Penn State fighting release of trustee emails over Sandusky scandal

mdawson@centredaily.comOctober 8, 2013 

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Kenneth Frazier speaks during the meeting. The Penn State Board of Trustees met January 20, 2012, at the Nittany Lion Inn on the Penn State campus. Nabil K. Mark

On Dec. 19, 2011, more than a month after Jerry Sandusky was charged with child abuse and two Penn State administrators were charged with lying to the grand jury investigating him, several trustees exchanged a series of emails about the aftermath of the scandal.

One, with the subject line “Urgent Call,” was between trustees Ken Frazier and Ron Tomalis, who had a month earlier been appointed the leaders of the task force that hired Louis Freeh to investigate.

Another round of email exchanges that day and into the next morning, called “Grand Jury Subpoena Compliance,” involved a wider recipient list: Tomalis, Frazier and trustees Steve Garban and John Surma, President Rodney Erickson, general counsel Cynthia Baldwin and outside counsel Frank Guadagnino.

A third email thread, which came later that night, had the subject “The call will be held at 7:45 p.m.” and involved Tomalis, Frazier, Surma and Garban.

Whatever Tomalis and the other Penn State officials said to one another — or even who responded or ignored the emails — isn’t known, but an alumnus and two-time trustee candidate is hoping to change that through the state’s open-records law.

As the Penn State community has called for more transparency, Ryan Bagwell is challenging the university on a matter he says goes to the heart of the scandal and the decisions made in its aftermath: what the trustees knew and didn’t know in the days and weeks after the Sandusky scandal broke.

“I’m seeking a better understanding about why people did what they did,” Bagwell said Tuesday. “The public statements of Penn State’s leaders don’t jibe with their decisions, and that raises questions about whether they’re being completely honest.”

Bagwell, of Madison, Wis., is using the state’s Right to Know Law to access certain Penn State and Sandusky scandal records held by Tomalis, who was a trustee by virtue of his position as the state’s education secretary. Specifically, Bagwell wanted records sent to Tomalis from Garban, Surma, Frazier and Freeh.

The state’s Office of Open Records first denied his requests that Tomalis’ Penn State records were subject to the Right-to-Know Law, but the state Commonwealth Court overturned the denial. The court said the office should revisit the decision.

As a result, the Office of Open Records turned over a few records and provided a list of 155 emails it said were not public under exemptions in the open-records law. The list of 155 emails that were withheld was provided to Bagwell because he asked for a list of the items that would be denied.

That’s when Penn State got involved, saying the release of the records would cause “substantial harm”, according to a university lawyer who made the request to intervene.

“The requests subject to this appeal include privileged communications between Penn State’s (b)oard of (t)rustees and attorneys retained by the (u)niversity,” the lawyer wrote. “Disclosure of any such documents risk violation and waiver of the attorney/client privilege and/or the attorney work product privilege protecting Penn State.”

Penn State asked for some time to file written arguments in support of its position.

Some emails contain time stamps from the days in the immediate aftermath of the scandal. For instance, there’s one on Nov. 5, 2011, the day the grand jury presentment was released, that references a confidential conference call. Two more later in the day refer to an executive session notification.

Many are in the weeks following, such as several on Nov. 17, 2011, about either the “Special Committee” or “Investigation Counsel.”

On Feb. 11, 2012, Frazier, Tomalis, Freeh and a Freeh investigator, Omar McNeill, were involved in an email exchange titled “RE: Investigation.”

Two weeks later, on Feb. 25, 2012, trustees were emailed a confidential final version of a report of the board about the decisions made on Nov. 9, 2011. Also included in the subject line was an op-ed piece on coach Joe Paterno, who had died a month earlier from lung cancer.

Some show the board was tracking or had brought to their attention the latest developments. On June 10, 2012, Frazier and Tomalis were in an email exchange about a leak of information, and on July 6, 2012, an email exchange was called “ESPN Report to shed light on PSU scandal.”

And others are sure to raise eyebrows.

For instance, in May 2012, there was an email with the subject “Meeting with Dan McGinn.” McGinn is the Paterno family’s spokesman, and the coach and his family’s falling out with the university over Paterno’s firing has been well-documented and a source of contention for many alumni and fans.

And before any of the scandal and allegations were public, there was an email exchange on June 9, 2011, between Frazier, Tomalis and trustee Karen Peetz with the subject line “FW: Please review my proposed agenda.”

The next step in Bagwell’s appeal will be each side spelling out their arguments why the records should or should not be made public.

Melissa Melewsky, a legal expert with the Pennsylvania NewsMedia Association, said the Commonwealth Court’s ruling is that the records are presumed to public, so the burden is on the state Department of Education to show they are not.

Melewsky said she expects to see the attorney-client privilege be used to argue the records are not public. But, Melewsky said, the records have to show someone asking legal advice.

“If any attorney happens to be on the cc (carbon copy) list, that’s not legal advice,” she said.

In addition, Melewsky said she would expect the Education Department or Penn State to say the records are not public under an exception that covers criminal and non-criminal investigations. She said that provision is broad.

Another question that remains to be answered, she said, is whether Freeh was serving as a lawyer or an investigator.

Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT.

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