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ESPN, Inc. v. University of Notre Dame Police Department

Supreme Court of Indiana

November 16, 2016

ESPN, INC. AND PAULA LAVIGNE, Appellants (Plaintiffs below),
v.
UNIVERSITY OF NOTRE DAME POLICE DEPARTMENT, Appellee (Defendant below).

         Appeal from the St. Joseph Superior Court, No. 71D07-1501-MI-17 The Honorable Steven L. Hostetler, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 71A05-1505-MI-381

          ATTORNEYS FOR APPELLANT James Dimos Kandi K. Hidde Maggie L. Smith Jennifer A. Rulon Frost Brown Todd LLC Indianapolis, Indiana

          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

          Massa, Justice

         An ESPN 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.

         Facts and Procedural History

         The 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, [1]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 and bicycles.

         In 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).

         ESPN 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.

         Thereafter, 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, [2] 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).

         ESPN 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).

         After a 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 ...


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