Information Related to Louis Freeh’s Investigation of Sandusky Scandal at Penn State is Potentially Subject to Public Disclosure

Note the author of this article is counsel for Ryan Bagwell, a party to the case discussed below.

In a groundbreaking decision issued last week, the Commonwealth Court held information received by the Secretary of Education through his service as an ex officio member of the Penn State University Board of Trustees is a record of the Department of Education subject to public disclosure under the Right-to-Know Law (RTKL).  Bagwell v. Pennsylvania Dep’t of Educ., — A.3d —-, 1916 C.D. 2012, 2013 WL 3778927 (Pa. Cmwlth. 2013).  The court disagreed with a prior decision by the Office of Open Records (OOR) which held communications between the Governor and other members of the PSU Board were not public records.  The court’s decision has major implications for public access to information created by Penn State University, as well as the other state-related institutions, which include the University of Pittsburgh, Temple University, and Lincoln University.

Ryan Bagwell is a former candidate for the PSU Board of Trustees who campaigned on a platform of increased public transparency.  He filed an open-records request with the Department, asking for copies of letters, emails, reports and memoranda received by the Secretary during a specified timeframe from specified individuals, including Louis Freeh, while the Secretary served as a trustee ex officio on the PSU Board.  The Department granted access to some records, but denied access to other records.  The Department asserted the records withheld were protected by the attorney-client privilege and subject to the RTKL’s exemptions for predecisional and non-criminal investigative materials.

Bagwell appealed to the OOR.  The Department argued the OOR had previously dismissed an appeal for communications between the Governor and other members of the PSU Board of Trustees.   Schackner/The Pittsburgh Post–Gazette v. Office of the Governor, OOR Dkt. No. AP 2012–0329 (issued Apr. 4, 2012).  Since PSU is not an agency responsible to comply with the RTKL, the OOR reasoned communications between the Governor and other members of PSU’s Board are not the Governor’s records.     Id.  The OOR followed Schackner and dismissed Bagwell’s appeal for lack of jurisdiction.

Bagwell appealed to the Commonwealth Court.  In a thorough, well-reasoned opinion by Judge Robert Simpson, the Commonwealth Court reversed the OOR’s final determination and remanded the matter to the OOR for further proceedings.

The Commonwealth Court disapproved of the OOR’s reasoning in Schackner.  Only one party to correspondence needs to be an agency for communications to be accessible under the RTKL.  Judge Simpson explained, “[t]he non-agency status of the creator or the sender of records does not preclude their public status.  Private persons and entities may create correspondence and send it to an agency, thereby potentially making it a record of the agency.”

The question remained whether the Secretary was acting on behalf of the Department whenever he received materials as a result of his membership on PSU’s board.  The Commonwealth Court found the Secretary acts as a surrogate for the Department while serving on the PSU Board.  State law requires the Secretary to serve as an ex officio member of the PSU Board.  Department regulation requires the Secretary to act on behalf of the Department whenever performing statutorily imposed duties.  During oral argument before the Commonwealth Court, the Department’s counsel admitted the Secretary acted on behalf of the Commonwealth while serving on PSU’s board.

The Commonwealth Court also examined PSU’s relationship with the Department.  PSU is a state-related institution.  Although privately operated, PSU receives taxpayer funds.  In order to receive such funds, PSU subjects itself to department regulations, including requirements to appoint the Governor and the Secretary of Education to its Board of Trustees.

The Commonwealth Court concluded the Secretary’s receipt, on the Department’s behalf, of information from PSU through his service as an ex officio member of the PSU Board qualified the information as received by the agency.  The records were received by the Secretary pursuant to the Department’s role of supporting and influencing education at the state-related institution.  The submissions to the Secretary as a PSU Board member enable the Secretary to perform his ex offico duties and document the Department’s governmental function of representing the Commonwealth’s education interest on the Board of the state-related institution.

Both Bagwell and the Department asked the Commonwealth Court to address the substantive grounds raised in the Commonwealth Court’s initial denial letter.  The Commonwealth Court expressed concern, however, the record was not clear whether PSU had notice and opportunity to be heard in the OOR proceedings.   The Commonwealth Court remanded the case for further proceedings before the OOR to determine whether the information was exempt from public disclosure and to allow participation by PSU.

The broad language of the opinion implicates the Commonwealth Court’s decision is applicable to information disseminated by other state-related institutions to public officials who serve as ex-officio members of their respective boards.  Judge Simpson wrote “… the purpose of departmental regulation of PSU and all state-related institutions (emphasis supplied) is to protect students and citizens of the Commonwealth.”  He concluded, “the records the Secretary receives as a Board member are received by the Department pursuant to its statutory function as supporter and influencer of education at state-related institutions (emphasis supplied). Because the records are received by a Commonwealth agency to enable it to perform its statutory governmental function, they qualify as “records” under the RTKL.”

A number of officials serve as ex-officio members of the boards of trustees at the state-related institutions.  The Governor and the Secretary serve as ex-officio board members at all four state-related institutions.  The Secretaries of the Department of Conservation and Natural Resources and of the Department of Agriculture serve as ex-officio board members on the PSU Board.  The Chief Executive of Allegheny County and the Mayor of Pittsburgh serve as ex-officio board members on the Pitt Board.  The Mayor of Philadelphia serves as an ex-officio board member on the Temple Board.  In light of the broad language of the Bagwell appeal, all of these public officials may be subject to RTKL requests for information received from state-related institutions.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.