Penn State attorneys told Centre County Court on Wednesday that access to certain privileged information is not necessary for trustees to do their job.
The university is being sued by some alumni-elected trustees who want access to the source materials used to create the Freeh report, issued by former FBI director Louis Freeh after Penn State commissioned an independent investigation of the Jerry Sandusky child sex abuse scandal.
“The petition is without merit for several reasons,” wrote attorney Joseph O’Dea. “The proposed review is simply not related to (p)etitioners’ performance of their duties as (t)rustees of the Pennsylvania State University.”
While the trustees in question, Ted Brown, Barbara Doran, Robert Jubelirer, Anthony Lubrano, Ryan McCombie, Bill Oldsey and Alice Pope, say that they need the documents to perform their fiduciary duty as officers of a nonprofit corporation, O’Dea takes exactly the opposite tack in his filing.
“Here, if (p)etitioners are granted access to the requested materials, it would violate their duties as fiduciaries of the (u)niversity. The fact that they have even requested to review these materials is damaging to the (u)niversity and a review by (p)etitioners of these highly confidential and in some instances privileged materials would betray the privacy expectations of those interviewed...and damage the (u)niversity’s efforts to encourage the reporting of wrongdoing,” he wrote.
The trustees have said they want to review the information in its entirety, not in a redacted form that would protect the identities of those interviewed. The university maintains that those subjects were promised privacy, although in a deposition for another case, Freeh investigator Omar McNeill said that they were warned that could not be guaranteed and to “act accordingly.”
But that past promise is just one aspect of the university’s reason for opposing the release. The behavior of the trustees is also in question.
“Petitioners’ own public statements about their reasons for wanting to see the source materials reveal that they will likely misuse the information,” O’Dea wrote.
The university followed it up with its own statement.
“Moreover, numerous prior violations of confidentiality by certain alumni-elected trustees provide evidence of the likelihood of misuse. This is a key concern, and the university is not required under the law to make any documents available to trustees if there is a likelihood the information will be misused. The university is prepared to provide examples of violations to the court under seal or in private,” Penn State said in a release Wednesday.
The legal response follows a heated response from President Eric Barron last week to another request by the trustees, in which they demanded information about how some trustees are selected, and a letter in which they said that they expected their legal fees to be covered as they were pursuing information they deemed necessary to do their work.
On Tuesday, Barron released a statement marking his first year at the wheel of the Big Ten school.
“You, as alumni, will always be an important part of Penn State, and I look forward to working with you to make our great university even greater,” he told alumni.