Chip Minemyer | Penn State, state-related universities under Right-To-Know microscope again

October 20, 2013 

Terry Mutchler has “a full plate” of Penn State-related appeals before her, and the spotlight will burn brightly Monday in Harrisburg.

The executive director of the state Office of Open Records will be among those testifying before the Senate Government Committee concerning access to information in possession of Pennsylvania’s state-related universities.

Penn State’s Steve Dunham, vice president and general counsel, is also scheduled to appear at the 10 a.m. hearing, along with representatives of the other state-related schools — Temple, Pitt and Lincoln.

At issue is whether the state-related universities, which receive a portion of their funding from state government, should fall fully under the state’s Right-To-Know law, which allows the public access to records.

The same question has been raised by state Reps. Scott Conklin, D-Rush Township, and Kerry Benninghoff, R-Bellefonte, who have proposed legislation that would force those colleges to be completely transparent.

“Depending on how much state funding you receive, what is the threshold at which transparency kicks in? That’s the question,” Mutchler said Friday from her Harrisburg office.

In its five years, Mutchler said, her office has received about 40,000 emails and phone calls from Pennsylvania residents seeking records from government or tax-supported agencies. The office has handled more than 8,000 appeals of decisions involving such entities.

Of late, Penn State has been front and center. “This took on a whole new light after the (Jerry) Sandusky crisis,” Mutchler said.

A case that landed in the state Commonwealth Court involved Penn State graduate Ryan Bagwell’s request for records pertaining to the Sandusky investigation and the Louis Freeh report, which led to heavy NCAA sanctions against the university and its football program.

Bagwell sought documents through an open-records request because the state secretary of education sits on the university’s board of trustees, and the Department of Education falls under Right-To-Know (RTK).

Mutchler’s office initially said it did not have authority in that instance. Bagwell appealed to the state Commonwealth Court, which kicked the request back to Mutchler and Co.

She said she has assigned an assistant chief counsel to review the Bagwell case. Mutchler said her office has received two other requests involving Penn State records with the Education Department and the governor’s office. In both instances, the agencies denied access to the records and the Office of Open Records was brought in to help settle the dispute.

Mutchler said the issue ultimately will be decided by the legislature, which can choose to change the status of Penn State and the three other schools, beginning perhaps with Monday’s hearing.

State Sen. Jake Corman, R-Benner Township, said former Penn State president Graham Spanier was very protective of the university’s right to conduct much of its business in secret.

Will the Sandusky situation now shove Penn State fully into the light of transparency?

“I don’t know that we’ll put them completely under, but it certainly will expand,” Corman said. “Penn State is partly publicly funded, so there certainly are requirements there.”

The open-records chief acknowledged that Penn State has “lots of money and lots of lawyers” for this battle.

Some of those lawyers are fighting the Bagwell request for board of trustees memos, arguing that they are protected by attorney-client privilege. They wonder where you stop if even draft memos or seemingly private exchanges fall under RTK.

Penn State has removed the governor and university president from among the voting members of its board. Corman said the status of the secretary of education and other ex-officio members should also be addressed.

“Anytime you sit on a board you have a fiduciary responsibility to that organization,” Corman said. “If you’re a private citizen, you can take that hat off when you enter the room. But it’s harder for these public officials, especially the governor.”

Conklin has hosted two public hearings aimed at Penn State governance reforms, including putting the school fully under RTK guidelines.

“This isn’t about taking board members down,” he said. “This is about doing good, clean government.”

And that’s what Mutchler said her office wants, too. What it means, however, is sometimes clear as mud.

Does attorney-client privilege trump the right to know?

Should a university that gets a relatively small percentage of its funding from tax dollars be opened up fully to public scrutiny?

“The people are funding this government, and with that they also are funding part of Penn State,” Mutchler said.

“At the end of the day, the question becomes, how much openness does their money buy?”

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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