Did Trustee Tomalis commit perjury?

For the last few months, I’ve been trying to get a copy of Penn State’s agreement with Freeh Sporkin & Sullivan that governed the conduct of its investigation. Ron Tomalis, the Penn State trustee and Secretary of Education, was also second in command of the board committee that hired Freeh. So you’d think he, of all people, would have a copy of the agrement.

Initially, in an affidavit, he told me he didn’t have it. Now it looks like he might have it after all.

Here’s why:

In September, I filed a request for the agreement with the Department of Education. On Sept. 13, the Department of Education responded: “Your request is denied because it is not sufficiently specific to enable us to ascertain which records are being requested,” it said.

Pennsylvania has this gem of a rule that requires RTKL requests to be “sufficiently specific.” That, of course, is highly subjective, and it is often used by state agencies to deny requests for records.

So I refined my request to include the following language:

Specifically, and at a minimum„ I am seeking a copy of the agreement, and any subsequent agreements, that established or furthered the relationship between Penn State and The Freeh Group during its recent investigation of the university’s response to child abuse allegations.

It still wasn’t clear enough. The department answered my second request on Oct. 2. Part of it wasn’t “sufficiently specific,” the department said, but it was able to search for some of the records.

In response, Tomalis provided an affidavit made under the penalty of perjury. “I have determined that such records are not in my possession, custody, or control,” he wrote.

However, he ended his statement with this suspicious sentence: “It is understood that this does not mean that the records do not exist under another spelling, another name, or under another classification.”

After wracking my brain for a week or two, I suspected Tomalis might be taking advantage of a discrepancy between how I referred to Freeh’s group and its formal name:  Freeh, Sporkin and Sullivan, LLP. So I refiled my request, this time asking for:

Copies of contracts, memorandums of understanding, letters of intent and any other agreements, regardless of title, to which the law Firm of Freeh, Sporkin & Sullivan, LLP, is a party.

I expected the department would respond with more of the same. But I was surprised when it told me on Oct. 23 that it needed 30 more days to respond. “The request for access may require redaction of a record,” it wrote, and “a legal review is necessary to determine whether the record is a record subject to access under the RTKL.”

The response clearly indicates the department has a record that matches my request. Unless it has nothing to do with the Sandusky scandal, Tomalis lied, and perjured himself in the process.

Oddly enough, the department’s attorney sent me a follow-up letter on Oct. 25, asking me to specify a time range for the record, another party to the agreement, and a potential subject matter. She even proposed language for me to use in the revision.

I declined her invitation. Under the RTKL, my request is sufficiently specific. And since it’s the third attempt at getting a copy of the Freeh contract, there is no question about which records are sought.

Tomalis has a problem. If they release the contract, it basically proves perjury. If they deny access to it for a legitimate reason, they confirm the document exists, which also proves perjury.

I fully expect the department to deny the request for one reason or another, or claim it doesn’t exist. Part of me wonders if it hasn’t already been shredded. A final response is due by Nov. 26.

But the amount of Penn State fodder on Twitter has me suspecting some kind of announcement could be coming before then, which might change things.

On a related note, Penn Staters for Responsible Stewardship has been trying to get hold of the agreements for a while now too. So far, the group has been rebuffed.

Two of its members asked trustees for the records again on Friday. Board President Karen Peetz responded with this, according to The Daily Collegian:

In a press conference following the meeting, Chairman of the Board Karen Peetz said the board will look into the existence of those documents. She said she did not have much information in this area because she “wasn’t directly responsible for hiring him.”

“It was not something the board signed on,” she said.

It’s strange that the board president doesn’t know if a contract between Freeh and Penn State exists. Perhaps she does know about such documents? Hopefully, we’ll find out soon.