Notre Dame, the media and the right to know

As the University tries to protect its privacy, media outlets – as well as Indiana Public Access Counselor Luke Britt – say that Notre Dame has a legal responsibility to make information available to the media through the Access to Public Records Act.

Coming from any media outlet, it would be troubling to the public.

The fact that it’s ESPN – which is perceived by many as a Notre Dame-baiting entity -- makes it that much more galling.

News quickly spread Wednesday that ESPN, Inc. -- the sports media company out of Bristol, Conn., and the dominant voice in the industry – had filed a lawsuit against the University of Notre Dame in St. Joseph’s Superior Court as a result of the decision by the Notre Dame Security Police to not release incident reports and logs related to student-athletes.

ESPN reporter Paula Lavigne made the requests in September and again in November 2014, and Notre Dame rejected both requests. ESPN’s evidence in justifying the lawsuit is two opinions handed down by Indiana Public Access Counselor Luke Britt – an attorney appointed by Indiana Gov. Mike Pence “to advise on public access matters.”

Britt issued “an opinion” that stated Notre Dame had violated Indiana’s public records law by withholding police records requested by ESPN about “possible campus crimes.”

This is not the only time the media has objected to Notre Dame’s failure to release such documents. Britt’s publicly-stated opinion came after he had put Notre Dame “on notice” for its handling of police records following complaints originating from ESPN and the South Bend Tribune.

Britt’s opinion also included that the Notre Dame Security Police is within the jurisdiction of Indiana’s public records law – the same as other police departments in the state of Indiana. Britt put the Notre Dame Security Police in the same category as other police departments at “similarly private universities” in the state of Indiana.

Britt’s opinion is buttressed by the fact that the Notre Dame Security Police possesses the power to carry guns, make arrests and enforce state laws.

Notre Dame, however, believes it has done nothing to violate the Access to Public Records Act since Britt’s opinion flies in the face of those offered by “access counselors” who previously stated – on three occasions -- that “professional police departments at Indiana private universities did not meet the definition of public agencies,” thus exempting them from Indiana’s Access to Public Records Act. 

“Our practices are in full accord with the Access to Public Records Act and consistent with multiple advisory opinions that have addressed this matter over the past 12 years,” said Notre Dame spokesman Dennis Brown in a written statement Wednesday.

“We are confident that our position will be affirmed in court.”

That statement conflicts with Britt’s follow-up to his original opinion in which he encouraged professional police departments such as Notre Dame’s to adjust to the variance in the interpretation of the Access to Public Records Act.

“Going forward, I expect law enforcement agencies to adapt to the more recent guidance,” Britt said. “The reversal of course was not taken lightly or without regard to the impact on private university police forces. Nevertheless, the burden to conform to the Access to Public Records Act should not be so burdensome as to be unreasonable.”

Indeed, it is a simple matter of turning over such records when they are requested by valid media outlets, which Notre Dame has been reluctant to do, particularly in cases involving student-athletes as well as incidents that have resulted in bodily harm and even death.

On Sept. 6, 2014, shortly before the Notre Dame-Michigan night football game kicked off in Notre Dame Stadium and shortly after the band played in the Main Building – the Golden Dome building -- a man was critically injured when he fell down a stairwell.

In October 2010, Notre Dame junior Declan Sullivan died from a fall on a “scissor lift” while filming the Irish football practice.

In 2013, a falling tree killed Mark Ellsworth while he and his crew cleared an area for a new campus parking lot.

In all three incidents, no police reports made available, nor did they show up on the campus police log.

Seemingly at issue here, in addition to the accusation that Notre Dame violated the Access to Public Records Act, is whether the Notre Dame Security Police can serve as enforcers of the law, and then take on the role of judge and jury within the boundaries of the University’s campus.

Some would argue it is a conflict of interest for the University to make disciplinary decisions on incidents that could be deemed criminal and put the University at risk of litigation.

(Editor’s Note: Coverage provided by the South Bend Tribune contributed to this report.) Top Stories