Law change may open more Penn State records

HARRISBURG - Amid calls for Pennsylvania State University to explain how a child sex-abuse scandal stayed hidden for so long, a move is afoot to change the law that lets the school keep its records under wraps.

A carve-out in the state's 2008 open-records law exempted Penn State and three other so-called state-related universities from the document-disclosure requirements applied to scores of state agencies and hundreds of municipal governments.

"In light of what's happened at Penn State, we are in the process of reexamining how they are treated," one of the law's architects, Senate Majority Leader Dominic Pileggi, told The Inquirer on Thursday.

Terry Mutchler, who heads the state Office of Open Records, said: "Penn State enjoys luxurious protection that no other commonwealth agency gets, nor do many other state universities get anywhere in the country."

If not for its exemption, Penn State might have been obligated to release a trove of information, including records of a 1998 campus police investigation into former football coach Jerry Sandusky's alleged assault on a child, details about his 1999 separation agreement with the school, and related e-mails or other communications among administrators and trustees.

Instead, the university has repeatedly relied on its exemption from the law to keep its records sealed as journalists and others have bombarded it with requests for information.

This week, for example, university officials denied The Inquirer's request for any records, notes, documents, or correspondence related to the Sandusky police investigation, his employment, and the response by university officials, including former football coach Joe Paterno and former president Graham B. Spanier, both of whom were fired last week.

The school noted that it was obliged only to release information contained on the Form 990 that nonprofit institutions such as Penn State must file annually to the IRS.

Key figures in state government are already calling for reviewing the state open-records law and its exemptions. Speaking to reporters Wednesday in Philadelphia, Gov. Corbett signaled that he would support such a review.

"I think we certainly have to take a look at that," he said. In the meantime, he added, he would like to see "more openness" on the part of Penn State officials.

The end of the exemption may come in the form of legislation now under discussion in the Senate. Pileggi (R., Delaware), the majority leader, said he would work on a bill addressing the open-records law's exemptions and position it for passage in early 2012.

Since Sandusky's arrest on child-molesting charges this month, requests have flooded in to the Office of Open Records, seeking information that might help shed light on the roots of the scandal and any subsequent cover-up, said Mutchler, the office's executive director.

Her office was established by the 2008 law, which effectively moved Pennsylvania from having one of the nation's least transparent governments to having a model law with a global reputation when it came to public records.

The new law flipped the presumptions about access and burden of proof for scores of state agencies and municipalities. Where once residents had to prove why a government record should be made public, all government entities, including the 14 state-owned universities, must prove why a record should be kept private.

But Penn State and the other "state-related" universities - Lincoln, Temple, and the University of Pittsburgh - were exempted because of their quasi-public status: They receive private and public financing and maintain administrative autonomy. (Penn State is receiving state aid totaling $272 million this year.)

The leading argument for that carve-out - made vigorously at the time by Spanier, among others - was fear that would-be donors would be scared off if university records were made public, perhaps revealing information about donors.

Mutchler, for one, believes state-owned and state-related colleges should face the same open-records requirements. She said the open-records law had already helped a newspaper expose a sex scandal and subsequent cover-up at East Stroudsburg University, one of the 14 state-owned universities.

She said that donors' information would be protected under the law - and that the schools could also choose to open their files without a change in the 2008 law.

Under that law, state-related schools need only make public the Form 990s that are filed annually with the IRS, and to disclose the top 25 salaries at the institutions as well as salaries of trustees.

One salary - Paterno's - was a point of contention for years. Only after the law took effect did Penn State reveal, in response to an open-records request from a newspaper, that Paterno's annual compensation exceeded $1 million.

Neither Penn State nor Lincoln University officials returned calls Thursday seeking comment on whether the open-records law should be revised. A Temple University spokesman said he would have to look into the matter. The fourth state-related school is the University of Pittsburgh.

State Sen. John Blake (D., Lackawanna), who is proposing changes in the open-records law, said that legislation jumped to the top of his to-do list after the Penn State scandal broke.

"There is more to be done with transparency, especially as it relates to law enforcement, and inclusion will correct that," said Blake, who as an official with the Department of Community and Economic Development in 2008 helped launch the Office of Open Records. "Nothing could have prevented what happened and the tragedy to the children, but at least it might have provided earlier disclosure and earlier accountability."