ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep't
| Decision Date | 15 March 2016 |
| Docket Number | No. 71A05–1505–MI–381.,71A05–1505–MI–381. |
| Citation | 50 N.E.3d 385 |
| Parties | ESPN, INC. and Paula Lavigne, Appellants–Plaintiffs, v. UNIVERSITY OF NOTRE DAME SECURITY POLICE DEPARTMENT, a Department of the University of Notre Dame du Lac, Appellee–Defendant. |
| Court | Indiana Appellate Court |
James Dimos, Maggie L. Smith, Jennifer A. Rulon, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellant.
Damon R. Leichty, Georgina D. Jenkins, Barnes & Thornburg LLP, South Bend, IN, Attorneys for Appellee.
, Judge.
[1] This appeal concerns the issue of whether the campus police department of a private university is subject to the Indiana Access to Public Records Act (“APRA”). Appellants/Plaintiffs, ESPN, Inc. (“ESPN, Inc.”) and Paula Lavigne (“Lavigne”) (collectively, “ESPN”) filed a complaint against Appellee/Defendant, University of Notre Dame Security Police Department (“the Police Department”), claiming that the Police Department qualified as a public agency under APRA and had violated APRA by refusing to provide ESPN with access to certain public records that ESPN had requested. After both parties filed cross-motions for judgment on the pleadings under Trial Rule 12(C)
, the trial court granted judgment in favor of the Police Department and denied ESPN's cross-motion, determining that the Police Department was not subject to APRA.
[2] On appeal, ESPN argues that the trial court erred in granting judgment in favor of the Police Department because (1) the Police Department qualified as a “public agency” under APRA's definition of the term and was, therefore, required to provide access to the public records ESPN had requested; and (2) the doctrine of legislative acquiescence did not bar ESPN's claim. Because we conclude that: (1) the Police Department is a “law enforcement agency” as defined in APRA, and therefore qualifies as a public agency subject to the act; and (2) the doctrine of legislative acquiescence did not bar ESPN's claim, we reverse the trial court's judgment on the pleadings. We remand with instructions for the trial court to enter judgment in favor of ESPN. However, we do not, as ESPN requests, find that the trial court must order the Police Department to produce the public documents ESPN sought. We instruct the trial court to determine which of the records the Police Department was required to produce under APRA and then order the Police Department to produce only those records.
[3] We reverse and remand with instructions.
Whether the trial court erred in granting the Police Department's motion for judgment on the pleadings and denying ESPN's cross-motion.
[4] This appeal concerns the issue of whether a private university's campus police department qualifies as a “public agency” for purposes of APRA. Notre Dame is a private university that has been given the authority under Indiana Code § 21–17–5–2
to appoint a police force and administer a law enforcement program. It exercised this statutory authority and created the Police Department, which it describes as follows on its website:
[The Police Department] ... is fully authorized as a police agency by the State of Indiana. The department employs both sworn police officers and non-sworn campus security officers who patrol campus and respond to emergencies ... [.] Notre Dame police officers complete state mandated training requirements established for law enforcement officers and have the same legal authority as any other police officer in Indiana. Notre Dame Security Police staff frequently work with city, county, state and federal law enforcement authorities[.]
(App. 100).2
[5] On September 19, 2014, Lavigne, an investigative journalist with ESPN, Inc., requested public incident reports from the Police Department pursuant to APRA. Specifically, she requested incident reports concerning 275 student-athletes, including information regarding “whether they had been named as [ ] victim[s], suspect[s], witness[es], or reporting part[ies]” in incidents.3 (App. 71). The Police Department denied the request, claiming that it was not a public law enforcement agency and, therefore, was not subject to APRA. In response, ESPN filed a formal complaint with Indiana's Public Access Counselor (“PAC”), alleging that the Police Department had violated APRA by refusing to provide the incident reports Lavigne had requested.
