ESPN's quest to open Notre Dame police records gets a huge assist

Private universities should open their police records for public scrutiny because campus police perform “an almost exclusively public function,” Indiana’s chief law enforcement officer argues in supporting journalists’ quest for access at Notre Dame.

In a brief filed Friday with the Indiana Court of Appeals, Attorney General Gregory F. Zoeller argues that sports network ESPN is entitled to the records of Notre Dame’s police department because campus police are deputized to exercise the “most core sovereign power” of state government:

A police officer is perhaps the quintessential public employee, cloaked in the authority of the State to investigate, detain, arrest, incarcerate, carry and discharge a firearm, and generally maintain the safety of the citizenry.

ESPN is arguing that, although Notre Dame is a private university, its police should be covered by the Indiana Access to Public Records Act to the same extent as city or county police because they carry state-delegated police authority, including the power to make arrests. 

On April 20, a St. Joseph’s County Superior Court judge dismissed ESPN’s lawsuit, finding that the Notre Dame police department is an inseparable part of its parent university, which as a private institution is not subject to the Public Records Act. (In addition to Notre Dame, 10 other private institutions in Indiana, including Butler and Valparaiso, maintain police departments deputized to exercise state arrest authority.) 

Access to police incident reports is critical for informed news coverage, since incident reports contain the narrative description of what officers witness when they respond to crimes, as well as identifying information that enables journalists to verify who, what, where and when. 

The attorney general’s influential voice could be highly persuasive in the Indiana appellate courts, which have ruled in contexts outside of the Public Records Act that private-college police are “state actors” whose conduct is governed by the same constitutional limits as city or county police. 

In a comparable case brought by a college editor at Ohio’s Otterbein University, a supporting brief by Attorney General Mike DeWine helped persuade the Ohio Supreme Court to open the records of Otterbein’s police department for public inspection. Since 2012, private-college police reports have been declared to be public records in North Carolina, Texas and Ohio, with only the Indiana ruling as an outlier.

In the nationwide movement to reform campus police secrecy, Notre Dame is perhaps the biggest quarry. Its police force has resisted scrutiny of a number of high-profile cases involving athletes, especially following the 2010 suicide of a college freshman whose sexual-assault complaint against a Notre Dame football player resulted in no criminal charges.