EVSC on arrest records: The law 'doesn't require public entities to answer questions'

EVANSVILLE – The law “does not require public entities to answer questions.”

That’s part of the Evansville Vanderburgh School Corp.’s latest response to the Courier & Press’ monthslong effort to obtain public information on student arrests by the corporation’s in-house police force.

Earlier this month, a reporter delivered another records request to the corporation’s administration office. This time, the request was seeking the number of student arrests by the EVSC Police Department over the last two years.

The EVSC had previously expressed concerns about student privacy if they handed over incident reports, so the C&P tried to accommodate that by simply asking for a number. The corporation’s attorney, Pat Shoulders, denied the request in an email Wednesday afternoon.

Indiana’s Access to Public Records Act “does not require public entities to answer questions,” he wrote. “It requires such bodies to produce existing non-protected records which are responsive to the request.

“Please be advised that the EVSC has NO records / documents which record the ‘number of arrests of students logged by the EVSC Police Department for the last two years.’ Thank you for your interest in the EVSC.”

That seems to go against records the Indiana Department of Education published on its own website.

The “Indiana Schools Bullying, Safety Staffing, and Arrests Report” lists 1,291 student arrests during the 2021-22 school year, including more than 1,100 that were made on school grounds across the entire state.

In it, it says every public-school corporation in Indiana responded. That would include numbers from the EVSC – the figures the Courier & Press is trying to obtain. The report, however, doesn’t break down its data by school corporation.

A reporter pointed the report out to Shoulders in a return message Wednesday evening and asked if the IDOE is mistaken in its claim that every school corporation responded, or if the EVSC, the third-largest system in the state, hasn’t recorded any arrests.

"Your request asked for 'the number of arrests…'. I responded that we don’t have a document that records 'the number of arrests,'" he wrote back.

"You refer me to a state report which compiles arrests made by all local law enforcement agencies on a variety of topics," he continued. "We of course comply with reporting requirements of the IDOE. We don’t, however, maintain a serial log."

Indiana Public Access Counselor Luke Britt has said any student arrest for an incident that would also be a crime if an adult did the same thing is public record. That includes offenses such as battery and drug possession. Something like alcohol or tobacco use wouldn't qualify.

When it comes to the EVSC's latest denial, Britt said he "agree(s) with Mr. Shoulders from a general legal standpoint."

"I can’t force an agency to answer a question, even if it is readily known, easy for them to do so, and would seemingly be in the public interest," he said. "How they handle customer service and basic media relations is up to their discretion."

Any information the EVSC gave the IDOE that ended up in the report, though, would "most likely" be public, he said. On Thursday, the Courier & Press filed a records request for that data.

"Perhaps that request will cover documents we actually have," Shoulders said.

A seven-month effort to obtain public records

Both Shoulders and EVSC Superintendent David Smith have repeatedly declined to provide what they call “protected” records relating to student arrests. But they won’t say what those records are, or even if they have them.

This all started in April, when the Courier & Press requested documents related to all arrests made by the EVSC PD over the last two years. The EVSC responded that it received the request within 24 hours – as it’s required to do by Indiana law – but didn’t provide anything else until six months later, when it handed over four arrests, and none that involved students.

It also initially failed to state its legal basis for apparently denying everything else, which state law requires. When Shoulders sent statutes, none of them applied to arrest records, Britt said.

Shoulders has repeatedly cited the Family Educational Rights and Privacy Act, or FERPA, as a reason to keep arrest documents confidential. But the U.S. Department of Education says FERPA doesn't apply to law enforcement records.

Smith has also said EVSC is trying to abide by “confidentiality laws.” According to Indiana code 31-29-3-2, however, several aspects of a non-delinquency arrest are public record – such as the nature and location of the offense, the age of person who allegedly committed it, and the context around the crime.

All of that is included in incident reports and arrest affidavits from the Evansville Police Department and Vanderburgh County Sheriff’s Office. Those can typically be obtained from the county clerk’s office by anyone bearing a case number.

Even the name of the student would be public in certain circumstances, Britt has said, even though the Courier & Press isn’t seeking to publish juveniles’ identities.

This article originally appeared on Evansville Courier & Press: EVSC on arrest records: Law doesn't require them to 'answer questions'