Indiana Public Access Counselor Luke Britt sided with Notre Dame Security Police (NDSP) on Monday in responding to a complaint filed with his office last month by The Observer. The complaint concerned the police force and Notre Dame’s denial of records requests in November, despite a change in state law last year that might have required them to grant access.
The relevant law hinges on the legal distinction between private and public agencies.
Under Indiana’s Access to Public Records Act (APRA), “public agencies” — like local police departments — are required to release certain records by law. However, private university police departments like NDSP have long been considered private agencies under state law, and therefore not subject to APRA.
Last spring, the Indiana State Legislature passed HB 1022, which would have required private university police departments to disclose records only in situations where someone was arrested or incarcerated, shielding them specifically from the rest of APRA. It was vetoed by then-Gov. Mike Pence in March.
But in November, the South Bend Tribune reported another law — HB 1019 — was also passed last year containing language such that it inadvertently changed the state’s definition of a “public agency” to specifically include university police departments.
Effective July 1 of last year, the law changed the term’s definition, which now reads in the Indiana State Code as the following:
“‘Public agency,’ except as provided in section 2.1 of this chapter, means the following: … (11) A private university police department. The term does not include the governing board of a private university or any other department, division, board, entity, or office of a private university.”
Of the change in the definition, Britt said it was “inadvertently inserted into HB 1019.”
Britt said in a letter that his office became aware of the error in July 2016, and that “on the advice of the Legislative Services agency,” he began to advise his constituents that the changed definition had “the full force of law.”
“In August of 2016, however, the Indiana Legislative Council voted unanimously to include the error in the 2017 Technical Corrections Bill, HB 1181,” Britt said. “As of the date of this writing [Jan. 30] it had been referred to the Judiciary Committee but had not yet been passed.”
Britt also cited the state Supreme Court’s decision in ESPN’s lawsuit against Notre Dame, which ruled in November that private universities in Indiana are not obligated to disclose police records.
“While I may respectfully disagree with that ruling as Public Access Counselor for policy reasons, I defer to the Court’s opinion as the binding and final authority on the matter,” Britt said.
Ultimately, Britt said his interpretation of the events surrounding HB 1019 is that the change regarding private university police departments was unintentional.
“While the language itself and its impact is substantive and not technical in nature, it was obviously an oversight to include it in the bill,” he said. “I hesitate to categorize it as a simple scrivener’s error, however, it appears to be done in error.
“It has been my modus to evaluate the totality of circumstances of an issue and not make determinations on a technicality.”
Because he believes the correction will pass the General Assembly and because of his interpretation of the original bill’s intent, Britt said he would “defer to the General Assembly.”
If, however, the section regarding APRA is removed from or altered in the legislative corrections bill and private university police departments remain in the definition of “public agency,” Britt said he would revisit the issue.
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