The Commonwealth Court has granted partial relief to a Penn State alumnus seeking access to communications received by the Pennsylvania secretary of Education while on Penn State's board of trustees, possibly paving the way for the alumnus to examine information on how the school responded to the Jerry Sandusky sex-abuse scandal.
The en banc panel ruled 6-1 that the Office of Open Records erred when it concluded that it lacked jurisdiction over the records request of Ryan Bagwell, who asked for letters, emails, reports and memoranda sent from dozens of people affiliated with Penn State to Pennsylvania Secretary of Education Ronald J. Tomalis between April and July of last year. Bagwell named 38 people who may have corresponded with Tomalis, including former and current Penn State board members, board employees, prior counsel to the board, a former president of Penn State and a spokesperson for the board.
Commonwealth Court Judge Robert Simpson, however, declined to rule in Bagwell v. Pennsylvania Department of Education to release those records, remanding the case to the OOR to rule on the exemption arguments lodged by the Department of Education, namely whether Penn State as an interested third party may assert the records are protected under attorney-client privilege. It is unknown whether Penn State will intervene in the litigation and the school declined comment through a spokesman.
The ruling, however, could mean that information sent by trustees of any of Pennsylvania's four state-related schools to the Department of Education through its secretary could potentially be a public record, Bagwell's attorney said after the ruling.
The OOR had previously concluded that the information did not constitute records under Pennsylvania's Right-to-Know Law and that Penn State's board of trustees was not an agency covered by the law, impeding Bagwell from securing the records he sought from the Department of Education, which initially denied his request.
The problem with that reasoning, Simpson wrote for the panel, was that it didn't account for the fact that Tomalis, as an ex-officio member of the board of trustees, was acting on behalf of a state agency in his capacity on the board.
"That the PSU board is not an agency does not determine the outcome in this case," Simpson wrote in a 21-page opinion. "This is because both parties to correspondence do not have to be agencies."
"Rather, only one party needs to be an agency to lead to RTKL disclosure," Simpson added. "Therefore, the relevant inquiry is whether the recipient, the secretary of Education, when acting as a PSU board member, is acting on behalf of a commonwealth agency."
Tomalis, Simpson concluded, was acting on behalf of the state while on the board and the OOR therefore had jurisdiction because Bagwell's request was directed to a state agency. Whether a non-agency entity created or sent the records in question was of no moment, Simpson added, because the records may be public once they are received by the state agency.
Simpson also concluded the OOR erred when it reasoned that correspondence between the board and the Department of Education were not records because Penn State is not in the RTKL's definition of agency.
Simpson, however, emphasized the law's definition of record: "Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency."
The question, therefore, became whether the record was "of" the agency in this case; Simpson noted a record does not need to originate with an agency to be of that agency.
The fact that the records are in the department's possession was enough, the judge concluded.
Simpson declined to weigh in on the substantive argument the department made in response to Bagwell's appeal — namely, that Penn State did not participate in proceedings before the OOR and could assert the records were privileged — and remanded the case to allow for a fuller record, including submissions from interested third parties, like Penn State, if necessary.
When the department initially denied Bagwell's records request, it cited attorney-client and work-product privileges, and several RTKL exceptions such as the "predecisional deliberative" exception, the "noncriminal investigative" exception and the "personal information" exception. The department, Simpson noted, did provide some responsive records and additional redacted records.
It did not challenge whether the records were of the department, nor did it deny having possession of them.
Bagwell's lead attorney, Joshua D. Bonn of Nauman, Smith, Shissler & Hall in Harrisburg, said his client is a Penn State alum, former reporter and former two-time candidate for the Penn State board of trustees.
Bonn commended the court for a "very well-reasoned opinion" and said he and his client were looking forward to seeing whether Penn State intervenes before the OOR and asserts attorney-client privilege.
In addition to determining that information disseminated by board trustees to the Department of Education may be public record, absent an applicable exemption, Bonn said the decision also shifts the burden of proof from the requestor to the state-related institution. If the requestor can show the state-related agency actually has the records, which was the case in Bagwell, then the state-related institution must present evidence that exemptions apply, Bonn said.
There are four state-related schools in Pennsylvania — Penn State, Temple University, the University of Pittsburgh and Lincoln University — and the secretary of Education sits on all their boards.
Simpson noted in his opinion that the request does not expressly refer to the Sandusky scandal, but Bonn confirmed that his client was seeking information pertaining to the scandal and the school's handling of it.
Delene Lantz Johnson represented the department and did not return a call requesting comment.
Judge Bonnie Brigance Leadbetter dissented without comment.
(Copies of the 21-page opinion in Bagwell v. Pennsylvania Department of Education, PICS No. 13-2194, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)