                                                                                 Mar 15 2016, 9:32 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      James Dimos                                               Damon R. Leichty
      Maggie L. Smith                                           Georgina D. Jenkins
      Jennifer A. Rulon                                         Barnes & Thornburg LLP
      Frost Brown Todd LLC                                      South Bend, Indiana
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      ESPN, Inc. and Paula Lavigne,                             March 15, 2016
      Appellants-Plaintiffs,                                    Court of Appeals Case No.
                                                                71A05-1505-MI-381
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      University of Notre Dame                                  The Honorable Steven L.
      Security Police Department, a                             Hostetler, Judge
      Department of the University of                           Trial Court Cause No.
      Notre Dame du Lac,                                        71D07-1501-MI-17
      Appellee-Defendant.




      Pyle, Judge.


                                        Statement of the Case
[1]   This appeal concerns the issue of whether the campus police department of a

      private university is subject to the Indiana Access to Public Records Act

      (“APRA”). Appellants/Plaintiffs, ESPN, Inc. (“ESPN, Inc.”) and Paula
      Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                          Page 1 of 29
      Lavigne (“Lavigne”) (collectively, “ESPN”) filed a complaint against

      Appellee/Defendant, University of Notre Dame Security Police Department

      (“the Police Department”), claiming that the Police Department qualified as a

      public agency under APRA and had violated APRA by refusing to provide

      ESPN with access to certain public records that ESPN had requested. After

      both parties filed cross-motions for judgment on the pleadings under Trial Rule

      12(C), the trial court granted judgment in favor of the Police Department and

      denied ESPN’s cross-motion, determining that the Police Department was not

      subject to APRA.


[2]   On appeal, ESPN argues that the trial court erred in granting judgment in favor

      of the Police Department because (1) the Police Department qualified as a

      “public agency” under APRA’s definition of the term and was, therefore,

      required to provide access to the public records ESPN had requested; and (2)

      the doctrine of legislative acquiescence did not bar ESPN’s claim. Because we

      conclude that: (1) the Police Department is a “law enforcement agency” as

      defined in APRA, and therefore qualifies as a public agency subject to the act;

      and (2) the doctrine of legislative acquiescence did not bar ESPN’s claim, we

      reverse the trial court’s judgment on the pleadings. We remand with

      instructions for the trial court to enter judgment in favor of ESPN. However,

      we do not, as ESPN requests, find that the trial court must order the Police

      Department to produce the public documents ESPN sought. We instruct the

      trial court to determine which of the records the Police Department was




      Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 2 of 29
      required to produce under APRA and then order the Police Department to

      produce only those records.


[3]   We reverse and remand with instructions.


                                                      Issue
              Whether the trial court erred in granting the Police Department’s
              motion for judgment on the pleadings and denying ESPN’s cross-
              motion.

                                                      Facts1
[4]   This appeal concerns the issue of whether a private university’s campus police

      department qualifies as a “public agency” for purposes of APRA. Notre Dame

      is a private university that has been given the authority under INDIANA CODE §

      21-17-5-2 to appoint a police force and administer a law enforcement program.

      It exercised this statutory authority and created the Police Department, which it

      describes as follows on its website:


              [The Police Department] . . . is fully authorized as a police
              agency by the State of Indiana. The department employs both
              sworn police officers and non-sworn campus security officers
              who patrol campus and respond to emergencies . . . [.] Notre
              Dame police officers complete state mandated training
              requirements established for law enforcement officers and have
              the same legal authority as any other police officer in Indiana.




      1
        We held an oral argument in this case on February 24, 2016 in the Indiana Supreme Court Courtroom. We
      thank counsel for their preparation and presentation.



      Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                   Page 3 of 29
              Notre Dame Security Police staff frequently work with city,
              county, state and federal law enforcement authorities[.]

      (App. 100).2


[5]   On September 19, 2014, Lavigne, an investigative journalist with ESPN, Inc.,

      requested public incident reports from the Police Department pursuant to

      APRA. 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.3 (App. 71).

      The Police Department denied the request, claiming that it was not a public law

      enforcement agency and, therefore, was not subject to APRA. In response,

      ESPN filed a formal complaint with Indiana’s Public Access Counselor

      (“PAC”), alleging that the Police Department had violated APRA by refusing

      to provide the incident reports Lavigne had requested.


[6]   On October 31, 2014, the PAC issued an advisory opinion responding to

      ESPN’s complaint. In its advisory opinion, the PAC noted that three prior

      PAC advisory opinions had all concluded that a private university’s police force

      was not a “public institution[] accountable to any other political subdivision or




      2
        ESPN included this quote from the Police Department’s website in its legal memorandum in support of its
      cross-motion for judgment on the pleadings but did not attach the quote as an exhibit. Nevertheless, the
      Police Department does not dispute that it is an accurate representation of the department’s website’s
      description.
      3
        Neither party included the public record requests in an appendix on appeal. We have drawn the
      information regarding the public record requests from the Police Department’s memorandum of law in
      support of its motion for judgment on the pleadings.

      Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                      Page 4 of 29
      body politic” and, therefore, did not qualify as a public agency subject to

      APRA. (App. 23). However, with respect to the request before it, the PAC

      found that the Police Department was “clearly operating under the color of the

      law, enforcing Indiana[’s] criminal code and not mere policy or disciplinary

      procedures.” (App. 24). As a result, the counselor concluded that the Police

      Department was a state actor and should be subject to APRA as a public

      agency. The counselor recognized that this determination “m[ight]” be

      inconsistent with the previous PACs’ opinions but concluded that the decision

      was nevertheless consistent with the “spirit of” APRA. (App. 25). In

      recognition of the fact that the Police Department could have been relying on

      the previous PAC opinions, though, the PAC declined to issue a conclusive

      determination that the department had violated APRA. Instead, the counselor

      put the Police Department “on notice” that it would be considered a public law

      enforcement agency under APRA for purposes of future public access requests.

      (App. 25).


[7]   On November 4, 2014, ESPN submitted a second public records request to the

      Police Department seeking incident reports for specified student-athletes. The

      Police Department denied the request on November 11, 2014. Again, it

      claimed that it was not a public law enforcement agency for purposes of APRA

      and that it did not have documents responsive to ESPN’s request.


[8]   Thereafter, on November 20, 2014, ESPN submitted a third “more specific”

      public records request to the Police Department seeking the department’s daily



      Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 5 of 29
      log.4 (App. 34). The Police Department again denied the request, stating that it

      was not a public agency subject to APRA. As a result, on December 8, 2014,

      ESPN filed a second complaint with the PAC, alleging that the department had

      violated APRA by refusing to tender the requested records.


[9]   On January 5, 2015, the PAC issued a second advisory opinion. In this

      opinion, the counselor stated that, because the Police Department had been on

      notice since the first advisory opinion that the counselor considered it a public

      agency—specifically a law enforcement agency—it had been required to

      comply with APRA when ESPN tendered its requests in November. However,

      the counselor also noted that the Police Department had not necessarily been

      required to produce all of ESPN’s requested documents because they likely

      included information that could be considered investigatory records that a law

      enforcement agency would have discretion to withhold under APRA. As for

      the daily logs that ESPN had requested, the counselor wrote that the Police

      Department could substitute redacted daily incident reports, since it had not

      been keeping daily logs as required by APRA. In conclusion, the PAC held

      that if the Police Department “had documentation regarding any suspected

      crimes, accidents or complaints involving the individuals named in [ESPN’s]

      request, [it] ha[d] violated [] [APRA].” (App. 36).




      4
       ESPN did not include this third public records request in its Appendix, so it is not clear whether this request
      was different from its November 4 request.

      Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                           Page 6 of 29
[10]   Subsequently, ESPN filed a complaint with the trial court on January 15, 2015,

       asking the court to order the Police Department to disclose the documents it

       had requested. The Police Department answered the complaint and moved for

       judgment on the pleadings under Trial Rule 12(C), contending that ESPN could

       not succeed in its complaint under APRA because the Police Department was

       not a public law enforcement agency subject to APRA. The department also

       argued that ESPN’s complaint should be barred by the doctrine of legislative

       acquiescence because the legislature had not amended APRA to include private

       university police departments after three previous PACs had concluded that

       they were not subject to APRA.


[11]   ESPN responded and filed a cross-motion for judgment on the pleadings. It

       argued that the Police Department was subject to APRA because the

       department was a state actor exercising an executive function of the State of

       Indiana and was, therefore, a “public agency” within APRA’s definition of the

       term. ESPN also argued that the Police Department met another component of

       APRA’s definition of “public agency” because it was a law enforcement

       agency.


[12]   The trial court held a hearing on the cross-motions on April 1, 2015. At the

       conclusion of the hearing, the trial court took the matter under advisement.

       Then, on April 20, 2015, it granted the Police Department’s motion and entered

       judgment on the pleadings in the department’s favor. As an initial matter, the

       trial court noted in its order that Notre Dame was not authorized by statute to



       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 7 of 29
       establish “separate and distinct legal entities to exercise police powers.” (App.

       8). Accordingly, the trial court found the following:


               In fact, the statute does not use the term “campus police
               department,” “campus police force,” or any similar term. All it
               does is authorize the colleges and universities themselves to
               appoint police officers with certain enumerated powers. If Notre
               Dame is a “public agency” because it appoints police officers, it
               is a public agency, period. Thus, the question raised by ESPN’s
               complaint is really whether the University of Notre Dame, the
               entire University of Notre Dame, is now required to produce all
               of its records (such as academic, business and financial records)
               simply because it appoints campus police officers.

       (App. 8).


[13]   The trial court then turned to precedent concerning “state actors” and found

       that, even if Notre Dame qualified as a “state actor” for constitutional law

       purposes, such a finding would not necessitate that the school qualify as a

       “public agency” under APRA. Instead, the court concluded that Notre Dame

       was not a public agency because:


               It is difficult to fathom that the Indiana Legislature, without
               directly saying so, would intend the University of Notre Dame,
               Taylor University, Valparaiso University (and on and on) to have
               to produce pursuant to APRA all of their records concerning any
               matter whatsoever to anyone who asks, simply because those
               private institutions availed themselves of the Legislature’s
               invitation to appoint campus police officers.

       (App. 12). The court was also troubled by the fact that APRA did not contain

       any language that would limit public access to university records to only those

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 8 of 29
       concerning police powers. Ultimately, it recognized that ESPN was not

       requesting Notre Dame’s general records, but it noted that granting ESPN’s

       complaint could be a “slippery slope” due to “the expansive effect of ESPN’s

       interpretation of APRA.” (App. 12). As a result, the trial court concluded that

       the university—and therefore the Police Department—could not be a “public

       agency” under APRA.


