January 10, 2025

Mr. Noble Brigham

Michael D. Grabo, Esquire

Associate General Counsel, Brown University

Mr. Michael Bilow

Eileen Goldgeier, Esquire

Vice President and General Counsel, Brown University

            Brigham v. Brown University Police Department

Dear Mr. Bilow, Mr. Brigham, Attorney Grabo, and Vice President Eileen Goldgeier:

We have completed our investigation into the Access to Public Records Act (“APRA”) Complaints filed by Mr. Michael Bilow and Mr. Noble Brigham (“Complainants”) against the Brown University Police Department (“BUPD”). As the Complaints raise substantively similar allegations about similar requests submitted to the same entity, we will combine the Complaints and issue one finding.  For the reasons set forth herein, we find that the BUPD did not violate the APRA.

Complainant Mr. Noble Brigham, who at the time was a journalism student at Brown University (“Brown”), contacted the BUPD and requested records related to the arrest of a specific person.[1] The BUPD did not respond to this request. In response to Mr. Brigham’s follow-up inquiry, Brown’s University Spokesperson replied on behalf of the BUPD, stating that “[the APRA] does not apply to private university police departments, and incident reports contain significant information that’s personally identifying – including for complainant and witnesses – and for those reasons we do not release them publicly.” Brigham then reiterated that the APRA was applicable to the Department and that he would be satisfied with incident reports wherein “the witness/complainant names [are] redacted.” In reply, the University Spokesperson again stated that the APRA “does not apply to private university police departments.”

Mr. Brigham subsequently filed a Complaint with this Office, alleging that the BUPD did not “respond to [his] APRA request, acknowledge it, or request a 20 day extension.” He contends that the APRA applies to the BUPD because it is a “private [entity] that act[s] on behalf or in place of public agencies, as is the case when Brown police arrest someone instead of a municipal police department.” He further notes that “arrest reports are public in Rhode Island,” that the non-public information within a report can be redacted, and that “a private entity can be subject to the APRA under similar circumstances” (he cites to The Providence Journal v. Rhode Island Convention Center Authority, PR 21-11).  

Michael D. Grabo, Associate General Counsel at Brown, submitted a response on behalf of the BUPD. The BUPD argues that “the APRA does not apply to Brown, and Brown therefore has no obligation under the APRA to provide the records sought by the Complainant” because “Brown is a private, non-profit and tax-exempt institution of higher education and not a ‘public body.’” In support, the BUPD cited to legislative history, noting that “[i]n 2011, 2012, 2016, 2017, and 2018 legislation was introduced … to expand [the APRA’s] scope to include police departments at private educational institutions.” The BUPD argues that due to the exclusion of this language from the statute, the APRA is inapplicable to “police departments at private educational institutions.” The BUPD also cites to Harvard Crimson Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 840 N.E.2d 518 (2006), a Massachusetts case holding that the Harvard University Police Department was not subject to the state public records law. Appended to the BUPD’s Response are affidavits from Rodney Chatman, Brown University’s Vice President for Campus Safety, as well as Albert Dahlberg, Brown University’s Associate Vice President for Government and Community Relations, attesting to the BUPD’s statements of fact.

In rebuttal, Mr. Brigham states that although Brown may not be subject to the APRA, “[its] police department is, at least for arrest reports.” Reiterating the high public interest in the records at issue, Mr. Brigham also challenges the applicability of Harvard Crimson and instead proposes that a better precedent is found in State ex rel. Schiffbauer v. Banaszak, 142 Ohio St. 3d 535, 33 N.E.3d 52 (2015).

While this Office was reviewing Mr. Brigham’s Complaint, we received a separate complaint from Mr. Michael Bilow on May 7, 2024, after BUPD failed to respond to his APRA request seeking “all records . . . related to arrests at Brown University on or about Dec 11, 2023, reportedly of approximately 41 students in connection with protests regarding Palestine.”

In response, BUPD reiterated its position that “[a]s a private institution of higher education, Brown University and its Department of Public Safety are not subject to the APRA.” In support, BUPD cited the limited jurisdiction granted to BUPD officers as “special police” under R.I. Gen. Laws § 12-2.1-1, which confines their jurisdiction to the campus and immediately adjacent streets. Additionally, BUPD again cited the APRA’s legislative history as well as statutory interpretation principles, noting that the General Assembly spells out its intention to include private educational institutions in other statutes but has repeatedly rejected such language when considering amendments to the APRA.

