Private University Police Department Not Subject to Public Records Act

Indiana’s Access to Public Records Act helps keep the public sector transparent by allowing access to certain records of public agencies. The central question posed by this lawsuit is what makes an agency a “public agency?” The functions it performs, or the manner in which it was created?

In ESPN, Inc. v. University of Notre Dame Police Dept., an ESPN reporter, Paul Lavigne, requested incident reports and daily logs concerning 275 Notre Dame student-athletes from the Notre Dame Police Department. The Department denied the request. The Public Access Counselor determined that the Department was a public agency because it was acting under color of law by enforcing the Indiana criminal code.

Eventually, ESPN filed suit, alleging the Department violated APRA when it refused to turn over the records. The Department moved for judgment on the pleadings under Trial Rule 12(C). After a hearing, the trial court granted the Department’s motion, reasoning that the Department was not established by a government agency. The Court of Appeals disagreed and reversed, holding that the Department was a “law enforcement agency” under APRA because it was exercising a governmental function. The Indiana Supreme Court granted transfer.

The Court began its review with the statutory language. First, APRA was

to be “liberally construed,” with the burden for nondisclosure on the “public agency” denying access.

But this liberal construction only “applies in determining what records are subject to disclosure, not who is covered by APRA.” And the express purpose of APRA was to ensure 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.

With this in mind, the Court turned to the question of whether the Department was a law enforcement agency.

The APRA defines a “law enforcement agency” as a department of “any level of government” which investigates, apprehends, arrests, or prosecutes criminal offenders. The Department was clearly given the police powers described in the statute, so the question was whether it was the department of “any level of government.” In order to answer this question, the Court looked to what body controlled the Department. And while statutes allowed private universities to appoint police officers to protect their campuses, those officers reported to the university’s trustees, not a governmental body. As such, the Department was an agency of the university, not the State.

ESPN alternatively argued that the Department was a “public agency,” which subjected it to the APRA, as the Department exercises police powers. But the Court again disagreed.

Thus, while the Court recognized the public’s right to access governmental records, it held that the public did not have the right to access records kept by a private university’s police department.

In a footnote, the Court addressed an argument raised by the Department based on the doctrine of legislative acquiescence. Between 2003 and 2011, the Public Access Counselor issued three advisory opinions, all of which found that private university police departments were not public agencies under APRA. The Department argued that the legislature acquiesced to this interpretation of the law, as it did not act to supersede these opinions. The Court did not decide this issue, as it found for the Department on other grounds. However, it did state the following:

Although the Counselor’s opinions are non-binding, we note that they serve a vital government service. Our legislature established the Counselor to provide advice and interpretations regarding Indiana’s public access laws, including APRA, and has vested the Counselor with the specific power “to issue advisory opinions.” We find the Department’s argument reasonable that the legislature is acutely aware of the advisory opinions issued from an office it created. However, because we find in favor of the Department, we need not dwell on the legislature’s silence with respect to those opinions in this instance.


  1. APRA does not apply to a private university’s police department.
  2. The Indiana Supreme Court may rely on the doctrine of legislative acquiescence if an office is vested with the power to issue advisory opinions on particular legal issues.

Read the full February 23, 2017 Law Club Handout or listen to the recording here.

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