[6] On October 31, 2014, the PAC issued an advisory opinion responding to ESPN's complaint. In its advisory opinion, the PAC noted that three prior PAC advisory opinions had all concluded that a private university's police force was not a “public institution[ ] accountable to any other political subdivision or body politic” and, therefore, did not qualify as a public agency subject to APRA. (App. 23). However, with respect to the request before it, the PAC found that the Police Department was “clearly operating under the color of the law, enforcing Indiana['s] criminal code and not mere policy or disciplinary procedures.” (App. 24). As a result, the counselor concluded that the Police Department was a state actor and should be subject to APRA as a public agency. The counselor recognized that this determination “m[ight]” be inconsistent with the previous PACs' opinions but concluded that the decision was nevertheless consistent with the “spirit of” APRA. (App. 25). In recognition of the fact that the Police Department could have been relying on the previous PAC opinions, though, the PAC declined to issue a conclusive determination that the department had violated APRA. Instead, the counselor put the Police Department “on notice” that it would be considered a public law enforcement agency under APRA for purposes of future public access requests. (App. 25).
[7] On November 4, 2014, ESPN submitted a second public records request to the Police Department seeking incident reports for specified student-athletes. The Police Department denied the request on November 11, 2014. Again, it claimed that it was not a public law enforcement agency for purposes of APRA and that it did not have documents responsive to ESPN's request.
[8] Thereafter, on November 20, 2014, ESPN submitted a third “more specific” public records request to the Police Department seeking the department's daily log.4 (App. 34). The Police Department again denied the request, stating that it was not a public agency subject to APRA. As a result, on December 8, 2014, ESPN filed a second complaint with the PAC, alleging that the department had violated APRA by refusing to tender the requested records.
[9] On January 5, 2015, the PAC issued a second advisory opinion. In this opinion, the counselor stated that, because the Police Department had been on notice since the first advisory opinion that the counselor considered it a public agency—specifically a law enforcement agency—it had been required to comply with APRA when ESPN tendered its requests in November. However, the counselor also noted that the Police Department had not necessarily been required to produce all of ESPN's requested documents because they likely included information that could be considered investigatory records that a law enforcement agency would have discretion to withhold under APRA. As for the daily logs that ESPN had requested, the counselor wrote that the Police Department could substitute redacted daily incident reports, since it had not been keeping daily logs as required by APRA. In conclusion, the PAC held that if the Police Department “had documentation regarding any suspected crimes, accidents or complaints involving the individuals named in [ESPN's] request, [it] ha[d] violated [ ] [APRA].” (App. 36).
[10] Subsequently, ESPN filed a complaint with the trial court on January 15, 2015, asking the court to order the Police Department to disclose the documents it had requested. The Police Department answered the complaint and moved for judgment on the pleadings under Trial Rule 12(C)
, contending that ESPN could not succeed in its complaint under APRA because the Police Department was not a public law enforcement agency subject to APRA. The department also argued that ESPN's complaint should be barred by the doctrine of legislative acquiescence because the legislature had not amended APRA to include private university police departments after three previous PACs had concluded that they were not subject to APRA.
[11] ESPN responded and filed a cross-motion for judgment on the pleadings. It argued that the Police Department was subject to APRA because the department was a state actor exercising an executive function of the State of Indiana and was, therefore, a “public agency” within APRA's definition of the term. ESPN also argued that the Police Department met another component of APRA's definition of “public agency” because it was a law enforcement agency.
[12] The trial court held a hearing on the cross-motions on April 1, 2015. At the conclusion of the hearing, the trial court took the matter under advisement. Then, on April 20, 2015, it granted the Police Department's motion and entered judgment on the pleadings in the department's favor. As an initial matter, the trial court noted in its order that Notre Dame was not authorized by statute to establish “separate and distinct legal entities to exercise police powers.” (App. 8). Accordingly, the trial court found the following:
In fact, the statute does not use the term “campus police department,” “campus police force,” or any similar term. All it does is authorize the colleges and universities themselves to appoint police officers with certain enumerated powers. If Notre Dame is a “public agency” because it appoints police officers, it is a public agency, period. Thus, the question raised by ESPN's complaint is really whether the University of Notre Dame, the entire University of Notre Dame, is now required to produce all of its records (such as academic, business and financial records) simply because it appoints campus police officers.
(App. 8).
[13] The trial court...
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Espn, Inc. v. Univ. of Notre Dame Police Dep't
...(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 ent......