ESPN sues Notre Dame over police records

[NOLAIrish]

So 10 months from now, correct?

Looks like the Tuesday after the second Monday of January 2017 (that's actually a simplification of the text, if you'd believe it...). My quick read of the Indiana constitution is that the veto override vote occurs automatically at any time during the next session and requires a simple majority of both chambers.

In the interim, current law remains intact.

 

[phgreek]

WoW...thats really disappointing. So I guess ND needs to put out a release that they need 10 months and 20 days to respond to all requests not generated from law enforcement agencies...aaand the fee schedule for fulfilling non-law enforcement requests...of course.

 

[Legacy]

Recent Indiana privacy decisions

Recent Indiana privacy decisions

When Gov. Mike Pence vetoed the Indiana legislature's bill on freedom of information for police departments of private colleges and universities, he said:

"Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency."

Last August, the Indiana courts dismissed a FOI lawsuit for the records of Eric Koch, the Speaker of House. The Indiana Supreme Court declined to hear an appeal of the decision, which affected all legislators. The SB Trib calls this a "devastating blow to the public's right to know."

Gov. Pence is now arguing that he too should not be required to release doucuments that have been ruled to be public records.

You would think that as an advocate for transparency in government functions that Pence would be quick to respond positively to a public records request that qualifies under the Indiana Freedom of Information Act.

 

[Legacy]

For an opening on the Indiana Supreme Court, the Indiana Judicial Nominating Committee sent Gov. Pence the names of three nominees. One of those was St. Joseph Superior Judge Steven Hostetler, who ruled against ESPN. The nominating committee describes Judge Hostetler as

having “earned a reputation for insightful legal analysis, a diligent work ethic, and sound decision-making.” He has been called “a true embodiment of the characteristics citizens should expect from our local judiciary: kind, fair, even-tempered, and knowledgeable of the law.”

Gov Pence is expected to make his decision soon.

 

[Legacy]

Baylor, FOI and recent responses and legislation

Baylor, FOI and recent responses and legislation

The Baylor incidents and their Police Department
Baylor is a private institution with a Police Department that is "the primary reporting and investigating law enforcement agency for all crimes occurring on the Baylor University campus or Baylor owned property. Baylor Officers have the same authority as any municipal officer or sheriff’s deputy." Some of the alleged sexual assault incidents occurred on Baylor property. It is not known whether their Police Department investigated any off-campus incidents, referred alleged victims to counseling, or performed other actions such as directing those reports to coaches.

AG: Baylor must release some police reports on sexual assault, can withhold others

Baylor University can withhold certain aspects of police reports that involve alleged student privacy issues but must release some information because a new law makes law enforcement records from private universities’ police departments subject to public information laws, a Texas Attorney General’s opinion states.

FOI, Texas law, private universities' police departments records
The local newspaper - the Waco Tribune-Herald - seems to be the first to request records based on FOI Act (ESPN may have later requested some records). The Texas legislature last June

"amended the Education Code to say a 'campus police department of a private institution of higher learning is a law enforcement agency and a governmental body for purposes of the Public Information Act, only with respect to information relating solely to law enforcement activities.”

The bill's author said “I think if you’re going to have a police department, it should be transparent,” said Sen. John Whitmire, D-Houston, the bill’s author. “It shouldn’t interfere with the investigation, of course, but for public access you shouldn’t hide behind the fact that you’re private because, in fact, your department is sanctioned by the state of Texas, and your police officers are licensed by the state.”

A Trib-Herald article says "Baylor is a private institution, and subject to a change in state law last year that applies open-records laws for public police agencies to private campus police, requiring disclosure of facts and circumstances of crimes that are reported to the campus police. Texas is the fourth state to institute such a law, following Georgia, North Carolina and Virginia."

Baylor also argued its police department’s offense reports do not relate solely to law enforcement activities because the reports are shared with the university’s Judicial Affairs Office and Baylor’s Title IX Office.

National FOI requests from police records from private universities
Despite public interest in increased police transparency, most private universities shield police reports

In all but a handful states (Connecticut, Georgia, North Carolina, Ohio, Texas and Virginia), private campus police departments are largely exempt from public records requests — despite the fact that their officers have the power to make arrests and, if needed, use force.

The Student Press Law Center requested police records from twenty private institutions for police records. Only three provided those records. "The 17 private colleges that refused to directly provide records to the SPLC were: the University of Pennsylvania, George Washington University, Tulane University, Vanderbilt University, Georgetown University, Boston University, the Massachusetts Institute of Technology, Cornell University, Catholic University of America, Loyola University Maryland, Tufts University, Smith College, Suffolk University, American University, Duquesne University, Loyola University Chicago and the University of Notre Dame."

