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Penn State’s exemption in state law limits probe

Internal records not open to public, press

- The Washington Times - Tuesday, December 6, 2011

Transparency has been the pledge of  Penn State President Rodney Erickson in the aftermath of the Jerry Sandusky child sexual abuse scandal, from a universitywide email Nov. 10 to last week's on-campus town hall meeting.

Despite receiving $279 million from the state this year, Penn State is considered a "state-related" school — along with Lincoln, Pittsburgh and Temple — and thus is exempt from the open-records law that applies to Pennsylvania's 14 public universities.

"They carved out a niche for themselves," said Terry Mutchler, executive director of the state's office of open records. "It's befuddling to the citizens of the commonwealth of Pennsylvania about how they sit down and write a check for $279 million and [Penn State doesn't] have accountability to taxpayers."

Because of the exemption, data such as emails between Penn State administrators about Mr. Sandusky, telephone records, details of legal fees, contracts, minutes of meetings and more are shielded from public view.

Alaska and Delaware are the only other states to use similar exemptions.

Pennsylvania state legislators are rushing to remove the unusual loophole from the state's open-records act. Penn State President Graham B. Spanier, who has since been fired, campaigned vigorously for the exemption.

On Dec. 5, state Rep. Eugene DePasquale, a Democrat, introduced legislation to amend the open-records law to include the four state-related schools, calling the move "imperative" and "significant." Part of the Commonwealth System of Higher Education, the four schools are classified as receiving state funds but independently controlled. The 14 other public schools belong to the Pennsylvania State System of Higher Education.

In a Nov. 28 memo to fellow senators seeking a co-sponsor for his legislation, state Sen. John P. Blake, a Democrat, asserted that revamped open-records laws "may have brought the sad, unfortunate and utterly distasteful facts of this case to light much sooner."

The flood of open-records requests that usually accompany a public university's scandal — Ohio State received 150 requests regarding former coach Jim Tressel; Oregon had 105 requests related to its relationship with street agent Willie Lyles — won't work at Penn State. At Ohio State and Oregon, requests included telephone records, emails and contracts related to the cases.

Under Pennsylvania's open-records law, enacted by the legislature in 2008, Penn State is obligated to release only its top 25 salaries, those of officers and directors plus information on the Internal Revenue Service's Form 990. The state-related schools weren't included in the law's previous version.

"Before that, they weren't obligated to do anything at all," said Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition. "It's a very secretive organization. ... There's nothing like a huge national scandal to cause change."

The Associated Press, for example, requested a copy of Mr. Sandusky's severance agreement with Penn State, emails about the former defensive coordinator and information related to the university's 1998 investigation of him. The university denied the request, citing the open-records exemption.

The general counsel's office at Penn State didn't respond to a query about how many open-records requests it has received since Mr. Sandusky's indictment.

Even if Penn State were subject to the law, broad exemptions for investigative and personnel records would shield many of the Sandusky-related records from release.

"Some of the reasons we're seeing in media accounts for wanting those changes are not accurate," Penn State's director of public information, Lisa Powers, wrote in an email.

Ms. Powers maintained that the university's salary contracts and separation agreements include clauses that don't permit their release, and that including Penn State in the open-records law won't "fix these perceived problems."

However, Section 1701 of the open-records law, for instance, requires that all state agency contracts be made public. Those for more than $5,000 must be put online. That section of the law doesn't contain exceptions for confidentiality clauses.

When Pennsylvania's open-records law was rewritten in 2007, Mr. Spanier lobbied for the university's exemption. He was ousted last month by Penn State's board of trustees in connection with the Sandusky scandal.

Ms. Mutchler, a Penn State graduate who wrote for the school's newspaper, called Mr. Spanier's involvement unusual.

"It's a pretty low-level law for a university president to come and testify on," she said.

In four pages of testimony, Mr. Spanier all but predicted Penn State's collapse if it weren't exempted. His worries included a "chilling effect" on donors, making contract details public, eroding privacy rights and a "constant detriment to employee morale" if salaries were available.

"All in all, we anticipate that the proposed right-to-know legislation would result in a multimillion-dollar hit for Penn State," Mr. Spanier said on Aug. 7, 2007. "Subjecting Penn State to right to know does far more than feed the prurient interests of newspaper editors who are looking for a headline about how much coach [Joe] Paterno makes."

Ms. Powers echoed Mr. Spanier's concerns about compromising the university's contracts, research, donors and bottom line if subject to the law. She pointed to "thousands of pages" of budget data that the university makes available online.

"But Penn State is not a state agency," Ms. Powers wrote.

Still, most Penn State employees are part of Pennsylvania's state employees retirement system plan, and Mr. Spanier touted the university's history as the country's second land-grant school when he campaigned against cuts to state funding over the summer.

"A lot of universities will go to great lengths to protect their brand," Ms. Mutchler said. "You could have the strongest right-to-know law in the nation and it wouldn't have prevented what happened. But it could've tipped people off earlier and provided a reverse road map for what happened and who knew what, when."

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