In rebuttal, Mr. Bilow argues that the APRA applies to BUPD because § 38-2-2 “explicitly makes it applicable to ‘any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency’ (emphasis added).” Mr. Bilow argues that BUPD acts in a public capacity when making arrests and filing charges. Mr. Bilow further argues that excluding BUPD from the APRA would permit “secret arrests” and deny public accountability should BUPD officers harm anyone in the course of their duties.

Separately, Mr. Bilow claims that BUPD officers are public officers under state law, which names “Brown University police officers” among those “peace officers” granted statewide powers of arrest under R.I. Gen. Laws §§ 12-7-21(9) (defining peace officers), 12-7-3 (misdemeanor arrests), -4 (felony arrests). He also cites R.I. Gen. Laws § 11-47-9, which exempts “other duly appointed law enforcement officers” from permit requirements for carrying concealed firearms within the state, as evidence that the State treats BUPD officers as public officers. Mr. Bilow denies that BUPD officers are necessarily considered “special police officers” under state law, noting that R.I. Gen. Laws § 45-42-3 distinguishes between “campus police officers” and “special police officers” when allowing municipalities to request emergency aid. However, even if BUPD officers were considered “special police officers,” Mr. Bilow argues that the “peace officer” and “special police officer” provisions are not necessarily in conflict, and to the extent they are, the peace officer provision takes precedence because it expressly names BUPD.

Finally, Mr. Bilow rejects BUPD’s legislative history argument. He contends that this Office should not read into the General Assembly’s decision not to amend the APRA, but even if we were to consider that history, it could reflect the General Assembly’s belief that the APRA already covers Brown University and thus needs no amendment.

When we examine an APRA complaint, our authority is to determine whether a violation of the APRA has occurred. See R.I. Gen. Laws § 38-2-8. In so doing, we must begin with the plain language of the APRA and relevant caselaw interpreting this statute.

The APRA states that, unless exempt, all records maintained by any public body shall be public records and every person shall have the right to inspect and/or to copy such records. See R.I. Gen. Laws § 38-2-3(a).

The only issue in this matter is whether the BUPD is a public body subject to the APRA. As such, if the BUPD is not a public body, it was not obliged to respond to the Complainant’s APRA request.

The APRA defines a “public body” as:

“any executive, legislative, judicial, regulatory; or administrative body of the state, or any political subdivision thereof; including but not limited to any department, division, agency, commission, board, office, bureau, authority; any school, fire, or water district, or other agency of Rhode Island state or local government that exercises governmental functions . . . or any other public or private agency, person, partnership, corporation, or business entity acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1) (emphasis added).

“We have previously noted that the last clause of this provision contemplates an agency-type relationship with a governmental entity.” Langseth v. Buttonwood Beach Association, PR 23-46. We have considered factors such as whether a public body has delegated its governmental authority to the entity or has any formal connection or partnership with the subject entity. See id.

In East Bay Newspapers v. Mt. Hope Trust, PR 10-39, we considered whether the Mt. Hope Trust was subject to the APRA. The evidence revealed that the Town of Bristol had no control over the Mt. Hope Trust and that no funds, employees, or services were shared between the two. Although Town representatives had seats on the Mt. Hope Trust, and although the Mt. Hope Trust received funds from the Town, we found that these facts were not dispositive because they did not indicate that the Trust was “acting on behalf of and/or in place of any public agency.” R.I. Gen. Laws § 38-2-2(1). As a separate and independent financial entity, we found that the Mt. Hope Trust was not subject to the APRA.

Additionally, in In re: Newport Public Library, PR 14-04, we examined whether the Newport Public Library was subject to the APRA. We noted that the library had sole and exclusive authority over its finances. Although the city contributed sizable funds to the library, we noted that the city had no control over how those funds were expended. We also observed that the library was not part of the city's Comprehensive Annual Finance report because it was not considered a component of the city under applicable standards of the Government Accounting Standards Board. Based on these facts, we found that the library was not “acting on behalf of and/or in place of” the city, and, accordingly, that the library was not a “public body” under the APRA. R.I. Gen. Laws § 38-2-2(1).

Our decision in Newport Public Library was recently cited approvingly by the state Supreme Court in Key Corporation v. Greenville Public Library, 288 A.3d 974, 980 (R.I. 2023). There, the Court found the Greenville Public Library a “public body” subject to the APRA despite the library’s 501(c)(3) status as a private, nonprofit corporation, independent board of directors, and partially independent funding. Id. at 977. Distinguishing the Greenville from the Newport library, the Court noted that the Greenville but not the Newport library had received public funds for eighty years and was included in the city’s comprehensive financial report. Id. at 980. Furthermore, the Greenville library was listed as a public body on the Secretary of State’s open meetings website, abided by the OMA, received 70% of its funding from the town, was included in the town’s budget documents, and was listed on the town website as a town department. Id. at 979-80.

