The Otterbein Police Department, in collaboration with members of Otterbein’s administration, has for the first time fulfilled a records request in full, though more than a month after an Otterbein360 records request.
The records at issue were the subject of a lawsuit filed by former Otterbein360 news editor Anna Schiffbauer against OPD, which had been withholding the records from the public. OPD and members of Otterbein’s administration stated that Otterbein was not required to release records to the public as a private entity. Schiffbauer’s case said that since OPD serves a governmental function, with officers that have the same authority as their municipal counterparts, they must be subject to public records law. On May 21, The Ohio Supreme Court ruled in favor of Schiffbauer and ordered OPD chief Banaszak to release police records.
Following the decision, Otterbein360 submitted a request for incident reports held by OPD. Initially, Banaszak agreed to comply with the request and released three misdemeanor incident reports at random to demonstrate compliance. OPD redacted only the Social Security numbers of those named in the reports in accordance with public records law.
On June 1, OPD contacted Otterbein360 stating that the request could not be fulfilled because the university was still working to determine what information to release in compliance with state and federal law.
In addition, Banaszak advised that the request was too large and time-consuming to be fulfilled in a reasonable time. Ohio public records law states allows for requests to be denied if they are overly broad. Otterbein360 withdrew its original request.
On Jul 9, Otterbein360 made a revised request, which comprised of 27 incident reports of a serious or otherwise important nature. Banaszak responded to the request stating that the reports would be sent to the Westerville Police Department records department for redactions. Banaszak said four days later that the reports would be ready in a week.
On Jul 29, Banaszak invited Otterbein360 staff to a meeting to explain the university’s reasoning for not releasing the records. In a meeting between Otterbein360 reporter Logan Meyst and Banaszak, Banaszak said the university was still considering federal and state regulations such as the Violence Against Women Act and the Clery Act in deciding what information to release.
“We don’t want to release info unless it’s absolutely accurate. If we release something that violates someone’s rights then obviously we can be liable for that,” Banaszak said.
Banaszak said Otterbein was struggling to obtain legal advice on what information to redact in the reports they released, stating that the Attorney General’s office had declined to provide guidance. Banaszak said Otterbein was seeking legal help but did not specify a date the reports would be released.
Scott Fitzgerald, Director of Human Resources, Title IX coordinator, in an email, said that Otterbein was attempting to balance students’ privacy with the rights of public records requesters.
“Today, Otterbein is in the situation where Clery requires universities to protect the identity of the victim’s name in timely notices to campus of danger by prohibiting putting the victim’s name in the notice yet public record advocates are stating that the record that triggered that timely warning must have the victim’s name un-redacted,” Fitzgerald said, citing the Clery Act.
“FERPA, on its face, does not apply to law enforcement records. There’s absolutely zero FERPA issue here and there’s really no Clery Act issue here, either,” John Greiner, a Cincinnati-based attorney who represented Schiffbauer and other clients in open government lawsuits, said.
Greiner said that he could not find anything in the Violence Against Women Act that would require withholding information. Greiner said he had contacted Otterbein and they had not cited a provision of the VAWA that may apply in OPD records.
“I don't believe that any of the concerns they’ve cited appear to be legitimate,” Greiner said.
A public records request filed by Otterbein360 Editor-in-chief Sean Feverston with the City of Westerville fulfilled on Aug 12 has revealed emails between Glenda Case, Westerville records manager, and Banaszak. An email on Aug 2 was addressed to “Bob and Scott” -- likely Bob Gatti, VP and Dean for Student Affairs and Scott Fitzgerald. In the email, Banaszak mentioned Chris Hogan, a Columbus-based attorney who provides counsel in areas including media law.
“He (Hogan) advised to redact any VAWA victims and any uncharged suspects in both the initial report and investigative notes,” Banaszak said in the email. “Bob, per your okay last week, based on Hogan’s opinion over the phone, I informed Glenda to start all the redactions. Do we still want to do this? Glenda, hold off the redactions per our conversation last week until the administration reviews this.”
Ohio public records law defines a public record as anything that is contained on a fixed medium, documents the activities of the office and is created, held or received by a public office. Banaszak had said that he had transferred records to Westerville for redactions, which meant Otterbein’s records had been received by Westerville and they could be requested from the city.
With this reasoning, on Aug 3, Otterbein360 attempted to obtain the 27 incident reports sent from Banaszak to Case from the Westerville Police Records Department. Westerville Records staff referred Meyst to Case.
Later that day, Case sent an email to Banaszak, “I have done about two-thirds of the reports for the newspaper as you instructed on Friday. Also, while I was at a meeting this afternoon, someone from the newspaper came and asked for them,” Case said. “Once you get the final say regarding how you want redactions handled, I think we need to meet and re-think all of this. I am starting to feel like I am in the middle of something best handled by someone in your shop.”
Meyst later called Case to request the release of the records. Case declined, citing that the records were property of OPD and could not be obtained from WPD.
An email on Aug 9 shows that Banaszak planned to contact Case after a meeting with an attorney on Aug 12.
On Aug 19, Banaszak sent an email to Meyst stating that the records were ready for pickup when the OPD station opened the next day. The full request was recovered on Aug 20.
Attached to each incident report was a document listing different the information that was redacted and providing legal justification for each type of information redacted. Redactions were made to the reports including the names of unconvicted suspects and victims of sexual assaults.
Otterbein360 will continue to provide reporting on the actions and policies of the Otterbein Police Department and Otterbein's administration.
Editors Note: This story and headline was edited to reflect the fact that nearly three months passed between the initial records request and the original publish date, but now more accurately represents the story in order to reflect the time that passed between the finalized request and the time at which records were released to Otterbein360.
