Pa. court ruling could open access to records from state-related institutions like Penn State

PENNSYLVANIA — An appeals court has ruled that documents possessed by the state’s secretary of education in his role as a Pennsylvania State University trustee are records that fall under the state’s public records law.

Ryan Bagwell, a Penn State alumnus, requested in June 2012 copies of letters, emails and reports received by Secretary of Education Ronald Tomalis from individuals at Penn State during the course of the Jerry Sandusky investigation. As secretary, Tomalis serves as a member of the school’s board of trustees.

Bagwell was given some of the records but others were withheld, with the Department of Education initially citing attorney-client, non-criminal investigative and personal information exemptions in the state’s public records law.

After Bagwell appealed, the Department of Education said that the records were not public because Penn State is one of four state-related universities that does not fall under the state’s Right to Know Law. The state’s Office of Open Records dismissed Bagwell’s appeal, saying it did not have jurisdiction to decide the matter because Penn State records are beyond the scope of the state’s public records law.

In the opinion issued Friday, the Commonwealth Court disagreed, saying that the Office of Open Records had the authority to hear the case because the Department of Education is an agency subject to public records laws and was in possession of the records Bagwell sought.

“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, Judge Robert Simpson wrote in the court’s opinion.

Friday’s opinion means the case will now go back to the Office of Open Records to determine whether the records Bagwell requested should be released.

Bagwell said the ruling doesn’t mean that he will get the records he specifically requested but it does mean that records received by “these handful of state officials” are subject to the state open records law, an important precedent.

“I think it’s fantastic,” he said. “These records were certainly generated or received in the course of agency business.”

Nils Hagen-Frederiksen, a spokesman for the Pennsylvania Office of General Counsel, which is representing the Department of Education, said that “the Commonwealth Court ruling wasn’t definitive.”

“We will continue to represent the Department of Education and will state our case before the Office of Open Records,” he said.

Bagwell said since the records were in possession of a state agency so there’s no reasonable argument for why they should not be public.

Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition, said this is a good decision for open government advocates in the state and could have far-reaching implications for Penn State as well as the University of Pittsburgh, Temple University and Lincoln University.

All four colleges receive state money but are considered “state-related institutions,” and are mostly exempt from the state’s public records law. Since the Sandusky allegations came to light, there have been several attempts to bring the schools under the state’s public records law, but all have stalled in the legislature under pressure from the schools.

“I see this as another foot in the door to open some of the records of PSU and the other three state-related institutions,” de Bourbon said.

By Margaret Baum, SPLC staff writer. Contact Baum by email or at (703) 807-1904 ext. 127.