Sunshine Fund update

Published February 7, 2014

Ryan Bagwell, founder of the Penn State Sunshine Fund, provided the following update to contributors yesterday.

Bagwell v. Dept. of Education I

As you may know, this is the landmark case that re-established our right to obtain records from ex-officio trustees like the Secretary of Education and the Governor of Pennsylvania. After the Commonwealth Court’s ruling in July, it was remanded back to the Office of Open Records for further consideration. That’s where it stands today.On Jan. 29, the OOR Appeals Officer began an in-person review of approximately 300 pages of disputed records which consist mostly of communications between Freeh investigations and the Special Investigations Task Force. Based on recent decisions, I expect the Appeals Officer to order the release of more than two-thirds of the withheld records. The claim of attorney-client privilege is still our hurdle though, and I predict that the OOR will side with Penn State and the Dept. of Education with regard to the remaining one-third of the records.

It’s unclear when the review might be completed, but a decision by the end of March wouldn’t be out of the question. After that, either side will have 30 days to appeal before the records must be released.

Bagwell v. Dept. of Education II

In December, the Office of Open Records ordered the Department of Education to release more than 500 pages of records. However, it allowed the Department to withhold about 155 pages because, it said, the communications constituted attorney-client privilege. Because Freeh, in his own words, was allowed to “continuously interface” with at least five law enforcement agencies, we believe that Penn State waived any right to claim the attorney-client privilege and the records should be released.As a result, on Jan. 16, we appealed the OOR’s decision to the Commonwealth Court, contesting the withholding of records based on the attorney-client privilege. While we have not named Penn State as a respondent in this appeal, the university may chose to intervene in the next few weeks. Unfortunately, this will be another long process that won’t see a resolution until the late summer.

Bagwell v. Philadelphia District Attorney

Finally, there’s this gem – my action against Philadelphia DA Seth Williams. Recall that when I asked for emails between Frank Fina and Barry Feudale, Williams’s office denied access to the records. But after I won an appeal before the Office of Open Records, his office reversed course and insisted that it didn’t even have any records in the first place. Evidence suggests that his office has the records. If he doesn’t, he’ll have to explain why it misled both myself and the Office of Open Records.

In December, I filed suit to force him to release the records. Yesterday, his office responded with more of the same, filing a delaying tactic that we’ll have to fight for three or four months. But around April, we’ll get the chance to depose him and his staffers to find out why they blocked our right to obtain public records.

Ironically, Seth decided to seek a seat on the Board of Trustees this year, so you’ll probably see his name on the ballot.

As I previously stated, this is a low priority for Sunshine Fund funds.

Fund Balance

As of today, 146 dedicated Penn Staters from 105 cities in 24 states have contributed $13,950. It’s a lot, but we’re still far short of our $50,000 goal. Please continue to encourage your friends and fellow Penn Staters to contribute.