Notre Dame may have to release documents to ESPN
INDIANAPOLIS (AP) - The University of Notre Dame's police department could be subject to public access laws and be forced to release crime reports on student athletes to ESPN after an appeals court decisions Tuesday, but the school says it plans to go to the state Supreme Court to get the department out of the reach of state disclosure laws.
The Indiana Court of Appeals overturned a St. Joseph County court decision, saying that the Notre Dame police department is subject to Indiana's public records law since it has legal authority from the state to make arrests and has jurisdiction outside of the university's campus. It came as part of an ESPN lawsuit against Notre Dame seeking campus police records detailing allegations against student-athletes that the school has refused to release.
Paul Browne, the school's vice president of public affairs, said three public access counselors and a judge said the campus police are not subject to state open records laws.
"We continue to believe that is true, and we further believe that the opinion handed down today went beyond the law."
The three-member appeals panel said Tuesday that Notre Dame police are granted the same authority as other police and should be subject to public records laws in the same way.
ESPN's lawsuit came after state Public Access Counselor Luke Britt issued an advisory opinion in October 2014 that said Notre Dame should follow Indiana's public records laws even though it is a private institution. The Bristol, Connecticut-based company argued that the police department should be subjected to the state's Access to Public Records Act.
"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 ARPA to categorically exclude such agencies," the ruling said.
An attorney for Notre Dame attorney argued before the appeals court last month that lawmakers never intended for public records laws to apply to private colleges.
Indiana Attorney General Greg Zoeller deemed Tuesday's ruling a "victory" and also previously said the school should follow the state's public records laws.
If the state Supreme Court decides not to hear the case, Tuesday's ruling would stand and the lawsuit would go back to trial in South Bend to determine which records the university must release.
The court's decision also comes just two weeks after the state Legislature passed a measure exempting private university police from the same information disclosure requirements as faced by public university police - and state, county and city law enforcement agencies.
The bill, which hasn't yet been signed by Gov. Mike Pence, requires all of the state's 11 private colleges to release information from on-campus incidents that result in arrests or incarcerations for criminal offenses, but allows them to withhold reports on incidents if no arrests are made - a step required of other police agencies.
It received support from the Independent Colleges of Indiana, which represents both Notre Dame and the state's other private colleges.
Steve Key, executive director for the Hoosier State Press Association, has long argued that private university police should be held to the same standard as public entities. He said this year's bill was a sort of pre-emptive measure by Notre Dame in light of the case.
"This was an effort to inoculate themselves from an adverse ruling in the ESPN case," Key said. "If the governor signs it and allows it becomes law, basically the Clery Act becomes the standard for release, not what everyone else has to release."
The Clery Act, which all public and private colleges both have to adhere to, requires less reporting from police departments than state law.
If Pence signs the bill, it would not affect the court ruling since it would not go into effect until July. Still, it could prove to dilute the effectiveness of Tuesday's ruling in future open-records fights.
The court also noted that though Notre Dame's police department is subject to the public records law, the university is not since it does not carry out government functions.
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