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State Asks Court to Rule in Right to Know Request for Penn State E-mails

by on September 15, 2014 1:38 PM

State officials want a court to weigh in on a Right to Know request for e-mails exchanged between former Education Secretary Ron Tomalis, Penn State trustees and administrators, and the governor and his aides.

In court documents filed Friday, the Department of Education asked the Pennsylvania Commonwealth Court to clarify a decision reached by the state's Office of Open Records regarding the e-mails.

At issue is a Right to Know request filed in May by Ryan Bagwell, a former reporter and Penn State graduate, with the Education Department. Specifically, Bagwell requested copies of e-mails exchanged between Tomalis; Gov. Tom Corbett, his aides and cabinet; and Penn State leaders in July 2012, August 2012 and between Oct. 1 2011 and March 31, 2012.

Bagwell said in a prepared statement Monday that 644 pages "were exchanged in the aftermath of the Sandusky crisis and during the months leading up the announcement of penalties against Penn State's football team."

An agency is required by law to respond to a Right to Know Request within five business days. The Education Department responded saying the agency would need up to 30 additional days to locate the requested documents, which the law allows.

A month later, the state notified Bagwell he would need to pay $338 in advance of the request being completed. The Education Department also noted the final response could exclude documents for several reasons, including attorney-client privilege and attorney-work product.

Bagwell then appealed the decision to the Open Records Office arguing a request for pre-payment within the 30-day extension period constituted a denial of the Right to Know request. Bagwell argued the agency should release all records in their entirety because the Education Department did not include specific reasons for denying access to every related document.

Through the appeal process, the Open Records Office concluded the records in question are not protected under attorney-client privilege; attorney work product, noncriminal investigations and the agency cannot redact home addresses of trustees and other personal information. The office also ruled the agency cannot request advance payment for fees exceeding $100.

The Education Department filed a petition in court Friday asking the court to rule on all of the conclusions reached by the Open Records Office.

Bagwell, who who sought the records on behalf of the Penn State Sunshine Fund, questions the move.

"This suit is just another thinly veiled attempt to delay the release of potentially embarrassing public records until after the November election," says Bagwell. "This frivolous action has absolutely no merit. The Sunshine Fund will vigorously defend the rights of Pennsylvanians and Penn Staters everywhere to obtain this information."

Bagwell says the Sunshine Fund will ask the court to "punish the Education Department by imposing the harshest financial penalties to force these so-called 'public servants' to start respecting our right to obtain public records."

The Penn State Sunshine Fund, formed in 2013, is a grassroots effort to help pay for legal expenses related to obtaining public records about Penn State University activities. The group says it has obtained and published more than 1,500 records.

Penn State hired Louis Freeh, former FBI director, to investigate the handling of the Sandusky scandal. After Freeh's report found significant wrongdoing on the part of the university, the NCAA leveled unprecedented sanctions against Penn State's football program. The sanctions included a reduction in football scholarships, a ban on bowl appearances, and the vacating of 111 wins under head football coach Joe Paterno.

The Paterno family and others have questioned the validity of the Freeh report. There are several ongoing lawsuits related to the report and the NCAA sanctions.

Sandusky, a former Penn State football coach is serving 30 to 60 years in state prison. In 2012, a jury found him guilty on 45 counts of sexually abusing 10 boys over a 15-year period. Some of the abuse occurred on Penn State's campus. The university has reached monetary settlements with at least 26 victims.

Authorities also charged former Penn State President Graham Spanier, former Athletic Director Tim Curley, and retired Senior Vice President for Finance Gary Schultz with several offenses including perjury, failing to report child endangerment and conspiracy related to an alleged cover up of the Sandusky scandal.

All three men have pleaded not guilty and are awaiting trial.

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Jennifer Miller is a reporter for StateCollege.com. She has worked in journalism since 2005. She's covered news at the local, state and national level with an emphasis on crime and local government.
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