Pennsylvania may amend records law, make higher education more transparent

The records of all state-related universities in Pennsylvania may soon be open to public scrutiny, as lawmakers consider imposing more accountability on taxpayer-subsidized universities. Meanwhile, the state Office of Open Records is implementing a court ruling that could provide access to some documents from schools not defined as state agencies.

The Commonwealth Court's July 19 decision in Bagwell v. Department of Education means that the public may be able to access some university information in a roundabout way by filing open-records requests with state-government departments that communicate with the universities.

Both houses of the state legislature are considering proposals that would effectively one-up the court ruling, making it possible to obtain records directly from the universities. A house bill introduced by Democratic Rep. Scott Conklin would amend the state's Right-to-Know Law to define Pennsylvania State University, Temple University, Lincoln University and the University of Pittsburgh as state-affiliated entities subject to the open-records law.

Erik Arneson, a spokesman for Senate Majority Leader Dominic Pileggi, said in an e-mail that a Senate committee is expected to hold a hearing on the issue and will try to address it through legislation this fall.

Calls for greater transparency in Pennsylvania higher education have grown louder since 2011, when it was revealed that Penn State assistant football coach Jerry Sandusky had sexually abused children and head coach Joe Paterno, now deceased, had failed to report the allegations. Journalists and other requesters found that they had little access to documents related to the scandal, since Penn State — like Temple, Lincoln and Pitt — is defined as a “state-related” university rather than a state agency.

Pennsylvania’s state-related universities receive much of their funding from the state, but they operate independently from the state government. While the legislature was working on the current version of the Right-to-Know Law, which passed in 2008, it considered including the state-related universities, but the president of Penn State successfully lobbied against this expansion. The open-records law now imposes only minimal financial reporting requirements on state-related universities.

“My position’s always been that when you’re an institution and you receive hundreds of millions of dollars a year in public tax dollars, your records to some extent should be open to public scrutiny,” said Craig Staudenmaier, a Pennsylvania media lawyer whose client Ryan Bagwell is seeking records connected to Sandusky. “Why they’re not subject to the Right-to-Know Law has never logically been explained to me.”

Bagwell, a Penn State alumnus, filed a request with the state Department of Education last year, seeking Penn State-related correspondence received by Secretary of Education Ronald J. Tomalis. The Secretary of Education is one of a handful of state officials who serve as ex officio members of the Penn State board of trustees.

The department sent Bagwell some records but withheld the rest, citing exemptions in the Right-to-Know Law. Bagwell appealed to the open-records office, which found that Penn State documents were not public records and dismissed the appeal.

But the Pennsylvania Commonwealth Court reversed the office’s decision, reasoning that Tomalis’s records concerning Penn State were public records because he served on the board in his official capacity.

“The Secretary only has a place on PSU’s Board because he represents the Department,” Judge Robert Simpson wrote in a majority opinion. “The records he receives to enable him to perform his ex officio duties thus evidence the Department’s governmental function of representing the Commonwealth’s education interests on the Board.”

The court remanded the case to the state's open-records office, which will now address the question of whether the records Bagwell wants are exempt from disclosure for reasons other than Penn State’s non-agency status.

Terry Mutchler, executive director of the open-records office, said she welcomed the decision even though it was technically a rebuke to her office.

“Any time we’re reversed in favor of more access, I’m happy about that,” she said.

Mutchler predicted in a speech last week that the Pennsylvania Legislature will enact new transparency rules for state-related universities this year. She said lawmakers could take one of three approaches: define the entire universities as agencies under the Right-to-Know Law, cover campus police departments in particular or institute a dollar-for-dollar accounting scheme.

In an e-mailed statement on behalf of the university, Penn State spokeswoman Jill Shockey did not commit to a position.

“Penn State expects to be fully engaged in discussions along with our colleagues from the other state-related universities in order to find the best common ground for access and accountability that is consistent with the nature and mission of our state-related institutions,” she said.

Related Reporters Committee resources:

· NM&L: Shut out at Penn State

· Pennsylvania – Open Government Guide