ESPN: Notre Dame police have 'core powers of the state'

RICK CALLAHAN

INDIANAPOLIS (AP) — The University of Notre Dame police department's powers make it subject to the same public records law other police agencies must follow, an attorney for ESPN told Indiana's highest court Tuesday in arguing that the school should release records of student-athletes' run-ins with the law.

ESPN attorney Maggie Smith said Indiana's law applies to "any agency that is engaged in the investigation, apprehension, arrest or prosecution" of individuals.

"We are talking about the core powers of the state — the opportunity to deprive an individual of a liberty interest," she told the state Supreme Court.

ESPN sued Notre Dame in January 2015, asking a trial court to order the school to release campus police records detailing allegations against student-athletes. That St. Joseph County court ruled in Notre Dame's favor three months later, finding that Indiana's private schools aren't subject to its open records law.

ESPN appealed and the Indiana Court of Appeals overturned the trial court's decision in March, saying the department is subject to the records law because it has legal authority from the state to make arrests and has jurisdiction outside of the South Bend campus. The high court took the case on appeal.

Peter Rusthoven, an attorney for the school, told the justices that the Catholic university is a private institution that does not perform any functions that would make it subject to the state's open records law. He noted that Indiana's law includes the wording "such as" in describing which law enforcement entities are subject, but lists only public agencies, not private entities.

Rusthoven also noted that state lawmakers had not altered Indiana's law despite three findings by the state's public access counselor that private universities' police records aren't subject to that statute.

He added that if Notre Dame's police department had to comply with Indiana's records law, other aspects of the university's functions would be as well.

Justice Robert Rucker questioned Rusthoven about why a private university's police department should be treated differently than a public university's police force when they perform the same basic functions.

"You're asking us to interpret the statute in such a way that eliminates the private university's police department when it's exercising the exact same functions — shoulder to shoulder, side by side, as a public university — and treat it differently," Rucker said.

Chief Justice Loretta Rush did not indicate when the court might rule.