ESPN sues Notre Dame over police records

[kmoose]

That's certainly the argument they're making. The counter-argument is that their status as employees and/or a department of the University is irrelevant when exercising powers given to them by the state. When they're doing so, they're extensions of the state and subject to the rules and regulations thereof.

https://en.wikipedia.org/wiki/State_actor

Maybe. Maybe not:

...Controversies have arisen, for example, over whether private companies that run towns (the "company-town") and prisons (traditionally a state function) can be held liable as state actors when they violate fundamental civil rights. This question remains unresolved...

 

[RDU Irish]

I'm with kmoose on this one. Put me on the jury!

 

[Rhode Irish]

I'm with kmoose on this one. Put me on the jury!

There is no jury in an appellate court.

Whether or not a department self-identifies as a unit of a private institution, if it carries out state functions it has to be subject to the same oversight as a public institution would be. Despite what wikipedia tells you, there really is not a controversy there - at least not any more than there is controversy over whether you need to pay income tax in the U.S. There may be a few people on the fringe that try to make the argument that an income tax unconstitutional, but that doesn't make for a genuine controversy.

The thing that is perplexing to me about this is that I don't even get why ND people are taking the side that ND police shouldn't be subject to freedom of information requests. Like, other than for reflexively wanting to side with ND against ESPN, why would you take that position? If it were my school I would be demanding transparency when it comes to private citizens being subject to legal authority.

 

[IrishLax]

There is no jury in an appellate court.

Whether or not a department self-identifies as a unit of a private institution, if it carries out state functions it has to be subject to the same oversight as a public institution would be. Despite what wikipedia tells you, there really is not a controversy there - at least not any more than there is controversy over whether you need to pay income tax in the U.S. There may be a few people on the fringe that try to make the argument that an income tax unconstitutional, but that doesn't make for a genuine controversy.

The thing that is perplexing to me about this is that I don't even get why ND people are taking the side that ND police shouldn't be subject to freedom of information requests. Like, other than for reflexively wanting to side with ND against ESPN, why would you take that position? If it were my school I would be demanding transparency when it comes to private citizens being subject to legal authority.

This is a very valid point. Personally, it's because I know that ESPN is just trying muckrake. They're looking for records of incidents where people weren't arrested and then going to try to paint that through innuendo as "unfair treatment." When I consider the facts:
1. ESPN asked for ALL records relating to ALL football/basketball players over a period of YEARS it's clearly a very broad fishing expedition.
2. Other schools -- namely MSU and Auburn -- got around providing them anything of merit (MSU provided reports with all names redacted, and Auburn refused to provide anything on anyone age 20 and younger OR where the person wasn't arrested). Yet, ESPN isn't suing those schools or raising any hubbub.
3. ESPN went after 10 schools. If they were doing a broad fishing expedition against USC, Stanford, Ohio State, Michigan, etc. in addition to Notre Dame I'd be more inclined to be sympathetic. But they're not.

In general, I like the idea of transparency, and I don't like the Indiana law as currently interpreted. In practice, fuck ESPN. This isn't South Bend Tribune reasonably going after a single, specific incident report... this is "let me single out a specific school for yellow journalism/click bait."

 

[RDU Irish]

In the case of your arrest, those records would be available to your defense. It actually protects students to keep this locked up tighter until something escalates to the point of charges, arrest, etc.

If it is so cut and dried why do they have to appeal their case? Seems they should have won if your argument was so obvious?

 

[IrishLax]

So I've been researching this a bit more... hopefully people can add on/correct, because I'm very curious.

-Illinois has similar laws to Indiana, recently a bill came up to put private police under public records and it was defeated.
-Ohio has similar laws to Indiana, very recently a private college lost their case 4-3 in front of the Ohio supreme court and now has their police department subject to public records laws. Before this decision, the interpretation was that they weren't.
-Texas a couple months ago passed a law changing their laws from being similar to Indiana... now their private police forces are subject to public records laws.

So it seems there is a lot of "winds of change" on this topic happening in the past year or so.

 

[kmoose]

There is no jury in an appellate court.

Whether or not a department self-identifies as a unit of a private institution, if it carries out state functions it has to be subject to the same oversight as a public institution would be. Despite what wikipedia tells you, there really is not a controversy there - at least not any more than there is controversy over whether you need to pay income tax in the U.S. There may be a few people on the fringe that try to make the argument that an income tax unconstitutional, but that doesn't make for a genuine controversy.

