ESPN, Inc. and Paula Lavigne v. University of Notre Dame Security Police Dept., a Dept. of the University of Notre Dame du Lac , 2016 Ind. App. LEXIS 74 ( 2016 )

Mar 15 2016, 9:32 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James Dimos Damon R. Leichty
Maggie L. Smith Georgina D. Jenkins
Jennifer A. Rulon Barnes & Thornburg LLP
Frost Brown Todd LLC South Bend, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ESPN, Inc. and Paula Lavigne, March 15, 2016
Appellants-Plaintiffs, Court of Appeals Case No.
71A05-1505-MI-381
v. Appeal from the St. Joseph
Superior Court
University of Notre Dame The Honorable Steven L.
Security Police Department, a Hostetler, Judge
Department of the University of Trial Court Cause No.
Notre Dame du Lac, 71D07-1501-MI-17
Appellee-Defendant.
Pyle, Judge.
Statement of the Case
[1] This appeal concerns the issue of whether the campus police department of a
private university is subject to the Indiana Access to Public Records Act
(“APRA”). Appellants/Plaintiffs, ESPN, Inc. (“ESPN, Inc.”) and Paula
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Lavigne (“Lavigne”) (collectively, “ESPN”) filed a complaint against
Appellee/Defendant, University of Notre Dame Security Police Department
(“the Police Department”), claiming that the Police Department qualified as a
public agency under APRA and had violated APRA by refusing to provide
ESPN with access to certain public records that ESPN had requested. After
both parties filed cross-motions for judgment on the pleadings under Trial Rule
12(C), the trial court granted judgment in favor of the Police Department and
denied ESPN’s cross-motion, determining that the Police Department was not
subject to APRA.
[2] On appeal, ESPN argues that the trial court erred in granting judgment in favor
of the Police Department because (1) the Police Department qualified as a
“public agency” under APRA’s definition of the term and was, therefore,
required to provide access to the public records ESPN had requested; and (2)
the doctrine of legislative acquiescence did not bar ESPN’s claim. Because we
conclude that: (1) the Police Department is a “law enforcement agency” as
defined in APRA, and therefore qualifies as a public agency subject to the act;
and (2) the doctrine of legislative acquiescence did not bar ESPN’s claim, we
reverse the trial court’s judgment on the pleadings. We remand with
instructions for the trial court to enter judgment in favor of ESPN. However,
we do not, as ESPN requests, find that the trial court must order the Police
Department to produce the public documents ESPN sought. We instruct the
trial court to determine which of the records the Police Department was
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required to produce under APRA and then order the Police Department to
produce only those records.
[3] We reverse and remand with instructions.
Issue
Whether the trial court erred in granting the Police Department’s
motion for judgment on the pleadings and denying ESPN’s cross-
motion.
Facts1
[4] This appeal concerns the issue of whether a private university’s campus police
department qualifies as a “public agency” for purposes of APRA. Notre Dame
is a private university that has been given the authority under INDIANA CODE §
21-17-5-2 to appoint a police force and administer a law enforcement program.
It exercised this statutory authority and created the Police Department, which it
describes as follows on its website:
[The Police Department] . . . is fully authorized as a police
agency by the State of Indiana. The department employs both
sworn police officers and non-sworn campus security officers
who patrol campus and respond to emergencies . . . [.] Notre
Dame police officers complete state mandated training
requirements established for law enforcement officers and have
the same legal authority as any other police officer in Indiana.
1
We held an oral argument in this case on February 24, 2016 in the Indiana Supreme Court Courtroom. We
thank counsel for their preparation and presentation.
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Notre Dame Security Police staff frequently work with city,
county, state and federal law enforcement authorities[.]
(App. 100).2
[5] On September 19, 2014, Lavigne, an investigative journalist with ESPN, Inc.,
requested public incident reports from the Police Department pursuant to
APRA. Specifically, she requested incident reports concerning 275 student-
athletes, including information regarding “whether they had been named as []
victim[s], suspect[s], witness[es], or reporting part[ies]” in incidents.3 (App. 71).
The Police Department denied the request, claiming that it was not a public law
enforcement agency and, therefore, was not subject to APRA. In response,
ESPN filed a formal complaint with Indiana’s Public Access Counselor
(“PAC”), alleging that the Police Department had violated APRA by refusing
to provide the incident reports Lavigne had requested.
[6] On October 31, 2014, the PAC issued an advisory opinion responding to
ESPN’s complaint. In its advisory opinion, the PAC noted that three prior
PAC advisory opinions had all concluded that a private university’s police force
was not a “public institution[] accountable to any other political subdivision or
2
ESPN included this quote from the Police Department’s website in its legal memorandum in support of its
cross-motion for judgment on the pleadings but did not attach the quote as an exhibit. Nevertheless, the
Police Department does not dispute that it is an accurate representation of the department’s website’s
description.
3
Neither party included the public record requests in an appendix on appeal. We have drawn the
information regarding the public record requests from the Police Department’s memorandum of law in
support of its motion for judgment on the pleadings.
