KATIE GOODRICH | EDITOR-IN-CHIEF | kmgoodri@butler.edu

The Butler University Police Department adopted a policy to release some of their police records when requested.

No law mandated this action, but recent activity on the legal landscape of Indiana did.

The Indiana Supreme Court affirmed private university police departments do not have to release their records under Indiana’s Access to Public Records Act in a case two weeks ago.

Gov. Mike Pence vetoed House Bill 1022 during the 2016 legislative session that would have released some private university police records.

Indiana law also does not consider BUPD a public agency.

Despite these facts, BUPD already released records to the Collegian for some articles this year, including the report about the theft from the bookstore in Atherton Union.

“There should be transparency in what we do,” Public Safety Director Ben Hunter said. “If you talk to other campus police chiefs, they would absolutely agree.”

After Butler’s General Counsel Claire Aigotti was told about the new policy, BUPD began operating as if the proposed bill became law.

“What I’ve told my team is that if a student rises to the level of an arrest, that’s a life choice they made,” Hunter said. “They can’t be disappointed if that is a public record. So, we are moving forward like the bill passed.”

House Bill 1022 defined arrest records and other criminal offenses at private universities as public records, meaning BUPD and other private university police departments would have to release those records under Indiana law, but it did not apply to cases handled within the university.

The bill was crafted to not include records protected under Family Educational Rights and Privacy Act, commonly called FERPA. This federal law seals student information, such as grades, health records, discipline files or financial information.

For example, the records about a student arrested for stealing a car would be released, because those documents would also be available at the Indianapolis prosecutor’s office. But the records for a student who received an alcohol violation and was diverted to Student Affairs would remain private under FERPA guidelines.

“No one gets privately arrested in America,” Hunter said. “If you know in the back of your mind that if your arrest could be a public record, that is somewhat of a deterrent.”

The bill also allowed redacting victim names to protect their identity and to withhold records from an ongoing investigation, which is a common policing practice. This protects survivors of sexual assault and rape, which are already underreported, according to statistics.

“If you want access to a police report, you should be able to access it,” Hunter said. “But at the same time, we need to protect students and their records. I’m all for opening up our records, as long as we make sure I’m protecting sexual assault survivors at all costs and we don’t violate FERPA. That’s the stance I’ve taken with [the Collegian] and other media.”

Hunter and colleagues from the Independent Colleges of Indiana, a nonprofit organization for the 31 private colleges in the state, worked to help pass this bill. Only one legislator voted against the bill, but it could not be law because of Pence’s veto.

This all happened while private university police departments gained headlines from the ESPN v. University of Notre Dame appeal court case, in which an ESPN reporter sued for access to Notre Dame police reports about possible criminal activity of football players.

Pence’s veto came a week after the Court of Appeals unanimously decided on Notre Dame’s side.

“Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency,” Pence said in a news release.

Public record laws and court decisions are an important part of government transparency, communication law professor Nancy Whitmore said.

“The laws are intended to be a check on government and to lower the risk of corruption, violating law or ethics,” she said. “Police forces are the greatest exercise of government power in our day to day lives. The power to investigate, apprehend, detain and prosecute are all serious powers to have, and to not have a check on those I find very disturbing. It’s in everyone’s best interest to be transparent.”

Right before Thanksgiving, the Indiana Supreme Court kept Notre Dame’s records closed, because Indiana’s public access laws’ “clear and unambiguous language” does not include private university police.

“We acknowledge the importance of an open government, as well as the broad access granted to government records by APRA,” the opinion written by Justice Mark Massa said. “However, the job of this Court is to interpret, not legislate, the statutes before it. Under APRA as it is currently written, the Department is not a ‘public agency.’”

Whitmore said she has concerns stemming from the language in the Supreme Court decision, which states the “governing board of an educational institution… may forbid the officer[s] from exercising any powers otherwise granted to police officer[s] by law.”

“What I found kind of troubling about the Supreme Court ruling is that they’re saying the reason our police force is not a public agency is because the trustees have the power, not the state,” Whitmore said. “That’s not what trustees are selected for, their ability to set up a police force. The state has abdicated their responsibility to us as citizens. They seem to say in the case that we’re willing to give the trustees the power to determine the scope of power.”

BUPD and their private university police counterparts are required to complete certain federal mandates, such as the Clery Act that mandates submitting an annual security report, timely warnings and other emergency notifications.

Senior criminology major Elaine Giglio said she thinks BUPD is proactive, which is a good thing in policing.

“[Releasing records] says Butler’s police don’t have anything to hide,” she said. “It’s a good stance for them because they are showing they want to be open with the students and community and listen to their concerns.”

Whitmore agrees and said she applauds them for the step forward.

“I think we have a wonderful police force, but I’m concerned because according to state law you don’t have to be open,” she said. “That leaves a lot of room to keep things out that they don’t want in the light.”

Giglio said her experience as an intern with the Indianapolis Metropolitan Police Department showed her the importance of transparency, but also balancing that with the integrity of an investigation and protecting a court case.

“I think there will always be criticism of how transparent a police force is, no matter how they’re doing,” she said.

For now, BUPD will continue acting as though the law passed, even if they are not required to legally, Hunter said.

“What was on the books was a great compromise,” Hunter said. “It was a huge step forward for private institutions. But I don’t know what happens next. Will things change or will it stay the status quo?”

During the upcoming 2017 legislative session, the House and Senate could override Pence’s veto with a simple majority, but a vote is not guaranteed.