Shut out at Penn State

Why the “hybrid university” was exempt from releasing records
Feature
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15

AP Photo by Nabil K. Mark

Former Penn State Assistant Coach Jerry Sandusky walks past the media on Jan. 22.

Last fall, a grand jury indicted former Pennsylvania State University football coach Gerald “Jerry” Sandusky on 40 counts related to his alleged sexual abuse of eight young boys.

But for some reporters, the next piece of information that emerged from Penn State was equally shocking: the university was exempt from Pennsylvania’s open records laws, and could therefore largely ignore requests for information related to the scandal.

Frustration with the school’s exemption mounted as two other Penn State administrators were criminally charged with failure to report the abuse and perjury, late head football coach Joe Paterno was fired, and former university president Graham Spanier resigned.

“I think the central question in the Sandusky case is who knew what, and when did they know it,” said Andrew McGill, a reporter for The Morning Call in Allentown, Pa., who has covered Penn State for more than five years.

But McGill and other reporters looking to cover the investigation faced an unusual legal hurdle: the definition of “commonwealth agency” in the state’s Right-to-Know Law — which lists those agencies subject to open records requests — does not cover any “state-related institution.” And Penn State, as one of four state-related institutions, along with the University of Pittsburgh, Lincoln and Temple universities, had no legal obligation to respond to open records requests, even while the unfolding events potentially implicated university officials with long-time knowledge of Sandusky’s actions.

The grand jury indictment — widely circulated by news outlets — revealed that in 1998, university police and child protective services investigated an allegation that Sandusky sexually abused a child in university showers, resulting in “a lengthy police report.” No charges were filed. Four years later, Paterno and Spanier had allegedly learned of Sandusky’s abuse of a 10-year-old boy — again in university showers — from the eye-witness testimony of then-graduate assistant football coach Mike McQueary, but no investigation had followed.

For McGill and other journalists, access to Penn State records — emails, documents, and communications — would be “one of the few tools we have to get some candid answers into what people were thinking and doing.”

Between Nov. 7 and Dec. 7, Penn State’s Office of General Counsel received 44 records requests seeking more than 150 items related to the scandal, said Lisa Powers, Director of Public Information at the university. Of the 44 requests, nearly half sought the 1998 investigation report.

McGill, who requested the report, said he received an immediate response saying that because Penn State is not subject to the Right-to-Know Law, “neither is our police department.”

ESPN, which had also been denied a similar request, appealed to the Pennsylvania Office of Open Records, arguing that since the university police department’s website asserted that state law gave its officers “the same authority as municipal police officers,” it should also have to abide by other laws to which municipal police officers were bound — namely, the Right-to-Know Law. But the Office ruled that because Penn State was exempt from the Right-to-Know Law, so was its police force.

“From there on, we knew we’d be kind of bashing our heads against the wall,” said McGill.

Public money, but little public oversight

Andrew McGill, a reporter for The Morning Call in Allentown, Pa., was one of many reporters who sought access to Penn State records.

“On the whole, they largely hew to what the law requires them to do, which is nothing,” McGill said of Penn State’s responsiveness to records requests.

Penn State, as well as the state’s three other “state-related institutions,” has had that rare power since a rewrite of that law took effect in 2009. Unlike other state universities that receive state funding, state-related institutions are only required to report the salaries of officers and directors, the highest 25 employee salaries, and information required on an IRS Form 990 — a 12-page annual reporting document for federally tax-exempt organizations.

Following the scandal, the Office of Open Records was slammed with more questions than it had ever received, said Terry Mutchler, executive director of the office. Legislators, journalists, and citizens were “incredulous” that Penn State was exempt from transparency requirements, even while receiving taxpayer funds.

While these state-related institutions are independently controlled entities, they receive substantial funding from the state; for the most recent fiscal year, Penn State was allotted $227.6 million, while the University of Pittsburgh and Temple University each received more than $135 million. Lincoln University received $11.1 million.

But a closer look at Pennsylvania’s open records law reveals that, even in the absence of the exemption for state-related institutions, reporters would still face substantial barriers to access to Penn State records.

A “Swiss cheese” open records law

The state-related institutions secured their exemption in part due to then-Penn State President Spanier’s 2007 lobbying, during the formative stages of the rewrite of the Right-to-Know Law. Spanier testified before the House State Government Committee that subjecting Penn State to the law would have a “profound negative impact” on the school, jeopardizing its ability to compete for faculty and financial resources.

Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association, said her organization opposed the exemption at that time.

“As far as concerns regarding competitiveness, there are other states — state institutions similar to Penn State in standing — that are open, and it has not affected their academic quality, and ability to recruit high-quality administrators and faculty members,” Melewsky said.

“They were concerned about their financial position, donor anonymity, other issues related to private data that affect their research,” said state Sen. John Blake. “But those protections are already embedded in the existing statute.”

Pennsylvania’s open records law contains many such “protections” — it lists 30 exempt categories of records or information.

The law is “a Swiss cheese, unusually riddled with exemptions,” said Frank LoMonte, executive director of the Student Press Law Center and an expert on access to university records.

