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FINAL DETERMINATION IN THE MATTER OF PAULA LAVIGNE AND ESPN, INC., Complainant v.

PENNSYLVANIA STATE UNIVERSITY POLICE, Respondent : : : : : : : : : :

Docket No.: AP 2011-1470

INTRODUCTION Paula Lavigne, a reporter for ESPN, Inc., (the Requester) submitted a request (the Request) to the Pennsylvania State University Police (Police) seeking records related to a 1998 investigation of alleged child abuse pursuant to the Right-to-Know Law, 65 P.S. 67.101 et seq., (RTKL). Pennsylvania State University (University) responded on behalf of the Police, stating that the University is only subject to the financial reporting requirements of Chapter 15 of the RTKL. The Requester appealed to the Office of Open Records (OOR). For the reasons set forth in this Final

Determination, the appeal is dismissed and the Police is not required to take any further action.

FACTUAL BACKGROUND On November 7, 2011, the Request was filed, seeking incident reports, investigation reports, interview transcripts, and other documents related to the 1998 investigation into alleged abuse and/or inappropriate conduct involving Jerry Sandusky and a minor child. On November 8, 2011, the University, on behalf of the Police, denied the Request, stating While University recognizes the current public interest in the requested information, please be advised the University is not a Commonwealth agency as defined under [the RTKL]. The University must, however, comply with Chapter 15 of the RTKL related to StateRelated Institutions which requires the filing of information that would be contained on an IRS 990 report. The University has filed that document. Because the information you requested would not be found on an IRS 990 report, the University will not be forwarding the information that you requested. That same day, the Requester appealed to the OOR, challenging the Universitys assertion by stating that the Polices website purportedly states that it is governed by statutory law giving the Police the same authority as municipal police officers and that [i]f the department relies on one state statute to insist that it is just like any other police department, then in terms of the duties of a police department related to other statutes, such as the [RTKL], it should be required to comply. The OOR invited both parties to supplement the record. On November 17, 2011, the University provided a position statement, arguing that the issue of whether the Police is subject to the RTKL can be left for another day because even if we assume, arguendo, that [the Police] is a Commonwealth Agency, the record requested, an investigative report from which no charges issued, would not be subject to disclosure under the RTKL. 65 P.S. 67.708(b)(16)(vi). The University also argued, for the first time on appeal, that the requested records are also exempt under the Criminal History Record Information Act, 18 Pa.C.S. 9101, et

seq. (CHRIA). On November 18, 2011, the Requester noted that the University failed to address its sole reason for denying access in its response, and argued that its newlyraised arguments were waived pursuant to Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Commw. Ct. 2010). Upon a review of the materials provided, the OOR invited both parties to further supplement the record in order to address the seminal threshold issue of whether the OOR has jurisdiction over the present appeal and to provide argument as to whether the Police constitutes either a Commonwealth or local agency as defined by 65 P.S. 67.102. On December 5, 2011, the Requester provided a position statement arguing that the Police operates under 71 P.S. 646.1 and that a campus police force cannot, on the one hand, wield the sword of full police power granted only to fully sanctioned law enforcement agencies while simultaneously, on the other hand, hiding behind the shield of the Universitys more limited obligations of public disclosure when convenient. On December 5, 2011, the University provided a position statement arguing that the Police is neither a Commonwealth or local agency under the RTKL. LEGAL ANALYSIS The RTKL is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. 67.503(a). An appeals officer is required to review all information filed relating to the request and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non-appealable. Id.; Giurintano v. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. Commonwealth and local agencies are required to disclose public records. See 65 P.S. 67.301; 65 P.S. 67.302. Records in possession, custody, or control of a

Commonwealth or local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. 67.305. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. 67.708(b). The threshold question in the appeal is whether the Police is an agency subject to the RTKL that is required to disclose public records. See 65 P.S. 67.301; 65 P.S. 67.302. The RTKL defines a local agency as (1) Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school. (2) Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity. 65 P.S. 67.102. In the present case, the University argues that the Police has no separate legal status, and that [i]t is an administrative office of the University ultimately reporting to the Executive Vice President of Finance and Business. Consequently, the University states that the Police is as much a part of Penn State as its College of Engineering and that [s]eparating [the Police] and [the University] for purposes of the RTKL is an absurd result. Based on the materials submitted, the OOR finds that the

Police is not a local agency for purposes of the RTKL. See also 71 P.S. 646.1(c) (When acting within the scope of the authority of this section, campus police are at all times employes of the college or university ). The RTKL defines a Commonwealth agency as (1) Any office, department, authority, board, multistate agency or commission of the executive branch; an independent agency; and a Stateaffiliated entity. The term includes: (i) The Governors Office. (ii) The Office of Attorney General, the Department of the Auditor General and the Treasury Department. (iii) An organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function. (2) The term does not include a judicial or legislative agency. 65 P.S. 67.102. The University argues that the Police was established by the