[14]   In addition, the trial court made three further points in its order granting the

       Police Department’s motion for judgment on the pleadings and denying

       ESPN’s cross-motion. First, it found that the Police Department’s legislative

       acquiescence argument was “well taken.” (App. 13). It noted that there had

       been three previous PAC opinions finding that private university police

       departments were not subject to APRA, and yet the legislature had not

       amended the statute. Second, the trial court found that the legislature had

       delegated its executive powers to the governing boards of private universities,

       not the police departments of the universities. Thus, the trial court concluded

       that the campus police departments were exercising powers delegated “by” the

       state, not powers “of” the state. (App. 11) (underlining omitted). Third, the

       trial court interpreted the definition of “law enforcement agency” in APRA and

       concluded that the Police Department did not qualify as a law enforcement

       agency per the definition because “Notre Dame [was] clearly not ‘an agency or

       department of any level of government’” as the language of the statute required.

       (App. 10) (quoting I.C. § 5-14-3-2(n)(6).




       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 9 of 29
[15]   ESPN now appeals the trial court’s order granting judgment on the pleadings in

       favor of the Police Department. The South Bend Tribune, Hoosier State Press

       Association Foundation, and the State of Indiana have filed Amicus Curiae briefs

       substantially aligned with ESPN.


                                                  Discussion
[16]   The issue on appeal is whether the trial court erred when it determined that the

       Police Department was not subject to the public records access requirements of

       APRA. In Indiana, the general rule is that the information submitted to state

       governmental entities can be accessed by the public. See Travelers Casualty and

       Surety Co. v. U.S. Filter Corp., 895 N.E.2d 114, 115 (Ind. 2008). To promote this

       accessibility, the Indiana General Assembly enacted APRA, whose express

       purpose is to fulfill the public policy of the state that “all persons are entitled to

       full and complete information regarding the affairs of government and the

       official acts of those who represent them as public officials and employees.”

       I.C. § 5-14-3-1. Towards that end, APRA provides that “[a]ny person may

       inspect and copy the public records of any public agency during the regular

       business hours of the agency,” subject to certain exceptions. I.C. § 5-14-3-3

       (emphasis added).


[17]   On appeal, ESPN argues that the trial court erred in granting the Police

       Department’s motion for judgment on the pleadings because the Police

       Department qualified as a “public agency” subject to APRA under APRA’s

       definition of the term. Based on this argument, ESPN asserts that the Police


       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016    Page 10 of 29
       Department violated APRA when it refused to produce the records that ESPN

       had requested. In addition, ESPN also disputes the trial court’s conclusion

       that, regardless of APRA’s definition of “public agency,” the doctrine of

       legislative acquiescence barred ESPN’s claim.


[18]   We review a trial court’s ruling on a T.R. 12(C) motion for judgment on the

       pleadings de novo. Davis v. Edgewater Sys. for Balanced Living, Inc., 42 N.E.3d

       524, 526 (Ind. Ct. App. 2015). Such a motion attacks the legal sufficiency of

       the pleadings. Midwest Psychological Ctr., Inc. v. Ind. Dep’t of Admin., 959 N.E.2d

       896, 902 (Ind. Ct. App. 2011), trans. denied. Accordingly, judgment is proper

       only when there are no genuine issues of material fact and when the facts

       shown by the pleadings clearly establish that the non-moving party cannot in

       any way succeed under the facts and allegations therein. Id. During our

       review, we consider any facts of which we may take judicial notice and accept

       as true the well-pleaded material facts alleged in the complaint. Davis, 42

       N.E.3d at 526. Further, we draw all reasonable inferences in favor of the

       nonmoving party against the movant. Midwest Psychological Ctr., Inc., 959

       N.E.2d at 902.


       1. “Public Agency”

[19]   First, ESPN argues that the Police Department qualifies as a public agency

       under APRA’s definition of the term. Our resolution of this issue is dependent,

       in part, on the nature of the Police Department. Accordingly, we will

       preliminarily describe the Police Department and its statutorily-granted powers.



       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 11 of 29
[20]   Notre Dame established the Police Department pursuant to INDIANA CODE §

       21-17-5-2, which provides that “the governing board of an educational

       institution” may:


               (1) Appoint police officers for the educational institution for
               which it is responsible.

               (2) Prescribe the duties of police officers of the educational
               institution and direct their conduct.

               (3) Prescribe distinctive uniforms for the police officers of the
               educational institution or campus.

               (4) Designate and operate emergency vehicles.

       Under INDIANA CODE § 21-17-5-4(a), the Police Department’s police officers

       have the following statutorily-granted powers and duties:


               (1) General police powers, including the power to arrest, without
               process, all persons who commit any offense within the view of
               the officer.

               (2) The same common law and statutory powers, privileges, and
               immunities as sheriffs and constables. However, the police
               officers are empowered to serve civil process only to the extent
               authorized by the employing governing board.

               (3) The duty to enforce and to assist the officials of the
               educational institutions in the enforcement of the rules and
               regulations of the educational institution.

               (4) The duty to assist and cooperate with other law enforcement
               agencies and law enforcement officers.