The thing that is perplexing to me about this is that I don't even get why ND people are taking the side that ND police shouldn't be subject to freedom of information requests. Like, other than for reflexively wanting to side with ND against ESPN, why would you take that position? If it were my school I would be demanding transparency when it comes to private citizens being subject to legal authority.

There's obviously a controversy, or the issue would not be unsettled. Catholic High Schools carry out the state function of education, but they are not treated the same as public High Schools. For one; they can draw students from just about anywhere, as long as those students are willing to pay tuition. Some public school systems have open enrollment, but not all of them. So that's just one example of a private institution that carries out a state function, but operates under some different rules.

 

[wizards8507]

There's obviously a controversy, or the issue would not be unsettled. Catholic High Schools carry out the state function of education, but they are not treated the same as public High Schools. For one; they can draw students from just about anywhere, as long as those students are willing to pay tuition. Some public school systems have open enrollment, but not all of them. So that's just one example of a private institution that carries out a state function, but operates under some different rules.

There's a difference between offering a state service and wielding state power. AAA can provide DMV services, but they can't write you a ticket for driving without a license. Catholic Charities can offer food to poor people, but they can't tax the citizenry to pay for it.

 

[kmoose]

There's a difference between offering a state service and wielding state power. AAA can provide DMV services, but they can't write you a ticket for driving without a license. Catholic Charities can offer food to poor people, but they can't tax the citizenry to pay for it.

That was not the argument. The argument was that if a private entity performs a state function, then that entity should be required to be subject to the same standards as the "official" state entity.

 

[wizards8507]

That was not the argument. The argument was that if a private entity performs a state function, then that entity should be required to be subject to the same standards as the "official" state entity.

If anyone structured the argument in that way (maybe I did), then he misstated the "state actor" principle. It's not about performing a function that the state also happens to perform, since that could apply to a ridiculous number of things that are obviously outside of our scope. It's about performing a function on behalf of the state. If you get arrested by NDSP, you're getting arrested by the State of Indiana.

 

[kmoose]

If anyone structured the argument in that way (maybe I did), then he misstated the "state actor" principle. It's not about performing a function that the state also happens to perform, since that could apply to a ridiculous number of things that are obviously outside of our scope. It's about performing a function on behalf of the state. If you get arrested by NDSP, you're getting arrested by the State of Indiana.

No you aren't. You're getting arrested by a person certified by the State of Indiana. That person would then have to convince the District Attorney to file charges against you. At THAT point, you would be up against the State of Indiana.

 

[Rhode Irish]

The law is exclusively the domain of the state; that is not true with respect to education or whatever other absurd quasi-parallel you want to offer up. If a person is enforcing a law, then they are acting on behalf of the state. Taken to its logical extreme, having a police force that can operate in the absence of transparency and outside of the oversight of the public is how you end up with a Gestapo.

 

[kmoose]

The law is exclusively the domain of the state; that is not true with respect to education or whatever other absurd quasi-parallel you want to offer up. If a person is enforcing a law, then they are acting on behalf of the state. Taken to its logical extreme, having a police force that can operate in the absence of transparency and outside of the oversight of the public is how you end up with a Gestapo.

You see, now you are just back to your tired old "anti-police" shtick. I am sure that there is public oversight of the NDPD. YOU may not get to see every bit of info that they see/produce, but you aren't entitled to that. Even FOIA has limitations. And when does FERPA override FOIA, or vice versa? Public oversight can be accomplished by allowing a duly elected representative of the public have confidential access to information. It doesn't have to mean that every Tom, Dick, and Harry get to read every document.

 

[Legacy]

So I've been researching this a bit more... hopefully people can add on/correct, because I'm very curious.

-Illinois has similar laws to Indiana, recently a bill came up to put private police under public records and it was defeated.
-Ohio has similar laws to Indiana, very recently a private college lost their case 4-3 in front of the Ohio supreme court and now has their police department subject to public records laws. Before this decision, the interpretation was that they weren't.
-Texas a couple months ago passed a law changing their laws from being similar to Indiana... now their private police forces are subject to public records laws.

So it seems there is a lot of "winds of change" on this topic happening in the past year or so.

- Pennsylvania. ESPN lost their FOI court case against Penn State and the university's police department. ESPN argued that "since that state law gave its officers 'the same authority as municipal police officers,' it should also have to abide by other laws to which municipal police officers were bound — namely, the Right-to-Know Law."

