The Indiana Supreme Court left no doubt that it considered the Notre Dame Police Department exempt from the Access to Public Records Act when it affirmed dismissal of ESPN’s lawsuit seeking records of the department’s interactions with 275 student athletes.
But a bill signed into law this year dealing with access to police body cameras and recordings could change that. House Enrolled Act 1019, enshrined as Public Law 58, amended a section of APRA to specifically define private university police departments as public agencies — something the justices ruled they are not. The language is found at I.C. 5-14-3(q)(11).
Hoosier State Press Association Executive Director Steve Key, who filed an amicus brief aligned with ESPN in this case, said the situation sets up a public policy issue for the coming session of the General Assembly.
“It’s murky now, and that could be an arguable point” in favor of requiring private university police departments to comply with public records laws, Key said.
Adding to the murkiness, Gov. Mike Pence, who’s now vice president-elect, in March vetoed a bill that would have exempted private universities from the Access to Public Records Act. “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,” he said at the time.
Nevertheless, the Indiana Supreme Court unanimously ruled Wednesday that Notre Dame Police Department was neither a public agency nor a law enforcement agency for purposes of APRA.
Indiana University Maurer School of Law professor Seth Lahn authored an amicus brief in support of Notre Dame for the Independent Colleges of Indiana. He agreed there might be a policy debate going forward based on the change in law that took effect July 1. But he said the court wisely ruled that Notre Dame not be subjected to public records disclosure retroactively.
“I think the court took a very straightforward approach” on a classic case of statutory construction, he said.
“I think you can understand why it would be a concern that all of a sudden that rule would be changed,” Lahn said. The Supreme Court decision “is really ensuring these rules were not changed after the fact and with risk to all the thousands and thousands of students that have gone to these colleges after the passage of APRA.”
Justice Mark Massa stressed that Notre Dame Police exist not as a government entity, but as an organization created by the university’s board of trustees, even though they have powers to arrest, detain, investigate crimes, and recommend prosecution, among others.
Notre Dame Police, Massa wrote for the court in ESPN and Paula Lavigne v. University of Notre Dame Police Department, 71S05-1606-MI-359, are “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.” He noted the NDPD also serves functions such as enforcing the student code, escorting students late at night and acting as student caretakers.
Public university police departments are subject to APRA, but the justices’ ruling makes clear the exemption for those serving private schools.
“Private colleges and universities have not set up systems in anticipation of having everything done by their police departments subject to inspection” as a result of a public records request, Lahn said. He noted private colleges with police units are required to report some crime data under the Cleary Act, though they are not required to provide detailed reports as government police agencies must.
Notre Dame prevailed in a case in which Indiana Attorney General Greg Zoeller also advocated in favor of ESPN’s position. He argued that it’s the exercise of state power that should subject these institutions to disclosure. He said the power granted to police is at the heart of the public trust and requires transparency.
“We are extremely disappointed by the ruling and what it represents for public transparency,” David R. Scott, senior director of ESPN Communications, said in a statement.
But it’s unclear whether lawmakers will consider the issue in a public-policy sense. Lahn noted the bill Pence vetoed that would have exempted private colleges and universities had wide support among lawmakers.
Ohio and Texas are among states that in recent years have passed laws or ruled in court cases that private university police are subject to open records laws because they exercise the state’s law-enforcement powers. Massa, though, rebuffed ESPN’s argument that Indiana’s Supreme Court should rule similarly.
“There is no evidence that our General Assembly intended a functional equivalency analysis, like that of Ohio’s, and we decline to read this language into the statute on the legislature’s behalf,” Massa wrote.
Key viewed the court’s decision as narrow. “I wouldn’t read this as any sort of declaration of this court on transparency,” he said. Rather, he said justices read and interpreted the language of the statute but “weren’t willing to make that connection” between the private schools’ trustees and the government power that its police have.
“I can’t fault the decision they came to,” he said. “I think we have a situation here that when the (APRA) statute was passed back in 1983, the question of these private university police departments probably never came up.”
In June, ESPN reporter Paula Lavigne participated in a panel of investigative reporters discussing the secrecy of police records from private colleges and universities in states around the country. Many of these agencies, including Notre Dame, are authorized to use police powers outside the boundaries of their campuses. While the public perception of private university police may be officers who help students who are locked out of their cars, she said, “they’re dealing with murders. God knows they’re dealing with rapes.”
She said university police and the trustees they serve also have an interest in keeping crime statistics low and in keeping their police reports secret. She said criminal matters that an officer decides to refer to school offices of judicial administration shield them from public disclosure, even at public universities.
“It astounds me,” she said, that “we have police departments that oversee thousands and thousands of residents in their jurisdiction that have the ability to act just as city police, who can operate in complete and utter secret, in the United States of America.”