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Friday, November 18, 2016

Ind. Decisions - Re the ESPN private university police departments opinion

Margaret Fosmoe of the South Bend Tribune had an important story late yesterday headed: "Could there be more to Notre Dame police records issue? Legislators inadvertently make campus police subject to public records law." The ILB has several observations to add to the excellent SBT reporting.

First, take a look at this ILB post from March 25, 2016, which deals with Gov. Pence's veto of HEA 1022, the bill which had been intended to assure that private university police department records were not subject to the Indiana access to public records law. From a South Bend Tribune story at the time, quoting Pence's reasons for vetoing the bill:

"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," the [veto] statement said.

Pence had hinted at his decision last week, when he said his "strong bias for the public's right to know" would weigh heavily in his decision on whether to veto the bill.

But another bill from 2016, HEA 1019, which did become law (PL 58-2016), now defines a "public agency" at renumbered IC 5-14-3-2(q)(11) to include:
(11) A private university police department. The term does not include the governing board of a private university or any other department, division, board, entity, or office of a private university.
If you look this up in the Indiana Code, your will find two versions of IC 5-14-3-2. "Version a" has the new reference to "A private university police department" as described above. But a second version, "version b", also passed in 2016, is "as amended by P.L.198-2016, SEC.12."

Interesting, the "version b" amendment to IC 5-14-3-2 is part of a 449-page BMV bill, HEA 198. The only change is to IC 5-14-3-2(n)(7), regarding "license branch" [find it on p. 10].

When two or more amendments to a section of law in different bills passed during a session cannot be reconciled, it is the accepted practice of the LSA to publish them side by side in the Indiana Code, as done here. Such conflicts can be resolved only by the General Assembly, usually in a technical correction bill during the next session. Where the resolution would require substantive change, as appears to be the case here, the issue would need to be resolved by the regular legislative process.

Second, it is not sufficient in a court opinion to simply refer to a section of the Indiana Code as, for example, IC 5-14-3-2, because the content may change with time. The Supreme Court's ESPN decision avoids that problem by using this identification the first time the law at issue is cited:

Indiana’s Access to Public Records Act, Indiana Code chapter 5-14-3 (Supp. 2014)
That reference would incorporate all changes to IC 5-14-3 through the 2014 session. Another approach to specifying the version at issue would be "IC 5-14-3, as last amended by ...".

Often, for clarity, a court will, in a footnote, acknowledge any subsequent changes to the provision at issue, and state that they are not relevant to the decision at hand. That was not done in the ESPN case.

Posted by Marcia Oddi on November 18, 2016 11:54 AM
Posted to Ind. Sup.Ct. Decisions