Seven Penn State alumni-elected trustees are continuing their push for access to records the university claims are protected.
Attorneys for Ted Brown, Barbara Doran, Bob Jubelirer, Anthony Lubrano, Ryan McCombie, Bill Oldsey and Alice Pope filed hundreds of pages of documents in Centre County court Tuesday in response to Penn State’s new matter opposing the trustees’ petition to review the documents from former FBI director Louis Freeh’s university-commissioned investigation of the Jerry Sandusky child sex abuse scandal.
In May, university attorney Joseph O’Dea filed that new matter, accusing the trustees of wanting access in order to misuse the information contained.
The alumni-elected trustees fired back, using the language of business and industry trustee Kenneth Frazier, who chaired the special investigations task force that hired Freeh.
“Petitioner (t)rustees seek to do exactly what (t)rustee Frazier recognized as necessary and appropriate: ‘look at everything,’ ” attorneys from Myers Brier and Kelly, of Scranton, wrote.
The trustees also challenged the idea that the information was protected by attorney-client privilege on several grounds.
“First, the Freeh investigation was not for the purpose of securing confidential legal advice,” the trustees’ attorneys wrote.
Instead, the agreement specifies an investigation and “specifically authorizes (law firm Freeh, Sporkin and Sullivan) to share investigative material with third parties,” including legal authorities.
The plaintiffs also claimed privilege could not be invoked when the material in question had already been required to be made available to the estate of late longtime Nittany Lions football coach Joe Paterno, in Centre County court, and to one of Sandusky’s victims, in Philadelphia County.
“Third, Judge (John) Leete concluded that (t)he (u)niversity’s decision to share information concerning the Freeh investigation with third parties, including the (NCAA) and Big Ten ... operates as a waiver of the privilege,” the trustees’ attorneys wrote.
Last, the trustees argue that there is no basis to keep the information privileged from them, as they are among the people who should be privy to it.
They also said the university’s claims that confidentiality had been promised to the faculty, staff and others interviewed were untrue, citing interviewee John Nichols. In the court documents, Nichols was quoted as saying, “during the interview, a Freeh team investigator informed me that they could not guarantee that the interview would remain confidential. The subject of confidentiality was not raised in any of the subsequent three interviews.”
That agrees with information Freeh investigator Omar McNeill gave in depositions during another suit, in which he said he told interviewees that the university could waive privilege at any time and that they should “act accordingly.”
The trustees continue to say they want to review the documents in order to make the best fiduciary decisions for the university. They specifically denied the allegations that any confidential information might be misused.
“The allegation is purely speculative and should be stricken on this basis,” plaintiffs’ attorneys wrote.
The trustees are asking the court to enter an order compelling their access to the documents and to award attorneys’ fees.