April 01, 2015

SOUTH BEND, Ind. (AP) The University of Notre Dame argued Wednesday that its police department isn't subject to Indiana's open records laws because it's acting under powers granted by the school's trustees, not the state, while ESPN said a department with the power to arrest should be subject to public scrutiny.

St. Joseph Superior Court Judge Steven Hostetler heard an hour of oral arguments in a lawsuit filed Jan. 15 on behalf of ESPN and reporter Paula Lavigne alleging the private school was violating Indiana's public record laws by withholding police incident reports about possible campus crimes involving certain student-athletes. The lawsuit doesn't specify what incident reports ESPN is seeking or which athletes may have been involved.

University attorney Damon Leichty said Notre Dame Security Police serve at the pleasure of the university's trustees. He also argued there was ''legislative acquiescence'' because Indiana lawmakers had known that for more than a decade the state's three previous state public access counselors had issued advisory opinions that Notre Dame police records weren't subject to the state's public records laws and hadn't done anything to change the laws.

Hostetler asked Leichty whether he was troubled that the Legislature also hadn't acted to change the law to protect Notre Dame after a new public access counselor ruled in October that its police department is a public law enforcement agency subject to public records laws.

''I'm not concerned. I think the General Assembly is aware that this is before the court,'' he said.

ESPN attorney James Dimos argued that only the state can confer power to make arrests.

''We believe this is a question of accountability over people with power to incarcerate,'' Dimos said.

Dimos also argued that just because previous public access counselors had ruled in favor of Notre Dame didn't mean a new counselor couldn't come to a different conclusion.

Hostetler asked whether ruling that the police department is subject to the state's public records law might be a ''slippery slope'' that eventually leads to all university records becoming public. He asked what such a ruling would that mean for charter schools or parochial schools.

Dimos said it would apply only to police records because the power to arrest comes only from the state.

Hostetler said he hopes to issue a decision by April 20.

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