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body politic” and, therefore, did not qualify as a public agency subject to
APRA. (App. 23). However, with respect to the request before it, the PAC
found that the Police Department was “clearly operating under the color of the
law, enforcing Indiana[’s] criminal code and not mere policy or disciplinary
procedures.” (App. 24). As a result, the counselor concluded that the Police
Department was a state actor and should be subject to APRA as a public
agency. The counselor recognized that this determination “m[ight]” be
inconsistent with the previous PACs’ opinions but concluded that the decision
was nevertheless consistent with the “spirit of” APRA. (App. 25). In
recognition of the fact that the Police Department could have been relying on
the previous PAC opinions, though, the PAC declined to issue a conclusive
determination that the department had violated APRA. Instead, the counselor
put the Police Department “on notice” that it would be considered a public law
enforcement agency under APRA for purposes of future public access requests.
(App. 25).
[7] On November 4, 2014, ESPN submitted a second public records request to the
Police Department seeking incident reports for specified student-athletes. The
Police Department denied the request on November 11, 2014. Again, it
claimed that it was not a public law enforcement agency for purposes of APRA
and that it did not have documents responsive to ESPN’s request.
[8] Thereafter, on November 20, 2014, ESPN submitted a third “more specific”
public records request to the Police Department seeking the department’s daily
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log.4 (App. 34). The Police Department again denied the request, stating that it
was not a public agency subject to APRA. As a result, on December 8, 2014,
ESPN filed a second complaint with the PAC, alleging that the department had
violated APRA by refusing to tender the requested records.
[9] On January 5, 2015, the PAC issued a second advisory opinion. In this
opinion, the counselor stated that, because the Police Department had been on
notice since the first advisory opinion that the counselor considered it a public
agency—specifically a law enforcement agency—it had been required to
comply with APRA when ESPN tendered its requests in November. However,
the counselor also noted that the Police Department had not necessarily been
required to produce all of ESPN’s requested documents because they likely
included information that could be considered investigatory records that a law
enforcement agency would have discretion to withhold under APRA. As for
the daily logs that ESPN had requested, the counselor wrote that the Police
Department could substitute redacted daily incident reports, since it had not
been keeping daily logs as required by APRA. In conclusion, the PAC held
that if the Police Department “had documentation regarding any suspected
crimes, accidents or complaints involving the individuals named in [ESPN’s]
request, [it] ha[d] violated [] [APRA].” (App. 36).
4
ESPN did not include this third public records request in its Appendix, so it is not clear whether this request
was different from its November 4 request.
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[10] Subsequently, ESPN filed a complaint with the trial court on January 15, 2015,
asking the court to order the Police Department to disclose the documents it
had requested. The Police Department answered the complaint and moved for
judgment on the pleadings under Trial Rule 12(C), contending that ESPN could
not succeed in its complaint under APRA because the Police Department was
not a public law enforcement agency subject to APRA. The department also
argued that ESPN’s complaint should be barred by the doctrine of legislative
acquiescence because the legislature had not amended APRA to include private
university police departments after three previous PACs had concluded that
they were not subject to APRA.
[11] ESPN responded and filed a cross-motion for judgment on the pleadings. It
argued that the Police Department was subject to APRA because the
department was a state actor exercising an executive function of the State of
Indiana and was, therefore, a “public agency” within APRA’s definition of the
term. ESPN also argued that the Police Department met another component of
APRA’s definition of “public agency” because it was a law enforcement
agency.
[12] The trial court held a hearing on the cross-motions on April 1, 2015. At the
conclusion of the hearing, the trial court took the matter under advisement.
Then, on April 20, 2015, it granted the Police Department’s motion and entered
judgment on the pleadings in the department’s favor. As an initial matter, the
trial court noted in its order that Notre Dame was not authorized by statute to
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establish “separate and distinct legal entities to exercise police powers.” (App.
8). Accordingly, the trial court found the following:
In fact, the statute does not use the term “campus police
department,” “campus police force,” or any similar term. All it
does is authorize the colleges and universities themselves to
appoint police officers with certain enumerated powers. If Notre
Dame is a “public agency” because it appoints police officers, it
is a public agency, period. Thus, the question raised by ESPN’s
complaint is really whether the University of Notre Dame, the
entire University of Notre Dame, is now required to produce all
of its records (such as academic, business and financial records)
simply because it appoints campus police officers.
(App. 8).
[13] The trial court then turned to precedent concerning “state actors” and found
that, even if Notre Dame qualified as a “state actor” for constitutional law
purposes, such a finding would not necessitate that the school qualify as a
“public agency” under APRA. Instead, the court concluded that Notre Dame
was not a public agency because:
It is difficult to fathom that the Indiana Legislature, without
directly saying so, would intend the University of Notre Dame,
Taylor University, Valparaiso University (and on and on) to have
to produce pursuant to APRA all of their records concerning any
matter whatsoever to anyone who asks, simply because those
private institutions availed themselves of the Legislature’s
invitation to appoint campus police officers.