       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016    Page 12 of 29
       These police powers extend “upon any real property owned or occupied by the

       educational institution employing the police officer, including the streets

       passing through and adjacent to the educational institution.” I.C. § 21-17-5-

       5(b). Further, Notre Dame “may extend a police officer’s territorial jurisdiction

       to the entire state, or to any part of the state” if: (1) “the board of trustees

       adopts a resolution specifically describing the territorial jurisdiction” and (2)

       notifies the superintendent of the state police department and the sheriff of the

       county in which the institution is primarily located of the extended jurisdiction.

       I.C. § 21-17-5-5. In its oral argument, the Police Department’s counsel

       acknowledged that the department’s powers are not limited to crimes on Notre

       Dame’s property and that its officers can arrest people off of campus. However,

       one limit to the Police Department’s power is that Notre Dame’s “governing

       board . . . may expressly forbid the officer from exercising any powers otherwise

       granted to the police officer by law.” I.C. § 21-17-5-4(a).


[21]   ESPN points to the Police Department’s nature and powers as evidence that it

       qualifies as a “public agency” per three subsections of APRA’s definition of the

       term. APRA defines a “public agency” as, among other definitions:


               (1) Any board, commission, department, division, bureau,
               committee, agency, office, instrumentality, or authority, by
               whatever name designated, exercising any part of the executive,
               administrative, judicial, or legislative power of the state.

               (2) Any . . . other entity, or any office thereof, by whatever name
               designated, exercising in a limited geographical area the
               executive, administrative, judicial, or legislative power of the
               state or a delegated local power.
       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016    Page 13 of 29
                                                 *        *        *

               (6) Any law enforcement agency . . . .

       I.C. § 5-14-3-2(n). Accordingly, EPSN argues that the Police Department fits

       the definition of “public agency” because it: (1) is a law enforcement agency;

       (2) exercises the executive powers of the state; and (3) exercises a delegated

       “traditional” governmental power. We agree with ESPN that the Police

       Department fits APRA’s definition of “law enforcement agency,” so we need

       not address its remaining two arguments.


[22]   Turning to ESPN’s first argument, we note that APRA includes “[a]ny law

       enforcement agency” within its definition of “public agency.” I.C. § 5-14-3-

       2(n). It further defines “law enforcement agency” as:


               any agency or a department of any level of government that engages in
               the investigation, apprehension, arrest, or prosecution of alleged
               criminal offenders, such as the state police department, the police
               or sheriff’s department of a political subdivision, prosecuting
               attorneys, members of the excise police division of the alcohol
               and tobacco commission, conservation officers of the department
               of natural resources, gaming agents of the Indiana gaming
               commission, gaming control officers of the Indiana gaming
               commission, and the security division of the state lottery
               commission.

       I.C. § 5-14-3-2(n)(6) (emphasis added).


[23]   The issue of whether a private university’s campus police department may fit

       within this definition is dependent on statutory interpretation. Statutory

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 14 of 29
       interpretation is a function for the courts, and our goal is to determine, give

       effect to, and implement the intent of the legislature as expressed in the plain

       language of its statutes. Clark Cnty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 680

       (Ind. Ct. App. 2012), adhering to opinion on reh’g. “‘The first rule of statutory

       construction is that [w]ords and phrases shall be taken in their plain, or

       ordinary and usual, sense.’” Id. (quoting State v. Prater, 922 N.E.2d 746, 749

       (Ind. Ct. App. 2009), trans. denied) (internal quotations omitted). “‘We will

       examine the statute as a whole[] and avoid excessive reliance on a strict literal

       meaning or the selective reading of words.’” A.J. v. Logansport State Hosp., 956

       N.E.2d 96, 104 (Ind. Ct. App. 2011) (quoting In re J.J., 912 N.E.2d 909, 910

       (Ind. Ct. App. 2009)). In addition, where “‘statutes address the same subject,

       they are in pari materia, and we harmonize them if possible.’” 5 Id. at 105

       (quoting Saintignon v. State, 749 N.E.2d 1134, 1137 (Ind. 2001) (citation and

       quotation marks omitted)).


[24]   First, ESPN contends that the Police Department may qualify as a law

       enforcement agency under APRA’s definition of the term because, even though

       the definition does not explicitly list private university police departments, it

       includes the statutory phrase “such as,” which establishes that the list of entities

       included in the definition is illustrative, rather than exhaustive. ESPN notes

       that the department qualifies as a “law enforcement agency” under the




       5
        “In pari materia” means “[o]n the same subject” or “relating to the same matter.” BLACK’S LAW
       DICTIONARY 911 (10th ed. 2009).

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                   Page 15 of 29
remainder of APRA’s definition because it “engages in the investigation,

apprehension, arrest, or prosecution of alleged criminal offenders” and its

powers mirror the powers of other law enforcement officers. I.C. § 5-14-3-

2(n)(6); see I.C. § 21-17-5-4(a). In addition, ESPN notes that other statutes

include private university police departments and officers within their

definitions of law enforcement agencies and officers. See, e.g., I.C. § 10-13-8-5

(codifying the “Blue Alert Program”); I.C. § 35-50-2-11 (making it a crime to

point or discharge a firearm at a police officer); I.C. § 10-14-2-5(a) (establishing

honors for a public safety officer who dies in the line of duty; I.C. § 5-10-10-

4.5(b)(1)(a) (establishing certain public employee benefits); I.C. §§ 3-5-2-31.5, 3-

11-10-24; and 3-11-8-25.7 (granting police officers special privileges on Election

Day).6 It contends that we should harmonize these statutes by interpreting

APRA’s definition of “law enforcement agency” to also include private

university police departments. See A.J., 956 N.E.2d at 104 (stating that when

statutes address the same subject and are, therefore, in pari materia, we should

harmonize them if possible).




