The Ohio Supreme Court ruled yesterday that police officers employed by private colleges are subject to the Ohio Public Records Act.  Our firm represented Anna Schiffbauer, the student journalist who brought the suit.  Anna worked on the staff of the Tan & Cardinal, the student newspaper at Otterbein University in Westerville, Ohio.   

Otterbein is a private university, but several years ago, it opted to employ a campus police department made up of officers trained as state police officers.  These cops can carry deadly weapons, search and confiscate property, detain, search and arrest people, and, in this case, pursuant to an agreement between Otterbein and the city of Westerville, make arrests off campus.  An Ohio statute permits this arrangement, and it provides that the campus police have the same authority as municipal police officers or county sheriffs.   

When Anna asked for incident reports from the Otterbein Police, however, they refused to provide them, contending that Otterbein, a private institution, was not subject to the Ohio Public Records Act. Anna filed a mandamus action in the Ohio Supreme Court to get the records.   

Just a few basic points here.  Police incident reports are unquestionably public records under Ohio law.  But when an entity won’t comply with their duties under the law, the requesting party may be entitled to initiate a mandamus action in the Ohio Supreme Court to make the entity obey the law. The Supreme Court essentially “mandates” compliance, hence the term “mandamus.”    

Despite Otterbein’s intense foot dragging and other attempts to delay, the Supreme  Court issued a “peremptory writ” compelling the Otterbein cops to hand over the records.  Interestingly, the Supreme Court ruled before the parties field briefs or presented oral arguments.  The Court grants a peremptory writ only when “the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it.”  It is the Court’s way of saying “duh.”   

This passage from the Court’s decision gets to the heart of the matter:  “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.”  That pretty much says it all, doesn’t it?   The power to arrest and kill (that’s why they carry deadly weapons) is the ultimate expression of the state’s power.  Seems reasonable that we citizens who are subject to that power have the right to check up on the actors who exercise it.  Glad to see the Supreme Court get this one right.   

And hats off to Anna. She stuck with this case even after she graduated.  It was a privilege to represent her.