The Ohio Supreme Court ruled today that the police department at a private central Ohio university is a public office and can be compelled to provide public records.

In a 4-3 decision, the Supreme Court ordered the Otterbein University police chief to produce the criminal records requested by a news editor at a student-run website.

The court determined the university’s police department was established by statute to enforce criminal laws and that function makes the department a public office under the state’s Public Records Act.

Editor Requests Campus Police Records
In January 2014, Anna Schiffbauer, an editor at Otterbein360.com, which covers campus events and news, requested reports of student and non-student criminal cases that had been referred to the Westerville Mayor’s Court. The university’s vice president and student affairs dean, Robert Gatti, denied the request, stating a belief that the private university’s records are not public.

Schiffbauer filed a mandamus action asking the Ohio Supreme Court to order the release of the documents.

University’s Police Department Is a Public Office
In the Ohio Public Records Act, public records are “records kept by any public office,” and a “public office” is defined as “any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.”

Otterbein’s campus police department was established by state law to exercise a government function – specifically, “the basic police power of enforcing laws and maintaining the peace within its jurisdiction.”

Otterbein’s campus police department was established by state law to exercise a government function – specifically, “the basic police power of enforcing laws and maintaining the peace within its jurisdiction.”

According to the court’s per curiam opinion, a private college or university may choose to create a campus police department, but only as provided in R.C. 1713.50(B). The law in part mandates a training program for campus police officers and explains that campus police have the same authority as municipal police officers and county sheriffs.

The court reasoned that Otterbein’s campus police department was established by state law to exercise a government function – specifically, “the basic police power of enforcing laws and maintaining the peace within its jurisdiction.”

“The department is created under a statute for the express purpose of engaging in one of the most fundamental functions of government: the enforcement of criminal laws, which includes power over citizens as necessary for that enforcement,” the opinion stated.

The court issued the peremptory writ ordering the police chief, Larry Banaszak, to release the requested materials.

Votes
Joining the majority opinion were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, and Judith L. French.

Justice Terrence O’Donnell dissented in an opinion joined by Justice William M. O’Neill. Justice Sharon L. Kennedy also dissented.

Dissenting Opinion
Justice O’Donnell would have denied the writ ordering the Otterbein police department to provide the reports. He pointed out the difference between the word “by” and the word “under” in the statutory phrase “established by the laws of this state. “[U]nder law” typically means “in accordance with the law,” he stated, while “by law” means “by statute.”

“The flaw in the majority’s analysis is that the university’s police department is not a ‘public office,’ because it was not ‘established by the laws of this state for the exercise of any function of government.’ (Emphasis added.)  … [T]he Otterbein University police department was not established by the laws of this state as [the Public Records Act] requires. Rather, the university — not the General Assembly — established the police department in accordance with R.C. 1713.50(B) …,” Justice O’Donnell wrote. As a result, he concluded that Otterbein’s police department is not a public office required to release its records and advised that the public records are available from the Westerville Mayor’s Court.

Also In Dissent
Justice Kennedy would have granted an alternative writ and would have ordered briefing on the university’s denial that “[Schiffbauer] is the news editor for Otterbein360.com (‘Otterbein360’), an electronic newspaper of general circulation covering Otterbein University news and events ….”

2014-0244. State ex rel. Schiffbauer v. Banaszak, Slip Opinion No. 2015-Ohio-1854.

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