Likewise, the case cited by Mr. Brigham’s Complaint, The Providence Journal v. Rhode Island Convention Center Authority, PR 21-11, found the private operator of the state’s convention center to be a public body subject to the APRA. The Rhode Island Convention Center Authority had delegated its statutory duty to “manage and operate a convention center” to a professional management company. The company staffed the concession stands, provided security, and kept the books. The Authority, on the other hand, had only three employees. Moreover, the company professed itself to be a public body subject to the APRA.

After careful review of the complex issues presented by these Complaints, we conclude that the facts of this case are more aligned with those in our cases finding the entity in question not a public body for purposes of the APRA.

It is undisputed that the Brown University Police Department is “a unit of Brown” and that Brown University is a “private, non-profit, and tax-exempt institution.” The record and statutory scheme indicate that these special police officers are employees of Brown University. See R.I. Gen. Laws § § 12-2.1-1 (“The superintendent of state police, upon the petition of a private college, university, junior college, or other private educational institution of higher learning located in this state, may from time to time appoint qualified employees of those institutions as special police officers.”). Nothing in the record suggests that the BUPD has open meetings or is listed as a public body on any government website. Additionally, the record demonstrates that the BUPD is not authorized to operate beyond the University’s campus and its immediate vicinity. R.I. Gen. Laws § 12-2.1-2.[2]

Additionally, there is no evidence that the Providence Police Department (“PPD”) or any other municipal or state police department relies on Brown University to fulfill its statutory duties. In fact, the statute that provides for special police officers expressly states that “[a]ppointment of special police officers under this chapter shall in no way limit the powers, authority, and responsibility of state police and police of the various cities and towns to enforce state law and municipal ordinances on property owned by the educational institutions employing the special police officers.” R.I. Gen. Laws § § 12-2.1-5 (emphasis added). Thus, it cannot be said that the BUPD is acting “in place of” any municipal or state police department or other public agency. Additionally, to the extent special police officers operating pursuant to this section make an arrest, “[t]he special police officers shall submit reports concerning an arrest to the department processing the arrest, whether the division of state police or the police in the city or town in which the educational institution is located.” Id. As such, the statute ensures that whenever an arrest is made, the local or state police department must be provided a report, ensuring that records of any such arrest will be maintained by a public body. 

Similarly, there is no evidence in the record that the BUPD is acting “on behalf of” any public agency. Unlike other situations where this Office has found that a private entity is acting “on behalf of and/or in place of any public agency,” e.g., The Providence Journal v. Rhode Island Convention Center Authority, PR 21-11, there is no suggestion of an agency-type relationship between the BUPD and a public entity. The special police officer statute indicates that although special police officers are licensed by the state police, they are employees of—and working on behalf of—the private university. See R.I. Gen. Laws § § 12-2.1-1. There is no evidence in the record that the BUPD is an agent of or otherwise takes orders from the state or local police. Nor is there evidence that the state or local police delegate their functions to the BUPD. These factors support the conclusion that the BUPD is not a public body that would be subject to the APRA.

We recognize that there is a public interest in knowing how special police officers licensed pursuant to a state statute exercise their power to make an arrest. But the statute requires these special officers to submit reports of any such arrest to the local police department.  See R.I. Gen. Laws § § 12-2.1-5. Thus, a report of any arrest by BUPD can be sought by filing an APRA request with the PPD, which is unquestionably a public body subject to the APRA. This arrangement provides public accountability and ensures against “secret arrests,” as demonstrated by this case. In responding to Mr. Brigham’s Complaint, Brown University noted that the BUPD submitted the requested arrest report to the PPD. The record does not reveal whether Mr. Brigham filed an APRA request with the PPD, but there is no dispute that he could do so if he so desired. Mr. Bilow did file an APRA request with the PPD and was informed there were no arrest reports from December 11, 2023, or any communications relating to the incident in question. Mr. Bilow presented no evidence that the BUPD arrested students on that date, and without evidence to the contrary, it seems likely that the PPD has no record of arrests on Brown’s campus that day because there were no arrests on Brown’s campus that day. Cf. Caldwell v. Rhode Island College, PR 24-05 (“Because the APRA does not require a public body to disclose records that do not exist or that are not within its custody or control, we find no violation[.]”) (quoting Lopez v. City of Providence, PR 20-03).