(App. 12). The court was also troubled by the fact that APRA did not contain
any language that would limit public access to university records to only those
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concerning police powers. Ultimately, it recognized that ESPN was not
requesting Notre Dame’s general records, but it noted that granting ESPN’s
complaint could be a “slippery slope” due to “the expansive effect of ESPN’s
interpretation of APRA.” (App. 12). As a result, the trial court concluded that
the university—and therefore the Police Department—could not be a “public
agency” under APRA.
[14] In addition, the trial court made three further points in its order granting the
Police Department’s motion for judgment on the pleadings and denying
ESPN’s cross-motion. First, it found that the Police Department’s legislative
acquiescence argument was “well taken.” (App. 13). It noted that there had
been three previous PAC opinions finding that private university police
departments were not subject to APRA, and yet the legislature had not
amended the statute. Second, the trial court found that the legislature had
delegated its executive powers to the governing boards of private universities,
not the police departments of the universities. Thus, the trial court concluded
that the campus police departments were exercising powers delegated “by” the
state, not powers “of” the state. (App. 11) (underlining omitted). Third, the
trial court interpreted the definition of “law enforcement agency” in APRA and
concluded that the Police Department did not qualify as a law enforcement
agency per the definition because “Notre Dame [was] clearly not ‘an agency or
department of any level of government’” as the language of the statute required.
(App. 10) (quoting I.C. § 5-14-3-2(n)(6).
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[15] ESPN now appeals the trial court’s order granting judgment on the pleadings in
favor of the Police Department. The South Bend Tribune, Hoosier State Press
Association Foundation, and the State of Indiana have filed Amicus Curiae briefs
substantially aligned with ESPN.
Discussion
[16] The issue on appeal is whether the trial court erred when it determined that the
Police Department was not subject to the public records access requirements of
APRA. In Indiana, the general rule is that the information submitted to state
governmental entities can be accessed by the public. See Travelers Casualty and
Surety Co. v. U.S. Filter Corp., 895 N.E.2d 114, 115 (Ind. 2008). To promote this
accessibility, the Indiana General Assembly enacted APRA, whose express
purpose is to fulfill the public policy of the state 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.”
I.C. § 5-14-3-1. Towards that end, APRA provides that “[a]ny person may
inspect and copy the public records of any public agency during the regular
business hours of the agency,” subject to certain exceptions. I.C. § 5-14-3-3
(emphasis added).
[17] On appeal, ESPN argues that the trial court erred in granting the Police
Department’s motion for judgment on the pleadings because the Police
Department qualified as a “public agency” subject to APRA under APRA’s
definition of the term. Based on this argument, ESPN asserts that the Police
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Department violated APRA when it refused to produce the records that ESPN
had requested. In addition, ESPN also disputes the trial court’s conclusion
that, regardless of APRA’s definition of “public agency,” the doctrine of
legislative acquiescence barred ESPN’s claim.
[18] We review a trial court’s ruling on a T.R. 12(C) motion for judgment on the
pleadings de novo. Davis v. Edgewater Sys. for Balanced Living, Inc., 42 N.E.3d
524, 526 (Ind. Ct. App. 2015). Such a motion attacks the legal sufficiency of
the pleadings. Midwest Psychological Ctr., Inc. v. Ind. Dep’t of Admin., 959 N.E.2d
896, 902 (Ind. Ct. App. 2011), trans. denied. Accordingly, judgment is proper
only when there are no genuine issues of material fact and when the facts
shown by the pleadings clearly establish that the non-moving party cannot in
any way succeed under the facts and allegations therein. Id. During our
review, we consider any facts of which we may take judicial notice and accept
as true the well-pleaded material facts alleged in the complaint. Davis, 42
N.E.3d at 526. Further, we draw all reasonable inferences in favor of the
nonmoving party against the movant. Midwest Psychological Ctr., Inc., 959
N.E.2d at 902.
1. “Public Agency”
[19] First, ESPN argues that the Police Department qualifies as a public agency
under APRA’s definition of the term. Our resolution of this issue is dependent,
in part, on the nature of the Police Department. Accordingly, we will
preliminarily describe the Police Department and its statutorily-granted powers.
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[20] Notre Dame established the Police Department pursuant to INDIANA CODE §
21-17-5-2, which provides that “the governing board of an educational
institution” may:
(1) Appoint police officers for the educational institution for
which it is responsible.
(2) Prescribe the duties of police officers of the educational
institution and direct their conduct.
(3) Prescribe distinctive uniforms for the police officers of the
educational institution or campus.
(4) Designate and operate emergency vehicles.
Under INDIANA CODE § 21-17-5-4(a), the Police Department’s police officers
have the following statutorily-granted powers and duties:
(1) General police powers, including the power to arrest, without
process, all persons who commit any offense within the view of
the officer.
(2) The same common law and statutory powers, privileges, and
immunities as sheriffs and constables. However, the police
officers are empowered to serve civil process only to the extent
authorized by the employing governing board.
(3) The duty to enforce and to assist the officials of the
educational institutions in the enforcement of the rules and
regulations of the educational institution.
