Espn, Inc. v. Univ. of Notre Dame Police Dep't

• Citation: 62 N.E.3d 1192
• Decision Date: 16 November 2016
• Docket Number: No. 71S05–1606–MI–359.,71S05–1606–MI–359.
• Parties: ESPN, INC. and Paula Lavigne, Appellants (Plaintiffs below), v. UNIVERSITY OF NOTRE DAME POLICE DEPARTMENT, Appellee (Defendant below).
• Court: Supreme Court of Indiana

62 N.E.3d 1192

ESPN, INC. and Paula Lavigne, Appellants (Plaintiffs below),

v.UNIVERSITY OF NOTRE DAME POLICE DEPARTMENT, Appellee (Defendant below).

No. 71S05–1606–MI–359.

Supreme Court of Indiana.

Nov. 16, 2016.

James Dimos, Kandi K. Hidde, Maggie L. Smith, Jennifer A. Rulon, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellant.

John P. Twohy, Kevin T. McNamara, Eichhorn & Eichhorn LLP, Haimnond, IN, Attorneys for Amicus Curiae South Bend Tribune and Hoosier State Press Association Foundation.

Gregory F. Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Heather H. McVeigh, Lara K. Langeneckert, Deputy Attorneys General, Indianapolis, IN, Attorneys for Amicus Curiae State of Indiana.

Damon R. Leichty, Barnes & Thornburg LLP, South Bend, IN, Peter J. Rusthoven, John R. Maley, Barnes & Thornburg LLP, Indianapolis, IN, Georgina D. Jenkins, Naperville, IL, Attorneys for Appellee.

Seth M. Lahn, Bloomington, IN, Attorney for Amicus Curiae Independent Colleges of Indiana.

On Petition to Transfer from the Indiana Court of Appeals, No. 71A05–1505–MI–381

MASSA

, Justice.

An ESPN reporter requested information from the Notre Dame Security Police Department regarding 275 student-athletes. The Department declined, claiming that Notre Dame is a private university and its police force is not a “law enforcement agency” subject to Indiana's Access to Public Records Act. The trial court agreed, and dismissed ESPN's suit. We too find that a private university police department is not a “public agency” for the purposes of APRA, and affirm the trial court.

Facts and Procedural History

The Notre Dame Security Police Department was established in 1977 by Resolution of the University of Notre Dame trustees. Through the University trustees, the Department is granted “[g]eneral police powers.” Ind.Code §§ 21–17–5–4(a)(1)

, (b) (2014). But beyond these traditional police functions, the Department also enforces the University student code and parietals,¹ coordinates internal disciplinary reviews, and implements safety educational programs. The Department also acts in a caretaker role by escorting students home late at night, providing transportation services to students with private or sensitive needs, and registering personal property and bicycles.

In 2014, Paula Lavigne, an investigative reporter with ESPN, requested incident reports from the Department involving 275 student-athletes, whether named as a victim, suspect, witness, or reporting party. The Department denied Lavigne's request, relying upon three previous Public Access Counselor advisory opinions that concluded private university police departments are not “law enforcement agencies” under Indiana's Access to Public Records Act, Indiana Code chapter 5–14–3 (Supp.2014).

ESPN then filed a Formal Complaint with the Public Access Counselor, alleging that the Department had violated APRA when it refused to provide its records. This Counselor took a different course than his predecessors, reasoning that the Department was acting under the color of law by enforcing the Indiana criminal code, and thus would be considered a “public law enforcement agency” for all future public access requests. Appellant's App. at 22–25.

Thereafter, ESPN renewed its incident report request, and again, the Department denied it. With more specificity than before, ESPN made a third request to the Department seeking daily logs,² which the Department denied. ESPN then filed a second Formal Complaint with the Counselor, who concluded that the Department's daily logs must be released and incident reports may be released, although the Department may withhold any investigatory records under Indiana Code section 5–14–3–4(b)(1)

.

ESPN then filed suit against the Department, alleging it had violated APRA. The Department moved for judgment on the pleadings under Indiana Trial Rule 12(C)

, contending it was not a “law enforcement agency” under Indiana Code section 5–14–3–2(n)(6), nor was it a “public agency” under any of APRA's other definitions. Further, the Department argued that the legislature had acquiesced to the three earlier Counselor opinions that determined private university police were not public agencies under APRA. ESPN cross-moved for judgment on the pleadings in its favor, asserting that the Department was a “public agency” because it exercised executive power of the State under Indiana Code section 5–14–3–2(n)(1).

