By Jonathan Peters, CJR.org
This article first ran on March 23, 2016 on the Columbia Journalism Review's website.
Sunshine Week brought some welcome news for transparency advocates this year: Two state courts ruled, in suits brought by news organizations, that freedom-of-information laws require private entities to disclose their records if they perform a public function.
The rulings, which arrived last week during the annual effort to promote awareness of open government, took up one of the key recurring disputes in public-records law, and both resolved it in favor of greater access. Together, the cases provide even more evidence of judges breathing new life into the right to know.
In the first case, which CJR covered in July, the Chicago Tribune secured an order compelling the private foundation for the College of DuPage, a public school in Glen Ellyn, Illinois, to release a federal subpoena that it had tried to keep private. DuPage County Judge Robert Gibson’s ruling is believed to be the first of its kind in Illinois requiring the disclosure of records of a public college’s private foundation, according to the Tribune.
The paper began investigating the College of DuPage in January 2015, and its series, as of this writing, includes more than 100 stories on everything from prosecutors’ interest in the foundation to non-competitive contracts awarded to its board members. The lawsuit started after the Tribune requested, under the state public-records law, foundation and college documents related to their spending. The college initially said it didn’t have responsive records but later released some. The foundation refused to release anything, saying it was not a public agency.
The lawsuit ultimately focused on the Tribune’s request for a federal grand jury subpoena sent to the foundation. The paper argued that the college was using its foundation, housed on campus and staffed by college employees, “as an artifice to circumvent” the law. According to the complaint, “The foundation is mostly or entirely under the control of [the college, which] has been using the … foundation as an excuse or a subterfuge to shield its … records … from public view.”
The judge agreed. Although he held that the foundation was not a public body or a subsidiary of one, Gibson went on to find that it was contracted with a public body—the College of DuPage—to perform public functions, such as fundraising, and so records in its possession could be subject to disclosure.
“It is undisputed,” the judge ruled, “that the foundation is not merely soliciting donations from individual citizens and private corporations for the college educational programs, but the foundation also holds all private donations to the college, even those the foundation did not solicit. The [college] has no separate endowment, so all donations are routed through the foundation.”Supported by those findings, Gibson held that the federal grand jury subpoena was a public record and should be disclosed. The foundation, for its part, is considering an appeal. Its attorney also asked the judge to seal the decision—only to be denied.
“Certainly, the court’s not going to announce a decision in open court and then say the order is private,” Gibson said. “It will be a matter of court record and open to the public to review.”
In the second case, which CJR covered in February, ESPN and Outside the Lines reporter Paula Lavigne persuaded an Indiana appeals court to rule that the University of Notre Dame’s police department is a public agency and thus subject to the state public-records law. The case stems from Lavigne’s investigation of college athletes and the justice system, beginning in 2014. She wanted to know whether athletes receive favorable treatment during criminal inquiries, so she requested incident reports involving athletes from campus police departments at 10 universities—including Notre Dame, which refused to release anything.
In January 2015, Lavigne and ESPN sued Notre Dame in state court to compel the private school to release the documents, arguing that the department is a public agency because it exercises police powers granted by the state. They lost at the trial court. There, the judge held that lawmakers could—and perhaps should—declare that campus police at private universities are subject to public-records laws, but he ruled that the statute’s plain language did not support that conclusion.
The appeals court, however, disagreed and found that it was “clear” that the private police department exercised “a public function,” because “police power is a sovereign power.” The court reasoned that the state had delegated to Notre Dame’s officers generally “[t]he same common law and statutory powers, privileges, and immunities as sheriffs and constables.”
With that in mind, the court remarked, “It would not be appropriate for the Police Department, having availed itself of its statutory right to exercise these public functions, to then be able to circumvent public records requirements to which all other entities exercising these same functions are required to adhere.”
The court remanded the case to the trial court for it to determine exactly which records must be released under the state records law; meanwhile, Notre Dame is preparing an appeal to the Indiana Supreme Court.
The Notre Dame case is one of several in recent years in which state courts have taken up the question of whether private-college police records are public. It’s notable that the Indiana appeals court cited a ruling by the Ohio Supreme Court, which also ruled for disclosure in a similar case last year. That suggests that at least some state courts may be coalescing around a common framework for this issue.
For the moment, though, the case’s impact is an open question—and not just because of the appeal. As the South Bend Tribune has reported (and editorialized), while the case was being argued in court, the state legislature overwhelmingly passed a bill setting specific public-records rules for private university police forces. That bill would make clear that information about incidents resulting in arrest or incarceration is public, but it would exempt private-college police from many of the disclosures required of other law-enforcement agencies. That would limit the effects of last week’s ruling.
But that’s not the last word in this matter, either. Gov. Mike Pence, who has until Thursday to decide whether to veto the bill, has expressed concern about it, saying that he has a “strong bias for the public’s right to know.” The bill’s lead sponsor, meanwhile, has said that even if the measure becomes law, a ruling for ESPN by the state Supreme Court would be reason to “re-examine” the issue to require more disclosure. Let’s hope that, come next year’s Sunshine Week, transparency advocates will still have reason to celebrate.
Update, 3/27: Pence vetoed the bill. “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,” he said in a statement, according to the Indianopolis Star.
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