- Ohio. ESPN also lost their FOI court case against Ohio State both because the requests were too broad and that privacy protections would be violated. The Court concluded:
“The Public Records Act serves a laudable purpose by ensuring that governmental functions are not conducted behind a shroud of secrecy.However, even in a society where an open government is considered essential tomaintaining a properly functioning democracy, not every iota of information issubject to public scrutiny. Certain safeguards are necessary.”

- Indiana. In the ESPN - Notre Dame case, the judge said that all the Indiana law does is to grant private universities the power to “appoint police officers with certain enumerated powers." He framed the implications of ESPN's argument as “If Notre Dame is a ‘public agency’ because it appoints police officers, it is a public agency, period.” and that "I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the State’s police powers."

He also said “similarly uncomfortable” with ruling that Notre Dame was a public entity with access to their records and that this "was not about 'comfort' but the law". He was not about to rule that the NDPF was separate from the University. He concluded: "This court will not stain the language of the statute in order to do what the Legislature has not..."

Of course, the Indiana Attorney General could have initiated his own legal action if he determined that a private security/police force on a private university that was granted certain powers by the state was subject to legal oversight by his office or any governmental agencies. In short, the AG seems to have also concluded that the NDPD is operating within current state law.

(Rhode Island Irish)

Whether or not a department self-identifies as a unit of a private institution, if it carries out state functions it has to be subject to the same oversight as a public institution would be. Despite what wikipedia tells you, there really is not a controversy there - at least not any more than there is controversy over whether you need to pay income tax in the U.S.

Here's the difference between a public entity and a non-governmental agency. From the Open Government Guide, Open Records and Meetings Laws in Indiana from the Reporters Committee for Freedom of the Press. A “public entity” is any provider of goods, services, or other benefits that is: (1) maintained in whole or in part at public expense; or
(2) supported in whole or part by appropriations or public funds or by taxation

A non-governmental agency can be subject to FOI records requests only under certain conditions, e.g. majority of funding from the public entities, being intertwined with governmental agencies, doing extensive business on the part of the state, etc.

(Rhode Island Irish)

The thing that is perplexing to me about this is that I don't even get why ND people are taking the side that ND police shouldn't be subject to freedom of information requests. Like, other than for reflexively wanting to side with ND against ESPN, why would you take that position? If it were my school I would be demanding transparency when it comes to private citizens being subject to legal authority.

I'm sure you recognize that there are limitations on the FOI requests, that all information generated by encounters with agents for non-governmental agency/company is not subject to requests, and that institutions have obligations and expectations to protect privacy rights of all the individuals. I care that the laws are followed and rights are protected. If there are victims involved, they have recourses and can involve media if they choose to. Even when particular violations have come to light as in the Penn State and the Ohio State cases, media has still been denied information requests by the courts.

 

[Rhode Irish]

You see, now you are just back to your tired old "anti-police" shtick. I am sure that there is public oversight of the NDPD. YOU may not get to see every bit of info that they see/produce, but you aren't entitled to that. Even FOIA has limitations. And when does FERPA override FOIA, or vice versa? Public oversight can be accomplished by allowing a duly elected representative of the public have confidential access to information. It doesn't have to mean that every Tom, Dick, and Harry get to read every document.

Uh ok, but FOIA exists for that purpose so what policy reason is there for it to not apply here? As you said, there are limitations to its use so not sure why those aren't good enough to guard against abuses you may be concerned about.

 

[BGIF]

The author is Steve Silver, a lawyer from Philadephia. The title is "ESPN Fighting to Remove Privacy Shield From Notre Dame Police Force." I originally posted the link, but Lax removed it and posted the text instead because the article was hosted on the same platform as the article that broke the Manti/Lenay story. Also, as I clarified in the next post after Lax edited my post, my comment that I agreed with the author was only with respect to one point that he made, which I had originally singled out and quoted.

Thanks for re-posting the attribution. I understood your one point of agreement with the author.

 

[Grahambo]

The law is exclusively the domain of the state; that is not true with respect to education or whatever other absurd quasi-parallel you want to offer up. If a person is enforcing a law, then they are acting on behalf of the state. Taken to its logical extreme, having a police force that can operate in the absence of transparency and outside of the oversight of the public is how you end up with a Gestapo.

Not cool man.