We also note that there have been multiple unsuccessful attempts in recent years to amend the APRA to include private police departments such as BUPD. We must exercise caution in reading too much into these failed legislative proposals. Nonetheless, this history indicates that there is at least some recognition that the current APRA does not clearly render such entities public bodies. It also demonstrates that it would be within the purview of the General Assembly to amend the APRA to expressly make such entities subject to the APRA’s provisions, though the General Assembly has so far opted not to do so.

Before concluding, we acknowledge caselaw from other jurisdictions addressing whether police departments of private higher educational institutions are subject to public records laws. These cases resulted in diverging decisions based on the particular language of the particular state’s public records law. Compare Harvard Crimson, Inc. v. President and Fellows of Harvard College, 445 Mass. 745, 840 N.E.2d 518 (2006) (“This court has construed strictly the scope of G.L. c. 4, § 7, Twenty-sixth, to preclude the public disclosure of documents held by entities other than those specifically delineated in the statute.”), and ESPN, Inc. v. University of Notre Dame Police Department, 62 N.E. 3d 1192 (Ind. 2016) (“The plain and unambiguous language of APRA supports our finding that the Department is not a ‘law enforcement agency’ because it is not ‘of any level of government.’ We cannot agree that the Department becomes subject to APRA merely because it has exercised its power to appoint police officers to protect its campus.”), and Ochsner v. Elon University, 221 N.C. App. 167, 725 S.E.2d 914 (2012), aff’d without precedential value, 737 S.E.2d 737 (2013) (“N.C. Gen. Stat. § 132–1.4(b)(3) is clear and unambiguous, and it limits the definition of “[p]ublic law enforcement agency” to the following: ‘a municipal police department, a county police department, a sheriff's department, a company police agency commissioned by the Attorney General pursuant to G.S. 74E–1, et seq., and any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law.’”), and Corporation of Mercer University v. Barrett & Farahany, LLP, 610 S.E.2d 138 (Ga. 2005), superseded by statute as held in Smith v. Northside Hospital, Inc., 807 S.E.2d 909, 919 (Ga. 2017) (“The mere fact that MUPD officers are given authority to perform certain functions by the Campus Policemen Act, and the Georgia Peace Officer Standards and Training Act, does not make them officers or employees of a public office or agency. The statutory language simply does not provide this Court with the authority to find private entities delegated certain authority by the state to be public offices or agencies.”), with State ex rel. Schiffbauer v. Banaszak, 142 Ohio St. 3d 535, 33 N.E.3d 52 (Ohio 2015) (“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.’ R.C. 149.011(A).”), and Janet R. Perotti and State of Connecticut, Office of the Public Defender v. Chief, Police Department, Yale University, Docket # FIC 2007–370 (Conn. FOIC February 13, 2009) (finding Yale University Police Department the “functional equivalent” of a public agency with regard to its law enforcement functions). As such, the usefulness of these decisions to our application of the Rhode Island APRA is limited, but as a general matter, we believe these cases demonstrate the issue’s complexity and are consistent with our finding: namely, that BUPD does not meet the definition of “public body” as that term has been defined in the Rhode Island APRA by the Rhode Island General Assembly.

Finally, we note that some state legislatures have amended their statutes in response to state court decisions finding that private campus police departments did not fall within the scope of the state’s public records law as written.  See Ind. P.L. 217-2016 (amending Ind. Code Ann. § 21-17-5-4 such that “[a] record of an educational institution’s police department is a public record subject to IC 5-14-3”); N.C.S.L. 2013-97, § 1 (designating the North Carolina Attorney General as the custodian of all records of the Campus Police Program); Ga. Laws 2006, Act 616, § 5 (amending the Campus Policemen Act to make public “[l]aw enforcement records created, received, or maintained by campus policemen that relate to the investigation of criminal conduct and crimes”). Although we have concluded that the APRA as written does not encompass BUPD, we recognize that there is an important public interest in at least some of the records that would be maintained by a private campus police department, including records related to arrests or officer misconduct and internal affairs. We strongly encourage the General Assembly to carefully review this issue and whether the APRA should be amended to make law enforcement-type records maintained by private campus police departments subject to the APRA.

For purposes of this finding, as we have determined that BUPD is not a “public body” under the APRA as it is currently written, we conclude that BUPD did not violate the APRA by not responding to Complainants’ APRA requests.