6
  As further examples, the statute governing the training required for law enforcement agencies provides:
“Law enforcement officer” means an appointed officer or employee hired by and on the payroll of . . . a
public or private postsecondary educational institution whose board of trustees has established a police
department under I.C. [§] 21-17-5-2 or I.C. [§] 21-39-4-2 . . . .” I.C. § 5-2-1-2(1). Likewise, statutes
concerning a continuing education program for a “[c]ity or town law enforcement agency” and for a “county
law enforcement agency” include “postsecondary educational institution police officers appointed under [I.C.
§] 21-17-5 or [I.C. §] 21-39-4” within the definitions of “[c]ity or town law enforcement agency” and “county
law enforcement agency,” respectively. See I.C. §§ 5-2-8-1(a) and 5-2-8-2(a).

Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                       Page 16 of 29
[25]   We agree with ESPN that the list of entities in APRA’s definition is not

       exhaustive because our supreme court has previously held that the phrase “such

       as,” introducing a list, indicates that the list is illustrative rather than

       exhaustive. See Brownsburg Area Patrons Affecting Change v. Baldwin, 714 N.E.2d

       135, 139 n. 5 (Ind. 1999) (“The Court’s use of “such as” suggests that it did not

       intend for this to be an exhaustive list.”); Bedree v. DeGroote, 799 N.E.2d 1167,

       1177 (Ind. Ct. App. 2003) (“the ‘such as’ language indicates the list is non-

       exhaustive.”) (quoting Hicks v. State, 690 N.E.2d 215 (Ind. 1997)). Therefore,

       since “such as” precedes the list in the definition of “law enforcement agency,”

       the definition may also include entities such as the Police Department that it

       does not explicitly list.


[26]   However, the Police Department contends that regardless of whether the list is

       exhaustive, it does not include non-governmental agencies. Specifically, the

       department interprets the phrase “any agency or a department of any level of

       government” so that “any level of government” modifies both “any agency”

       and “a department of.” I.C. § 5-14-3-2(n)(6). Under such an interpretation, the

       agencies and departments included in the definition must be governmental in

       nature since “of any level of government” modifies both types of entities. The

       Police Department bolsters its argument by noting that each time the legislature

       has added a listed entity to the definition, the entity has been governmental in

       nature. See, e.g., P.L. 1-2006 (adding “gaming agents of the Indiana Gaming

       Commission” to the definition of “law enforcement agency”); P.L. 227-2007




       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016       Page 17 of 29
       (adding “gaming control officers of the Indiana Gaming Commission” to the

       definition of “law enforcement agency”).


[27]   We need not analyze the grammatical structure of the statute as the Police

       Department suggests, because regardless of whether “any level of government”

       modifies “agency,” the Police Department fits within the definition because it

       was acting as a governmental entity by exercising a governmental function. In

       Evans v. Newton, 382 U.S. 296 (1966), the United States Supreme Court

       addressed a situation where a private entity exercised a governmental function.

       It held that:


               where a State delegates an aspect of the elective process to private
               groups, they become subject to the same restraints as the State.
               That is to say, when private individuals or groups are endowed
               by the State with powers or functions governmental in nature,
               they become agencies or instrumentalities of the State and subject to
               its constitutional limitations.

       Id. at 300 (emphasis added). Several states have held that the same principle

       applies when a private entity is acting as a “functional equivalent” of a

       governmental entity. See, e.g., Conn. Humane Soc’y v. Freedom of Info. Comm’n,

       591 A.2d 395 (Conn. 1991) (using a functional equivalency analysis to

       determine whether the Connecticut Humane Society had violated Connecticut’s

       public access statute); News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser

       Architectural Group, Inc., 596 So.2d 1029 (Fla. 1992) (using a functional




       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 18 of 29
       equivalency analysis to determine whether a private entity under contract with

       a public agency was subject to Florida’s Public Records Act). 7


[28]   In Memphis Pub’g Co. v. Cherokee Children & Family Srvs., Inc., 87 S.W.3d 67, 76

       (Tenn. 2002), reh’g denied, the Supreme Court of Tennessee noted that private

       entities are increasingly performing the duties of public entities, and it expressed

       the dangers of not requiring public access to the records of such entities.

       Specifically, it stated:


                Since the 1980s, governmental entities in various parts of the
                nation have looked increasingly to privatization as a possible
                solution to perceived problems of inefficiency or expense in the
                provision of public services. In typical privatization
                arrangements, the government, through a contract or similar
                vehicle, delegates to a private entity the responsibility for
                performing a function formerly performed by the government
                itself. . . .

