In 1963 the Ohio legislature enacted the first version of Ohio’s Public Records Act. The simple philosophy behind the act was that public records are the people’s records. Over the years, we – the Ohio Supreme Court – have reviewed numerous cases dealing with the question of what is a public record, including one recently involving Otterbein University.
The Otterbein campus is located just outside of Columbus in the suburb of Westerville. The school has a student-run media website – Otterbein360.com – that primarily covers campus news and events. It’s the online version of a student newspaper, Tan and Cardinal, which is no longer printed.
In the winter of 2014, Anna Schiffbauer was a news editor for Otterbein360.com. On January 16, 2014, Anna mailed a letter to Larry Banaszak – the chief of the Otterbein police department – requesting criminal reports of persons (both students and nonstudents) whose cases had been referred to the Westerville Mayor’s Court.
On January 22, Anna received an e-mail from Robert Gatti, Otterbein’s vice president and dean for student affairs, denying the records request. Gatti also sent a denial letter through the mail that Anna got on February 4. The letter stated, “As a private university, Otterbein believes we are not subject to the Public Records Act and therefore do not make our records public.”
A few days later, Anna filed an action with us seeking the records. The case boiled down to this question: Is the Otterbein University police department a public office as defined by the Public Records Act?
Under the Act, the term “public record” is defined as “records kept by a public office.” As it’s used in the Act, the term “records” includes any document created by any public office, “which serves to document the…activities of the office.”
The term “public office” includes “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.”
Thus, if the Otterbein Police department is a public office, then it must produce records that document police activities, such as the criminal reports requested by Anna.
A campus police department for a private college or university may be established only under a section of Ohio law – Title 17 – that states: “The board of trustees of a private college or university may establish a campus police department and appoint members of the campus police department to act as police officers.”
The law further states that only those persons who have completed a training program approved by the Ohio peace officer training commission may be appointed campus officers.
Under the law, campus police officers are explicitly vested with the same powers and authority that are vested in a police officer of a municipal corporation or a county sheriff.
Thus, the campus police department in this case is an “organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government” – just as it is stated in the Public Records Act. And, it exercises a function of government – namely, the basic police power of enforcing laws and maintaining the peace within its jurisdiction.
Its officers therefore have the power to search and confiscate property, to detain, search, and arrest persons, and to carry deadly weapons. And it is an entity “established by the laws of this state.” In other words – it fits the definition of “public office” as defined in the Public Records Act.
The school’s administrators argued that the campus police department is not a public office, because Otterbein University is not a public entity and the department is a subdivision of the university. They pointed out that Title 17 – which allows a college to establish a police department – applies only to private colleges and universities. They argued that under Anna’s reasoning, every corporation would be considered a public office because corporations are established under the same section of the law and regulated by the state.
However, our court has held in previous cases that a private corporation may be considered a public office for purposes of public records when it performs a governmental function. For example, in a case from 1998, our court said that an entity need not be operated by the state or a political subdivision to be a public office under the law. “The mere fact that the entity is a private, nonprofit corporation does not preclude it from being a public office.”
In this case, the mere fact that Otterbein is a private institution does not preclude its police department from being a public office for purposes of the Public Records Act. Otterbein’s police department is “performing a function that is historically a government function.”
The Otterbein University police department is an “organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government.”
The administrators made a lengthy argument regarding the application of a decision by our court from 2006 that established a “functional-equivalency” test for determining whether a private entity is a public institution. But that decision was irrelevant to this case because the Otterbein police department, by the plain language of the Public Records Act, is a public office.
The department was created 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.
Because it meets the definition of a public office for purposes of the Public Records Act, we concluded that it must produce public records upon request. The Otterbein administrators did not argue that the requested documents fall under any exception to the Public Records Act.
Therefore – by a five-to-two vote – we issued a preemptory writ ordering the chief of the Otterbein police department, Larry Banaszak, to produce the requested documents.
Paul E. Pfeifer is a judge in the Court of Appeals.