- Associated Press - Monday, April 20, 2015

SOUTH BEND, Ind. (AP) - The University of Notre Dame police department does not have to provide ESPN with records about possible campus crimes involving student-athletes because private universities in Indiana aren’t subject to the state’s open records law, a judge ruled Monday.

But St. Joseph Superior Court Judge Steven Hostetler wrote that he shared the Indiana public access counselor’s “discomfort with the notion that a private party can exercise police powers without providing to the public the access to records required” by the state Access to Public Records Act.

He wrote he was “similarly uncomfortable” with the idea that ruling that Notre Dame was a public entity could make all of the university’s records subject to the open records law.

The ruling wasn’t about “comfort,” he wrote, but about what the statute says. He said the Legislature has not attempted to impose on private colleges and universities the obligation to comply with state’s open records law.

“This court will not stain the language of the statue in order to do what the Legislature has not, even though there are indeed persuasive reasons why the statute should be amended to read the way ESPN desires,” Hostetler wrote.

ESPN had argued that a police department with the power to arrest should be subject to public scrutiny. It filed a lawsuit Jan. 15 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 didn’t specify what incident reports ESPN was seeking or which athletes may have been involved.

“We are disappointed that the court didn’t adopt the view of the Public Access Commission, which we believe made the correct analysis, in support of information transparency for public bodies,” ESPN spokeswoman Keri Potts said.

University spokesman Paul Browne said Notre Dame was pleased Hostetler “has agreed with the long-recognized status of the university’s records.”

The lawsuit stemmed from Access Counselor Luke Britt issuing an advisory opinion in October that the university should follow Indiana’s public records laws even though it is a private institution. In his decision, Britt noted that that the police department’s powers come from the state of Indiana.

“I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state’s police powers,” Britt wrote.

Three of his predecessors had issued opinions from 2003 to 2011 concluding that a police force that answers solely to a private university is not subject to public records law.

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