Penn State's FOIA exemption helped enable, hide Sandusky

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As long as they're handing out penalties for enabling Jerry Sandusky, let's hand out some to the Pennsylvania state lawmakers who exempted Penn State from the state's Freedom of Information Act.

That's right, folks. Penn State is almost completely exempt from the state's FOIA, which in Pennsylvania is called the Right to Know Law. This is despite the fact that the university received taxpayer subsidy to the tune of $276 million.

We have a school that employed a monster who preyed on children, leaders who enabled said monster, and is filled with numbskull students whose cognitive and linguistic skills appear to be limited to caring solely about football and screaming "We are Penn State." The stiff punishments handed down Monday are well-deserved.

Now let's examine how Sandusky could have been stopped earlier had it not been for some numbskulls in Harrisburg who decided that the public has no right to know when it comes to Fear and Loathing in Happy Valley.

How did Penn State get such a juicy open-records exemption? For one reason, because the university president at the heart of the cover-up scandal asked for it.

The road to secrecy

Pennsylvania historically had one of the worst open-records laws in the land, and that's saying a lot when you stack it up against the pre-reform FOIA in Illinois, Land of Corruption. Unlike many states, records in Pennsylvania were presumed closed unless the requester could prove why they should be open.

(Speaking of keeping an eye on governmenrt corruption, while Illinois has the most governments with more than 7,000, our first runner-up is ... drum roll, please ... Pennsylvania!)

Like Illinois' FOIA overhaul after the Blagojevich disgrace, public scandals shamed Pennsylvania's lawmakers in 2007 into reforming the Right to Know Act to make government more transparent, including state universities.

Enter now-ousted university president Graham Spanier, a man who in hindsight had everything to gain by keeping Penn State's records secret, and a lot to lose by opening them up to the public.

Spanier argued before state lawmakers that including Penn State in an expanded open records law would scare off private donors, affect employee compensation and talent retention, and hamper things like research that are dependent on proprietary information.

And jeopardize – I kid you not – "lucrative" franchise contracts. (So Penn State put Pepsi and Nike in front of those victimized children, too – think about that for a minute).

(You can read Spanier's testimony – I refuse to call it "reasoning" – here.)

"Nobody would argue the point that the public has a right to know how public funds are spent," Spanier testified. "But these proposals will fundamentally change the way we operate, the way our trustees govern and the way the university administers their policies."

Lawmakers fell for Spanier's spiel, despite the fact that universities in 48 other states have no such exemption – neighboring Delaware is the other one that exempts any public universities from FOIA. Pennsylvania's new Right to Know Law exempted Penn State and three other state universities (University of Pittsburgh, Temple University, and Lincoln University) that have managerial autonomy despite the fact they receive millions in tax dollars each year.

Under the Right to Know Law as it now stands, these colleges are required only to issue annual reports by May 30 (similar to the IRS reporting form for not-for-profits) and release the salaries of their officers, directors, and 25 highest-paid employees.

How Penn State manages and spends its $4.1 billion budget is none of the public's business. And neither were the police records and emails that have highlighted in sickening detail who knew what and when.

Al Tompkins at the Poynter Institute, a non-profit journalism school, puts this in a frightening perspective. The school had less of a reporting requirement than the law requires of candidates for public office and publicly-traded corporations.

As for the police, Tompkins said, "Even the FBI must comply with open records filings, but not Penn State’s cops."

Missed opportunities

Like other open records experts, I highly doubt that a robust open records law without the ridiculous Penn State exemption would have stopped Sandusky before he started.

But they surely could have stopped him many years – and many victims – sooner than 2011.

There were two investigations, although it sickens me to call them such, into Sandusky – a 1998 campus police investigation, and the internal investigation in 2001 after graduate assistant Michael McQueary witnessed one of the attacks.

What records could have revealed the Sandusky investigation? Many, according to the Freeh report released last week (you can download it here). Some, like emails, would be easier to obtain than officials' notes, but that's irrelevant because it is all exempt under the Right to Know Act:

• Penn State's police department opened an investigation in 1998 into allegations of child sexual abuse by Sandusky. That police report was still available as of at least 2001, according to the report.

• The May 4, 1998 notes of school Vice President Gary Schultz that included, "Behavior - at best inappropriate @ worst sexual impropriety," "Is this opening of pandora's box?" and "Other children?" [sic]

• Email exchanges in 1998 between university officials and University Police Chief Thomas Harmon, who told Schultz in a message that he is "holding off" on putting the complaint in the crime log because of "lack of clear evidence of a crime".

