ESPN, INC. AND PAULA LAVIGNE, Appellants (Plaintiffs below),
UNIVERSITY OF NOTRE DAME POLICE DEPARTMENT, Appellee (Defendant below).
from the St. Joseph Superior Court, No. 71D07-1501-MI-17 The
Honorable Steven L. Hostetler, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT James Dimos Kandi K. Hidde Maggie L.
Smith Jennifer A. Rulon Frost Brown Todd LLC Indianapolis,
ATTORNEYS FOR AMICUS CURIAE SOUTH BEND TRIBUNE AND HOOSIER
STATE PRESS ASSOCIATION FOUNDATION John P. Twohy Kevin T.
McNamara Eichhorn & Eichhorn LLP Hammond, Indiana
ATTORNEYS FOR AMICUS CURIAE STATE OF INDIANA Gregory F.
Zoeller Attorney General of Indiana, Thomas M. Fisher
Solicitor General, Heather H. McVeigh Lara K. Langeneckert
Deputy Attorneys General Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Damon R. Leichty Barnes &
Thornburg LLP South Bend, Indiana, Peter J. Rusthoven John R.
Maley Barnes & Thornburg LLP Indianapolis, Indiana,
Georgina D. Jenkins Naperville, Illinois
ATTORNEY FOR AMICUS CURIAE INDEPENDENT COLLEGES OF INDIANA
Seth M. Lahn Bloomington, Indiana
reporter requested information from the Notre Dame Security
Police Department regarding 275 student-athletes. The
Department declined, claiming that Notre Dame is a private
university and its police force is not a "law
enforcement agency" subject to Indiana's Access to
Public Records Act. The trial court agreed, and dismissed
ESPN's suit. We too find that a private university police
department is not a "public agency" for the
purposes of APRA, and affirm the trial court.
and Procedural History
Notre Dame Security Police Department was established in 1977
by Resolution of the University of Notre Dame trustees.
Through the University trustees, the Department is granted
"[g]eneral police powers." Ind. Code §§
21-17-5-4(a)(1), (b) (2014). But beyond these traditional
police functions, the Department also enforces the University
student code and parietals, coordinates internal disciplinary reviews,
and implements safety educational programs. The Department
also acts in a caretaker role by escorting students home late
at night, providing transportation services to students with
private or sensitive needs, and registering personal property
2014, Paula Lavigne, an investigative reporter with ESPN,
requested incident reports from the Department involving 275
student-athletes, whether named as a victim, suspect,
witness, or reporting party. The Department denied
Lavigne's request, relying upon three previous Public
Access Counselor advisory opinions that concluded private
university police departments are not "law enforcement
agencies" under Indiana's Access to Public Records
Act, Indiana Code chapter 5-14-3 (Supp. 2014).
then filed a Formal Complaint with the Public Access
Counselor, alleging that the Department had violated APRA
when it refused to provide its records. This Counselor took a
different course than his predecessors, reasoning that the
Department was acting under the color of law by enforcing the
Indiana criminal code, and thus would be considered a
"public law enforcement agency" for all future
public access requests. Appellant's App. at 22-25.
ESPN renewed its incident report request, and again, the
Department denied it. With more specificity than before, ESPN
made a third request to the Department seeking daily logs,
 which the Department denied. ESPN then
filed a second Formal Complaint with the Counselor, who
concluded that the Department's daily logs must be
released and incident reports may be released, although the
Department may withhold any investigatory records under
Indiana Code section 5-14-3-4(b)(1).
then filed suit against the Department, alleging it had
violated APRA. The Department moved for judgment on the
pleadings under Indiana Trial Rule 12(C), contending it was
not a "law enforcement agency" under Indiana Code
section 5-14-3-2(n)(6), nor was it a "public
agency" under any of APRA's other definitions.
Further, the Department argued that the legislature had
acquiesced to the three earlier Counselor opinions that
determined private university police were not public agencies
under APRA. ESPN cross-moved for judgment on the pleadings in
its favor, asserting that the Department was a
"public agency" because it exercised executive
power of the State under Indiana Code section 5-14-3-2(n)(1).
hearing, the trial court granted the Department's motion.
It found that the Department was not a "law enforcement
agency" under subsection 2(n)(6) because it was not
"an agency or a department of any level of government,
" nor was the Department a "public agency"
under subsection 2(n)(1) because it exercised power of the
trustees, not power of the State. Appellant's App. at
10-11. As to legislative acquiescence, the trial court found
the point "well taken, " noting that three
different Counselors issued three separate opinions between
2003 and 2011 that determined ...