Indiana Supreme Court rules Notre Dame police not subject to open records law

The Notre Dame Security Police is, according to its website, “fully authorized as a police agency by the State of Indiana.”

Moreover, “Notre Dame police officers complete state mandated training requirements established for law enforcement officers and have the same legal authority as any other police officer in Indiana.”

The Indiana Supreme Court sees things differently.

This week, in an opinion written by Justice Mark S. Massa, the court affirmed a trial court’s prior ruling (and overturned an intermediate ruling by an appeals court) that NDSP is “not a law enforcement agency” and is therefore not required to comply with requests for public records like the one ESPN submitted in 2014 concerning incident reports potentially involving any of the 725 student-athletes at the university.

“We are extremely disappointed by the ruling and what it represents for public transparency,” said David R. Scott, an ESPN spokesman, in a statement.

Lawyers for ESPN and the University of Notre Dame did not immediately respond to requests for comment

The Indiana Supreme Court held that it is obligated to make a plain-text reading of Indiana’s Access to Public Records Act, which identifies departments at any “level of government” as those subject to records requests. As a private university is not a part of government, the ruling said, NDSP cannot be treated as a law enforcement agency.

Only six states explicitly provide the public access to the records of police at private institutions: Ohio, Connecticut, Georgia, North Carolina, Virginia and Texas.

ESPN asked the state supreme court to consider precedent set in Ohio, where the public-records law expressly covers agencies that exercise any function of government.

But Massa relied on Indiana law in the majority opinion, specifying that the law subjects only agencies acting as an arm of the state to the same transparency standards that might apply to a city police department.

“The (Notre Dame Security Police) Department is not exercising the power of the State; rather, the trustees are exercising power granted to it by the State to appoint police officers to protect and oversee their campus,” Massa wrote, later adding: “For the Department to be a ‘public agency,’ it must be exercising its functions pursuant to government control; mere interconnections between a public and private entity are insufficient.”

ESPN and proponents of private-university police transparency, at least, have a powerful ally: Outgoing Indiana governor and Vice President-elect Mike Pence, who in March vetoed a bill passed by the Indiana Legislature that would have codified a distinction between the transparency requirements for public police departments and ones at private universities.

Pence’s office issued the following statement then:

“Throughout my public career, I have long believed in the public’s right to know and a free and independent press. Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency. While House Enrolled Act 1022 provides for limited disclosure of records from private university police departments, it would limit the application of the Access to Public Records Act following the Court of Appeals decision and result in less disclosure, therefore I have decided to veto the bill.”

That release cited the March 15, 2016 ruling by the Court of Appeals of Indiana that identified the NDSP is a public agency subject to ARPA requirements. The state supreme court ruling effectively negated Pence’s veto.