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Monday, November 21, 2016

Ind. Gov't. - "Editorial: High court decision in Notre Dame case a stunning blow to transparency" and some thoughts

That is the heading to an editorial this weekend in the South Bend Tribune. Some quotes:

The Indiana Supreme Court’s ruling on Wednesday that the University of Notre Dame’s campus police department is not a “public agency” under Indiana law deals a strong blow to transparency.

The decision frees Notre Dame and other private colleges with police forces from any obligation to provide details on campus police reports and investigations. City, county and other professional forces are required to do so under the state’s Access to Public Records Act. * * *

The Tribune had filed briefs in support of ESPN. Indiana Public Access Counselor Luke Britt had issued two advisory opinions finding the incident reports and logs kept by the campus security police department are public records. Indiana Attorney General Greg Zoeller had also supported ESPN, arguing that Notre Dame’s Security Police Department operates under the authority of state law. “The notion that a police department exercising these core state powers can be shielded from public scrutiny by dint of its affiliation with a private university is antithetical to the important policy interests underlying the Access to Public Records Act,” Zoeller wrote.

In a surprising twist in the case, the Indiana General Assembly, perhaps inadvertently, changed the state’s APRA definition of a “public agency” to include a private university police department. The change, which involves two bills related to police agencies, has been in effect since July 1. Since then, the public records law has applied to professional police departments at private universities including Notre Dame, according to some legal experts.

We have little faith, however, that legislators will let this change stand once the 2017 session begins. That’s a shame, because news organizations such as ESPN, The Tribune and HSPA aren’t asking for anything extraordinary in seeking more information from private institutions. It’s information already accessible from the state’s public universities. Police departments that operate under the same laws using the same powers granted by the state — including carrying guns and making arrests —shouldn’t be treated differently.

ILB: In regard to the highlighted language above, here are the two opinions from the Indiana Public Access Counselor, from Oct. 31, 2014 and Jan. 5, 2015, regarding records of the Notre Dame police force, issued in response to requests from ESPN. They conclude, respectively:Interestingly, these two more recent PAC opinions were not cited by the Supreme Court in its ESPN v. Notre Dame opinion last week [footnote on p. 7], where in a footnote on "legislative acquiescence" the Court listed three earlier PAC opinions with the opposite conclusion.

See also this ILB post from Nov. 18, which, inter alia, points out that the Supreme Court's opinion did not acknowledge that the definition of "public agency" was amended in 2016.

Here is a long list of ILB entries on the ESPN case.

Posted by Marcia Oddi on November 21, 2016 11:19 AM
Posted to Indiana Government