ESPN makes appeal for Notre Dame police records

Dave Stafford for www.theindianalawyer.com

ESPN Inc. argued public policy, legislative intent and precedent in Indiana and other states favor a Court of Appeals order for University of Notre Dame police to release records of incidents involving student athletes.

Notre Dame insists that as a private institution, those records are its own. It says an order from the court could mean private hospitals and institutions that provide security would be subject to public scrutiny of investigatory records.

Those competing arguments highlighted oral arguments in ESPN Inc. and Paula Levigne v. University of Notre Dame Security Police Department, 71A05-1505-MI-381, Wednesday before a panel of the Indiana Court of Appeals. ESPN seeks judgment on the pleadings that the university’s police department is subject to the Access to Public Records Act and must provide records as do other agencies such as campus police at Indiana, Purdue and Ball State universities.

St. Joseph Superior Judge Steven Hostetler last year sided with Notre Dame police and denied ESPN’s record requests. The South Bend judge based his ruling on multiple advisory opinions of public access counselors from 2003 until 2011 that found private college police were not public agencies, and that the Legislature had acquiesced to those opinions by not clarifying the law during that time. Hostetler urged lawmakers at the time to act, however, noting ESPN made “persuasive policy arguments.”

Frost Brown Todd LLC attorney Maggie Smith argued on behalf of ESPN. She told the court that lawmakers used canons of statutory construction in relevant laws so that any agency exercising state-granted powers such as searches, crime investigations and arrest is subject to disclosure of certain information under the Access to Public Records Act. Exercising those powers means, “You will be considered a public agency,” she said.

Smith argued there is no distinction between campus police at IU, Purdue or Ball State and the Notre Dame police when it comes to the obligation to report information from incidents, including names of those involved and some specificity regarding what happened. Campus police at the public schools “do it just fine,” she said.

She said Notre Dame police respond to, investigate and make arrests in cases involving allegations of rape, burglary and other crimes, and they have jurisdiction to make arrests anywhere in St. Joe County. “These are not the actions of library security guards there to keep kids from stealing books,” Smith said.

Arguing for Notre Dame police, Barnes & Thornburgh LLP partner Damon Leichty said the agency was under no obligation to comply with records requests under APRA. “In fact, these are Notre Dame’s records,” he said. He said the police are subject to oversight by the university’s board of trustees.

But Judge Rudolph R. Pyle III repeatedly asked Leichty about the police powers Notre Dame officers employ. “Whose power are they using?” Pyle asked. Leichty ultimately answered that the state is the plaintiff in criminal actions where Notre Dame police make an arrest and a charge is filed, but he insisted the private nature of the institution shields it from disclosure of reports ESPN has sought.

In the event of a wrongful arrest or civil rights action of Notre Dame police actions, Leichty said, “It is the board of trustees who become responsible for that conduct.” Leichty also argued the Legislature used very specific language to describe who is subject to records disclosure under APRA, such as the police department of a political subdivision. This distinguishes Notre Dame from campus police of public universities. “Indiana University is a political subdivision,” he said.

Chief Judge Nancy Vaidik posed a hypothetical for Leichty: If the court found the plain language of relevant statutes required Notre Dame police to comply with APRA, “do you lose?” she asked. Leichty said that would not be the case. If the court so ruled, he said the university would examine the scope of the requests and determine what would be exempted.

But he warned against expanding the reach of APRA. If the court ruled against Notre Dame, he warned, “we will encompass all kinds of entities” from private hospital security to bail bondsmen. He said an outcome of such a ruling could be that the public-records law would apply “to anyone who is an agency investigating a crime. … It would turn APRA on its head.”

Judge Margret Robb pointed to decisions in similar records-dispute cases involving the University of Chicago and Otterbein University in Ohio where courts ruled records of those campus police were subject to public review. She also cited the federal Clery Act that requires all colleges and universities receiving federal money report information about crime on and around campus.

Smith said in rebuttal that Indiana “absolutely” embraces a presumption of public access to records. She pointed to the Indiana Supreme Court’s unanimous 2014 decision in Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, 82S04-1401-PL-49, holding that death certificates were public records. That decision and others, she said, signals “APRA means what it says and courts are going to enforce it as written.”

Robb and Vaidik also asked lawyers for both sides about House Bill 1022 making its way through the General Assembly and its potential impact on this case. The bill would make private university campus police arrest records for criminal offenses public but would shield investigative records, as is customary with public police agencies. The bill sailed through the House and passed a Senate committee Tuesday.

Leichty said the bill would be prospective and would take effect July 1 of this year if adopted in its current form. The bill would not impact the records ESPN seeks, he said. The proposal would give to private colleges and universities “proper and fair notice they are subject to this law,” he said.

Smith rebutted that HB 1022, authored by South Bend Democrat B. Patrick Bauer, was “a bill drafted by Notre Dame and a recognition of the writing on the wall.” She said the bill would require a more limited release of records than if the court ruled the university was subject to APRA.

Notre Dame could exempt itself from the expectation of complying with public records by not having a police department that exercises state-granted powers. “Notre Dame has not made that choice,” she said.

At the conclusion of Wednesday’s arguments, Smith said ESPN sought records from Notre Dame as it has with schools nationwide as it investigates whether student athletes receive preferential treatment from campus security. She said a significant issue is the disparate treatment of arrest and incident records. “It’s a constitutional deprivation of rights if you are selectively enforcing” access to public records, she said.

Vaidik said the court expected to rule soon.