University, rather than the Pennsylvania Constitution, a statute or executive order, and that the University qualifies as a state-related institution pursuant to 65 P.S. 67.102 and 65 P.S. 67.1501(3). While the definition of a Commonwealth agency specifically includes and excludes certain entities, there is no mention of the term state-related institution within this definition. The question must then turn to whether a state-related institution is an organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function. See 65 P.S. 67.102. The Pennsylvania Supreme Court has examined the history of the University in assessing whether the University constitutes an agency of the Commonwealth: [The University] is a state-related institution of higher education that traces its roots to a legislative enactment that created and designated it, in

1855, the Farmers High School of Pennsylvania, for the education of youth in science, agriculture, and other fields of learning. 24 P.S. 2531. The intent was to prepare youths to pursue occupations in farming. 24 P.S. 2542. In 1862, the institution was renamed the Agricultural College of Pennsylvania. That same year, the federal government, pursuant to the Morrill Land Grant Act, 7 U.S.C. 301-308, made available to each state land to be sold to support at least one college providing instruction in both agriculture and mechanical arts. In 1863, the Commonwealth received property under this act and directed that funds derived therefrom be paid to the Agricultural College of Pennsylvania. The college was renamed the Pennsylvania State College in 1874, and, in 1953, the name was changed to PSU. Ever since 1863, the Commonwealth has made annual appropriations of funds to support the institution. For example, in the fiscal years 1994-1995 and 1995-1996 respectively, appropriations totaled approximately $ 256.8 million and $ 275 million. In addition, the Commonwealth has constructed many of the educational facilities at PSU, these being buildings valued in the hundreds of millions of dollars. A further benefit has been provided via an exemption from tax within the Commonwealth for bonds issued by land grant institutions of learning. 24 P.S. 2575.1. These benefits have allowed PSU to provide lower tuition and fees for students who are residents of Pennsylvania. Pennsylvania State University v. Derry Township School District, 731 A.2d 1272, 1274 (Pa. 1999). Based on the history of the University, the OOR finds that the University constitutes an organization established by a statute as contemplated by 65 P.S. 67.102. Accordingly, the OOR must assess whether the University performs or is intended to perform an essential governmental function. In so doing, the OOR looks to case law interpreting the former Right-to-Know Act, 65 P.S. 66.1-66.9, (RTKA) which defined an agency as Any department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function. 65 P.S. 66.1(1) (repealed).

In Community College of Philadelphia v. Brown, the Pennsylvania Supreme Court analyzed whether community colleges should be considered agencies under the RTKA: In order to determine that community colleges perform an essential function, community colleges would have to be statutorily identified as providing essential services, or they would have to provide a service which is constitutionally mandated, or they would have to provide a service indisputably necessary to the continued existence of the Commonwealth. 674 A.2d 670, 671 (Pa. 1996). Based on this framework, the Court held that community colleges do not perform an essential governmental function: First, there is no statutory identification of community colleges as providers of essential services. Second, as Commonwealth Court held in Agostine v. School District of Philadelphia, 106 Pa. Commw. 492, 527 A.2d 193, 195 (1987), there is no constitutional requirement that the legislature provide for public education beyond the primary and secondary level. Thus, there is no constitutional mandate for the services of community colleges. Finally, it is not clear that in the absence of the services performed by community colleges, the survival of the Commonwealth would be in jeopardy. In sum, while the community colleges of Pennsylvania perform important educational services, we know of no authority which holds that their services are essential. Id. The Courts reasoning that community colleges do not perform an essential

governmental function would appear to extend to other institutions of higher education, based on the lack of a statutory identification of such institutions as providers of essential services, no constitutional requirement for higher education and evidence that the survival of the Commonwealth would be in jeopardy without the functions performed by state-related institutions. See generally Roy v. Pennsylvania State University, 568 A.2d 751 (Pa. Commw. Ct. 1990) (finding that Penn State was not subject to the RTKA). Based on the foregoing, the OOR finds that state-related institutions do not perform an essential governmental function, and, accordingly, are not Commonwealth agencies within the meaning of 65 P.S. 67.102. Because the Police is an administrative

department of the University, the OOR finds that the Police is not a Commonwealth agency subject to the record provision requirements of the RTKL. But see 65 P.S. 67.1501-67.1504 (requiring state-related institutions to file certain financial information). As the Police is part of a state-related institution, it is not subject to the jurisdiction of the OOR. See 65 P.S. 67.503(a). Because the Police, as part of the University, is excluded from the definition of an agency under 65 P.S. 67.102, the OOR need not assess the remaining arguments asserted for denying the Request. CONCLUSION For the foregoing reasons, Requesters appeal is dismissed and the Police is not required to take any further action. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the proper court of competent jurisdiction (either the Center County Court of Common Pleas and/or the Commonwealth Court). 65 P.S. 67.1301(a); 65 P.S. 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.state.pa.us. FINAL DETERMINATION ISSUED AND MAILED: December 8, 2011

_________________________ APPEALS OFFICER / ASSISTANT CHIEF COUNSEL J. CHADWICK SCHNEE, ESQ. Sent to: Paula Lavigne; Amy McCall, Esq.