As the Fighting Irish prepare to host Michigan State in an early must-win game to retain playoff hopes, Notre Dame’s legal team went to the Indiana Supreme Court this week to shield its campus police from the prying eyes of an ESPN investigative reporter seeking hundreds of incident reports concerning student-athletes.
“The Notre Dame police department responds to, investigates, interrogates and arrests individuals on and off campus in crimes such as robbery, rape, assault, DUIs, [and] drug possessions. Notre Dame wants to keep all the records of their police department secret and insulated from public accountability.”
The million-dollar question, of course, is why does Notre Dame want to keep those records secret?
Notre Dame’s attorney, Peter Rusthoven, contended that since Notre Dame is not a government agency, it is not subject to public records requests. He argued,“whatever else Notre Dame may be, it is not the elected representatives of government.” The school’s fear is that the entire university would become subject to open records requests once the slippery slope steepens from the police department.
As I detailed last year, ESPN reporter Paula Lavigne had requested incident reports from the campus police in 2014 concerning 275 student-athletes, including whether they had been named as suspects, witnesses, or victims pursuant to the Indiana Access to Public Records Act (“APRA”). The Police Department denied the request, claiming that it was not a public law enforcement agency and, therefore, was not subject to APRA. ESPN then sued Notre Dame for refusing to comply.
Initially, the home field advantage of the St. Joseph County Superior Court worked for Notre Dame as the Hon. Steven Hostetler ruled that the campus cops were immune from APRA, because Notre Dame “is clearly not ‘an agency or a department of any level of government.’”
ESPN appealed and pointed to the basic facts that Notre Dame’s police can arrest, search, detain, interrogate, and even shoot citizens based on power provided by the state. Their own website boasts the following:
The University of Notre Dame Security Police Department . . . is fully authorized as a police agency by the State of Indiana. The department employs both sworn police officers and non-sworn campus safety officers who patrol campus and respond to emergencies. . . 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. Notre Dame Security Police staff frequently work with city, county, state and federal law enforcement authorities.
The campus police powers do not stop there. Under Indiana Code § 21-17-5-4(a), the police officers have the same common law and statutory powers, privileges, and immunities as sheriffs and constables. During oral argument, Notre Dame admitted that these powers apply both on and off campus.
At issue is the meaning of “public agency” under APRA. APRA provides that “[a]ny person may inspect and copy the public records of any public agency during the regular business hours of the agency,” subject to certain exceptions. I.C. § 5-14-3-3.
Notre Dame claims its police force is not a public agency. However, APRA’s definition of “public agency” includes “law enforcement agency,” which means:
an agency or a department of any level of government that engages in the investigation, apprehension, arrest, or prosecution of alleged criminal offenders, such as the state police department, the police or sheriff’s department of a political subdivision, prosecuting attorneys, members of the excise police division of the alcohol and tobacco commission, conservation officers of the department of natural resources . . .
That definition certainly seems to include Notre Dame’s campus police who can investigate, apprehend, and arrest criminal offenders.
The Indiana Court of Appeals agreed, and in a 3-0 decision in March authored by Judge Rudolph Pyle, it reversed the trial court and ruled that Notre Dame’s campus police are subject to open records laws. Judge Pyle reasoned that “there is a danger that the public will be denied access to important public documents when a private agency is exercising a public function if we construe APRA to categorically exclude such agencies.”
Indiana’s Attorney General, Gregory Zoeller, supported this decision as he filed an amicus brief warning that no police force should operate under a cloak of privacy.
Even more surprising was that this past March, Donald Trump’s Vice Presidential Nominee, Indiana Governor Mike Pence, vetoed a bill that would have allowed private universities to keep police records private. In doing so, Pence stated:
“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. Hoosiers may be assured that my administration will always be vigilant to preserve government accountability and the public’s right to know.”
Despite losing on appeal and failing to gain the support of the Governor and Attorney General, Notre Dame pressed forward and took its fight to the state Supreme Court. The Court heard oral arguments on Tuesday and will likely not rule for several months.
Certainly, one major concern for Notre Dame is that if its police department is deemed a public agency that must comply with open records requests, then the entire university might soon have to do so as well. It is a rightfully frightening slippery slope.
However, Judge Pyle never ruled that the entire university would fall under APRA. He limited his ruling to only the police and explained, “whereas the Police Department qualifies as a public agency under APRA because it is a law enforcement agency, the remainder of Notre Dame clearly does not qualify as a law enforcement agency. In light of these factors, we conclude that it is possible for a subdivision of a private entity to be considered a public agency under APRA for purposes of public disclosure relating to its exercise of a public function without subjecting the entire private entity to APRA.”
If the Supreme Court were to hold otherwise, it would create an absurd interpretation of the law. As the Indianapolis Star highlighted, Supreme Court Justice Steven David posed a scenario where officers with Notre Dame’s police department could patrol the streets around campus and pull over a vehicle. The next vehicle that comes by could be pulled over by an officer with the South Bend Police Department. In one case, there would be a public record of the stop. In another case, there wouldn’t.
So if the Notre Dame police investigate an alleged crime by a football player, there is no public record. However, if the South Bend police handle the matter, the press and the public can access those records. This distinction should not exist.
Shielding one police force over the other is not just an affront to the free press, but it would also send a chilling reminder to students that its campus police can act under a different set of rules and regulations than any other police force in the state. Would that lead to favorable treatment of athletes? Maybe or maybe not. But the public and the press should have the right to find out.
Steve Silver is the founder of TheLegalBlitz.com. He is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia. You can reach him at email@example.com or on Twitter @thelegalblitz.
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