(4) The duty to assist and cooperate with other law enforcement
agencies and law enforcement officers.
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These police powers extend “upon any real property owned or occupied by the
educational institution employing the police officer, including the streets
passing through and adjacent to the educational institution.” I.C. § 21-17-5-
5(b). Further, Notre Dame “may extend a police officer’s territorial jurisdiction
to the entire state, or to any part of the state” if: (1) “the board of trustees
adopts a resolution specifically describing the territorial jurisdiction” and (2)
notifies the superintendent of the state police department and the sheriff of the
county in which the institution is primarily located of the extended jurisdiction.
I.C. § 21-17-5-5. In its oral argument, the Police Department’s counsel
acknowledged that the department’s powers are not limited to crimes on Notre
Dame’s property and that its officers can arrest people off of campus. However,
one limit to the Police Department’s power is that Notre Dame’s “governing
board . . . may expressly forbid the officer from exercising any powers otherwise
granted to the police officer by law.” I.C. § 21-17-5-4(a).
[21] ESPN points to the Police Department’s nature and powers as evidence that it
qualifies as a “public agency” per three subsections of APRA’s definition of the
term. APRA defines a “public agency” as, among other definitions:
(1) Any board, commission, department, division, bureau,
committee, agency, office, instrumentality, or authority, by
whatever name designated, exercising any part of the executive,
administrative, judicial, or legislative power of the state.
(2) Any . . . other entity, or any office thereof, by whatever name
designated, exercising in a limited geographical area the
executive, administrative, judicial, or legislative power of the
state or a delegated local power.
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* * *
(6) Any law enforcement agency . . . .
I.C. § 5-14-3-2(n). Accordingly, EPSN argues that the Police Department fits
the definition of “public agency” because it: (1) is a law enforcement agency;
(2) exercises the executive powers of the state; and (3) exercises a delegated
“traditional” governmental power. We agree with ESPN that the Police
Department fits APRA’s definition of “law enforcement agency,” so we need
not address its remaining two arguments.
[22] Turning to ESPN’s first argument, we note that APRA includes “[a]ny law
enforcement agency” within its definition of “public agency.” I.C. § 5-14-3-
2(n). It further defines “law enforcement agency” as:
any agency or a department of any level of government that engages in
the investigation, apprehension, arrest, or prosecution of alleged
criminal offenders, such as the state police department, the police
or sheriff’s department of a political subdivision, prosecuting
attorneys, members of the excise police division of the alcohol
and tobacco commission, conservation officers of the department
of natural resources, gaming agents of the Indiana gaming
commission, gaming control officers of the Indiana gaming
commission, and the security division of the state lottery
commission.
I.C. § 5-14-3-2(n)(6) (emphasis added).
[23] The issue of whether a private university’s campus police department may fit
within this definition is dependent on statutory interpretation. Statutory
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interpretation is a function for the courts, and our goal is to determine, give
effect to, and implement the intent of the legislature as expressed in the plain
language of its statutes. Clark Cnty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 680
(Ind. Ct. App. 2012), adhering to opinion on reh’g. “‘The first rule of statutory
construction is that [w]ords and phrases shall be taken in their plain, or
ordinary and usual, sense.’” Id. (quoting State v. Prater, 922 N.E.2d 746, 749
(Ind. Ct. App. 2009), trans. denied) (internal quotations omitted). “‘We will
examine the statute as a whole[] and avoid excessive reliance on a strict literal
meaning or the selective reading of words.’” A.J. v. Logansport State Hosp., 956
N.E.2d 96, 104 (Ind. Ct. App. 2011) (quoting In re J.J., 912 N.E.2d 909, 910
(Ind. Ct. App. 2009)). In addition, where “‘statutes address the same subject,
they are in pari materia, and we harmonize them if possible.’” 5 Id. at 105
(quoting Saintignon v. State, 749 N.E.2d 1134, 1137 (Ind. 2001) (citation and
quotation marks omitted)).
[24] First, ESPN contends that the Police Department may qualify as a law
enforcement agency under APRA’s definition of the term because, even though
the definition does not explicitly list private university police departments, it
includes the statutory phrase “such as,” which establishes that the list of entities
included in the definition is illustrative, rather than exhaustive. ESPN notes
that the department qualifies as a “law enforcement agency” under the
5
“In pari materia” means “[o]n the same subject” or “relating to the same matter.” BLACK’S LAW
DICTIONARY 911 (10th ed. 2009).
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remainder of APRA’s definition because it “engages in the investigation,
apprehension, arrest, or prosecution of alleged criminal offenders” and its
powers mirror the powers of other law enforcement officers. I.C. § 5-14-3-
2(n)(6); see I.C. § 21-17-5-4(a). In addition, ESPN notes that other statutes
include private university police departments and officers within their
definitions of law enforcement agencies and officers. See, e.g., I.C. § 10-13-8-5
(codifying the “Blue Alert Program”); I.C. § 35-50-2-11 (making it a crime to
point or discharge a firearm at a police officer); I.C. § 10-14-2-5(a) (establishing
honors for a public safety officer who dies in the line of duty; I.C. § 5-10-10-
4.5(b)(1)(a) (establishing certain public employee benefits); I.C. §§ 3-5-2-31.5, 3-
11-10-24; and 3-11-8-25.7 (granting police officers special privileges on Election
Day).6 It contends that we should harmonize these statutes by interpreting
APRA’s definition of “law enforcement agency” to also include private
university police departments. See A.J., 956 N.E.2d at 104 (stating that when
statutes address the same subject and are, therefore, in pari materia, we should
harmonize them if possible).
