The Indiana Supreme Court heard oral arguments Tuesday morning in the ESPN vs. Notre Dame case regarding access to the Notre Dame Police Department's records.

Background

ESPN requested public incident reports from the Notre Dame Police Department concerning 275 student-athletes and whether they were victims, suspects, witnesses, or reporting parties to incidents reported to the department.

The university denied their request stating they were a private institution not subject to the APRA.

The Indiana Public Access Counselor ruled in favor of the university's records remaining private.

ESPN filed a lawsuit and after multiple court actions, the Indiana Court of Appeals ruled in May 2016 the university's police records were subject to the Indiana Access to Public Records Act.

The university appealed and the case was transferred to the Indiana Supreme Court.

Oral arguments

The arguments at the Indiana Supreme Court Tuesday focused on the interpretation of Indiana Code 5-14-3- 2(n)(6) and the interpretation of it.

(n) “Public agency”, except as provided in section 2.1 of this chapter, means the following:

(6)  Any law enforcement agency, which means an agency or a department of any level of government that engages in the investigation, apprehension, arrest, or prosecution of alleged criminal offenders, such as the state police department, the police or sheriff's department of a political subdivision, prosecuting attorneys, members of the excise police division of the alcohol and tobacco commission, conservation officers of the department of natural resources, gaming agents of the Indiana gaming commission, gaming control officers of the Indiana gaming commission, and the security division of the state lottery commission.

ESPN attorney Maggie Smith said the statute should not be interpreted to exclude non-governmental police agencies because the Notre Dame Police Department enforces the laws of the state of Indiana and acts on behalf of the state government.

She argued the department considers itself equal to other law enforcement agencies, except when it comes to releasing records.

"Notre Dame's own materials make it clear that it considers itself to be on completely equal footing with every other police department in this state except when it comes to public access," Smith said.

The justices asked if the court ruled in favor of ESPN, whether that would make all records of the university public.

Smith stated, "This court has already declared that police powers are an executive function, but the other powers that a university does, such as education, are not an executive function. And this particular issue has been addressed specifically by the Ohio Supreme Court and implicitly by this court in its previous jurisprudence in the Visitors' Association case where this court says that when we have a private entity that is engaging in governmental activities, we segregate out the purely private functions from the public functions. And that's exactly what the Ohio Supreme Court said should happen when dealing with this issue under their public records act."

Attorney Peter Rusthoven argued for the University of Notre Dame.

He stated the university believes the clear and plain meaning of the statute.

"We go with the apparent and obvious meaning of the statute. It is Notre Dame's position that the phrase 'agency or department of any level of government' means a governmental department or agency. We believe that is the clear, plain, apparent, obvious meaning of the statute," Rusthoven said.

The justices asked Rusthoven about the idea that the Notre Dame Police Department is exercising executive power, enforcing the laws of the state of Indiana.

"When Notre Dame police officers, their powers mirror the powers of general police officers, so when a case gets filed, it's filed on behalf of whom, the state?" Justice asked.

"Filed on behalf of the state of Indiana, no question," said Rusthoven.

Rusthoven argued there are other non-public businesses or agencies that enforce the laws of Indiana- like a bail bond agency - that are not considered subject to ARPA.

He also argued that the university's police force often does not move forward with prosecution, it often hands off investigations to other departments of the university, like student affairs or for academic discipline.

When asked if a decision is made that says the university's police force should be subject to ARPA, should only future records be affected or should it apply to both past and future (prospective) records.

"We would argue this is a situation that calls for prospective application," Rusthoven stated.

The court adjourned around 10:25.

The Indiana Supreme Court will issue a decision at a later date.