Stronger Open Records Laws Might have Exposed Sandusky Sooner

After an investigation into the Penn State University’s handling of the Jerry Sandusky sexual molestation scandal, news organizations reported that the university had a long history of covering up for Sandusky’s actions.  While university officials may have been at fault for the initial cover up, an exemption to Pennsylvania’s open records law, which protects the university from public inquiry, could have made it easier to hide information for so many years. Source.

Pulitzer-prize winning journalist Sara Ganim of the Harrisburg Patriot-News told a group of journalists that the open records laws exemptions shielded Penn State from inquiry.  Such documents as police records, memos, calendars, emails, and phone records are closed.  Although all higher educational institutions are not excluded from the open records laws, four major universities in Pennsylvania are.  Ganim pointed out that better open records laws may not have prevented Sandusky’s abuse, but it might have led authorities to uncover what was going on much earlier—perhaps even in 1998, when a campus police report was filed relating to Sandusky’s conduct.

Even though the four exempted universities receive state funds, they remain exempt from the open records laws.  This is in sharp contrast to Florida, where the Sunshine Law includes public collegial bodies, or in Nevada, where the university system is also included (as well as electronic communications such as email). Del Papa v. Board of Regents, 956 P.2d 770 (Nev. 1998).  Nevada, in particular, has recently taken great strides to expand its open records and open meetings laws after forming a task force more than a year ago to help overhaul the old statutes.

Open records laws are an extremely important way for journalists, both mainstream and novice, as well as the general public, to shine a light on what is happening in local government and public entities.  The laws provide a mechanism with which to hold public and state entities accountable for their actions. Given that the excluded Pennsylvania institutions still receive state funds, Penn State and others should not be exempt from accountability.  The heartbreaking situation of the Penn State athletic department has helped draw attention to the fact that it might be time for Pennsylvania and other states with narrow open records laws to revisit them during the next legislative session.  Take a page from the Florida and Nevada playbooks.

9 Responses to Stronger Open Records Laws Might have Exposed Sandusky Sooner

  1. jikamens says:

    Open Records laws have been used by politicians to intimidate academics criticize them. There are legitimate reasons to be concerned about applying Open Records laws indiscriminately to universities. Bill Cronon makes the case much better than I could, so I’ll just point to what he wrote about it: http://scholarcitizen.williamcronon.net/2011/03/24/open-records-attack-on-academic-freedom/ .
    I’m not saying it’s clearcut — There are certainly rational arguments to be made against Cronon’s position. I’m just trying to point out that it’s not as simple as, “Hey, it’s stupid that these universities are exempt from the Open Records law, there’s no good reason for that, let’s fix it!” There are, in fact, good reasons for that. Whether they’re good enough to justify the exemption is a different question.
    Perhaps the compromise would be some sort of “hybrid” Open Records law which covers some of the records at public universities but exempts others, such as the email correspondence of faculty members.

  2. AlphaCentauri says:

    One problem with people like university professors, whose personal interests and jobs are deeply intertwined, is that it’s hard to separate personal and professional correspondence. Their friends are the people they discuss their fields of research with, and emails arguing about Hegel might include a an expression of sympathy for a spouse’s cancer as well. And the people who teach at state institutions are doing exactly the same job as people at private institutions; the state support relates mostly to subsidizing tuition.

  3. Jo says:

    That’s an interesting story that Bill Cronon has to tell. And it’s true that usually when there’s a law there’s a good reason for it. But I don’t think it justifies even the hybrid compromise you propose. It’s not as if it’s so hard to separate one’s personal email from one’s work email, and if blogging is going to draw a lot of personal attention, it seems safer to educate professors about the implication of their state’s FOIA rather than to make exceptions to it. I know that blogging is possibly work related, and I don’t think that Cronon did anything wrong by doing his research through his work email, but at least now he’ll know to be more careful in the future, and I don’t think that there’s anything wrong with that. The fixes he suggests, that there should be some plausible suspicion of wrongdoing before FOIA requests for email are allowed, would eviscerate reasonable state laws. The state FOIA laws I’m familiar with state explicitly that no reason for requests is required, and I think that this kind of clause is essential for the laws to function properly. These laws usually also include some kind of duty for state employees subject to them to be trained on their implications. Effective training would have prevented Cronon’s problem with less harm than a change in the law.

    By the way, Mississippi can be added to Florida and Nevada as a state with an excellent FOIA that applies to the state’s universities. Ole Miss even has a dedicated person for handling requests.

    • jikamens says:

      I hear what you are saying, but the flip side is that if you educate professors about using non-university email accounts for things they don’t want to be subject to FOIA, you’re also educating them in how to hide activity that is related to their employment but involves wrongdoing they wouldn’t want anybody to find out about. In other words, you’re teaching the slimy ones how to better get away with it.
      That might be an acceptable trade-off to make, but we need to be aware that we’re making the trade-off and consider it carefully.

      • Jo says:

        True, true. On the other hand that’s what happens with all FOI laws. I think that professors are generally on the margins of the area these laws should cover, so they’re not worth changing the laws for too much in either direction. That is, it’s important for FOI laws to say that public officials (as opposed to public employees) must use public email accounts for public business, as they usually do, but I don’t think it’s so important for the laws to force ordinary employees, such as professors, to do so. I think Cronon’s strongest point had to do with student privacy, but, without having read Wisconsin’s law, I think that must be a slam-dunk exemption from the law. These laws generally allow respondents to leave stuff out, note that it’s left out, and thus force requesters to go to court for a writ of mandamus.