6
As further examples, the statute governing the training required for law enforcement agencies provides:
“Law enforcement officer” means an appointed officer or employee hired by and on the payroll of . . . a
public or private postsecondary educational institution whose board of trustees has established a police
department under I.C. [§] 21-17-5-2 or I.C. [§] 21-39-4-2 . . . .” I.C. § 5-2-1-2(1). Likewise, statutes
concerning a continuing education program for a “[c]ity or town law enforcement agency” and for a “county
law enforcement agency” include “postsecondary educational institution police officers appointed under [I.C.
§] 21-17-5 or [I.C. §] 21-39-4” within the definitions of “[c]ity or town law enforcement agency” and “county
law enforcement agency,” respectively. See I.C. §§ 5-2-8-1(a) and 5-2-8-2(a).
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[25] We agree with ESPN that the list of entities in APRA’s definition is not
exhaustive because our supreme court has previously held that the phrase “such
as,” introducing a list, indicates that the list is illustrative rather than
exhaustive. See Brownsburg Area Patrons Affecting Change v. Baldwin, 714 N.E.2d
135, 139 n. 5 (Ind. 1999) (“The Court’s use of “such as” suggests that it did not
intend for this to be an exhaustive list.”); Bedree v. DeGroote, 799 N.E.2d 1167,
1177 (Ind. Ct. App. 2003) (“the ‘such as’ language indicates the list is non-
exhaustive.”) (quoting Hicks v. State, 690 N.E.2d 215 (Ind. 1997)). Therefore,
since “such as” precedes the list in the definition of “law enforcement agency,”
the definition may also include entities such as the Police Department that it
does not explicitly list.
[26] However, the Police Department contends that regardless of whether the list is
exhaustive, it does not include non-governmental agencies. Specifically, the
department interprets the phrase “any agency or a department of any level of
government” so that “any level of government” modifies both “any agency”
and “a department of.” I.C. § 5-14-3-2(n)(6). Under such an interpretation, the
agencies and departments included in the definition must be governmental in
nature since “of any level of government” modifies both types of entities. The
Police Department bolsters its argument by noting that each time the legislature
has added a listed entity to the definition, the entity has been governmental in
nature. See, e.g., P.L. 1-2006 (adding “gaming agents of the Indiana Gaming
Commission” to the definition of “law enforcement agency”); P.L. 227-2007
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(adding “gaming control officers of the Indiana Gaming Commission” to the
definition of “law enforcement agency”).
[27] We need not analyze the grammatical structure of the statute as the Police
Department suggests, because regardless of whether “any level of government”
modifies “agency,” the Police Department fits within the definition because it
was acting as a governmental entity by exercising a governmental function. In
Evans v. Newton, 382 U.S. 296 (1966), the United States Supreme Court
addressed a situation where a private entity exercised a governmental function.
It held that:
where a State delegates an aspect of the elective process to private
groups, they become subject to the same restraints as the State.
That is to say, when private individuals or groups are endowed
by the State with powers or functions governmental in nature,
they become agencies or instrumentalities of the State and subject to
its constitutional limitations.
Id. at 300 (emphasis added). Several states have held that the same principle
applies when a private entity is acting as a “functional equivalent” of a
governmental entity. See, e.g., Conn. Humane Soc’y v. Freedom of Info. Comm’n,
591 A.2d 395 (Conn. 1991) (using a functional equivalency analysis to
determine whether the Connecticut Humane Society had violated Connecticut’s
public access statute); News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser
Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) (using a functional
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equivalency analysis to determine whether a private entity under contract with
a public agency was subject to Florida’s Public Records Act). 7
[28] In Memphis Pub’g Co. v. Cherokee Children & Family Srvs., Inc., 87 S.W.3d 67, 76
(Tenn. 2002), reh’g denied, the Supreme Court of Tennessee noted that private
entities are increasingly performing the duties of public entities, and it expressed
the dangers of not requiring public access to the records of such entities.
Specifically, it stated:
Since the 1980s, governmental entities in various parts of the
nation have looked increasingly to privatization as a possible
solution to perceived problems of inefficiency or expense in the
provision of public services. In typical privatization
arrangements, the government, through a contract or similar
vehicle, delegates to a private entity the responsibility for
performing a function formerly performed by the government
itself. . . .
Scholars have long debated the merits of privatization policies.
Only recently, however, has attention focused upon the ways in
which public access to information may be obstructed when
governmental functions are transferred to the private sector. As
one commentator states, “Privatization may be desirable in itself,
but it should not come without . . . leaving public accountability
intact. Not only should the public be able to monitor the private
company’s activities, but the monitoring should be on the same
terms as when the public agency was the information vendor.”
