How Open Records law would have stopped sex abuse sooner at Penn State
The Freeh report on the Jerry Sandusky Penn State sex abuse scandal makes many recommendations on how the whole rotten mess might be avoided in the future, including transforming the very culture of the university. Sadly, the report fails to recommend a tangible key change that might have exposed the problems and protected children years ago.
Despite being supported by tax dollars, Penn State University is not subject to the state's open records laws. Penn State’s records, including police records, e-mail, phone records, calendars and memos, are closed. Other schools and state agencies must comply with Pennsylvania’s Right to Know Law, but not Penn State and three other large state schools.
Instead, those schools must file an annual report that is roughly equivalent to an IRS Form 990, which non-profits file annually.
This week, Pulitzer Prize-winning reporter Sara Ganim, who broke the Penn State scandal story, told a group of reporters and editors at Poynter that the open record exemption made it much more difficult to investigate the sex abuse story.
“There is nothing that is public from Penn State,” Ganim said. “Everything is what you get from people, and there is such a degree of loyalty that prosecutors have even been thrown off by it.” Some reporters, she said, call Penn State “the Kremlin.”
Terry Mutchler, Executive Director of the Pennsylvania Office of Open Records, told me, “You can have the strongest Right to Know Law in the country and it would not have prevented what happened at Penn State, but what happened might have been discovered earlier,” if the records had been open.
Why are records closed?
Penn State, the University of Pittsburgh, Temple University and Lincoln University are known as “state-related" institutions. That designation is different from a “state-affiliated entity.”
What’s the difference?
The “state-affiliated” government entities in Pennsylvania are subject to the Commonwealth’s open records laws. Section 102 of the Commonwealth’s open records statute lists the agencies that must open their records to the public:
- Pennsylvania Higher Education Assistance Agency and any entity established thereby,
- the Pennsylvania Gaming Control Board,
- the Pennsylvania Game Commission,
- the Pennsylvania Fish and Boat Commission,
- the Pennsylvania Housing Finance Agency,
- the Pennsylvania Municipal Retirement Board,
- the State System of Higher Education,
- a community college,
- the Pennsylvania Turnpike Commission,
- the Pennsylvania Public Utility Commission,
- the Pennsylvania Infrastructure Investment Authority,
- the State Public School Building Authority,
- the Pennsylvania Interscholastic Athletic Association
- and the Pennsylvania Educational Facilities Authority.
So community colleges are subject to open records laws. But big powerful schools that are given a LOT more taxpayer money are not. The same state law exempts them by name.
"State-related institution." Includes:
- (1) Temple University.
- (2) The University of Pittsburgh.
- (3) The Pennsylvania State University.
- (4) Lincoln University.
Prior to 2008, Pennsylvania was a state with notoriously closed records. Pennsylvania law presumed records to be closed unless the person seeking them could show why they should be open. In states like Florida, it is the opposite. The presumption is the records belong to the people.
Pennsylvania changed the law in 2008, but kept the exemptions. The schools have “state-funded” status, which allows them to exercise independent control, despite getting a half-billion dollars in state funds.
Under Pennsylvania law, Penn State and the other schools only have to:
- File a Form I-990 (the form charities and non-profits file with the IRS) or something similar
- List the salaries of all officers and directors
- List the 25 highest salaries paid to employees of the institution
- The report shall NOT include information related to individual donors to the school.
That is less information than publicly traded companies have to file with the U.S. Securities and Exchange Commission. That is less than politicians have to file when running for state or federal office.
Mutchler says the exempted school police departments are the only police departments in the state that do not have to comply with state open records requests. Even the FBI must comply with open records filings, but not Penn State’s cops. That would become a key way the 1998 report about sexual misconduct by Jerry Sandusky stayed hidden for more than a decade.
“Had the Penn State police department been forced to disclose records as other departments must, you might have found a police report, a blotter item. You might have found something” that would have uncovered the Sandusky matter earlier, Mutchler says.
When journalists have tried to fight to open the Penn State records, they lost. The law is clear. In December 2011, the Associated Press, for example learned the power of the state exemption when it tried to get records from Penn State. The AP wanted to know about Sandusky’s severance package and about e-mails that top school officials exchanged related to the Sandusky allegations. The AP also wanted to see records about the 1998 complaint that mentioned Sandusky showering with a child. (The Freeh report said the school police department still had records on the 1998 complaint as late as February 12, 2001. See page 63 of the report.)
It is not just reporters who found themselves shut out. The Freeh report said Pennsylvania State Police didn’t have access to the Penn State police department’s records on the 1998 incident until January 2011. (See page 82 of the report.)
The school hid behind the state open records exemption in what Freeh described as a “culture of silence.”
Who fought to close the records?
In 2007, Penn State University President Graham Spanier testified before the Pennsylvania legislature, years after the e-mails flew between top school officials about sexual abuse allegations involving Sandusky.
Spanier pleaded in 2007 with state lawmakers to exempt schools from open records laws. “Subjecting Penn State to Right to Know does far more than feed the prurient interests of newspaper editors who are looking for a headline about how much Coach [Joe] Paterno makes,” testified Spanier, one of the school leaders most sharply rebuked in the Freeh report.
Spanier warned lawmakers at the time that if his school had to disclose its files to the public it could lose “lucrative partnerships” with vendors like Nike and Pepsi, which require non-disclosure. Spanier said revenue from intellectual property would fall because bidders would know too much. He said donors to the school want to remain anonymous and that the disclosures would lead to an erosion of privacy rights for people who work at the school or are mentioned in the files.
In January, Pennsylvania state Senator John Blake introduced SB1377, which would bring Penn State and the other schools under the state’s open records laws. The bill has not moved out of the Senate Government Committee and the legislature is out of session until late September.
Mutchler told me that there are other proposals floating around the legislature. One would force Penn State's police departments to open their records while the rest of the school would remain exempt. Another option would be to require anything at the school that is paid for with taxpayer dollars to be open while anything privately funded could remain closed.
The Freeh report (on page 136) recommends that the Penn State Board of Trustees use social media to communicate with the public on important school matters. It does nothing to recognize how the culture of silence is emboldened by state law.
Mutchler said her stance is clear. “When public dollars are involved, there should be complete and total transparency.”
The Freeh report said, “The school concealed critical facts from the public.” Yes it did, and the state law exempting Penn State and other schools from open records laws helped it to happen.
The abuse at Penn State is a lesson to us all about what happens when powerful people and public institutions are allowed to operate in the shadows created by what Freeh called a “closed culture.” It is a culture that protected abusers, failed to protect victims and survived by closing its records to journalists who might have exposed it.