PENNSYLVANIA — Astate court judge on Monday ordered the release of East Stroudsburg University Foundation’sdonation records, placing a hopeful capstone on a 2-year public records battle.
In February 2009 ThePocono Record, a regional paper in Pennsylvania, filed a public records request for funding information from theEast Stroudsburg University Foundation in connection with the paper’sinvestigation of an ESU official suspected of sexual and financial impropriety.
The ESU Foundation is a nonprofit organization that collects private gifts and grants for the university.
The Record arguedthat the foundation’s files were subject to Pennsylvania’s Right to Know Lawbecause the foundation performed government functions for the university andwas a state-affiliated entity.
The university and foundation denied the request, however,arguing that the foundation was exempt because it is an independent contractor.
On May 24, 2010 a state appeals court sided with the Record, ordering the foundation torelease donor information and pledge amounts made to the ESU Science andTechnology Center, copies of ESU Foundation board meeting minutes regardingfundraising and fund management and the donor files and contributions from fivespecific donors and one corporate donor. The court allowed the university andfoundation to redact names and identifying information.
In March 2011, the Supreme Court of Pennsylvania refused to hear the university’s appeal, requiring the university andfoundation to release the information mandated by the lower court.
On April 15 the Recordreceived a 187-page document of pledges and payments to the school’s sciencebuilding from the university — all names were redacted. ESU Foundationboard meeting minutes were also provided; the paper’s lawyer, Gayle Sproul,said the minutes were heavily redacted. The paper did not receive any documentsregarding the six donors specified in its original request.
Sproul said the redactions to the board’s minutes andneglect of the specific donors’ files were a “flagrant violation.”
Unhappy with the information the paper received, Sproulwrote to ESU Public Information Officer Richard Staneski threatening legalaction if more information was not released in compliance with the court’sorder.
On May 5 the university filed a motion for clarification,seeking to “determine what, if any error,” was made by ESU. The university alsoargued that the release of the six specifically named donors was impossiblewithout identifying the donors. Sproul then filed a motion to strike down ESU’sclarification plea, a motion to enforce the judge’s original ruling and arequest for sanctions against the university for non-compliance.
The order handed down Monday by Judge Dan Pellegrinirequires the university and foundationto provide the Record with all donorfiles of the foundation from the last three years by July 18. The redaction ofnames and identifying information is allowed.
The Record isallowed to request additional donor files as far back as 2000, though it hasuntil June 16 to notify the university and foundation of the additional filesit requests per year.
The judge found that ESU and the foundation properlyredacted the minutes, but granted Sproul’s request for the university andfoundation to provide any attachments to board meeting minutes that were notoriginally provided.
The release of all donor files since 2000 is significantlymore information than originally requested by the Record. Sproul said this ruling was the judge’s way of followingthe state’s Right to Know Law without implicating the identities of the sixspecified individuals.
“He sort of went to the other side of the spectrum,” Sproulsaid. “It is a very good outcome. It is the appropriate way to construe thelaw. What he was trying to do was give effect to the law without implicatingthose specific donors.”
Sproul said she would be meeting with members of the Record staff to discuss what will berequested and the cost associated with that decision.
Frank LoMonte, executive director of the Student Press LawCenter, said the most important aspect of this case is the court’s view on whatentities are subject to public records law.
“I think what you are seeing in general isthat the courts are using the common sense, functional approach rather thanlooking at what name is slapped on the entity. What matters is: are they doingthe public’s business?” LoMonte said.
“You don’t have to be strictly a stategovernment agency to be subject to the public records law, it is enough thatyou are performing an essential state function.”
LoMonte said subjecting affiliates of universities, like theESU Foundation, maintains the accountability function of public recordslaw.
“In the case of a foundation or anotherclosely affiliated agency of a university, the public’s understanding isincomplete unless they can see what these affiliates are up to,” LoMonte said.
“It is sometimes the case that big donors putconditions on their gifts and try to steer certain policies, and if you can’tsee those communications there could be an invisible agenda going on that fliesbelow the radar.”