What documents can a reporter obtain from Penn State officials?

The developments at Penn State are in so many ways national news: the sex abuse allegations, the cover-up, Joe Paterno’s unceremonious dismissal, the riots, the tears – the list of stories goes on and on. But for reporters wishing to cover what is unfolding at Penn State, new information is hard to come by, particularly if a reporter is not on campus and able to pound the pavement for interviews.

Like every state, Pennsylvania has a freedom of information law that requires public agencies to disclose public records upon request. Access to public records can often lead to breaking news, bring to light a public controversy, or unearth a government agency’s darkest secrets. As Supreme Court Justices Louis Brandeis wrote, “Sunlight is said to be the best of disinfectants(.)”

However, the Right to Know Law (RTKL), Pennsylvania’s freedom of information law, will do little to help a reporter obtain records from officials at Penn State.

The Pennsylvania State University is not exactly the type of “state university” its name suggests. Penn State is regarded as a “state-related institution,” and is part of the Commonwealth System of Higher Education (along with Temple University, the University of Pittsburgh, and Lincoln University). Penn State is not part of the Pennsylvania State System of Higher Education, which is comprised of truly “state” universities, such as the California University of Pennsylvania. In essence, Penn State is not really a “state university” in the traditional sense,  but rather some sort of public/private hybrid.

The Pennsylvania Supreme Court decided in 2007 that Penn State, as part of the Commonwealth System of Higher Education, was not a Commonwealth agency, and therefore the RTKL did not apply to Penn State. However, in 2008 the legislature amended the RTKL specifically to apply to Penn State and its sister institutions, albeit in an extremely limited fashion.

Under the current RTKL, an individual (whether a journalist or not) is entitled to the following from Penn State:

?                Information contained in Form 990 of the IRS (except for individual donor information);

?                The salaries of all officers and directors; and

?                The highest 25 salaries paid to employees.

The University publishes a report every year disclosing these facts.

Outside of this limited information regarding the University’s finances, the RTKL does not apply to Penn State.  That means that the RTKL will not entitle a reporter to access to e-mails, reports, or memoranda – documents that a reporter could obtain from a truly “state university” in Pennsylvania. Penn State receives roughly $270 million from the Commonwealth of Pennsylvania – taxpayer money – yet does not need to be as transparent under the RTKL as other government institutions. (The Commonwealth gives roughly $560 million to state-related institutions.)

That does not mean that a reporter is entirely “stuck” in reporting about the saga that has become Penn State. Where the university interacts with a truly governmental agency, such as the State Employee’s Retirement System, the RTKL will apply to that governmental body and information must be disclosed. And there are secondary sources such as the IRS Form 990 returns for Penn State’s athletic association that might yield some background information — though they are no substitute for the correspondence, notes and other records that would be obtainable from public agencies under typical state FOI statutes.