Others note that the government may, intentionally or
7
For a more comprehensive analysis of the states that have adopted a functional equivalency approach, see
Craig D. Feiser, Protecting the Public’s Right to Knoow: The Debate over Privatization and Access to Government
Information under State Law, 27 FLA.ST. U. L. REV. 825, 833 (2000).
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unintentionally, shield records from the public by shifting them
to private entities. Indeed, by maintaining and controlling
previously public records, private companies may control public
access to such records in ways that are “at odds with the very
purpose of public records laws.”
Id. at 76-77 (internal citations omitted) (quoting Craig D. Feiser, 27 FLA.ST. U.
L. REV. at 833 and Matthew Bunker & Charles Davis, Privatized Government
Functions and Freedom of Information: Public Accountability in an Age of Private
Governance, 75 JOURNALISM AND MASS COMM. Q. 464, 464-68 (1998)).
[29] This Court has similarly noted the danger of restricting access to documents
that would be considered public were a private entity not involved. In
Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127, 1130 (Ind.
Ct. App. 2005), reh’g denied, trans. denied, we considered the issue of whether a
settlement agreement drafted by a public agency’s private insurance company’s
attorney could be considered a public record. The Town of Knightstown
(“Knightstown”) argued that the settlement agreement was not a public record
because it was retained by the insurance company’s attorney, a private
individual, and was never in the town’s possession. Id. at 1131. We rejected
that argument, reasoning that:
[I]n light of APRA’s purpose of openness, the [G]eneral
[A]ssembly crafted the definition of public documents in broad
terms. To prevent an agency from frustrating this purpose, the
[G]eneral [A]ssembly, in [INDIANA CODE § 5-14-3-3(g)], elected
to prohibit a public agency from contracting for storage and
copying services that would unreasonably impair access to the
public. Thus, if a public agency cannot unreasonably impair
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access through contractual storage arrangements, accepting
Knightstown’s argument would amount to a tortured
interpretation of APRA whereby private attorneys would be
permitted to ensconce government contracts within their firm[s’]
file room[s] and completely deny the public access.
As compelling as Knightstown might find its own arguments, we
are not persuaded. Knightstown focuses on the argument that
the definition of public record does not include documents
created by private individuals acting on behalf of a public agency.
This distinction is without merit. There is no doubt that
although Retained Town Counsel is a private individual, and not
itself a public authority under APRA, he created, maintained,
and retained custody of the settlement agreement as attorney for
Knightstown, which is a public authority. Accordingly, the
settlement agreement was created and accepted, and released
Knightstown from liability during the course of Retained Town
Counsel’s representation of the public authority, and was, in
effect, the culmination of that representation. If Knightstown’s
argument is accepted, public scrutiny of most, if not all,
settlement agreements involving public authorities would be
barred. This result would effectively close the openness
mandated by Indiana’s public records law.
Id. at 1133. Although this case concerns an agency relationship between an
attorney and a public entity, it emphasizes the importance of construing APRA
in light of the act’s purpose of openness.
[30] In sum, as the above authorities demonstrate, there is a danger that the public
will be denied access to important public documents when a private agency is
exercising a public function if we construe APRA to categorically exclude such
agencies. We are required to liberally construe APRA to implement the
legislature’s policy behind enacting APRA, which is that the “public is entitled
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to ‘full and complete information regarding the affairs of government.’”
Indianapolis Convention & Visitors Ass’n, Inc. v. Indianapolis Newspapers, Inc., 577
N.E.2d 208, 214 (Ind. 1991) (quoting I.C. § 5-14-3-1). Interpreting “public
agency” so that a public entity could avoid public access requirements by
delegating its public powers and duties to a private entity would, as we stated in
Knightstown, ignore this purpose and “effectively close the openness mandated
by Indiana’s public records law.” Knightstown, 838 N.E.2d at 1133.
Accordingly, we interpret the APRA phrase “any agency or a department of
any level of government,” and therefore the definition of “law enforcement
agency,” to include private educational institutions that choose to appoint
police officers pursuant to INDIANA CODE § 21-17-5 et. seq. As a result, we hold
that the Police Department is a “public agency” for purposes of public records
requests under APRA.
[31] Notably, this interpretation is consistent with rulings of several states that have
also held that a private entity exercising a public function is considered public
for the purpose of public access laws. See, e.g., State ex rel. Schiffbauer v.
Banaszak, 33 N.E.3d 52, 54-55 (Ohio 2015) (“[W]e have held that a private
corporation may be considered a public office for purposes of public records
when it performs a governmental function.”); Hackworth v. Bd. of Educ. for City of
Atlanta, 447 S.E.2d 78 (Ga. Ct. App. 1994) (holding that a private company
responsible for transporting children within the Atlanta city school system was
subject to Georgia’s Public Records Act because it exercised a government
function), cert. denied. It is also consistent with our well-settled law that a
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private entity exercising a public function is considered a state actor for
purposes of constitutional law. See Finger v. State, 799 N.E.2d 528, 532 (Ind.
