INDIANA — The University of Notre Dame police department does not have to give ESPN access to police records about student athletes because it is not a public agency under the state’s open records law, a county judge ruled on Monday.
In his ruling, St. Joseph County Superior Court Judge Steven Hostetler said the state law granting private universities the power to hire campus police officers does not give the universities the power to create a “separate legal entity.”
All the law does is allow private universities to “appoint police officers with certain enumerated powers,” according to the ruling. “If Notre Dame is a ‘public agency’ because it appoints police officers, it is a public agency, period.”
Hostetler said in the ruling it is “difficult to fathom” the Indiana Legislature would intend for all private university records to be subject to the state open records law “simply because those private institutions availed themselves of the Legislature’s invitation to appoint campus police officers.”
In January, ESPN and one of its reporters filed suit against the University of Notre Dame, alleging the private institution violated Indiana’s Access to Public Records Act when it withheld police incident reports about student athletes. The cable sports network argued the Notre Dame Security Police Department is a public law enforcement agency subject to the state’s public records law because state law grants it the ability to make arrests, create criminal records and exercise the state’s police powers.
In an October advisory opinion, the state’s public access counselor said Notre Dame is “undoubtedly” a private institution but its police department is not because it has the same legal authority and police powers as other law enforcement agencies in the state. Between 2004 and 2011, three different public access counselor opinions said state law did not require private university police departments to open its records for public inspection.
“Maybe the public access counselor is correct that Notre Dame should be covered by APRA with respect to the activity of its policy officers,” Hostetler said in the ruling, adding that the question before the court wasn’t about whether the Notre Dame police department should be covered under the open records law, but if the police department is currently covered under the law. Hostetler questioned whether the case will prompt Indiana lawmakers to clarify the state’s public records law.
Following the court’s ruling, Notre Dame spokesman Paul Browne said in a statement Notre Dame police will “continue to investigate and report in a manner consistent with the highest standards of law enforcement and in accord with state law.”
While North Carolina, Georgia and a handful of other states require private universities to make police records public, lawmakers in Texas and in Illinois are considering similar rules this year. In Ohio, the state supreme court has agreed to hear the case of a former Otterbein University student journalist who sued the private institution over access to its police records.
ESPN spokeswoman Kerri Potts said in a statement she was disappointed the court did not side with the public access counselor, “which we believe made the correct analysis, in support of information transparency for public bodies.”
Gerry Lanosga, president of the Indiana Coalition for Open Government, also said the judge’s ruling was disappointing, and he was “crossing his fingers” that this case would go in ESPN’s favor.
“The history in Indiana and in other states with regard with private colleges is to not subject them to public records disclosure requirements,” Lanosga, who also teaches journalism at Indiana University, said. “To have an opinion such as the access counselor’s was a big deal, and it was very encouraging.”
Contact SPLC staff writer Mariana Viera by email or at (202) 478-1926.