. Prior to its first commit- tee hearing in the House Government and Regulatory Reform Committee, he told HSPA that the Independent Colleges of Indiana told him the legislation put private university police department reporting requirements on par with other police agencies. HSPA corrected him on that point to no avail. Lobbying force Private university officials testified in favor of the bill before the committee, and HSPA countered their posi- tion, pointing out that the bill specifically excludes private universities police depart- ments from IC 5-14-3-5(c). The code, part of the state Access to Public Records Act, requires police, when a crime is reported, to make available the time when calls for help are received, who is dispatched to the scene and when, the reported time and location of the alleged crime, the victim unless it's a sex crime, the factual circum- stances surrounding the inci- dent, and general description of any injuries, property or weapons involved. H.B. 1022 will require pri- vate universities to give these details only if an arrest is made. But most crime reports don't end with an arrest. The bill has similarities with the federal Clery Act, which limits daily police reporting requirements to the nature of the crime, general location and disposition by the police. Still, the House commit- tee moved the bill, 13-0. It then passed the House, 95-0 with the support of co- authors Reps. Casey Cox, R-Fort Wayne; Tim Harmon, R-Bourbon; and Christina Hale, D-Indianapolis. Different requirements Sen. Sue Glick, R-LaGrange, was the bill's sponsor. While she seemed sympathetic to HSPA argu- ments, she said Bauer was pushing for passage of the bill without significant changes. HSPA suggested language that would have included pri- vate university police under 5(c) while recognizing that the Clery Act prohibited the release of victim information. During the Senate Civil Law Committee hearing, the Independent Colleges of Indiana continued to assert the bill equalized the report- ing requirements. HSPA continued to point out the limited information private schools would be required to release. The committee passed H.B. 1022, 7-0. Independent Colleges of Indiana representatives told HSPA that H.B. 1022 was not related to the ESPN v. Notre Dame case, even though the language inoculated private colleges from the potential of an adverse ruling in the case. Amendment denied Glick didn't offer the HSPA- suggested amendment on the Senate floor, and the bill passed 49-1. Co-sponsors were Sens. Dennis Kruse, R-Auburn, and John Broden, D-South Bend. The lone dissent was from Sen. Liz Brown, R-Fort Wayne. Glick told HSPA she believed Bauer was going to file a dissent, which would give time to improve the bill in a conference committee. Instead, Bauer filed a concur- rence immediately, and the House approved the concur- rence March 3 with a 93-0 vote. H.B. 1022 now is awaiting a signature from Gov. Mike Pence – and Notre Dame has indicated it will appeal the Court of Appeals decision. Questions unanswered The story leaves unan- swered questions: • If Bauer was critical of private university secrecy, why ask the private univer- sity lobby to draft the bill? • Why do legislators not believe the public needs the same insight into crime at pri- vate universities as they do in the rest of the state? I understand universities' desire to keep crime infor- mation under wraps. Crime creates a marketing issue for them. But there is no justification to deny communities, students and parents the ability to scrutinize the professionalism of private university police or protect themselves and their children from becoming crime victims. The Court of Appeals got it right, so what were the legis- lators thinking? Steve Key is executive director and general counsel for the Hoosier State Press Association. Key Points Steve Key Private colleges win, public loses third and final meeting of the interim committee, but several legislators called it a "work in progress." Mahan was asked to intro- duce the bill. HSPA voiced several concerns with the original draft, which gave law enforcement all discretion on public access requests and put the burden on the public to con- vince a judge why the video should be released – a posi- tion contrary to the Access to Public Records Act, which states the burden is on the public agency to argue for con- fidentiality. Mahan fought off all attempts in the House to amend the bill, later saying he felt like the bill's trustee with the task of getting the bill in its intro- duced version to Bray, who chaired the summer committee. Mahan rebuffed a floor amendment from Rep. Ed Delaney, D-Indianapolis, who also was on the summer commit- tee. With no amendments, House Democrats voted against H.B. 1019, but it passed the House 65-30. The bill was sent to the Sen ate Judic iary Committee chaired by Sen. Brent Steele, R-Bedford. He set the tone for change by starting the bill's hearing with a reading of the Access to Public Records Act pre- amble, which focuses on government's role as a servant of the people. Steele assigned Bray and Sens. Sue Glick, R-LaGrange; Greg Taylor, D-Indianapolis; and Lonnie Randolph, D-East Chicago; to a subcommittee to amend the bill. The subcommittee shifted the legal burden, added the expedited hearing, and outlined a presumption that cer- tain incidents should be made avail- able to the public. With the amendments, the Senate passed H.B. 1019 49-1. Law enforcement representatives bristled at the language requiring the automatic release of certain videos. Key said they didn't want to be in a position of deciding which videos should be released because it implied that an officer was in the wrong. They also voiced concern that the releases deprived officers of due pro- cess – making them guilty in the eyes of the public before any legal action was determined to be necessary. Mahan filed a dis- sent, which created a conference com- mittee to determine what final form the bill would take. He insisted on the removal of the auto- matic release sec- tion. The other con- ferees, Rep. Linda Lawson, D-Hammond; Bray; and Taylor, signed off on the con- ference committee report. Mahan and Bray have pledged to monitor how police agencies handle video footage requests and come back to the General Assembly with changes if the discretion to keep videos confi- dential is abused. Key has voiced his concern that a sheriff or police chief who doesn't want to be bothered with video requests could follow a policy of deny- ing any request made – waiting to see if the requester is serious enough to spend hundreds of dollars on a fil- ing fee and attorney costs to fight the denial. The sheriff or chief could then examine the video and decide whether to submit or fight the lawsuit. Either way, the person filing the case is paying the price for access. "The sheriff or chief can say no and see if the person asking will call his bluff," Key said. "Without a reim- bursement of court costs, there isn't any disincentive for the police to adopt a 'just say no' policy." Even with its flaws, HSPA support- ed the passage of H.B. 1019. Under current law, the video from police body or cruiser cameras falls under the "investigatory records" exception, allowing law enforcement agencies the discretion to keep it con- fidential. Key said there was no legal way to challenge an investigatory records denial. The only option was public pressure demanding the disclosure of the video, but that hasn't proved to be effective. H.B. 1019 gives the individual inter- acting with police in the video the right to view it twice, with an attor- ney if desired. The same would hold true for the family of someone who was killed by police. But there is no right for anyone to get a copy of the footage. The individual or his or her family would have to make a request for a copy like anyone else, and if denied, they would have to file a lawsuit in the attempt to get a copy. Under H.B. 1019, local law enforce- ment must keep videos for 190 days. Video Continued from Page 1 Rep. Kevin Mahan, R-Hartford City, introduced H.B. 1019, which originally put the burden of proof on releasing police camera footage on the public rather than law enforcement. Sen. Brent Steele, R-Bedford, set a tone for change in H.B. 1019 by reading the Access to Public Records Act preamble, which focuses on government's role as a servant of the people. Sen. Rodric Bray, R-Martinsville, along with Rep. Kevin Mahan, R-Hartford City, pledged to monitor how police agencies handle video requests.

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