ND: 1, ESPN: 0

In September of 2014, investigative reporter Paula Lavigne of ESPN requested incident reports involving 275 Notre Dame athletes. In these public records requests, Lavigne attempted to gain access to any incident reports from the Notre Dame Security Police Department (NDSP) in which the student-athletes were named as a victim, suspect, witness, or reporting party. In response to these requests, NDSP denied on the grounds that it was not a law enforcement agency under Indiana’s Access to Public Records Act, or APRA.

Despite NDSP’s denial, ESPN insisted on these records, resulting in multiple denials before filing a lawsuit. The trial court found that the NDSP was not a “law enforcement agency” or a “public agency” under APRA. Dissatisfied, ESPN appealed, arguing that the NDSP fit the definition of a “public agency.” ESPN stated in its appeal that the NDSP is a “law enforcement agency,” it exercises the powers of the state, and it exercises “traditional” governmental power, all under the definitions set forth by APRA. Satisfied with this reasoning, the court of appeals reversed the trial court’s decision, and remanded it to the trial court to determine which records the NDSP would be obliged to produce.

Despite the appellate court’s ruling, NDSP filed a petition to transfer in which it vacated the court of appeals opinion, and put forth the issue before the Indiana Supreme Court.

ESPN argues that the sections which define “public agency” subject the NDSP to the APRA, yet the Court found for NDSP. In its analysis, the Court stated that APRA was enacted with the purpose that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees” under Ind. Code § 5-14-3-1.

Parsing ESPN’s argument further, the Court looks at the definition of a “law enforcement agency” under the APRA, which states: “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…” Here, ESPN argues the NDSP exercises police powers, while the NDSP claims it is not “of any level of government.” The Court holds that the NDSP obviously exercises law-enforcement functions, therefore the issue is whether the NDSP is “of any level of government.” In short, the Court states that the NDSP is an “agency or department” of the University of Notre Dame, not the State of Indiana. Further, ESPN argues that the NDSP is a “public agency” under APRA as it exercises police powers. The Court disagrees, stating that the Department exists by the creation of trustees under Ind. Code §§ 21-17-5-2,-3. By its nature, the trustees prescribe the duties of the officers and it is the state legislature which grants the trustees the power to do so. Further, the officers are tasked with University-specific duties, such as enforcing the student code and serving the students of Notre Dame, functions which are removed from governmental control under Perry Cty. Dev. Corp. v. Kempf, N.E. 2d 1020, 102627 (Ind. Ct. App. 1999).

For those without a law degree, the Court’s ruling boils down to a simple point: in order to access the desired records under the APRA, the records must be those of a government agency. NDSP, by its very nature as a trustee-generated organization, is not a public agency, and therefore not subject to the APRA. Whether it is judicial judiciousness or the luck of the Irish, it looks like NDSP is safe to ignore ESPN’s calls in the future.




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