        • AlphaCentauri says:

          If the purpose of abusing the FOIA is to harass university professors by dragging them into legal proceedings for expressing viewpoints that are normally protected by academic freedom, making them read and redact years of emails just because you felt like asking them to do so is an effective strategy, whether you actually get the full content of the emails or not. (And if Jerry Sandusky legally could have redacted his emails before releasing them — or could have protected his criminal activity by using an anonymous off-campus email account — would an aggressive open records law have changed anything?)

          • Agitater says:

            The argument doesn’t say that Mr. Sandusky’s emails would have prevented the abuse.

            Besides, Florida’s state universities are doing fine. Nevada’s, too. I think its an essy atgukrnt to make that those paid by taxpayer dollars are accountable to the public. It’s just a matter of how much, and I think that in general the answer is “not enough.”

  4. SharealittleSunshine says:

    If this had happened at Florida State (heaven forbid) instead of Penn State, the campus police report in ’98 would’ve been published in the campus and local newspapers’ cops reports and every major news network would’ve been all over campus within 12 hours.

  5. Jane says:

    This isn’t a new story but it is one that insular states tend to go out of their way to mute and suppress with counter-propaganda.

    Pennsylvania is among the older states/original-colony states and states in the Northeast that are extremely tightfisted with information.

    I can’t find the references right now, but I recall there being an open-record argument where the Willie Horton debacle during the Dukakis-Bush presidential campaigns might have been prevented but for Massachusetts’s secretive government. A reporter clued me into that angle some years ago

    I am writing from Connecticut, which is too secretive as well. I’ve had the opportunity to work here and in another of the top sunshine states, New Mexico, in a profession that watch-dogs government openness. The negative impact of secrecy is way underestimated in my opinion. Also, the laws on a state’s books only begin to scratch the surface of the underlying culture.

    Also states have done a good job snowing the press in some places. Connecticut is like that.

    I looked at Penn a few years ago only a little — looking at court seals.

    I recently compared Open Government scores on a study done by the State Integrity Investigation (stateintegrity.org)

    I was shocked to see that this study – based on interviews of a handful of open government advocates, first amendment attorneys and journalists in the various states — produced a score for Connecticut of “B+” and a score for New Mexico of “D+”

    For anyone who has extensive experience in both states (admittedly not many of us) the result should have been the exact opposite. Please trust me that I am not engaging in hyperbole. The results of some studies are incredibly skewed.

    I dug into the sources and methodology of this study and was very familiar with the sources I found there for Connecticut and New Mexico. I realized the sheltered sources in Connecticut didn’t know any better, to some extent, while in some respects they were hamstrung by the questions they were asked. A couple other sources were closet institutional protectors to at least some extent and none were asked to compare experiences in other states rather than just answer certain specific questions.

    In New Mexico, the sources for the study were traditionally way more aggressive about information gathering than in Connecticut and used to far more access than their peers in Connecticut. They complained about the remaining obstacles to access in an open state. Connecticut could only wish for the measly obstacles that continue to dog (and rightly continue to annoy) the advocates and journalists in New Mexico.

    New Mexico could use a full time commission like Connecticut has, but Connecticut has one because it needed one ten times more than New Mexico — there would be virtual opacity but opacity but for it. And with it, Connecticut is still dramatically more opaque than New Mexico.

    Connecticut’s FOI law is so incredibly long with exemptions that even parsing some of them out when you put them next to a couple other laws becomes difficult.

    Some public officials are so burdened by the exemptions that they don’t even bother doing FOI reviews for inspection only — they will provide an entire file for inspection, allow you to inspect the whole thing — incuding exempt information — and do a review of exemptions only on the documents you request copies of! Of course, that is illegal and it shows what a joke the law is. They’ll tell you right out — we don’t have time to parse it all out.

    In New Mexico you can memorize the entire FOI law almost immediately because there are few exemptions to it. The Foundation for Open Government there publishes a wallet-size card it fits on.

    I could go on all day comparing and contrasting just these two states. The advocates in New Mexico are stronger as well. The Foundation for Open Government there is a totally different and totally superior animal to the Foundation for Open Government in Connecticut.

    If anything this study taught me anything it is that openness is not understood well state to state except among a very few who attend to it regionally and nationally and in two or more locations. And that it can be represented falsely by not a little, but by a lot. Also, I’ve learned that propaganda the state governments put out about openness can be utter bunk.

    I know this post is long but I want to add one more observation. One of the saddest aspects of Connecticut is the effect of its lack of openness on people. Connecticut has one of the most educated populations in the country but it is far less informed about how many things work because of the intense secrecy of government here. I can’t tell you how sad that is — to see people with advanced degrees being helpless and uninformed about something even a kid would know in Florida or New Mexico or Wyoming or other solid sunshine state. Truly, I see it often and there is nothing more pathetic.

    The impact is not understood. Too many people don’t know what they are missing because it’s not something you pick up on a roadtrip or being a tourist in another state. You have to really dig in and live somewhere else. It’s a difference that sinks in over time.

    Finally, regarding the standard for FOI — I agree with those pointing out that idle curiosity is the standard – no reason required.

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