The Indiana Law Blog has a post about a recent trial court decision determining that the Notre Dame police weren’t subject to the state public records law because they are part of the university and past legal decisions have held that the private university isn’t a public body subject to the public records law.
I think the right way to go is to find that the police force, because they are exercising public police powers, are a public agency. The trial court, in my opinion, was overly legalistic in its analysis. My take on the decision was that the trial court regarded itself as powerless to carve the police department out of the university generally as being subjected to public records laws. In part of its decision, the trial court discussed legislative acquiescence to prior decisions of public access counselors that found private universities aren’t subject to the access to public records act. (I’m not clear on whether those decisions had to do with requests for the private university police records.) In any event, the doctrine of legislative acquiescence is, frankly, dubious. Basically it means that if a court interprets legislation in a certain way and the legislature gives no sign one way or the other, courts will assume that the legislature agrees with the court decision. The more likely reality is that the legislators have no earthly idea what the courts have been up to. This is even more likely when dealing with the public access counselor and not the courts.