2003) (finding that, because the state had conferred “general police powers” on
Butler University Police officers, those officers were state actors subject to the
Fourth Amendment restrictions on searches and seizures). While APRA is not
constitutional in nature, the same premise applies. See Newton, 382 U.S. at 300
(“when private individuals or groups are endowed by the State with powers or
functions governmental in nature, they become agencies or instrumentalities of
the State[.]”).
[32] Here, it is clear that the Police Department is exercising a public function.
Police power is a sovereign power. Tucker v. State, 35 N.E.2d 270, 299 (Ind.
1941) (“The police power is a sovereign power. Authority to enact laws is in
the Legislature, but the power to enforce and execute the laws enacted under
the police power is in the executive.”) Even though the Police Department is
not a governmental entity, the State has delegated its officers these “[g]eneral
police powers,” including “the power to arrest, without process, all persons
who commit any offense within the view of the officer[s].” I.C. § 21-17-5-4(a).
Under INDIANA CODE § 21-17-5-4(a), the Police Department has “[t]he same
common law and statutory powers, privileges, and immunities as sheriffs and
constables,” except the power to serve civil process. In addition, Notre Dame’s
board of trustees was given the authority to “extend a [campus] police officer’s
territorial jurisdiction to the entire state, or to any part of the state[.]” I.C. § 21-
17-5-5. This means that campus police officers may even have the same
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jurisdiction as governmental law enforcement officers. In light of these factors,
it is clear that the Police Department exercises governmental, public functions
even though it was established by a private entity. It would not be appropriate
for the Police Department, having availed itself of its statutory right to exercise
these public functions, to then be able to circumvent public records
requirements to which all other entities exercising these same functions are
required to adhere.8
[33] In addition, we must note that our conclusion does not mean that Notre Dame,
as a whole, is subject to APRA as a “public agency” and must produce its
general university records if requested. The trial court concluded that Notre
Dame would be subject to APRA if the Police Department qualified as a
“public agency,” because it viewed the department as an inseparable division of
the university. Its basis for this interpretation was the fact that the Indiana
Code does not authorize a university to create a police department that is a
separate and distinct legal entity.
8
Because we conclude that the Police Department is a law enforcement agency as a result of its exercise of a
governmental function, we also conclude that it is not relevant that the department is controlled and financed
in many relevant respects by Notre Dame’s Board of Trustees.
The Police Department also argues that it cannot be a “law enforcement agency” because numerous private
entities are statutorily authorized to engage in investigation, apprehension, and arrest of criminal offenders in
Indiana, and it would be “absurd” to consider all of those entities law enforcement agencies. (Police
Department’s Br. 29) (arguing that “ESPN’s new argument would extend APRA to. . . private hospitals,
railroad companies, railroad conductors, retail establishments, banks, bail bond agencies, and private
investigation agencies”). However, the Police Department has not provided any legal authority to support a
conclusion that the legislature did not intend these entities to be included in the definition of “law
enforcement agency” if they, like the Police Department, also exercise public functions.
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[34] However, we find the Ohio Supreme Court’s opinion in State ex rel. Schiffbauer
persuasive on this issue. There, the Supreme Court rejected the argument that a
university can be considered a public agency merely because its police
department qualifies as such. It noted that a private entity is only “considered a
public office for purposes of public records when it performs a governmental
function.” State ex rel. Schiffbauer, 33 N.E.3d at 55. In contrast, providing
educational services is not a “uniquely governmental service, given that such
instruction does not fall under a typical ‘police power’ type of function and that
other non-governmental organizations may provide similar instruction.” Lane
ex rel. Sharp v. Frankfort Cnty. Sch. Bldg. Trades Corp., 747 N.E.2d 1172, 1176
(Ind. Ct. App. 2001).
[35] Correspondingly, we note that whereas the Police Department qualifies as a
public agency under APRA because it is a law enforcement agency, the
remainder of Notre Dame clearly does not qualify as a law enforcement agency.
In light of these factors, we conclude that it is possible for a subdivision of a
private entity to be considered a public agency under APRA for purposes of
public disclosure relating to its exercise of a public function without subjecting
the entire private entity to APRA.
2. Legislative Acquiescence
[36] Next, ESPN challenges the trial court’s conclusion that, regardless of whether
the Police Department qualifies as a “public agency” under APRA, ESPN’s
claim should be barred by the doctrine of legislative acquiescence. The court
noted that three previous PAC advisory opinions over the course of a decade
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had held that private university police departments were not public agencies. It
concluded that the legislature had acquiesced in that interpretation because it
had chosen not to amend APRA over that time period. Thus, it found that the
doctrine of legislative acquiescence should apply.
