Ruling may open public access to data from state-related schools

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Call it a loophole, an end run or a creative solution.

Whatever the case, a Penn State University alumnus seeking records about how the school reacted to the Jerry Sandusky sex scandal won an appellate court victory Friday that could have broad open-records implications for certain schools, including the University of Pittsburgh.

In an opinion released Friday, Commonwealth Court said the state Office of Open Records erred in 2012 when it dismissed Ryan Bagwell's appeal after the state Department of Education refused to turn over various records.

Mr. Bagwell had asked for emails, letters, reports and other materials received in 2012 by then-Education Secretary Ronald J. Tomalis in his capacity as an ex officio member of Penn State's board of trustees.

The open-records office said it did not have jurisdiction because the information did not qualify as records as defined under the state Right-to-Know Law, and Penn State was not a covered agency under the law.

Penn State, Pitt, Temple University and Lincoln University are defined as state-related institutions that are obligated under the Right to Know Law to provide only limited financial information.

But the court disagreed with the Office of Open Records' interpretation. It reversed the decision and sent the case back to the open-records office for review.

"This really gives people at least some kind of window into the operations of these boards, which are allowed to operate in virtual secrecy," Mr. Bagwell, 34, said Friday.

Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association, agreed and hailed the court's decision.

"This is certainly a victory for public access," Ms. Melewsky said. "I think it has a tremendous potential to impact the means by which the public holds the state-related institutions accountable."

Ms. Melewsky cautioned, however, that the decision does not actually grant access to any records. Rather it puts the determination of Mr. Bagwell's access back in the hands of the Office of Open Records.

Now the office will have to address the other arguments raised by the Education Department about why the information should not be released under the state Right-to-Know Law, such as claims that it is protected by attorney-client privilege and pertains to a non-criminal investigation.

Terry Mutchler, the office's executive director, says she is ready to tackle the case anew and welcomed the court's guidance.

"Any time that the court corrects us in a more pro-open government fashion, I'm in," Ms. Mutchler said. "It's an important case, and we're looking forward to digging into it once we get it back."

Penn State had no comment through its spokesman, David La Torre.

Nils Frederiksen, spokesman for the governor's Office of General Counsel, said officials are reviewing the ruling and will address it further when the issue comes back before the Office of Open Records.

Mr. Bagwell, a 2002 Penn State graduate who is now a software developer in Wisconsin, had pursued information about the Sandusky case amid two unsuccessful runs to be elected to the board of trustees.

"Like all Penn Staters in the aftermath of the Sandusky scandal, I was trying to understand why certain decisions were made by folks on the board of trustees," said Mr. Bagwell. "That's why I started asking for information."

There are several ex officio members of the board, including Gov. Tom Corbett and department secretaries.

Pitt's board of trustees likewise has ex-officio trustees, including Mr. Corbett, William E. Harner, acting secretary of education, Allegheny County Chief Executive Rich Fitzgerald and Pittsburgh Mayor Luke Ravenstahl.

In April 2012, the open records office dismissed an appeal by the Pittsburgh Post-Gazette, which sought similar information from the governor, in his ex officio capacity. That case was cited in the open records office's Bagwell decision as well as in the court opinion.

"Like the Secretary here, the Governor is statutorily required to serve as a PSU Board member by virtue of his office. In other words, his service as a PSU Board member is inseparable from his role as Governor because he holds the membership solely because he is Governor," the court said.

Mr. Bagwell pursued his case in court and said he spent "many thousands of dollars" of his own money. He was rewarded with Friday's decision, written by Judge Robert Simpson.

"Pursuant to a statutory requirement, the Secretary serves on behalf of the Department when serving on the PSU Board. Thus, 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," according to the opinion.

"Because the records are received by a Commonwealth agency to enable it to perform its statutory governmental function, they qualify as 'records' under the [Right-to-Know Law]."

education - state

Jonathan D. Silver: jsilver@post-gazette.com, 412-263-1962 or on Twitter @jsilverpg.


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