by Lonnie Burton

On November 10, 2016, the Indiana Supreme Court reversed a Court of Appeals opinion and reinstated a trial court order dismissing an action brought by ESPN seeking disclosure of certain University of Notre Dame incident reports under the state's Access to Public Records Act.

In 2014, ESPN investigative reporter Paula Lavigne requested 275 University of Notre Dame police incident reports in which student-athletes were named as victim, suspect, witness, or reporting party. Notre Dame denied the request on the basis that private university police departments are not "law enforcement agencies" under the Act, Ind. Code chapter 5-14­3. ESPN then filed suit, alleging Notre Dame had violated the Act. Both parties asked the trial court for summary judgment. After a hearing, the court granted Notre Dame's motion and dismissed the case.

In doing so, the lower court held that the Notre Dame police department was not a "public agency" because it was not "an agency or a department of any level of government." The court rejected ESPN's argument that the Notre Dame police was a public agency under the Act because it exercised executive power of the State under Ind. Code section 5-14-3-2(n)(1).

ESPN appealed, and the Court of Appeals reversed, holding that ESPN was correct because the Notre Dame police fit the definition of a public law enforcement agency, as "it was acting as a governmental entity by exercising governmental functions." Notre Dame appealed, and the Indiana Supreme Court overturned the Court of Appeals and reinstated the trial court's order of dismissal.

The state's high court said the case turned on whether the Notre Dame police department was a public or private entity, and if it is the latter, it is not subject to the Act. The Supreme Court held that the department was not "any level of government, and "we therefore cannot find that [Notre Dame Police] meets the plain language of [the Act's] statutory directive, that the law enforcement agency be 'any level of government.' It is an 'agency or department' of the University, not the State of Indiana."

The Act is intended to allow citizens access to government records, the court emphasized. Because "we find the Department is not a public agency subject to the act, we affirm the trial court," and reverse the Court of Appeals, the high court concluded. See: ESPN, Inc. v. University of Notre Dame Police Department, No. 71505-1606-MI-359 (S. Ct. Ind.), November 16, 2016.

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