Chip Minemyer | Commonwealth Court ruling could force more openness at Penn State, other schools

July 28, 2013 

While many eyes will be on the preliminary hearing of three ex-Penn State administrators charged in connection with the Jerry Sandusky scandal, another related case bears watching for those with ties to the university.

A Pennsylvania Commonwealth Court ruling could lead to greater access to information at Penn State, which has avoided exposure under the state’s Right-to-Know Law, even as its protected status is being challenged in the legislature.

Ryan Bagwell, a Penn State graduate, sued the state Department of Education in 2012 in an attempt to see information the university shared during investigations related to the Sandusky scandal. That would include records related to the Louis Freeh report into the university’s role in Sandusky’s crimes against children.

The Freeh report accused former Penn State leaders Graham Spanier, Gary Schultz, Tim Curley and the late Joe Paterno of covering up Sandusky’s crimes.

Spanier, Curley and Schultz will appear in a Dauphin County courthouse Monday, charged by a grand jury with perjury, for allegedly lying under oath about Sandusky, and with failure to report to authorities what they knew about the former Penn State assistant football coach.

“I’m not one of those people who is 100 percent against Penn State or 100 percent pro Penn State. I’m more in the middle,” Bagwell, a former journalist, said from Wisconsin, where he works as a software developer. Bagwell ran unsuccessfully this year for an alumni seat on Penn State’s board of trustees.

“I definitely wanted more transparency about how the Freeh investigation proceeded,” he said. “… A lot of questions could have been put to bed a long time ago with a little transparency.”

The Commonwealth Court on July 19 reversed a ruling by the state Office of Open Records concerning Bagwell’s suit. The OOR had said it had no jurisdiction over Penn State’s records because the state-related university is not fully open under Right-To-Know. Bagwell appealed the OOR’s decision to the high court.

In an opinion written by Judge Robert Simpson, the court said Penn State’s records become open when they are in the possession of an organization that does fall under Right-to-Know, in this case the Department of Education.

Further, the court said, individuals who serve on the boards of institutions such as Penn State and who represent organizations that are fully open are still under Right-to-Know even though the board as a whole is not.

State-related universities, including Penn State, are not fully exposed to Right-to-Know because they are only partially funded by state tax dollars.

Bagwell’s attorneys argued that the education secretary serves on the trustees on behalf of the department, which does fall under Right-to-Know, so records in his possession should be public. The Commonwealth Court agreed, and kicked the case back to the Office of Open Records to sort out further.

Simpson wrote: “Essentially, OOR concluded the PSU Board records are ‘of’ a non-agency over which it exercised no jurisdiction. Implicit in OOR’s decision is that a record can not be both ‘of’ a non-agency (PSU), and ‘of’ an agency (Department of Ed) simultaneously. Following that logic, records originating with non-agencies are insulated from public view. We respectfully disagree.”

The Commonwealth Court ruling shows Bagwell had sought “copies of letters, emails, reports and memorand(a)” received by then-Education Secretary Ron Tomalis from April to July 2012, during the Freeh investigation.

“You’ve got all of these outstanding questions about Louis Freeh’s investigation such as who he interviewed and who he didn’t, what materials he copied to the board,” said Joshua Bonn, an attorney with the Harrisburg law firm of Nauman Smith, which is representing Bagwell. “But there’s no particular information that Ryan is looking for. He just wants to see what hasn’t been disclosed to the public.”

Bonn added: “There could be a piece of correspondence that hasn’t been disclosed. There could be hundreds of pieces of correspondence that haven’t been disclosed.”

Bonn wants the Office of Open Records to provide a review of each piece of information now in the possession of the Education Department. He expects Penn State to counter that some information is subject to the attorney-client privilege exemption or is otherwise under protection.

“This places the burden on Penn State to give cause why each piece of information that was disseminated to the department of ed is not a public record,” Bonn said. “Penn State has to show why this information is exempt from the law.”

Bonn noted in our interview and in his blog on his firm’s website that this case has broader implications.

“(Tomalis) can’t just take off his hat as secretary of education and not be accountable to the public,” Bonn said. “He cannot perform any act in an individual capacity when sitting on the Penn State board of trustees.”

The education secretary is one of five ex-officio Penn State trustees, meaning they are on the board because of the primary positions they hold.

The governor and education secretary serve as ex-officio members on the boards of all four state-related universities — including Lincoln, Temple and Pitt.

The secretaries of both agriculture and conservation and natural resources are also ex-officio members of the Penn State board, as is the university president.

Pitt (mayor of Pittsburgh, chief executive of Allegheny County) and Temple (mayor of Philadelphia) have similar ex-officio situations.

Penn State has had ex-officio board members since 1875. The secretary of ed is on the board “to protect students and citizens of the Commonwealth,” Simpson wrote.

State-related universities must comply with Pennsylvania Code, and the department of ed has a representative on those boards to monitor that compliance.

“What the court said is that when people like Gov. Corbett and the secretary of education are on the boards of these organizations, it brings all of their actions into the realm of public business,” Bagwell said.

The court ruling seems to open up those universities to more public access, or at least to more requests for information that might hold up under scrutiny.

Teri Henning, a lawyer and president of the Pennsylvania NewsMedia Association, said Bagwell v. the Pennsylvania Department of Education is “moving in the right direction” for those who embrace openness.

State Rep. Kerry Benninghoff, R-Bellefonte, sponsored legislation that would place the four state-related schools more fully under Right-To-Know. But such efforts have found little traction in Harrisburg, so far.

Can the courts do what the General Assembly has not?

“This decision is important not just for me, but for everybody, for all advocates of transparency,” Bagwell said.

“The reason I went down this road is that this affected everybody’s ability to get this kind of information, in the future as well. I felt it could have a broader positive impact.”

Bagwell said he looks forward to his case’s next moment in court, when Penn State would likely argue for keeping the Sandusky-related information hidden.

“It would be difficult for Penn State to say it wants transparency, but at the same time try to stifle openness in this situation,” Bagwell said.

“I would love to have that fight,” he said, “and in public.”

Chip Minemyer is the executive editor of the Centre Daily Times. He can be reached at 231-4640. Follow him on Twitter @MinemyerChip.

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