[37] The doctrine of legislative acquiescence is an estoppel doctrine designed to
protect those who rely on a long-standing administrative interpretation. Citizens
Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610, 616 (Ind. 1985),
cert. denied. It provides that “a long adhered to administrative interpretation
dating from the legislative enactment, with no subsequent change in the statute,
raises a strong presumption that the [legislature] has acquiesced to the
administrative interpretation.” Beer Distrib. of Ind., Inc. v. State ex rel. Alcoholic
Beverage Comm’n, 431 N.E.2d 836, 840 (Ind. Ct. App. 1982). We will assume
that the legislature has acquiesced to an interpretation where the interpretation
dates from the time of the legislation or is of a “long[-]standing nature.” Id.
However, although legislative acquiescence is a useful tool of statutory
construction, it is not a sufficient independent basis for affirming or reversing a
judgment. Id. In addition, long-standing administrative interpretations that are
incorrect are not entitled to any weight. Id.
[38] The three PAC opinions the Police Department cites were issued in 2003, 2009,
and 2011. In 2003, the then-PAC, Michael Hurst (“Hurst”), issued an advisory
opinion stating that the Taylor University Office of Campus Safety was not
subject to APRA because it was a “subdivision or office of a private
institution,” not a public agency. (App. 55). Hurst also concluded that the
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Office of Campus Safety was not exercising the types of executive functions that
fell within the definition of “public agency.” Then, in 2009, the then-PAC,
Heather Willis Neal, adopted Hurst’s 2003 analysis verbatim and issued an
advisory opinion finding that the Valparaiso University Police Department was
not a public agency under APRA. Finally, in 2011, the then-PAC, Andrew
Kossack (“Kossack”), issued an advisory opinion stating that the Notre Dame
Police Department—the Police Department here—was not a public agency.
Kossack adopted the reasoning of the 2003 advisory opinion, but he
additionally concluded that if the Office of the PAC were to consider the Police
Department a public agency, then it would have to consider Notre Dame as a
whole a public agency because the State had delegated the executive powers to
the university’s governing body, not the university’s police department. None
of the parties to these advisory opinions challenged the PACs’ conclusions in
court.
[39] ESPN argues that we should not rely on the doctrine of legislative acquiescence
because the cases that have addressed the doctrine have concerned agencies
responsible for issuing final, binding decisions. In contrast to such agencies, the
Office of the PAC is, according to ESPN, “primarily educational[,] and the
Counselor’s opinions are non-binding and advisory only.” (ESPN’s Br. 36). As
a result, ESPN contends that “there is no need for the legislature to do anything
following an incorrect opinion by the Counselor given that the opinion is
advisory and non-binding” and, thus, the legislature’s silence should not be
considered acquiescence. (ESPN’s Br. 38). Alternatively, ESPN argues that
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the doctrine of legislative acquiescence should not apply because the former
PAC opinions were incorrect.
[40] Contrary to ESPN’s first argument, we have previously applied the doctrine of
legislative acquiescence to administrative opinions that are non-binding and
advisory in nature. See Butler Univ. v. State Bd. of Tax Comm’rs, 408 N.E.2d
1286, 1287-91 (Ind. Ct. App. 1980) (finding legislative acquiescence to a
conclusion reached by the Indiana Attorney General in an advisory opinion
forty-nine years previously); Frame v. South Bend Comm. Sch. Corp., 480 N.E.2d
261, 262-65 (Ind. Ct. App. 1985) (finding legislative acquiescence to a
conclusion reached by the Indiana Attorney General in an advisory opinion
fifty years previously). However, we find it significant that in both Butler Univ.
and Frame, the advisory opinions at issue were long-standing in nature. In
Butler Univ., our General Assembly had acquiesced to the Attorney General’s
advisory opinion for forty-nine years, and in Frame, our General Assembly had
acquiesced to the Attorney General’s advisory opinion for fifty years. As we
stated above, we will only apply the doctrine of legislative acquiescence when
an administrative interpretation is long-standing in nature. See Citizens Action
Coal. of Ind., Inc., 485 N.E.2d at 616. Compared to these decision, the PACs’
administrative interpretations here were not long-standing in nature—they were
issued over a period of a little more than a decade. We are not convinced that
this amount of time raised “a strong presumption that the [legislature] ha[d]
acquiesced to the administrative interpretation.” Beer Distrib. of Ind., Inc., 431
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N.E.2d at 840. Accordingly, we will not apply the doctrine of legislative
acquiescence to bar ESPN’s claim.
[41] Because we conclude that the Police Department does qualify as a “public
agency” under APRA and that ESPN’s claim is not barred by the doctrine of
legislative acquiescence, we also conclude that the trial court erred in entering
judgment in favor of the Police Department. However, we cannot, as ESPN
requests, order the Police Department to produce the records that ESPN sought
because we are not able to determine whether those records are accessible under
APRA. ESPN’s three requests are not a part of the record, and APRA exempts
certain categories of public documents, such as investigatory records, from its
public access requirements. See I.C. § 5-14-3-4 (listing records excepted from
disclosure requirements). We remand to the trial court with instructions to
enter judgment in favor of ESPN and to evaluate ESPN’s records requests to
determine which records the Police Department is required to produce under
APRA.
[42] Reversed and remanded with instructions.
Vaidik, C.J., and Robb, J., concur.
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