The fight over Indiana's Access to Public Records Act


The word "meta" means something that is self-referential, often infinitely so. Using that definition, "meta" may apply to the skirmishes taking place over Indiana's Access to Public Records Act (APRA), the Hoosier State's version of the Freedom of Information Act (FOIA).

But more on the "meta" part of that later. First, it's important to know who the players are and what terrain they're fighting over.

The Legislature's APRA exemption

In an Indiana Supreme Court case pitting public interest groups against the House Republican Caucus, the applicability of APRA as it applies to the Legislature is on the line.

Through some legislative maneuvering, APRA does not apply to records possessed by state legislators. Depending on the high court's ruling in Citizens Action Coalition of Indiana, et al. v. Indiana House Republican Caucus and Rep. Eric Koch, that could change.

A March 9, 2015 APRA request filed by Gabriel Elsner, a fellow at the Energy and Policy Institute, sits at the center of the Court's looming decision. Elsner asked Rep. Eric Koch for records pertaining to solar energy, net metering policy and other electricity industry and utility industry policy matters, particularly relating to Koch's communications with lobbyists and executives on those issues.

The House GOP Caucus decided not to utilize legal services of the Attorney General's office, but instead hired private legal counsel on the taxpayer dime to argue its case. Heading its legal team: Geoffrey Slaughter, one of the finalists for the open Supreme Court seat (also a finalist for an open seat in 2012), meaning Slaughter recently argued his side's case in front of his potential future colleagues.

Slaughter has given campaign money to Governor Mike Pence and was also a contributor to the campaign of former Governor Mitch Daniels.

At the oral argument, the issue of "work-product" exemption played a front-and-center role, with Slaughter arguing that legislators' emails are akin to that of attorneys and their clients and subject to the same privileged and confidential treatment.

"We believe the public has a right to know how lobbyists are working with elected officials on legislation that could specifically benefit special interest groups. If the state legislature is allowed to operate in complete secrecy, then how will citizens be able to hold them accountable for their actions," Elsner told NUVO.

And the stakes here are very high, says Bill Groth, the counsel for the plaintiffs.

"In all humility, this is one of the most important cases the Supreme Court has had to deal with in some time in terms of its importance to our system of representative government. If the Court doesn't get this one right, the damage to our system of government could be incalculable," said Groth.

The Court heard oral arguments on March 17 and will issue a ruling by late April.

Notre Dame's private police

On March 15, the Indiana Court of Appeals handed down a ruling — on appeal from St. Joseph Superior Court — that seemingly opened up Indiana private colleges' police forces to APRA for the first time. It was what appeared a seminal moment for government transparency activists, decided on in the case ESPN, Inc. and Paula Lavinge v. University of Notre Dame Security Police Department.

The ESPN case centers around a January 2015 APRA lawsuit filed by ESPN investigative reporter Paula Lavigne. It revolves around an unspecified set of records she sought from the University of Notre Dame Security Police Department.

First, the Indiana Legislature's been hard at work to reverse whatever precedent was set in the ESPN case even before the Appeals Court issued its ruling. Second, the Appeals Court didn't quite rule in the manner portrayed by some media headlines.

The facts laid out by Judge Rudolph R. Pyle III give a pretty good indication, though, of the types of records Lavigne asked for in her APRA request.

"On September 19, 2014, Lavigne, an investigative journalist with ESPN, Inc., requested public incident reports from the police department pursuant to APRA," wrote the judge. "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."

The Judge wrote in his footnotes that even he had not seen the original request, learning what he had about it from one of the police department's legal filings for the case. Neither Lavigne nor her attorneys responded to a request for comment sent by NUVO.

Context here matters.

Notre Dame has seen itself embroiled in several high-profile sexual assault cases in recent years, finding itself featured in the nationally-televised (CNN) documentary about the campus rape and sexual assault epidemic, "The Hunting Ground." The South Bend private Catholic university and sports powerhouse is currently under investigation by the U.S. Department of Education for how it dealt — or did not deal — with the issue.

