ESPN arguments rejected by court


By Steve Key

The Indiana Supreme Court ruled that the University of Notre Dame’s police department is not subject to the Access to Public Records Act requirements to report crime information.

Justice Mark Massa, a former reporter, wrote the unanimous decision. The decision doesn’t speak to policy, but interprets the existing language of APRA concerning crime records–language approved by the legislature in an era where campus police acted more as a security force not full-fledged police officers with arrest powers.

Knowledge of how crimes are occurring on the 11 private Indiana colleges with police departments will be scant compared to what must be reported by police departments at public universities and of government units.

Departments at Notre Dame or a Butler University will by federal law (under the Clery Act) only be required to report in one-word terms what crime was reported. Compare that to other police departments, which under I.C. 5-14-3-5, must include “the factual circumstances surrounding the incident.”

So, a female student on a private campus looking to protect herself won’t know if a reported sexual assault was a case of date rape, assault while the victim was crossing the campus late at night, or the result of an intruder through an open window of a residence. This information would be public if the victim called the South Bend police.

The decision focused on two arguments presented by ESPN and supported by an amicus brief by the HSPA Foundation.

The first was the definition of a law enforcement agency, specifically the phrase “agency or department of a government unit.” Justice Massa’s decision reads the statute as (agency or department) of a government unit. Notre Dame isn’t a government unit, so its police don’t fall within the language.

ESPN had argued the phrase should be agency or department of a local government unit. This definition looks at the functions of the entity, such as investigating crime, making arrests, etc.

The other argument centered on where the authority for the private police department originates. ESPN argued the power came from the state through legislative action of the General Assembly, which passed the law allowing universities to create a police department.

The court decision said the authority came from the university’s board of trustees, so its police are not state actors.

I believe the Supreme Court should have taken the next step because the board of trustees didn’t have such authority without the passage of law by the state legislature.

The decision by the court gives the private universities the victory it thought it had won in the 2016 legislature only to see its H.E.A. 1022 get vetoed by Gov. Mike Pence. Not only did he block the bill that would have instituted the Clery Act requirements into state law for private university police departments, but his veto coupled with the passage of H.E.A. 1019 concerning police body cameras actually made private university police departments a “public agency” in APRA–language that went into effect on July 1.

When the two bills got to legislative conference committee, both bills were amended to take into account the differences each made to a section where there was overlap.

As a public agency, private police departments are subject to the Access to Public Records Act, so HSPA would argue they should now be reporting as public police departments.

It has been brought to my attention that the above language has been targeted for elimination as part of a “technical corrections bill.”

Each legislature has such a bill to fix errors from the previous session. Since the legislature did not intend to pass just the one section amended and the governor vetoed the entire private university police bill, it has been determined that the reference to private university police departments as public agencies should be removed from the Indiana Code.

The technical corrections bill generally gets passed with no amendments.

Absent a bill filed to make private university police departments subject to the same reporting requirements as public police departments, the language will be removed from law and the Supreme Court ruling on the ESPN case will be controlling.

Steve Key is executive director and general counsel for the Hoosier State Press Association.