Monday, February 06, 2017
Ind. Gov't. - "Notre Dame remains exempt from records law: PAC declines to rule on complaints filed against Notre Dame"
Margaret Fosmoe reported Feb. 3 in the South Bend Tribune in a long story that builds on her Nov. 17, 2016 story that was headed "Could there be more to Notre Dame police records issue? Legislators inadvertently make campus police subject to public records law."
Here are some quotes from the long Feb. 3rd (Friday) story:
Police departments at the University of Notre Dame and other private universities in the state will remain exempt from Indiana's public records law for the foreseeable future.ILB: Some comments:
With Indiana lawmakers showing no inclination to introduce legislation that would require private university police to follow the same public records laws as city, county and state police agencies, that situation is unlikely to change.
In response to a complaint filed against Notre Dame by the South Bend Tribune, Indiana Public Access Counselor Luke Britt this week deferred to the General Assembly. * * *
Notre Dame in November won a widely watched court case filed by ESPN seeking access to records of the campus police department related to cases involving student athletes. The Notre Dame Security Police department was not a "public agency" under Indiana law and did not have to provide information about investigations the sports media company requested in 2014, the Indiana Supreme Court ruled.
In an ironic twist, in what may have been an inadvertent action, the Indiana General Assembly last winter changed the state's Access to Public Records Act definition of a "public agency" to include a private university police department. The wording was included in HEA 1019, which concerned public access to body cameras worn by police officers.
To test that law, the South Bend Tribune in November filed a request with Notre Dame seeking basic details about four cases reported to NDSP between July 1 and Nov. 21, 2016. The four cases, all listed on the online campus crime log but with no details provided, included a domestic battery case, a rape reported in a men's residence hall, an arrest for disorderly conduct and a motor vehicle theft at the Morris Inn.
Notre Dame spokesman Dennis Brown rejected the Tribune's request, saying in a written reply that the university is not a public agency and not subject to requests for public records. To support that argument, he cited the Indiana Supreme Court ruling in the ESPN vs. Notre Dame case.
Brown referred to the apparently inadvertent change in state law making private university police subject to APRA as a "technical printing error" that would be quickly reversed when the 2017 General Assembly convened and would be retroactive to July 1, 2016.
After Notre Dame's denial, the Tribune filed a formal complaint with the PAC office, requesting a formal opinion on whether the university was required to adhere to the new wording of the state law defining private university police departments as public agencies. * * *
[Britt] noted that his office became aware of the changed "public agency" definition included in HEA 1019 in July, after which he began advising the public that the amended APRA had the full force of law.
Shortly thereafter, the Indiana Legislative Council began taking steps to declare the changed definition a "technical error," to be reversed in the 2017 session. The error is included in HB 1181, the 2017 technical corrections bill. That measure has been referred to the judiciary committee, but has not yet been passed.
The question becomes whether the legislative mistake amounts to good law and subjects NDSP to public access consideration, specifically to providing the same level of details in its crime log as other Indiana police agencies, Britt wrote.
"I hesitate to to categorize it as a simple scrivener's error, however, it appears to be done in error," Britt wrote. [ILB emphasis]
"Given the likelihood of the law's amendment and the clear intent of the General Assembly to strike it from Code, I will defer to the General Assembly on the matter. If the revision passes as proposed, the issue is moot. If the bill is altered and the APRA is not changed, I will revisit this matter in the future," he concluded.
- As noted in this Nov. 18, 2016 ILB post, substantive statutory changes, even those which may have been inadvertent, are generally not included for resolution in "technical correction" bills, but are dealt with individually. (This may be particularly true when the change is controversial.)
- Although cases may exist, the ILB in a quick Google Scholar search did not locate an Indiana Supreme Court case identifying a scriviner's error in a statute (as opposed to, for example, a deed).
- Further, as noted in the Nov. 18th post, "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 practice was not followed in the [Supreme Court's ESPN opinion], there is no reference to the subsequent amendments to IC 5-14-3-2.
Posted by Marcia Oddi on February 6, 2017 09:14 AM
Posted to Indiana Government