State Favors ESPN in Notre Dame Records Spat

     INDIANAPOLIS (CN) – Police reports from a private institution like the University of Notre Dame should be deemed public records, the attorney general of Indiana told an appeals court, supporting ESPN’s demand for access.
     The legal fight’s roots stem from a physical fight that broke out on Notre Dame’s campus about an hour before a Sept. 6, 2014, football game between the Fighting Irish and the University of Michigan.
     Witnesses reported that a man fell down, or possibly through a stairwell, and had blood pouring from his head, after a band concert in the main building.
     ESPN reporter Paula Lavigne twice asked to see the campus police report on the incident, as well as all other reports and logs related to Notre Dame student athletes, but the university denied all requests for access.
     The sports network in turn filed suit, alleging violation of Indiana public record laws.
     While Judge Steven Hostetler with the St. Joseph County Superior Court found that ESPN made “persuasive policy arguments,” he granted the school summary judgment in April.
     A straightforward reading of Indiana’s Access to Public Records Act shows that the statute “applies only to records of an entity or organization that is a ‘public agency,'” Hostetler wrote.
     Siding with Notre Dame, the court said that the school “is clearly not ‘an agency or a department of any level of government.'”
     Even though ESPN’s request was narrow in seeking only police records, Hostetler said “slippery slope” concerns weighed in the school’s favor.
     The court conceded as to the “persuasive reasons why the statute should be amended to read the way ESPN desires,” but said ultimately such power lies with the state Legislature.
     After ESPN and Lavigne appealed in May, the state’s attorney general Gregory Zoeller filed an amicus brief on their behalf last week.
     “A police officer is perhaps the quintessential public employee, cloaked in the authority of the state to investigate, detain, arrest, incarcerate, carry and discharge a firearm, and generally maintain the safety of the citizenry,” the brief signed by Deputy Attorney General Heather McVeigh states. “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 said it is Indiana’s “legal position that transparency is needed in the exercise of police power in order to maintain the public’s trust.”
     Earlier this year, Indiana Public Access Counselor Luke Britt put Notre Dame on notice about its handling of campus police records.
     “The police force is established by the governing body of a private institution, but their powers come from the state of Indiana,” Britt said. “I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state’s police powers.”
     Britt claims that Notre Dame has violated Indiana’s public record laws and that these laws apply to police departments at all of Indiana’s private universities.
     The South Bend Tribune and the Hoosier State Press Association have also sided with ESPN on the issue.
     James Dimos, of the Indianapolis law firm Frost Brown Todd, filed a 60-page brief on behalf of ESPN, a cable sports network based in Bristol, Ct.
     Damon Leichty, from Barnes & Thornburg in South Bend, represents Notre Dame.
     University spokesman Dennis Brown declined Friday to comment on the case.

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