Indiana’s Supreme Court ruled against ESPN and Outside the Line’s Paula Lavigne earlier this week, saying that Notre Dame police could refuse releasing any records it damn well pleases, including police reports requested by ESPN. In doing so, the court reversed an appeals court decision in favor of ESPN.
The ruling that Notre Dame campus police don’t have to release anything hinges on two main ideas. One is that while Notre Dame police carry out traditional police duties—including arresting people—they answer directly to the university’s board of trustees and not a government agency, making them not a law enforcement agency as defined in the state’s public records law. The second is even more direct: If Notre Dame police are forced to release police records, they might be forced to release other records.
The claim that Notre Dame police aren’t actually a public agency, even though they do what other police departments do and can arrest people, involves the justices going through a few legal hoops. The legal thinking starts with one phrase in Indiana’s public records law—“of any level of government.” Are the Notre Dame police an agency “of any level of government”? Here is how the state’s supreme court found a way to say no. They start here (emphasis added here and elsewhere is mine):
Private educational institutions have been granted statutory authority to appoint police officers to protect their campuses. Ind. Code § 21-17-5-2. These police officers are vested with general police powers, including the power to arrest. Ind. Code § 21-17-5-4(a)(1). However, they are also uniquely entrusted to enforce the rules and regulations of their appointing educational institution.
So the Indiana Supreme Court is bringing the fact that campus cops do stuff like walking students home and enforcing the student code of conduct into the argument. It keeps going, emphasizing several ways in which the police answer directly to the trustees and not a traditional body of government, until it finally reaches this point:
The Department thus acts under the control of the trustees, who may expand and constrict its power at will, and free from government interference.
This ignores that Notre Dame police actually deal with lots of government interference, such as the fact that their criminal cases are pursued by public prosecutors. But the justices have already moved on from that to get here:
We therefore cannot find that the Department meets the plain language of APRA’s statutory directive, that the law enforcement agency be “of any level of government.” It is an “agency or department” of the University, not of the State of Indiana.
At one point, the justices directly write that “the department is not exercising the power of the state.” This is interesting considering how the police describe themselves on their own website:
After page after page of quibbling over the precise point at which people who can arrest you are somehow exempt from public accountability, the justices get to the heart of what they want to avoid—Notre Dame ever having to tell the public anything:
Finally, finding the Department is a “public agency” under the executive power subsections could also lead to at least two absurd results, which should be avoided. See Hatcher, 762 N.E.2d at 191 (“When construing the language of a statute, we do not presume that the legislature intended language used in the statute to be applied illogically or to bring about an unjust or absurd result.”). First, the Department is not a separate entity from the University, but a department thereof. If the Department is a “public agency” under these subsections, then all of the records of the entire University are potentially subject to APRA’s disclosure requirements, depending entirely on the University’s internal decisions regarding how to manage and structure its departments. Second, public agencies under subsections 2(n)(1) or 2(n)(2) are required to disclose “investigatory records,” which are expressly exempt for “law enforcement agencies.” See Ind. Code § 5-14-3-2(o) (definition of “public record”); see also Ind. Code § 5-14-3-4(b)(1) (investigatory records of law enforcement agencies are exempt). Neither of these results could be what our General Assembly intended. We thus decline to find the Department a “public agency” under subsections 2(n)(1) and 2(n)(2)(C).
That this is not what the state’s general assembly wants is a recurring theme in the ruling. Before ESPN’s win at the appeals court, state lawmakers passed a bill that would have severely limited what police department’s at private university had to release. Some said it was a sign of progress, using the something-is-better-than-nothing line of logic; others said it would codify a severe limitation on public information regarding important agencies.
“It’s never made sense that we have a special class of police officers that have all of the authority of state government officials but none of the accountability,” Frank LoMonte, executive director of the Student Press Law Center, told the Indianapolis Star at the time. “They can use state police powers to take away your freedom and even shoot you, but they don’t have to explain why.”
Then-governor Mike Pence vetoed the bill, saying in a press release: “Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency.”
Is this a sign that Pence shouldn’t be feared in the White House? No. This means this idea of letting Notre Dame keep all the secrets it wants is so stupid even Mike Pence is against it.
The full opinion is below.