                Scholars have long debated the merits of privatization policies.
                Only recently, however, has attention focused upon the ways in
                which public access to information may be obstructed when
                governmental functions are transferred to the private sector. As
                one commentator states, “Privatization may be desirable in itself,
                but it should not come without . . . leaving public accountability
                intact. Not only should the public be able to monitor the private
                company’s activities, but the monitoring should be on the same
                terms as when the public agency was the information vendor.”
                Others note that the government may, intentionally or



       7
         For a more comprehensive analysis of the states that have adopted a functional equivalency approach, see
       Craig D. Feiser, Protecting the Public’s Right to Knoow: The Debate over Privatization and Access to Government
       Information under State Law, 27 FLA.ST. U. L. REV. 825, 833 (2000).

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                            Page 19 of 29
               unintentionally, shield records from the public by shifting them
               to private entities. Indeed, by maintaining and controlling
               previously public records, private companies may control public
               access to such records in ways that are “at odds with the very
               purpose of public records laws.”

       Id. at 76-77 (internal citations omitted) (quoting Craig D. Feiser, 27 FLA.ST. U.

       L. REV. at 833 and Matthew Bunker & Charles Davis, Privatized Government

       Functions and Freedom of Information: Public Accountability in an Age of Private

       Governance, 75 JOURNALISM AND MASS COMM. Q. 464, 464-68 (1998)).


[29]   This Court has similarly noted the danger of restricting access to documents

       that would be considered public were a private entity not involved. In

       Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127, 1130 (Ind.

       Ct. App. 2005), reh’g denied, trans. denied, we considered the issue of whether a

       settlement agreement drafted by a public agency’s private insurance company’s

       attorney could be considered a public record. The Town of Knightstown

       (“Knightstown”) argued that the settlement agreement was not a public record

       because it was retained by the insurance company’s attorney, a private

       individual, and was never in the town’s possession. Id. at 1131. We rejected

       that argument, reasoning that:


               [I]n light of APRA’s purpose of openness, the [G]eneral
               [A]ssembly crafted the definition of public documents in broad
               terms. To prevent an agency from frustrating this purpose, the
               [G]eneral [A]ssembly, in [INDIANA CODE § 5-14-3-3(g)], elected
               to prohibit a public agency from contracting for storage and
               copying services that would unreasonably impair access to the
               public. Thus, if a public agency cannot unreasonably impair

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 20 of 29
               access through contractual storage arrangements, accepting
               Knightstown’s argument would amount to a tortured
               interpretation of APRA whereby private attorneys would be
               permitted to ensconce government contracts within their firm[s’]
               file room[s] and completely deny the public access.

               As compelling as Knightstown might find its own arguments, we
               are not persuaded. Knightstown focuses on the argument that
               the definition of public record does not include documents
               created by private individuals acting on behalf of a public agency.
               This distinction is without merit. There is no doubt that
               although Retained Town Counsel is a private individual, and not
               itself a public authority under APRA, he created, maintained,
               and retained custody of the settlement agreement as attorney for
               Knightstown, which is a public authority. Accordingly, the
               settlement agreement was created and accepted, and released
               Knightstown from liability during the course of Retained Town
               Counsel’s representation of the public authority, and was, in
               effect, the culmination of that representation. If Knightstown’s
               argument is accepted, public scrutiny of most, if not all,
               settlement agreements involving public authorities would be
               barred. This result would effectively close the openness
               mandated by Indiana’s public records law.

       Id. at 1133. Although this case concerns an agency relationship between an

       attorney and a public entity, it emphasizes the importance of construing APRA

       in light of the act’s purpose of openness.


[30]   In sum, as the above authorities demonstrate, there is a danger that the public

       will be denied access to important public documents when a private agency is

       exercising a public function if we construe APRA to categorically exclude such

       agencies. We are required to liberally construe APRA to implement the

       legislature’s policy behind enacting APRA, which is that the “public is entitled

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 21 of 29
       to ‘full and complete information regarding the affairs of government.’”

       Indianapolis Convention & Visitors Ass’n, Inc. v. Indianapolis Newspapers, Inc., 577

       N.E.2d 208, 214 (Ind. 1991) (quoting I.C. § 5-14-3-1). Interpreting “public

       agency” so that a public entity could avoid public access requirements by

       delegating its public powers and duties to a private entity would, as we stated in

       Knightstown, ignore this purpose and “effectively close the openness mandated

       by Indiana’s public records law.” Knightstown, 838 N.E.2d at 1133.

       Accordingly, we interpret the APRA phrase “any agency or a department of

       any level of government,” and therefore the definition of “law enforcement

       agency,” to include private educational institutions that choose to appoint

       police officers pursuant to INDIANA CODE § 21-17-5 et. seq. As a result, we hold

       that the Police Department is a “public agency” for purposes of public records

       requests under APRA.


[31]   Notably, this interpretation is consistent with rulings of several states that have

       also held that a private entity exercising a public function is considered public

       for the purpose of public access laws. See, e.g., State ex rel. Schiffbauer v.

       Banaszak, 33 N.E.3d 52, 54-55 (Ohio 2015) (“[W]e have held that a private

       corporation may be considered a public office for purposes of public records

       when it performs a governmental function.”); Hackworth v. Bd. of Educ. for City of

       Atlanta, 447 S.E.2d 78 (Ga. Ct. App. 1994) (holding that a private company

       responsible for transporting children within the Atlanta city school system was

       subject to Georgia’s Public Records Act because it exercised a government

       function), cert. denied. It is also consistent with our well-settled law that a

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016     Page 22 of 29
       private entity exercising a public function is considered a state actor for

       purposes of constitutional law. See Finger v. State, 799 N.E.2d 528, 532 (Ind.

