Penn State Exemption From Right To Know Law

Since the November 5, 2011 criminal charges against former Penn State defensive coach Jerry Sandusky, there has been a public clamor to discover what Penn State officials and employees knew about Sandusky’s alleged sexual assault of young boys, and when they knew this information. Clearly, the Grand Jury was of the opinion that athletic director Tim Curley, finance chief Gary Schultz, and legendary head coach Joe Paterno knew about incidents involving Sandusky in 1998, and in 2002, which has resulted in perjury charges against Curley and Schultz, the firing of Paterno and University President Gary Spanier, and the resignation of Wendell Courtney, the recent attorney for Second Mile (The charity for underprivileged children that Sandusky founded in 1977) and the previous attorney for Penn State.

Originally, Pennsylvania had one of the most restrictive open records laws of any state in the United States, with state records presumed unavailable to Freedom of Information requests unless the citizen could prove why the information should be disclosed. This changed after campaign finance scandals and 2008 spending abuses by a state agency with the revision of the Pennsylvania Right To Know Law in 2008, whereby state records were deemed to be available at the request of the public unless public officials could substantiate a basis for their non-disclosure.

Gary Spanier, the former president of Penn State, was in the forefront requesting, and obtaining, an exemption from the open records law for Penn State by which the records of the University—and those of its police force—are not open to the public. (this exemption also applies to the University of Pittsburgh, Temple University and Lincoln University, based on their status as entities which receive public financing but have independent administrative control). Spanier’s argument in obtaining the exemption was premised on the contention that the school would have great difficulty attracting private donors if their identities could be divulged in an FOIA request, and intellectual property rights could be implicated as well.

Presently, all that Penn State is required to do with regard to disclosure obligations under the Right To Know Law is to issue annual reports by May 30 and publicize the salaries of officers, directors and the 25 most well paid employees. However, a very good argument could be made that an institution which will receive a reported $272 million (New York Times, November 12, 2011) from taxpayers this fiscal year must have its books and records open to those that are paying the tab.

Further, even if an argument could be supported that private donors or those with potential intellectual property rights could be deterred if they had publicity concerns, this does not explain the exemption for the Penn State campus police force, which essentially operates as a municipal entity and has all of the duties and responsibilities to serve the public beyond simply employees or students at Penn State. An example of this exemption in action can be seen at present, with assistant coach Mike McQueary insisting that he did report the 2002 alleged rape of a ten year old boy by Sandusky to the police. Previously it was reported that McQueary informed Joe Paterno of the rape, who then notified Curley and Schultz. With the law as presently constituted, the Penn State campus police can refuse requests for reports, phone records, e-mails and other written evidence as to the 2002 alleged assault simply by asserting the exemption carved out of the open records law for the campus police. This lack of accountability certainly needs to be addressed, particularly when the same would not hold true if the disclosure were requested of a municipal police force protecting these same citizens.

State Senator John Blake, a Democrat from northeast Pennsylvania, is in the process of introducing legislation which would revoke the exemption for state funded institutions, including Penn State. Blake noted that Penn State shouldn’t be entitled to any exclusion from public disclosure requirements, and stated: “It seems to me whether a citizen, organization, business or media interest wants access to public records, the hurdles shouldn’t be any different.”

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