STATE COLLEGE — On Dec. 19, 2011, more than a month after Jerry Sandusky was charged with child abuse and two Penn State administrators were charged with lying to the grand jury investigating him, several trustees exchanged a series of emails about the aftermath of the scandal.
One, with the subject line “Urgent Call,” was between trustees Ken Frazier and Ron Tomalis, who had a month earlier been appointed the leaders of the task force that hired Louis Freeh to investigate.
Another round of email exchanges that day and into the next morning, called “Grand Jury Subpoena Compliance,” involved a wider recipient list: Tomalis, Frazier and trustees Steve Garban and John Surma, President Rodney Erickson, general counsel Cynthia Baldwin and outside counsel Frank Guadagnino.
A third email thread, which came later that night, had the subject “The call will be held at 7:45 p.m.” and involved Tomalis, Frazier, Surma and Garban.
Whatever Tomalis and the other Penn State officials said to one another — or even who responded or ignored the emails — isn’t known, but an alumnus and two-time trustee candidate is hoping to change that through the state’s open-records law.
As the Penn State community has called for more transparency, Ryan Bagwell is challenging the university on a matter he says goes to the heart of the scandal and the decisions made in its aftermath: what the trustees knew and didn’t know in the days and weeks after the Sandusky scandal broke.
“I’m seeking a better understanding about why people did what they did,” Bagwell said Tuesday. “The public statements of Penn State’s leaders don’t jibe with their decisions, and that raises questions about whether they’re being completely honest.”
Bagwell, of Madison, Wis., is using the state’s Right to Know Law to access certain Penn State and Sandusky scandal records held by Tomalis, who was a trustee by virtue of his position as the state’s education secretary. Specifically, Bagwell wanted records sent to Tomalis from Garban, Surma, Frazier and Freeh.
The state’s Office of Open Records first denied his requests that Tomalis’ Penn State records were subject to the Right-to-Know Law, but the state Commonwealth Court overturned the denial. The court said the office should revisit the decision.
As a result, the Office of Open Records turned over a few records and provided a list of 155 emails it said were not public under exemptions in the open-records law. The list of 155 emails that were withheld was provided to Bagwell because he asked for a list of the items that would be denied.
That’s when Penn State got involved, saying the release of the records would cause “substantial harm,” according to a university lawyer who made the request to intervene.
Penn State asked for some time to file written arguments in support of its position.
Some emails contain time stamps from the days in the immediate aftermath of the scandal. For instance, there’s one on Nov. 5, 2011, the day the grand jury presentment was released, that references a confidential conference call. Two more later in the day refer to an executive session notification.
Many are in the weeks following, such as several on Nov. 17, 2011, about either the “Special Committee” or “Investigation Counsel.”
And others are sure to raise eyebrows.
For instance, in May 2012, there was an email with the subject “Meeting with Dan McGinn.” McGinn is the Paterno family’s spokesman, and the coach and his family’s falling out with the university over Paterno’s firing has been well-documented and a source of contention for many alumni and fans.
And before any of the scandal and allegations were public, there was an email exchange on June 9, 2011, between Frazier, Tomalis and trustee Karen Peetz with the subject line “FW: Please review my proposed agenda.”
The next step in Bagwell’s appeal will be each side spelling out their arguments why the records should or should not be made public.