Indiana Court of Appeals hears oral arguments in ESPN case about private university police records

INDIANA — Indiana appellate judges heard oral arguments for ESPN v. University of Notre Dame Police Department last week — a case that will determine whether private university police departments are public agencies subject to Indiana’s Access to Public Records Act.

At the start of 2015, ESPN filed suit against Notre Dame, alleging the university violated Indiana’s public records law when it withheld police incident reports about student athletes. This came after State Access Counselor Luke Britt said in an advisory opinion in October 2014 that the university should follow the state’s public records law, and noted its police department’s powers come from the state.

“The authority for private universities to create police departments is not inherent. It is granted by the State of Indiana through the General Assembly,” Britt said in his opinion. “Likewise, police power is not inherent to a private entity. Police powers of a state are conferred by the Tenth Amendment to the U.S. Constitution.”

ESPN argued that Notre Dame’s police should be covered by APRA to the same extent as city or county police because the department has state-delegated police authority, like the ability to search, make arrests, interrogate and exercise the state’s police powers.

St. Joseph’s County Superior Court Judge Steven Hostetler ruled against ESPN in April, saying that state law granting private universities the power to hire campus police officers does not make the police department a separable part of Notre Dame, which is not subject to APRA.

ESPN appealed the ruling to the Indiana Court of Appeals. In August, Indiana Attorney General Greg Zoeller filed a brief urging the court to make police incident reports at Notre Dame public because campus police perform “an almost exclusively public function.”

Appellant ESPN Inc., on behalf of its reporter Paula Lavigne, alleged the trial court erred in granting the University of Notre Dame Security Police Department motion to dismiss. The motion was based on ESPN’s complaint alleging that the campus police force was a “public agency” under APRA and should be compelled to produce incident police reports on certain student-athletes.

Under current Indiana law, private university police departments are exempt from APRA. Each state has a public-records law requiring state and local government agencies to disclose upon request the documents they maintain, but in the vast majority of states, this does not apply to private universities, despite their police officers having the power to make arrests. This exemption allows officials to conceal the identity of students who were involved in crimes and other applicable information. A handful of states, through legislation or litigation, have recently applied open records laws to private universities’ police departments.

ESPN’s Attorney Maggie Smith argued last week before a three-judge panel that Notre Dame is wrong to say it cannot be subject to the public-records law because that would be inconsistent with the university’s disclosure obligations under the federal Clery Act.

Under the Clery Act, all colleges and universities receiving federal funds (which includes private universities) are required to publish an annual statistical report on campus crime, as well as a daily crime log open to the public. This federal statute does not require the release of specific information — such as the names of those involved and the factual circumstances of the crime — that would appear in an incident report at a traditional public agency.

Smith said state universities, such as Indiana University and Ball State University, are subject to both the Clery Act and APRA, and “do it just fine.”

“There are already mechanisms in this country for every single public university to both comply with its obligations under the public records act, as well as its obligations under the Clery Act,” she said.

Smith also argued that NDSPD is not made up of “library security guards who make sure kids don’t take books,” but rather, police officers who arrest, search and interrogate for crimes such as rape, burglary, larceny and drug possession.

“APRA is intended to govern the affairs of government, and when a private entity takes on running the affairs of government, that private entity will be subject to APRA,” Smith said.

Arguing for Notre Dame, attorney Damon Leichty said the university’s police department was under no obligation to comply with records requests under APRA, arguing they are “Notre Dame’s records.”

He argued the police departments are exercising the power of Notre Dame’s Board of Trustees.

But Judge Rudolph Pyle III questioned Leichty about the police powers Notre Dame officers exercise, and who would prosecute individuals if criminal charges are filed.

“When a Notre Dame police officer pulls over a person for a traffic offense, whose power are they using?” Pyle asked.

When Leichty responded that the state would be the one to prosecute, Pyle said that process had been started by one of the Notre Dame police officers, who would not have that power unless the General Assembly gave it to the Board of Trustees to use.

“I want you to persuade me how this legislative act or grant of authority magically became the Board of Trustees’ authority,” Pyle said.

The issue appeared before the court as the state legislature considers a bill that critics claim would insulate private universities from having to comply with APRA by instead codifying Clery requirements for private universities into state law.

House Bill 1022, which passed unanimously through the state House in January, was amended slightly and then passed unanimously by the Senate Committee on Civil Law on Feb. 29. The bill would require that Indiana private university police departments release records related to arrests or incarcerations for criminal offenses. The bill would still allow the departments to withhold investigatory records or the name of a crime victim, unless the victim authorized the release.

The bill was authored by Rep. B. Patrick Bauer, a Democrat, with input and support from the Independent Colleges of Indiana, and was co-authored by three other legislators, two Republicans and one Democrat.

Smith argued before the appellate judges that the bill was drafted by Notre Dame and its constituents, so “it’s basically recognition of the writing on the wall, what is going to happen in front of this court, and it’s an attempt upon reversal to change the law to provide a more limited scope than what is currently provided under the APRA.”

She said its goal is to insulate private universities from the potential adverse ruling for Notre Dame in the case.

Stephen Key, general counsel and executive director of the Hoosier State Press Association, said in an interview that he agreed with Smith’s argument.

He said if the Court of Appeals rules against Notre Dame, the university would then be subject to the part of APRA that requires investigatory records be made public through a daily crime log.

“From a marketing standpoint, they see no upside in having to give out more details on crimes investigated by their police departments,” Key said.

Last year, ESPN successfully sued Michigan State University to release the redacted names of student athletes who were listed as suspects in police reports. The Michigan Court of Appeals ruled in August that the disclosure of the names of the student athletes who were listed as suspects “serves the public understanding of the operation of the university’s police department.”

SPLC staff writer Kaitlin DeWulf can be reached by email or at (202) 974-6317.

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