 

[condoms SUCk]

Not cool man.

ja, nicht eindrucksvoll mann

 

[kmoose]

Uh ok, but FOIA exists for that purpose so what policy reason is there for it to not apply here? As you said, there are limitations to its use so not sure why those aren't good enough to guard against abuses you may be concerned about.

Most government entities with public oversight don't have FERPA issues to deal with.

 

[wizards8507]

Most government entities with public oversight don't have FERPA issues to deal with.

The University of Notre Dame is an educational institution. Notre Dame Security Police is a police force. Simple as that.

 

[gkIrish]

The University of Notre Dame is an educational institution. Notre Dame Security Police is a police force. Simple as that.

What about private security guards that patrol a warehouse at night?

 

[wizards8507]

What about private security guards that patrol a warehouse at night?

They would be subject neither to FERPA nor FOI.

 

[ACamp1900]

Many schools do outsource their campus security....

 

[gkIrish]

They would be subject neither to FERPA nor FOI.

What about a security guard that patrols a private high school's gymnasium? Would you consider him a police force?

 

[pkt77242]

What about a security guard that patrols a private high school's gymnasium? Would you consider him a police force?

Not to answer for Wizard but we already have that distinction. If he is a sworn officer then yes, if he is not then most likely nope.

ETA: someone that patrols the private HS gym is not a sworn officer.

 

[kmoose]

The University of Notre Dame is an educational institution. Notre Dame Security Police is a police force. Simple as that.

Not all the "officers" at NDPD are actual LEOs. So, no, it isn't just that easy.

 

[IrishLax]

So it turns out 45 out of 50 states don't require private universities to release law enforcement records. It was 47 states, but in the last couple months Texas passed a law changing their statutes, and Ohio had a supreme court decision go 4-3 towards changing the interpretation of their law.

This isn't a Notre Dame problem not matter what way you try to slice it. This is a nationwide status quo from Stanford (who actually uses deputized sheriffs from the local county) to Miami. ESPN is singling out Notre Dame among hundreds of private universities... whether that's with righteous intent or not you can be the judge.

 

[Ndaccountant]

So it turns out 45 out of 50 states don't require private universities to release law enforcement records. It was 47 states, but in the last couple months Texas passed a law changing their statutes, and Ohio had a supreme court decision go 4-3 towards changing the interpretation of their law.

This isn't a Notre Dame problem not matter what way you try to slice it. This is a nationwide status quo from Stanford (who actually uses deputized sheriffs from the local county) to Miami. ESPN is singling out Notre Dame among hundreds of private universities... whether that's with righteous intent or not you can be the judge.

We all know....

 

[condoms SUCk]

So it turns out 45 out of 50 states don't require private universities to release law enforcement records. It was 47 states, but in the last couple months Texas passed a law changing their statutes, and Ohio had a supreme court decision go 4-3 towards changing the interpretation of their law.

This isn't a Notre Dame problem not matter what way you try to slice it. This is a nationwide status quo from Stanford (who actually uses deputized sheriffs from the local county) to Miami. ESPN is singling out Notre Dame among hundreds of private universities... whether that's with righteous intent or not you can be the judge.

IMO, here’s wants going on. There was a scuffle at ND during the ND/UM game last year. An ESPN reporter caught wind and wanted to know more, so they asked for info. ND said “no we don’t have to give you anything.” Said reporter gets PO’d b/c they feel as though they are entitled to everything and anything they want ergo makes a big stink about it. ESPN decided to take up the cause b/c 1). They get to stick it to ND. 2). ND controversies = ratings. 3). To show their attack dogs, whops sorry, I mean “reporters” that they have their back and to keep fighting the good fight.
So here we are, ESPN files are law suit and now we will wait for the courts to figure it out.

 

[koonja]

IMO, here’s wants going on. There was a scuffle at ND during the ND/UM game last year. An ESPN reporter caught wind and wanted to know more, so they asked for info. ND said “no we don’t have to give you anything.” Said reporter gets PO’d b/c they feel as though they are entitled to everything and anything they want ergo makes a big stink about it. ESPN decided to take up the cause b/c 1). They get to stick it to ND. 2). ND controversies = ratings. 3). To show their attack dogs, whops sorry, I mean “reporters” that they have their back and to keep fighting the good fight.
So here we are, ESPN files are law suit and now we will wait for the courts to figure it out.

Was Massy involved in this? I didn't think he had it in him.