       2003) (finding that, because the state had conferred “general police powers” on

       Butler University Police officers, those officers were state actors subject to the

       Fourth Amendment restrictions on searches and seizures). While APRA is not

       constitutional in nature, the same premise applies. See Newton, 382 U.S. at 300

       (“when private individuals or groups are endowed by the State with powers or

       functions governmental in nature, they become agencies or instrumentalities of

       the State[.]”).


[32]   Here, it is clear that the Police Department is exercising a public function.

       Police power is a sovereign power. Tucker v. State, 35 N.E.2d 270, 299 (Ind.

       1941) (“The police power is a sovereign power. Authority to enact laws is in

       the Legislature, but the power to enforce and execute the laws enacted under

       the police power is in the executive.”) Even though the Police Department is

       not a governmental entity, the State has delegated its officers these “[g]eneral

       police powers,” including “the power to arrest, without process, all persons

       who commit any offense within the view of the officer[s].” I.C. § 21-17-5-4(a).

       Under INDIANA CODE § 21-17-5-4(a), the Police Department has “[t]he same

       common law and statutory powers, privileges, and immunities as sheriffs and

       constables,” except the power to serve civil process. In addition, Notre Dame’s

       board of trustees was given the authority to “extend a [campus] police officer’s

       territorial jurisdiction to the entire state, or to any part of the state[.]” I.C. § 21-

       17-5-5. This means that campus police officers may even have the same


       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016     Page 23 of 29
       jurisdiction as governmental law enforcement officers. In light of these factors,

       it is clear that the Police Department exercises governmental, public functions

       even though it was established by a private entity. It would not be appropriate

       for the Police Department, having availed itself of its statutory right to exercise

       these public functions, to then be able to circumvent public records

       requirements to which all other entities exercising these same functions are

       required to adhere.8


[33]   In addition, we must note that our conclusion does not mean that Notre Dame,

       as a whole, is subject to APRA as a “public agency” and must produce its

       general university records if requested. The trial court concluded that Notre

       Dame would be subject to APRA if the Police Department qualified as a

       “public agency,” because it viewed the department as an inseparable division of

       the university. Its basis for this interpretation was the fact that the Indiana

       Code does not authorize a university to create a police department that is a

       separate and distinct legal entity.




       8
         Because we conclude that the Police Department is a law enforcement agency as a result of its exercise of a
       governmental function, we also conclude that it is not relevant that the department is controlled and financed
       in many relevant respects by Notre Dame’s Board of Trustees.
       The Police Department also argues that it cannot be a “law enforcement agency” because numerous private
       entities are statutorily authorized to engage in investigation, apprehension, and arrest of criminal offenders in
       Indiana, and it would be “absurd” to consider all of those entities law enforcement agencies. (Police
       Department’s Br. 29) (arguing that “ESPN’s new argument would extend APRA to. . . private hospitals,
       railroad companies, railroad conductors, retail establishments, banks, bail bond agencies, and private
       investigation agencies”). However, the Police Department has not provided any legal authority to support a
       conclusion that the legislature did not intend these entities to be included in the definition of “law
       enforcement agency” if they, like the Police Department, also exercise public functions.

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016                           Page 24 of 29
[34]   However, we find the Ohio Supreme Court’s opinion in State ex rel. Schiffbauer

       persuasive on this issue. There, the Supreme Court rejected the argument that a

       university can be considered a public agency merely because its police

       department qualifies as such. It noted that a private entity is only “considered a

       public office for purposes of public records when it performs a governmental

       function.” State ex rel. Schiffbauer, 33 N.E.3d at 55. In contrast, providing

       educational services is not a “uniquely governmental service, given that such

       instruction does not fall under a typical ‘police power’ type of function and that

       other non-governmental organizations may provide similar instruction.” Lane

       ex rel. Sharp v. Frankfort Cnty. Sch. Bldg. Trades Corp., 747 N.E.2d 1172, 1176

       (Ind. Ct. App. 2001).


[35]   Correspondingly, we note that whereas the Police Department qualifies as a

       public agency under APRA because it is a law enforcement agency, the

       remainder of Notre Dame clearly does not qualify as a law enforcement agency.

       In light of these factors, we conclude that it is possible for a subdivision of a

       private entity to be considered a public agency under APRA for purposes of

       public disclosure relating to its exercise of a public function without subjecting

       the entire private entity to APRA.


       2. Legislative Acquiescence

[36]   Next, ESPN challenges the trial court’s conclusion that, regardless of whether

       the Police Department qualifies as a “public agency” under APRA, ESPN’s

       claim should be barred by the doctrine of legislative acquiescence. The court

       noted that three previous PAC advisory opinions over the course of a decade

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 25 of 29
       had held that private university police departments were not public agencies. It

       concluded that the legislature had acquiesced in that interpretation because it

       had chosen not to amend APRA over that time period. Thus, it found that the

       doctrine of legislative acquiescence should apply.