“Pennsylvania is notorious for having one of the least inclusive open records laws — it’s just a huge patchwork of exemptions and it always has been,” he said.

For example, while Spanier testified that applying the Right-to-Know Law to Penn State could threaten to unveil donors, producing “a chilling effect” on them, the current law exempts all donor identities except those who donate to a specific public official or agency employee. While he claimed the law would “chill certain economic development activities” by subjecting confidential business information to disclosure, the law specifically exempts such information from release.

Further — particularly relevant to those seeking records from the Sandusky investigation — the Right-to-Know Law contains “a very, very broad criminal investigation exception,” as Melewsky describes it. For example, the law exempts any records that would “reveal the institution, progress or result of a criminal investigation,” with the exception of the filing of criminal charges.

Even outside the Right-to-Know Law, other state laws may potentially permit the school to withhold records.

For example, in resisting release of the 1998 police investigative file, Penn State also cited the state’s Criminal History Record Information Act, which governs the collection and dissemination of information related to individuals’ criminal histories. Whether the Act is actually applicable to the investigative file is an open question, however; Melewsky says that in the absence of case law interpreting its application to Penn State’s police department, the answer is unclear.

In addition, the federal Family Educational Rights and Privacy Act (FERPA) conditions the grant of federal funds to schools on their compliance with the law’s protections for the privacy of “student education records.” And the Right-to-Know Law exempts from mandatory disclosure records that — if released — would result in an agency’s loss of federal or state funds.

But the question of what constitutes “student education records” is unsettled.

According to LoMonte, FERPA allows schools to withhold “the kind of records you’d find if you walked into the registrar’s office and asked to see your file” — for example, a student’s grades or college application.

However, some universities have — often in the wake of scandal — sought to expand this definition, fighting unsuccessfully in court to apply FERPA to, for example, parking tickets issued to students and student disciplinary records.

But Penn State, shielded by its complete immunity from records requests, did not need to rely on specific federal or state law exemptions to withhold — it could simply deny all requests.

Reporting around the exemption

Facing this legal barrier, reporters were forced to look to other means for information.

“It makes their job very difficult,” Melewsky said. “But they also were very motivated to get their story even without help from Pennsylvania law.”

McGill looked for individuals connected to Penn State or the investigation who would be subject to the Right-to-Know Law. So when the Pennsylvania Department of Education launched an investigation of Penn State’s potential mishandling of the sexual abuse allegations, he sought reports or investigation records from the agency.

The Associated Press obtained from that department internal university records — which McGill then requested from the agency as well — that revealed the university’s public relations efforts following the scandal, including memos from Penn State president Rodney Erickson to the board of trustees discussing university efforts to control damage to its image in the media and suggesting “talking points” for donors.

According to an article by The Philadelphia Inquirer, its reporters managed to obtain scandal-related emails and letters sent to Pennsylvania Governor — and Penn State Board of Trustees member — Tom Corbett by submitting a records request to the governor’s office.

And Centre Daily Times in State College, Pa., reporter Anne Danahy said her newspaper, like others, filed records requests with the state retirement system — to which Penn State employees may opt in — for information on how much university officials connected with the scandal stood to gain in state retirement benefits.

“Think about what other government entities interact with yours and have less motivation to conceal,” LoMonte advised. “Think about other agencies in the law enforcement and legal system who will start creating a paper trail when a crime is reported — that’s city police, county police, district attorneys, maybe even the court system — all of those are places where you may have better luck getting documents than from your school.”

Legislative backlash

When the scandal broke, Washington Times reporter Nathan Fenno already knew about Penn State’s exemption from prior sports coverage involving the school. So instead of filing records requests, he targeted the exemption.

“My immediate response is to write about it and tell people about that,” he said. “It’s shocking to people.”

Aside from Pennsylvania, only Delaware exempts universities that receive state funding from open records laws, according to a collaborative report by Sunshine Review-WikiFOIA, two non-profit organizations that support government transparency. But following the intense media scrutiny of these exemptions following the scandal, this may not be the case for long.

Legislation that would reclassify the exempt universities as public agencies subject to the open records laws is pending in both states. Blake sponsored one such bill in the Pennsylvania Senate — SB 1377 — and says it has received bipartisan support. He says he has heard no pushback on the bill from Penn State. A similar bill — HB 2051 — has been introduced in the Pennsylvania House of Representatives.

In an email, Lisa Powers said Erickson is “committed to openness and ongoing communications,” and notes that the university has “put a vast amount” of financial information online, such as the academic and administrative budgets and IRS Form 990.

“If and when the Legislature revisits this issue,” she said, “we will revisit it with them and have similar discussions about things we think should be considered as they pass a new law.”

“You can have a law that says that every sentence, paragraph, and Word document at Penn State is available and it wouldn’t have prevented the criminal activity [of Jerry Sandusky],” Mutchler said. “However, it’s my belief that had Penn State . . . been covered, it may have tipped off people sooner as to what was going on and in that way it might have protected victims, it might have prevented victims.”