• Email exchanges in 2001 in which Athletic Director Tim Curley proposes telling Sandusky that he needs "professional help".

• Schultz's 2001 notes in which he wrote, "Tell JS [Sandusky] to avoid bringing children alone into Lasch Bldg" where many of the assaults took place. This idea is also written in an email from Schultz to Curley.

• Email exchanges in 2001 in which Curley proposes telling Sandusky he needs "professional help". Spanier replied in an email that a discreet approach is favorable, it has the downside that "we then become vulnerable for not having reported it" if Sandusky does not stop. "But that can be assessed down the road," he wrote.

Early detection?

One of the reasons journalism is important is because we often have to step in where government fails.

It happens all the time – look at the McCullom Lake brain cancer cluster debacle. McHenry County shirked its responsibilities to blindly take the side of the chemical company accused of causing the diseases, going so far as to withhold information from the public that called their all-clear into question.

They wouldn't do their job, so I had to do it for them. I only wish that I could get one of those sweet government deals where I retire at 60 with a Cadillac pension.

I did that job through obtaining records under FOIA – the county health department had many of the bombshell memos a full year before my investigative series ran. They just decided you folks didn't need to know.

Just like Penn State.

The 1998 investigation was launched in response to Sandusky allegedly molesting a boy known in the indictments as "Victim 6". Other victims followed: Victim 4 (assaulted in December 1999 at the team hotel at the Alamo Bowl), Victim 8 (November 2000), Victim 2 (that McQueary witnessed being molested in February 2001), Victim 5 (August 2001), Victim 3 (June 1999 through December 2001), and Victim 1 (2007).

Could this list of victims have been shorter had Penn State's records and emails and police reports been open to public scrutiny?

I understand that it's naive to think that Penn State would have handed over everything under a FOIA request had the university been subject to the law. Let's remember that Schultz and Curley are about to go to trial on perjury charges – if they're allegedly willing to lie to a grand jury, violating the state's public records act is small potatoes.

And here in Illinois, we still have to fight with governments to get information that clearly is public record – heck, I once had a state agency exempt my own stories from me.

But maybe it could have taken just one of these emails to start the chain reaction that would have stopped Sandusky and saved just a couple of those children from life sentences of their own.

One thing I've learned about growing up in a graft-rich state is that corruption never happens in a vacuum and with only the perpetrator knowing about it. McQueary, who witnessed Sandusky in the act, talked to his dad. The janitors who witnessed Sandusky in the act, but clammed up out of fear of going up against Penn State's godhead of football, talked to themselves.

People talk. Gossip travels at light speed. It could have been as simple as the whispering making its way to a journalist or blogger, who could have obtained the 1998 police report under the Right to Know Law.

Sandusky could have been stopped early. Victims could have been prevented. And the aforementioned numbskull students who see Joe Paterno and their football godhead as the real victims here would still have a reason to live.

Ripping that statue out of the ground, which became the physical embodiment of national frustration with Penn State's football- über -alles attitude, was a good start in hitting the student body and alumni over the head with a clue-by-four. These children in adult bodies just don't get it, and hopefully ripping that statue out of the ground and smelting it will help chisel through whatever mental concrete is keeping them from getting it.

But before we recast the molten bronze into "report child abuse" keychains or whatever, a few of Pennsylvania's state lawmakers who approved Penn State's exemption need to be dipped in it, because they, too, enabled Sandusky through allowing the college to keep the whole thing quiet.

It sounds like several Pennsylvania lawmakers are looking to eliminate Penn State's free FOIA ride. We'll see how that goes.

Illinois Gov. Pat Quinn signed a law last month requiring coaches to report abuse, so that what happened at Penn State can't happen here.

In the face of what I believe is convincing evidence, if Quinn is serious about preventing such horrors here, he can veto bills he keeps getting from the General Assembly that seek to scale back our right to know laws.

If our state lawmakers are serious about preventing such horrors here, they can stop drafting bills to curtail the Illinois Freedom of Information and Open Meetings acts. And they can tell our local governments, who spend your tax dollars to lobby against sunshine laws, to stick it where the sun doesn't shine.

Because people like Sandusky, like mold and mildew, grow in the dark.

Senior Writer Kevin Craver can be reached at kcraver@shawmedia.com.

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