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Notre Dame police want records secret, ESPN lawyer argues

September 21, 2016

Justice Robert Rucker suggested the Indiana Supreme Court could read the Access to Public Records Act to determine it covers private university police, but a lawyer for the University of Notre Dame Police Department said doing so would look past the plain meaning of the law.

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“Respectfully, your honor, you could craft a decision that would accommodate that,” Barnes & Thornburg LLP attorney Peter Rusthoven argued to the court Sept. 13 in a case where ESPN is seeking incident records from the campus police involving 275 student athletes. “But I would respectfully submit you’re not reading the statute then; you’re writing the statute.”

Representing ESPN, attorney Maggie Smith of Frost Brown Todd LLC said Notre Dame police should be subject to public records laws, and the APRA should be construed to cover agencies that are charged with carrying out essential functions of government.

“Notre Dame wants to keep all the records of their police department secret,” Smith argued. She said the university police’s position “violates the spirit and the letter of the Access to Public Records Act.”

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

But Rusthoven said the court should rule 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 deprived access to the records it seeks as private campus police would be exempted from the requirements of the public records act.

Chief Justice Loretta Rush challenged Rusthoven on why these records dealing with sovereign government power shouldn’t be public. “When a case gets filed, it’s filed on behalf of who? The state,” she said.

Rusthoven pointed to the portion of the statute dealing with law enforcement agencies, which he said requires a two-part test: the agency is a unit of government and performs law enforcement functions. He said the statute also clearly identifies Indiana State Police or police agencies of political subdivisions. He said a broad reading of the statute would make unintended entities subject to APRA.

“I can find that a bail bond agency is exercising some kind of a delegated power of government,” he said.

Justice Geoffrey Slaughter pointed to the preamble of the act, which says the public policy of the state is that people are entitled to full and complete information about government affairs and that the act should be liberally construed to meet that purpose.

Slaughter suggested, “It’s simply a belt-and-suspenders effort by the Legislature to say, by golly, we meant it in the preamble for this statute to apply broadly,” after which lawmakers enumerated agencies to which the act was intended to apply.

But Rusthoven replied that the statute never mentions governmental function, and to define public records this way could also include disclosure of police investigatory records, which are otherwise barred from disclosure by statute.

Smith focused on the qualifying language of “such as” in the APRA statute, arguing this doesn’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.

She also argued justices have “already rejected the foundational premise that Notre Dame has presented … and that is, the Access to Public Records Act does not only apply to government entities.”

Smith cited Indianapolis Convention & Visitors Ass’n, Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 214 (Ind. 1991), which held the Indianapolis Convention & Visitors Association was a public entity under APRA. She said the court found a private entity was involved in affairs of the government.

“It looked at the function the private entity was performing,” she said of the Visitors Association case. “That’s what we have here. … The Access to Public Records Act has already been read by Indiana courts to already be an all-encompassing statute — anything that involves a public function should be open to the public.”

But Rush pressed Smith on how the Notre Dame Police Department falls into the category of an agency of any level of government as the statute reads. Smith said numerous other statutes refer to police on private college and university campuses as law-enforcement agencies.

Slaughter, though suggested that the Legislature’s failure to include agencies like NDPD in the public records statute didn’t speak well for ESPN’s position. But Smith returned to the qualifying “such as” language. She said this indicated lawmakers didn’t intend the agencies subject to public records requests be exclusive to those listed in the statute.

“We have an agency here that’s described as an agency in at least 10 other statutes,” Smith said. “It actually performs the exact same functions that other police departments do that are covered.”•
 

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