Indiana court's ruling for ESPN could be short-lived

A contentious legal battle between sports media giant ESPN and the University of Notre Dame's police department resulted in a victory for government transparency advocates earlier this week.

In what advocates consider a decision favoring openness, the Indiana Court of Appeals changed a long-standing interpretation of state law that campus police departments at private universities, such as Notre Dame, are not required to follow public records laws, even though they have the same police powers as other law enforcement agencies.

A three-judge appeals court panel unanimously decided that such police departments should face the same level of openness expected of their city and state counterparts.

But any celebration by advocates could be temporary.

The Indiana General Assembly passed a bill this session that would require police departments at private campuses to disclose information on arrests and incarcerations. But transparency advocates say House Enrolled Act 1022, if it becomes law, would consequently undermine the effects of the appeals court ruling and retain barriers to accessing records at private universities' police departments.

Supporters of the bill, however, say it's an unprecedented legislative action to provide more transparency.

Both the legal dispute and HEA 1022 come at a time when universities' handling of crimes, particularly sexual assault, has faced criticism for failing to hold people accountable, and when public trust in law enforcement is at an all-time low.

"What has happened over the last year or two involving unprecedented public scrutiny is really bringing new momentum behind the issue of transparency on private campuses," said Frank LoMonte, executive director of the Washington, D.C.-based Student Press Law Center. "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. They can use state police powers to take away your freedom and even shoot you, but they don't have to explain why."

Gov. Mike Pence can either sign or veto HEA 1022. He has until Thursday to decide.

Indiana court sides with ESPN in Notre Dame records case

Move toward transparency?

The legal dispute was prompted by ESPN investigative reporter Paula Lavigne's series of unsuccessful attempts to obtain reports on alleged crimes by Notre Dame's student athletes.

Her quest for information began in 2014, when she started investigating how often prominent male student athletes are prosecuted after being accused of crimes. She requested records from 10 universities around the country with football and basketball programs, including Notre Dame, the only private university she contacted. The Northern Indiana university did not release its records, saying it's not subject to the state's public records law.

ESPN sued in January 2015. A St. Joseph County judge ruled in favor of the police department a few months later, eventually leading to a successful appeal by ESPN.

In the 29-page opinion issued Tuesday, appeals court Judge Rudolph Pyle III wrote: "...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 (the state's public records law) to categorically exclude such agencies."

Pyle further wrote that the court must implement the legislature's policy behind the Access to Public Records Act, or APRA, which is to give the public "full and complete information regarding the affairs of government."

So will Indiana now provide greater transparency on campus police investigations? It depends on whom you ask.

Gerry Lanosga, president of the Indiana Coalition for Open Government and a journalism professor at Indiana University in Bloomington, said the appeals court ruling is a "big step forward" for public access in Indiana because it changes the law by declaring private universities' police departments to be public agencies. But he also said it's "unfortunate" that HEA 1022 would effectively supersede the ruling by placing restrictions on access.

"This is a good decision," Steve Key, executive director and legal counsel for the Hoosier State Press Association, said of the appeals court ruling, “but I'm afraid the decision is going to be short-lived."

One proponent of the bill, authored by Rep. B. Patrick Bauer, D-South Bend, said he is confused by the criticisms.

"For the first time, we're opening police records to public scrutiny on private college campuses," said Richard Ludwick, president and CEO of the Independent Colleges of Indiana, of which Notre Dame and the state's 30 other private colleges and universities are members. "Currently, the law (doesn't require disclosure of records). This law would make records available."

The Independent Colleges of Indiana and the presidents of the state's 31 private schools provided input on the language of HEA 1022, Ludwick said. A third of those have sworn police officers.

Critics, however, say that although the bill would require some disclosure by police departments, it does not go far enough.

While the bill would require police departments to release information relating to arrests and criminal offenses on private school campuses, it would not require them to release information on a slew of other incidents that officers respond to or investigate but that don't lead to arrests. That includes suspected crimes, accidents and complaints.

Luke Britt, Indiana's public access counselor, agrees with Key. In 2014, Britt filed an advisory opinion stating that police departments at private universities are public agencies. He issued a second advisory opinion in 2015 stating that the Notre Dame police department would be in violation of the public records act if it did not provide the documents requested by ESPN. He issued the opinions in response to a complaint filed by ESPN.

