ESPN, Inc. and Paula Lavigne v. University of Notre Dame Security Police Dept., a Dept. of the University of Notre Dame du Lac
50 N.E.3d 385
Ind. Ct. App.2016Background
- Notre Dame, a private university, established a campus Police Department under I.C. § 21-17-5 et seq.; its officers have arrest powers and may exercise statewide jurisdiction if the board extends it.
- ESPN journalist Paula Lavigne requested incident reports and daily logs from Notre Dame Police under Indiana’s Access to Public Records Act (APRA); the Police Department denied the requests claiming it was not a "public agency."
- The Indiana Public Access Counselor (PAC) issued advisory opinions concluding the Police Department should be treated as a public law enforcement agency for APRA purposes and put the department on notice; earlier PAC advisory opinions had reached the opposite conclusion in prior years.
- ESPN sued; both parties moved for judgment on the pleadings. The trial court granted judgment for the Police Department, finding (1) Notre Dame would be subject to APRA if the department were, (2) legislative acquiescence favored the department, and (3) the APRA definition of "law enforcement agency" requires an agency of government.
- The Court of Appeals reversed: it held the Notre Dame Police Department is a "law enforcement agency" and thus a "public agency" under APRA because it exercises governmental police functions, and legislative acquiescence did not bar ESPN’s claim. The case was remanded for the trial court to determine which records must be produced under APRA.
Issues
| Issue | Plaintiff's Argument (ESPN) | Defendant's Argument (Notre Dame Police Department) | Held |
|---|---|---|---|
| Whether the campus police are a "public agency" under APRA | Police department is a "law enforcement agency" under APRA (engages in investigation, arrest, etc.), so APRA applies | APRA’s phrase "agency or a department of any level of government" limits the definition to governmental entities; private university police are not governmental | Held: Police Department qualifies as a "law enforcement agency" and thus a "public agency" because it performs governmental police functions and is the functional equivalent of a state actor |
| Whether the entire university becomes subject to APRA if its police dept. is | Only the subdivision performing the public function (the police dept.) should be subject to APRA, not the university’s unrelated records | Trial court argued the statute does not allow separate legal entities and thus university-wide APRA exposure would follow | Held: The department may be subject to APRA without categorically making the entire university a public agency; educational functions remain private |
| Whether prior PAC advisory opinions/legislative silence bar ESPN’s claim (legislative acquiescence) | PAC opinions are advisory and nonbinding; legislative silence after advisory opinions does not establish acquiescence here | Three prior PAC opinions concluded private campus police were not public agencies; legislature did not amend APRA—this indicates acquiescence | Held: Legislative acquiescence not applicable — prior PAC opinions were not sufficiently long-standing to create a presumption of legislative acquiescence |
| Relief requested: Whether court should order disclosure of the requested records | ESPN asked the court to order disclosure of the requested reports/logs | Police Dept. argued it need not produce records because it is not subject to APRA; also some records may be exempt even if APRA applies | Held: Court reversed liability ruling and remanded; did not order production because records were not in the record and exemptions (e.g., investigatory) must be considered by trial court |
Key Cases Cited
- Travelers Cas. & Sur. Co. v. U.S. Filter Corp., 895 N.E.2d 114 (Ind. 2008) (APRA promotes public access to governmental information)
- Evans v. Newton, 382 U.S. 296 (U.S. 1966) (private entities exercising governmental functions are subject to constitutional restraints and may be treated as state actors)
- Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127 (Ind. Ct. App. 2005) (broad construction of APRA prevents public agencies from shielding records via private contractors/agents)
- Memphis Publ’g Co. v. Cherokee Children & Family Servs., 87 S.W.3d 67 (Tenn. 2002) (functional-equivalency concerns: privatization can frustrate public access to records)
- Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610 (Ind. 1985) (doctrine of legislative acquiescence explained)
- Butler Univ. v. State Bd. of Tax Comm’rs, 408 N.E.2d 1286 (Ind. Ct. App. 1980) (application of legislative acquiescence to long-standing advisory opinions)
- Finger v. State, 799 N.E.2d 528 (Ind. 2003) (private university police can be state actors for Fourth Amendment purposes)