 

[ozzman]

Indiana Supreme Court heard arguments Tuesday

Here is an article that sides with ESPN in the matter.
What Is Notre Dame’s Police Force Hiding From ESPN? | Above the Law

 

[NDgradstudent]

Indiana Supreme Court heard arguments Tuesday

Here is an article that sides with ESPN in the matter.
What Is Notre Dame’s Police Force Hiding From ESPN? | Above the Law

Would this be a problem if ND football players could consistently make responsible choices?

 

[Legacy]

We need legislative clarity on this. Oh, that's right. The will of the legislature was vetoed.

House Bill 1022

Passed the House 49-1. Passed the Senate 93-0

 

[BobbyMac]

<blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">BREAKING: Indiana Supreme Court rules that <a href="https://twitter.com/hashtag/NotreDame?src=hash">#NotreDame</a> Police don't have to make reports public, denying <a href="https://twitter.com/hashtag/ESPN?src=hash">#ESPN</a> access to them. <a href="https://twitter.com/rtv6">@rtv6</a></p>— Ray Steele (@RaySteeleRTV6) <a href="https://twitter.com/RaySteeleRTV6/status/798970060924710912">November 16, 2016</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script>

 

[gkIrish]

<blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">BREAKING: Indiana Supreme Court rules that <a href="https://twitter.com/hashtag/NotreDame?src=hash">#NotreDame</a> Police don't have to make reports public, denying <a href="https://twitter.com/hashtag/ESPN?src=hash">#ESPN</a> access to them. <a href="https://twitter.com/rtv6">@rtv6</a></p>— Ray Steele (@RaySteeleRTV6) <a href="https://twitter.com/RaySteeleRTV6/status/798970060924710912">November 16, 2016</a></blockquote> <script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script>

Suck it ESPN

 

[IrishinSyria]

Not sure how I feel about that- appears to have been decided on fairly narrow statutory grounds but it's tough to believe an agency that has the power to arrest people (off campus!) isn't a public agency in anything but the most technical of definitions.

 

[IrishLax]

Not sure how I feel about that- appears to have been decided on fairly narrow statutory grounds but it's tough to believe an agency that has the power to arrest people (off campus!) isn't a public agency in anything but the most technical of definitions.

I think the technical definition matters here though, especially because there is 30 years of precedent that the law doesn't apply to Notre Dame and wasn't meant to apply to entities like Notre Dame when it was passed. I think it's very hard for a court to say "just kidding, we know we told you that operating this way was fine and affirmed it many times over the years... but now we've changed our mind." That doesn't mean that there shouldn't be some laws on the books for transparency though. Here are my final thoughts:
1. Police transparency is very important, but overreach is also important to guard against. That's why a bi-partisan near unanimously supported bill was passed last year to ensure police transparency for NDSP and other private police forces, while also shielding sexual assault victims and non-criminal reports from the scope of the transparency laws. The law also clearly defined that the "public agency" laws do not apply to Notre Dame as a private entity. So everyone wins... pragmatic transparency laws + scope clarification to protect certain individuals and Notre Dame at large... so what what happened? Mike fucking Pence vetoed it. A bill with unanimous bi-partisan support. Now that douche is VP. Unreal.

2. Notre Dame was right - legally and morally - to tell ESPN to go fuck themselves not just because of precedent but because of what ESPN wanted the information for.

3. Fuck ESPN.

 

[NDgradstudent]

We need legislative clarity on this. Oh, that's right. The will of the legislature was vetoed.

House Bill 1022

Passed the House 49-1. Passed the Senate 93-0

There's a new governor in Indiana starting next January. If the legislature wants to change the law, they can change the law.

 

[Legacy]

I think the technical definition matters here though, especially because there is 30 years of precedent that the law doesn't apply to Notre Dame and wasn't meant to apply to entities like Notre Dame when it was passed. I think it's very hard for a court to say "just kidding, we know we told you that operating this way was fine and affirmed it many times over the years... but now we've changed our mind." That doesn't mean that there shouldn't be some laws on the books for transparency though.

Here are my final thoughts:
1. Police transparency is very important, but overreach is also important to guard against. That's why a bi-partisan near unanimously supported bill was passed last year to ensure police transparency for NDSP and other private police forces, while also shielding sexual assault victims and non-criminal reports from the scope of the transparency laws. The law also clearly defined that the "public agency" laws do not apply to Notre Dame as a private entity. So everyone wins... pragmatic transparency laws + scope clarification to protect certain individuals and Notre Dame at large... so what what happened? Mike fucking Pence vetoed it. A bill with unanimous bi-partisan support. Now that douche is VP. Unreal.