After a hearing, the trial court granted the Department's motion. It found that the Department was not a “law enforcement agency” under subsection 2(n)(6) because it was not “an agency or a department of any level of government,” nor was the Department a “public agency” under subsection 2(n)(1) because it exercised power of the trustees, not power of the State. Appellant's App. at 10–11. As to legislative acquiescence, the trial court found the point “well taken,” noting that three different Counselors issued three separate opinions between 2003 and 2011 that determined “private colleges who appoint campus police officers are not public agencies under APRA.” Appellant's App. at 13.

ESPN appealed, arguing that the Department fits three statutory definitions of a “public agency”: (1) it is a “law enforcement agency” under subsection 2(n)(6); (2) it exercises the executive powers of the state under subsection 2(n)(1); and (3) it exercises delegated “traditional” governmental power under subsection (2)(n)(2)(C).³ Our Court of Appeals reversed and remanded, holding that the Department is a “law enforcement agency” under subsection (2)(n)(6), and finding that issue dispositive, declined to reach the remaining arguments. ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep't, 50 N.E.3d 385, 393 (Ind.Ct.App.2016)

. The panel reasoned that the Department “fits within the definition because it was acting as a governmental entity by exercising a governmental function.” Id. at 395. It declined to apply the doctrine of legislative acquiescence, finding that the Counselor's opinions were not sufficiently “long-standing in nature.” Id. at 400. The Court of Appeals then remanded the matter to the trial court to determine which records the Department would have to produce. Id.

We granted the Department's petition to transfer, thereby vacating the Court of Appeals opinion. ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep't., 54 N.E.3d 371 (Ind.2016)

(table); Ind. Appellate Rule 58(A).

Standard of Review

The parties have filed cross-motions for judgment on the pleadings. Judgment on the pleadings is available to “any party” where it is clear from the face of the pleadings that one party is entitled to prevail as a matter of law. Trial Rule 12(C)

; cf.

Woodruff v. Indiana Family and Soc. Services Admin., 964 N.E.2d 784, 789 (Ind.2012). We review the trial court's ruling on such a motion de novo.

Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind.2010). Our review is confined to the pleadings, accepting well-pleaded material facts in the complaint as true. Brownsburg Cmty. Sch. Corp. v. Natare Corp., 824 N.E.2d 336, 337 n. 1 (Ind.2005).

Further, the meaning of “public agency” under APRA is a question of statutory interpretation. The meaning of a statute is a question of law and is subject to de novo review. Adams v. State, 960 N.E.2d 793, 797 (Ind.2012)

.

The Notre Dame Security Police Department is Not a “Public Agency” Subject to Indiana's Access to Public Records Act.

ESPN argues that three subsections defining “public agency” subject the Department to APRA. Conversely, the Department contends that none of the identified subsections include—or were meant to include—private university police.

Our first task when interpreting a statute is to give its words their plain meaning and consider the structure of the statute as a whole. West v. Office of Indiana Sec'y of State, 54 N.E.3d 349, 353 (Ind.2016)

. We “avoid interpretations that depend on selective reading of individual words that lead to irrational and disharmonizing results.” Id. at 355 (internal quotation omitted). As we interpret the statute, we are mindful of both “what it ‘does say’ and what it ‘does not say.’ ” Day v. State, 57 N.E.3d 809, 812 (Ind.2016) (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.2003)

). To the extent there is an ambiguity, we determine and give effect to the intent of the legislature as best it can be ascertained. Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind.2014). “[W]e do not presume that the Legislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result.” Anderson v, Gaudin, 42 N.E.3d 82, 85 (Ind.2015) (internal quotation omitted).

APRA was enacted with the express purpose that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. ” Ind.Code § 5–14–3–1

(emphasis added). The legislature has explicitly indicated APRA is to be “liberally construed,” with the burden for nondisclosure on the “public agency” denying access. Id. The trial court correctly concluded, however, that this directive applies in determining what records are subject to disclosure, not who is covered by APRA. See Ind.Code § 5–14–3–1 (“[I]t is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.... [APRA] shall be liberally construed to implement this policy.”) (emphasis added); see also

Evansville Courier & Press v. Vanderburgh Cty. Health Dept., 17 N.E.3d 922, 928 (Ind.2014) (“APRA is intended to ensure Hoosiers have broad access to most government records.”).

We endeavor to read APRA in a manner consistent with this statutory directive. See Shepherd Properties Co. v. Int'l Union of Painters & Allied Trades, Dist. Council 91, 972 N.E.2d 845, 852 (Ind.2012)

(“We presume that the legislature intended...