[37]   The doctrine of legislative acquiescence is an estoppel doctrine designed to

       protect those who rely on a long-standing administrative interpretation. Citizens

       Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610, 616 (Ind. 1985),

       cert. denied. It provides that “a long adhered to administrative interpretation

       dating from the legislative enactment, with no subsequent change in the statute,

       raises a strong presumption that the [legislature] has acquiesced to the

       administrative interpretation.” Beer Distrib. of Ind., Inc. v. State ex rel. Alcoholic

       Beverage Comm’n, 431 N.E.2d 836, 840 (Ind. Ct. App. 1982). We will assume

       that the legislature has acquiesced to an interpretation where the interpretation

       dates from the time of the legislation or is of a “long[-]standing nature.” Id.

       However, although legislative acquiescence is a useful tool of statutory

       construction, it is not a sufficient independent basis for affirming or reversing a

       judgment. Id. In addition, long-standing administrative interpretations that are

       incorrect are not entitled to any weight. Id.


[38]   The three PAC opinions the Police Department cites were issued in 2003, 2009,

       and 2011. In 2003, the then-PAC, Michael Hurst (“Hurst”), issued an advisory

       opinion stating that the Taylor University Office of Campus Safety was not

       subject to APRA because it was a “subdivision or office of a private

       institution,” not a public agency. (App. 55). Hurst also concluded that the

       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016       Page 26 of 29
       Office of Campus Safety was not exercising the types of executive functions that

       fell within the definition of “public agency.” Then, in 2009, the then-PAC,

       Heather Willis Neal, adopted Hurst’s 2003 analysis verbatim and issued an

       advisory opinion finding that the Valparaiso University Police Department was

       not a public agency under APRA. Finally, in 2011, the then-PAC, Andrew

       Kossack (“Kossack”), issued an advisory opinion stating that the Notre Dame

       Police Department—the Police Department here—was not a public agency.

       Kossack adopted the reasoning of the 2003 advisory opinion, but he

       additionally concluded that if the Office of the PAC were to consider the Police

       Department a public agency, then it would have to consider Notre Dame as a

       whole a public agency because the State had delegated the executive powers to

       the university’s governing body, not the university’s police department. None

       of the parties to these advisory opinions challenged the PACs’ conclusions in

       court.


[39]   ESPN argues that we should not rely on the doctrine of legislative acquiescence

       because the cases that have addressed the doctrine have concerned agencies

       responsible for issuing final, binding decisions. In contrast to such agencies, the

       Office of the PAC is, according to ESPN, “primarily educational[,] and the

       Counselor’s opinions are non-binding and advisory only.” (ESPN’s Br. 36). As

       a result, ESPN contends that “there is no need for the legislature to do anything

       following an incorrect opinion by the Counselor given that the opinion is

       advisory and non-binding” and, thus, the legislature’s silence should not be

       considered acquiescence. (ESPN’s Br. 38). Alternatively, ESPN argues that


       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 27 of 29
       the doctrine of legislative acquiescence should not apply because the former

       PAC opinions were incorrect.


[40]   Contrary to ESPN’s first argument, we have previously applied the doctrine of

       legislative acquiescence to administrative opinions that are non-binding and

       advisory in nature. See Butler Univ. v. State Bd. of Tax Comm’rs, 408 N.E.2d

       1286, 1287-91 (Ind. Ct. App. 1980) (finding legislative acquiescence to a

       conclusion reached by the Indiana Attorney General in an advisory opinion

       forty-nine years previously); Frame v. South Bend Comm. Sch. Corp., 480 N.E.2d

       261, 262-65 (Ind. Ct. App. 1985) (finding legislative acquiescence to a

       conclusion reached by the Indiana Attorney General in an advisory opinion

       fifty years previously). However, we find it significant that in both Butler Univ.

       and Frame, the advisory opinions at issue were long-standing in nature. In

       Butler Univ., our General Assembly had acquiesced to the Attorney General’s

       advisory opinion for forty-nine years, and in Frame, our General Assembly had

       acquiesced to the Attorney General’s advisory opinion for fifty years. As we

       stated above, we will only apply the doctrine of legislative acquiescence when

       an administrative interpretation is long-standing in nature. See Citizens Action

       Coal. of Ind., Inc., 485 N.E.2d at 616. Compared to these decision, the PACs’

       administrative interpretations here were not long-standing in nature—they were

       issued over a period of a little more than a decade. We are not convinced that

       this amount of time raised “a strong presumption that the [legislature] ha[d]

       acquiesced to the administrative interpretation.” Beer Distrib. of Ind., Inc., 431




       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 28 of 29
       N.E.2d at 840. Accordingly, we will not apply the doctrine of legislative

       acquiescence to bar ESPN’s claim.


[41]   Because we conclude that the Police Department does qualify as a “public

       agency” under APRA and that ESPN’s claim is not barred by the doctrine of

       legislative acquiescence, we also conclude that the trial court erred in entering

       judgment in favor of the Police Department. However, we cannot, as ESPN

       requests, order the Police Department to produce the records that ESPN sought

       because we are not able to determine whether those records are accessible under

       APRA. ESPN’s three requests are not a part of the record, and APRA exempts

       certain categories of public documents, such as investigatory records, from its

       public access requirements. See I.C. § 5-14-3-4 (listing records excepted from

       disclosure requirements). We remand to the trial court with instructions to

       enter judgment in favor of ESPN and to evaluate ESPN’s records requests to

       determine which records the Police Department is required to produce under

       APRA.


[42]   Reversed and remanded with instructions.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 71A05-1505-MI-381 | March 15, 2016   Page 29 of 29