Britt said HEA 1022 would require private campus police departments to make public what they're already required to under the federal Jeanne Clery Act.

The Clery Act requires colleges and universities that receive federal funding to maintain a daily log that records basic information about reported crimes. That includes type of offense, date, time, general location and what resulted from the investigation, if it's known.

So under HEA 1022, if a campus police department were to receive a report of a burglary, the public would be entitled to those same pieces of information — unless an arrest is made. In that case, the public also would be entitled to learn the name of the suspect, as well as circumstances about the alleged crime.

But many criminal investigations don't lead to arrests, Key said. If a city police department were investigating the same burglary report, that agency would be required to release more about the circumstances surrounding the incident, such as how it happened, whether anyone was hurt, how the burglar broke in, what was stolen, witnesses’ descriptions of the suspect — even with no arrests, Key said.

Ludwick, however, said the criticisms are either mischaracterizations or a misunderstanding of what the law would do. He also said that many incidents on campus that are part of student life might be the results of bad decisions but are not criminal activity and don’t warrant disclosure. As an example, he said, campus police can be asked to respond to a complaint about really loud music at an on-campus party.

"What we want to do is strike a balance between public disclosure for what was really criminal activity and the student interest of having student conduct issues not become something that haunts them later," Ludwick said.

The timing of HEA 1022, which was proposed in this year's legislative session — when the ESPN case was on appeal — also leads some to believe that it was filed in response to the lawsuit.

Indianapolis attorney Maggie Smith, who is representing ESPN, said the bill was drafted to insulate police departments at private colleges and universities from the effects of the appeals court's ruling and to "avoid any future application" of that decision.

"Anytime you see the legislature giving any group preferential treatment," Smith said, "it's reason to be concerned."

Ludwick denied those claims and said HEA 1022 had nothing to do with the ESPN case. Rather, he said, it's an effort to make police departments at private universities more accountable to the public.

"If you look at the landscape nationally, you'll see that there is sort of a movement (toward more transparency)," Ludwick said. "That's one of the things that we're trying to do."

The police department's attorney, South Bend lawyer Damon Leichty, declined to comment.

Not unprecedented

Subjecting a private actor to the open records act is not unprecedented, said LoMonte, of the Student Press Law Center.

For example, the Ohio Supreme Court ruled recently that Otterbein University's police department is a public agency and is obligated to release records requested by a student journalist.

Other states, such as Texas, North Carolina, Georgia and Virginia, either through legislation or court rulings, also have required that campus police reports become public records. In Illinois, a bill that would have done so died in the Senate last year.

In Texas, a bill requiring private universities' police departments to follow the state's public records law was passed after Rice University refused to release information about an incident involving police officers beating a suspected bicycle thief with batons. The incident was caught on surveillance video.

In North Carolina, an Elon University student was denied access to a complete incident report regarding a fellow student's arrest. A similar bill like the one passed in Texas was later signed into law.

Such expansions of public records laws are not limited to police departments at private campuses.

About 25 years ago, the Indiana Supreme Court said a private entity that is maintained and supported by taxpayer funds must be subject to public scrutiny. In that case, the court ruled that the Indiana Convention and Visitors Association Inc., a nonprofit that no longer exists, needed to follow public records laws because it was subsidized by Marion County.

Key said the threshold lies in how much public money a private group is receiving and how it's receiving the money. If it's receiving public dollars only as fees for goods or services, public records laws won't apply.

Moreover, quasi-governmental agencies such as the Indiana Economic Development Corp. are subject to public records laws because they are created by the state, Key said. But certain provisions allow the organization to keep some information confidential, he said.

In Indiana, public records laws never have been expanded to include private university police departments. Until now.

But it remains to be seen what HEA 1022 would and would not accomplish. The bill was passed by the Senate and House earlier this month.

The appeals court ruling isn't final, either.

Paul Browne, Notre Dame's vice president for public affairs and communications, said in a statement that the ruling "went beyond the law," and the university intends to appeal to the Indiana Supreme Court. Notre Dame has 30 days from when the appeals court ruling was issued to ask the state’s highest court to take the case.

Legal experts say HEA 1022 likely will be in effect before the appeals process is complete. If enacted, it would take effect July 1.

That means that for the next 3½ months, many police records at private universities still won’t be accessible to the public.

Call IndyStar reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.