Notre Dame police want records secret, ESPN lawyer argues

The University of Notre Dame Police Department should be subject to public records laws, an attorney for ESPN argued to the Indiana Supreme Court Tuesday, while lawyers for the NDPD urged the court not to consider the private university’s force a public agency.

“Notre Dame wants to keep all the records of their police department secret,” Maggie Smith argued on behalf of ESPN, which for two years has been attempting to obtain campus police incident reports involving 275 student athletes. She said the university police’s position “violates the spirit and the letter of the Access to Public Records Act.”

Arguing for NDPD, Peter Rusthoven said justices should rule that campus police aren’t covered by that act because the Legislature clearly defined in I.C. 5-14-3-2(n)(6) police entities that are subject to APRA as “an agency or department at any level of government” possessing powers to arrest, investigate and prosecute.

“It means ‘government agency,’” Rusthoven argued, noting the General Assembly could have, but didn’t, include private police forces. “When the Legislature means private university police, they say so.” He said a ruling in favor of ESPN would subject private campus security at about 30 other schools to disclosure of records.

After a trial court ruled in favor of Notre Dame police, a Court of Appeals panel reversed, holding the police department was a public agency under APRA. Afterward, Gov. Mike Pence vetoed a bill that would have limited the records that NDPD or other private university police would be required to provide in response to a public records request.

Justices granted transfer in ESPN, Inc., et al. v. University of Notre Dame Police Department, 71S05-1606-MI-00359. If the justices find for ESPN, the case would be remanded to the trial court to determine which records NDPD would be required to release. If the court rules for Notre Dame, ESPN would be denied access to the records it seeks as private campus police would be exempted from the requirements of the public records act.

Smith focused on the qualifying language of “such as” in the APRA statute, arguing this didn’t strictly limit the act’s application, and that the court should construe the law to favor the public policy interest of disclosure of records dealing with essential government functions. She noted Ohio recently extended public records disclosure requirements to include police at private colleges and universities.

“We are talking about the core power of the state,” she said, “the opportunity to deprive an individual of his liberty interest.”

But Rusthoven countered, “There’s all kinds of debate about what good policy would be here” and urged justices not to interpret the statute on a public-policy basis. “I would respectfully submit, you’re not reading the statute then; you’re writing the statute.”

Oral arguments in the case may be viewed here.

Read more about this case in the Sept. 21 Indiana Lawyer.   

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