On March 15, the Indiana Court of Appeals ruled that private university police departments are subject to the state’s Access to Public Records Act (“APRA”) to the same extent as other governmental law enforcement agencies. ESPN, Inc. v. University of Notre Dame Security Police Dept., No. 71A05-1505-MI-381 (Ct. App. Ind. March 15, 2016). The full opinion is available here. Transparency advocates anticipated a qualified victory, as the Indiana Legislature passed a bill just one day later that would have limited the scope of public access to police records at private colleges and universities in Indiana. On March 24, 2016, however, Indiana Governor Mike Pence vetoed the bill—a big step forward in ensuring that private university police officers who can arrest, detain, interrogate, and investigate crimes are held to the same levels of transparency and accountability as their city and state counterparts.
On September 19, 2014, ESPN investigative reporter Paula Lavigne requested public incident reports from the Notre Dame Police Department (“NDPD”) pursuant to APRA. Specifically, she requested incident reports concerning 275 student-athletes, including information regarding whether they had been named as victims, suspects, witnesses, or reporting parties in the incidents. NDPD denied the request, claiming that it was not a public law enforcement agency, and therefore, not subject to APRA. Notwithstanding two decisions by Indiana’s Public Access Counselor in favor of ESPN, NDPD refused to release the records. ESPN ultimately filed a complaint asking a court to order NDPD to disclose the requested documents.
ESPN argued that NDPD is a “public agency” subject to APRA because the department has state-delegated police authority to exercise the state’s police powers, like making arrests and creating criminal records. The trial court ruled against ESPN last April (full opinion here), saying that granting ESPN’s request could be a “slippery slope” due to the “expansive effect of ESPN’s interpretation of APRA.” The trial court reasoned that because Notre Dame is not authorized by statute to establish “separate and distinct legal entities to exercise police powers,” a finding that NDPD was a public agency would require that the entire school qualify as a public agency under APRA. The trial court concluded:
“It is difficult to fathom that the Indiana Legislature, without directly saying so, would intend the University of Notre Dame, Taylor University, Valparaiso University (and on and on) to have to produce pursuant to APRA all of their records concerning any matter whatsoever to anyone who asks, simply because those private institutions availed themselves of the Legislature’s invitation to appoint campus police officers.”
Accordingly, the trial court sided with NDPD, stating that “Notre Dame is clearly not an agency or a department of any level of government.” ESPN appealed the ruling, and the Court of Appeals of Indiana reversed.
The Court of Appeals found that NDPD qualifies as a “public agency” because it exercises a “public function”: the state’s police power. The Court of Appeals recognized the danger of categorically excluding private agencies from APRA, which would result in denying the public access to important public documents when a private agency is exercising the public function. The appellate court found that such a result would be inconsistent with the legislature’s policy behind enacting APRA, which is to give the public “full and complete information about the affairs of government.”
Moreover, unlike the trial court, the Court of Appeals had no problem severing NDPD from the University as a whole for purposes of determining which entities are subject to APRA. The court found the Supreme Court of Ohio’s decision in State ex rel. Schiffbauer persuasive on this issue, concluding that a private entity is considered a public office for purposes of public records only when it performs a governmental function, such as exercising police powers. By contrast, the Court noted that providing educational services is not a uniquely governmental service. Thus, not all of Notre Dame is a public agency; NDPD is, however, at least for purposes of APRA. The appellate court remanded the action back to the trial court to determine exactly which documents requested by Lavigne must be produced by NDPD.
ESPN’s victory has since been further cemented into Indiana law. Just 9 days after the Court of Appeals’ unanimous decision, Indiana Governor Mike Pence vetoed House Bill 1022, which would have severely limited the impact of the case. Under House Bill 1022, police departments of private universities would be required to release crime records only where the investigation resulted in an arrest or a conviction. The bill would also allow the departments to withhold investigatory records or the name of a crime victim, unless the victim authorized the release. As most crime reports do not end in arrest, advocates for public access saw the bill as a means of inoculating private colleges from the ESPN, Inc. ruling. Governor Pence agreed, vetoing the bill and publicly stating that “[l]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.”
Notre Dame officials said that they intend to appeal the ruling to the Indiana Supreme Court. But, at least for now, the public was won a key battle in the public records war.