ESPN, ND deliver oral arguments in NDSP lawsuit
Katie Galioto | Thursday, April 9, 2015
On April 1, lawyers representing Notre Dame and ESPN presented their oral arguments in front of St. Joseph Superior Court Judge Steven Hostetler in a case to determine if Notre Dame Security Police (NDSP) violated Indiana’s Access to Public Records Act (APRA). The unresolved issue at the crux of the case is whether or not the law considers NDSP a private agency.
In September and November 2014, ESPN reporter Paula Lavigne requested incident reports from NDSP related to student athletes. On both instances, Notre Dame denied the request on the basis that NDSP is not a public law enforcement agency and is therefore not subject to APRA.
According to documents filed in St. Joseph Superior Court, ESPN Inc. filed a complaint against the University on Jan. 15 after Notre Dame refused to release the incident reports for the second time, contrary to the opinions of Indiana Public Access Counselor (PAC) Luke Britt.
Britt, an attorney appointed by the governor to provide advice and assistance on Indiana’s public access laws, issued an opinion on Oct. 31 notifying NDSP that his office considers it to be a public law enforcement agency subject to APRA. On Jan. 5, in his response to Lavigne’s second complaint, Britt wrote that he expects NDSP to comply with APRA and release its records, although his opinion does not have the force and effect of the law.
ESPN submitted both of Britt’s opinions as evidence for their argument in court, according to a report in the South Bend Tribune last Thursday.
On Feb. 12, Damon Leichty and Georgina Jenkins, representing Notre Dame as attorneys from Barnes and Thornburg, submitted a written defense outlining the University’s argument that NDSP is a private police department.
Leichty argued that NDSP derives its power from the Notre Dame Board of Trustees, not the Indiana state government, according to the Tribune report.
“While campus police officers enjoy ‘general police powers’ and ‘statutory powers, privileges and immunities as sheriffs and constables,’ the Trustees may restrict their ability to serve civil process,” Notre Dame’s brief stated. “By statute, campus law enforcement serves at Notre Dame’s pleasure and in accordance with an oath that the Trustees describe — not the government.”
Leichty’s defense brief also emphasized past cases involving the ARAP and private universities, stressing PAC opinions in Notre Dame’s favor from 2003, 2009 and 2011.
“For more than 30 years, and certainly well-settled for more than a decade, private university police departments have not been subject to APRA,” Leichty wrote. “There has been no intervening change in the law that justifies an abrupt shift on this issue.”
Leichty argued that changing the status of NDSP to a public agency could lead to the public disclosure of private institutional records, according to the Tribune.
“In a society where an open government is considered essential to a properly functioning democracy, not every iota of information is subject to public scrutiny,” Leichty wrote. “That principle resounds with even more force when ESPN (advancing a sports media purpose) seeks to subject private institutions, such as Notre Dame or its campus police department, to a law intended for government scrutiny.”
According to the Tribune, James Dimos, a Frost Brown Todd attorney representing ESPN in the case, argued Notre Dame should be subject to government scrutiny because it possesses the police powers of arrest.
“The University of Notre Dame Security Police Department desires to operate in the shadows as a secretive force with all of the police powers under Indiana law but none of the public scrutiny,” Dimos wrote in the plaintiff’s brief, which was filed March 9.
Dimos also wrote the privacy records of Notre Dame students would not be affected if NDSP was declared a public agency because of protection under the Federal Educational Rights and Privacy Act (FERPA).
Notre Dame is asking for the case to be dismissed, while ESPN is asking the court to order Notre Dame to release the papers and pay legal fees.
Assistant Vice President for University Communications Dennis Brown said Notre Dame is confident in its position after presenting its argument in court.
According to the Tribune report, Hostetler plans to issue a ruling by April 20.