2. Notre Dame was right - legally and morally - to tell ESPN to go fuck themselves not just because of precedent but because of what ESPN wanted the information for.

3. Fuck ESPN.

From House Bill 1022, which passed the House 49-1 and passed the Senate 93-0 - but was vetoed by Pence:

Private university police departments. Provides that certain records of a private university police department relating to arrests or incarcerations for criminal offenses are public records. Allows a private university police department to withhold investigatory records. Provides that the name of a crime victim in records released by a private university police department must be redacted unless the release is authorized by the crime victim. Provides that an educational institution, a governing board of an educational institution, delegated office or offices of a governing board, or an individual employed by the educational institution as a police officer have the same immunities of the state or state police officers with regard to activities related to law enforcement.

From ESPN's article on the appellate court ruling in their favor.

The University of Notre Dame Police Department can no longer operate in secret, according a ruling by the Indiana Court of Appeals.

In its decision on Tuesday, the appellate court reversed a lower court's ruling that the police department was exempt from complying with state open-records laws because it is affiliated with a private institution.

Tuesday's ruling is the result of a lawsuit filed by ESPN investigative reporter Paula Lavigne. Lavigne and ESPN filed a series of public records requests beginning in September 2014 seeking any possible incident reports involving 275 Notre Dame football and men's basketball players from 2009 to 2014.

ESPN and Lavigne sought the records as part of an investigation that examined interactions between local police and college athletes at 10 major colleges, including Notre Dame. The project attempted to determine how often crimes involving college athletes are prosecuted and what factors influence them. Outside the Lines requested police reports involving all football and men's basketball players on rosters from 2009 to 2014 from campus and city police departments covering 10 major programs: Auburn, Florida, Florida State, Michigan State, Missouri, Notre Dame, Oklahoma State, Oregon State, Texas A&M and Wisconsin. Some police departments withheld records citing state disclosure laws. (ESPN also sued Michigan State University for not releasing material and won that case.) And not all information was uniform among jurisdictions.

Overall, though, the Outside the Lines investigation, which published and aired in June, found that what occurred between high-profile college athletes when they faced criminal allegations and law enforcement was not as simple as the commonly held perception that police and prosecutors simply show preferential treatment to athletes, though that did occur.

The Court was unwilling to open the door to that kind of record-fishing of NDSP over five years. I would expect the legislature to pass their law also restricting a shotgun records request for all investigatory records of a private university security force.

Unanimous decision. 5-0

 

[Legacy]

Court: Student-athlete crime reports not required to be released (ESPN, today)

INDIANAPOLIS -- The University of Notre Dame's police department doesn't have to release crime reports about student-athletes to ESPN, the Indiana Supreme Court ruled Wednesday.

The court said in unanimous ruling that the private university's police department isn't a public agency that falls under the state's open-records law. The state's highest court reversed a state appeals court decision from March that said the law applied because the department has legal authority from the state to make arrests and has jurisdiction beyond the university's campus.

The Supreme Court justices found the public records law didn't apply to Notre Dame police because the department isn't part of any level of government.

"A grant of arrest powers enabling university police departments to keep order on their private campuses does not transform those officers or the trustees who oversee them into public officials and employees,'' Justice Mark Massa wrote.

Bristol, Connecticut-based ESPN said in a brief statement that it was "extremely disappointed by the ruling and what it represents for public transparency."

 

[Legacy]

From Feb. Anything newer?

Experts say Indiana’s private university police transparency law has no teeth

INDIANA—Margaret Hynds, editor in chief of the Notre Dame Observer, noticed last November that HB 1019, a law former Indiana governor Mike Pence signed, classified private university police departments as public agencies.

So, naturally, the student newspaper requested case documents from the University of Notre Dame Security Police. Notre Dame’s general counsel denied the requests. The Observer filed a complaint with a higher power, Indiana Public Access Counselor Luke Britt. Britt sided with Notre Dame, saying HB 1019’s language was in error and a bill to correct it would soon pass.

A law recently enrolled by the Indiana General Assembly, House Enrolled Act 1022, ostensibly requires private university police departments to release case documents to the public if requested. But experts say the law will still hold private departments to different standards than public ones.

“It really doesn’t make private university police departments generate or retain any kind of documentation they wouldn’t have had to before,” said Britt. Britt calls the law “transparency in name only” but asserts his responsibility to uphold it.

“Nothing’s really changed for us,” Hynds said.