ESPN sues U. of Notre Dame over access to police records

INDIANA — ESPN has filed suit against the University of Notre Dame, alleging the private institution violated Indiana’s public records law when it withheld police incident reports about student athletes.

According to the suit ESPN and its reporter Paula Lavigne filed on Jan. 15, Luke Britt, the state public access counselor, issued two advisory opinions stating the Notre Dame Security Police Department must comply with Indiana’s Access to Public Records Act.

The lawsuit does not specify what incident reports Lavigne requested or identify the student athletes. Filed in St. Joseph County Superior Court, the suit seeks access to the records and attorney’s fees.

Lavigne requested the records on Sept. 9, but the police department denied the request because Notre Dame is a private institution. ESPN filed a formal complaint with the Public Access Counselor’s Office.

In a Oct. 31, 2014, advisory opinion, Britt said the university is “undoubtedly” a private institution but its police department is not, because it has the same legal authority as any other law enforcement agency in Indiana. Their authority to enforce the state’s criminal code, Britt said, extends beyond campus into the surrounding community.

If a law enforcement agency has police powers, Britt said in the opinion, then it should be held to the same level of scrutiny as other state law enforcement agencies.

Lavigne filed two more requests in November, but was again denied access.

According to a Jan. 5 opinion, the university’s police department is in violation of the state’s public records law if it does not release documents about suspected crimes, accidents or complaints.

But Dennis Brown, Notre Dame’s spokesperson, stood by his opinion that the police department is exempt from the law, referencing three opinions from previous public access counselors who said the police department is not required to comply with the state’s public records law because it is not a public agency, which “has been true for some 31 years.”

This is not the first time the University has argued their police department isn’t a public agency. In 2009, Notre Dame police arrested Karen Torres and dozens of other anti-abortion protesters on campus. Torres sued the university claiming the arrest violated her First and Fourth Amendment rights.

Notre Dame tried to get the case thrown out because only government officials could be sued for violating the Constitution. The judge in the case said the broad power given to a private institution’s police department made the officers government agents carrying out a public function.

Contact SPLC staff writer Mariana Viera by email or at (202) 478-1926.