It's a crisis that got on the public radar in a major way after the September 2010 suicide of Saint Mary's College (a sister all-women's campus of Notre Dame) student Lizzy Seeberg, who was allegedly sexually assaulted 10 days earlier by then- Notre Dame football player and current NFL player, Prince Shembo. Shembo was never held accountable for his actions and as "The Hunting Ground" and other reporting on the case has made clear, Notre Dame hardly even looked into it and does little to hold perpetrators legally accountable.

Notre Dame has already said it intends to appeal the Appeals Court ruling. If the state legislature has its say, then doing so will be a moot point.

In early March, both the House and the Senate passed HB 1022 in near-unanimous fashion, a bill that would carve out an exemption to the precedent set forth in the ESPN ruling and make private university campus police forces privy to APRA only under very narrow circumstances: for arrests and incarcerations. For the rest, the vast bulk of what campus police forces actually do, the exemption would stand under the bill.

Independent Colleges of Indiana — a lobbying and advocacy organization for Indiana's private colleges and universities — and Notre Dame University, drafted HB 1022. The Indiana House Democratic Caucus confirmed it in a January press release and Rep. Patrick Bauer, the bill's listed author, re-confirmed it in an interview with NUVO.

Bauer sits on the board of directors of Independent Colleges of Indiana, as does bill co-sponsor Sen. Dennis Kruse. Fellow bill co-sponsor Sen. John Broden also formerly sat on the consortium's board, and all of the other board members who also serve on the Legislature also voted "yes." Notre Dame is a member of the Independent Colleges of Indiana.

Bauer, a Notre Dame graduate, told the South Bend Tribune that he does not believe his seat on the Board is a conflict of interest.

The South Bend Tribune's editorial board, which filed a friend of the court brief in the case, has called for Governor Pence to veto the bill.

Pence's office told NUVO it is "giving the bill careful consideration" and has a midnight, March 24 deadline by which to make a call one way or another on HB 1022.

But even if the bill doesn't pass, the Appeals Court ruling was actually fairly modest in scope.

What the Indiana Appeals Court actually ruled for in ESPN was a reversal of the St. Joseph Superior Court decision and made a call to send the case back to the lower court. The lower court, according to the Appeals Court, should evaluate ESPN's records requests to determine which records the Notre Dame police must and must not produce under APRA. In other words, it was an "as-applied" decision to Notre Dame only and only in this specific request.

For now under the precedent, Notre Dame's cops are not subject to the law on the whole. And HB1022 will trump the narrowly-tailored ruling before the case even goes back to the trial court (making a Supreme Court challenge a moot point, too), unless Pence vetoes it.

Student Press Law Center has launched a "Stop Secret Police" campaign targeting private police forces on private college campuses, calling for their subjectivity to open records requests, and Notre Dame is featured as a case study on the campaign's website.

"Notre Dame undoubtedly would rather not see that story done, but their interest in image control is not a justification that overrides the public's right to know," said Student Press Law Center's Executive Director, Frank LoMonte. "The only reason for colleges to fight so hard to withhold those police reports is that they don't want the public to know how often crimes are happening on campus and not getting publicly disclosed today."

The University of Notre Dame Security Police Department did not respond to a request for comment for this story, nor did the athletic department.

Back to "Meta"

The irony of the whole story is that, under these exemptions carved out for APRA, citizens and journalists can't get definitive answers on who the movers and shakers are behind the Citizens Action case, the ESPN case and HB 1022.

And it all comes back to the Legislature, says Gerry Lanosga, a professor of journalism at Indiana University who serves as president of the Indiana Coalition for Open Government.

"The Legislature has given other public agencies a terrible example to follow," said Lanosga. "A fish rots from the head, as the saying goes, so if that is the message from top policymakers, why would we expect downstream agencies to be any more transparent?" 

Recommended for you