Open-Records Defeat in Indiana for Fighting Irish

INDIANAPOLIS (CN) - The University of Notre Dame's campus police department improperly withheld records from ESPN, the Indiana Court of Appeals ruled.

ESPN has been pushing for over a year to see a campus police report regarding a physical fight that broke out on Sept. 6, 2014, shortly before the school's Fighting Irish football players were take on the University of Michigan.

After a band concert in Notre Dame's main building, witnesses reported that a man fell down, or possibly through a stairwell, and had blood pouring from his head.

ESPN reporter Paula Lavigne wanted the campus police report on the incident, plus the school's logs related to 275 Notre Dame student athletes, whether named as victims, suspects or witnesses in any incidents.

Though ESPN accused Notre Dame of violating Indiana public record laws when it refused Lavigne's requests, Judge Steven Hostetler with the St. Joseph County Superior Court granted the school summary judgment in April 2015, finding that Notre Dame was not a public agency.

On Tuesday the Indiana Court of Appeals handed ESPN a reversal, saying Notre Dame's police department qualifies as a public agency under the APRA, short for Indiana's Access to Public Records Act, since it is a law-enforcement agency.

"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 APRA to categorically exclude such agencies," Judge Rudolph Pyle wrote for a three-person panel.

Stopping short of having Notre Dame police turn over all the records ESPN wants, the 29-page opinion says the trial court must consider on remand whether any of the records meet APRA exemptions, such as the provision protecting investigative reports.

Judges Nancy Vaidik and Margret Robb concurred.

The records battle has brought support for ESPN from many state officials and Indiana newspapers.

Indiana Attorney General Greg Zoeller applauded the appeal's outcome Tuesday. "The court's ruling is a qualified victory for public access and transparency, concepts my office long has supported," Zoeller said in a statement. "The public has the right to transparency and accountability when police power is being exercised, and we look forward to further judicial clarifications on the scope of the public's right to know in future decisions by our courts," Zoeller said.

As ESPN's case has wound through the courts, state Rep. Patrick Bauer has advanced a bill that would require private police departments at private universities to disclose arrest records and incarcerations.

House Bill 1022 only awaits Indiana Gov. Mike Pence's signature to become law.

The bill could muddy the waters for any additional appeal Notre Dame might file in the case with ESPN.

As opposed to ESPN's wide-reaching request, however, the bill requires the disclosure only of arrests and incarcerations, incidents that account for a fraction of on-campus incidents.

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