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The state Supreme Court has declined to hear a Penn State alumnus' bid to access documents related to the Freeh report that had been received by the former Pennsylvania secretary of education.
The justices denied allocatur in
Bagwell v. Pennsylvania Department of Education on Wednesday. The denial lets stand the Commonwealth Court's decision from October denying Ryan Bagwell's Right-to-Know Law request.
On Oct. 31, a five-judge panel of the Commonwealth Court denied Bagwell's request seeking documents that Louis Freeh and several Penn State trustees sent to former Education Secretary Ron Tomalis and his assistant between November 2011 and July 2013.
The majority opinion, written by Judge Robert Simpson, affirmed a determination from the state Office of Open Records, which denied access to the documents based on attorney-client privilege and the work-product doctrine.
Freeh had led an internal investigation into the allegations of sexual abuse at the hands of Jerry Sandusky and Penn State's alleged failure to report the abuse. His findings were released in the Freeh report in July 2012.
Bagwell argued that because Penn State had disclosed documents related to the Freeh report, it had waived its privilege regarding the documents requested; however, Simpson found that given the circumstances of the case, the court would not apply a broad waiver of the privileges.
"There is no contention that PSU or the department disclosed the specific records at issue," Simpson said. "Although PSU disclosed or permitted disclosure of information pertaining to the same subject, we decline to apply subject-matter waiver principles to this case."
Judge Patricia A. McCullough wrote a concurring opinion questioning whether case law established that work-product and attorney-client privileges might never be waivable in right-to-know requests.
"Given
Rittenhouse [v. Board of Supervisors of Lower Milford Township], and the cases upon which it relies,
LaValle [v. Office of General Counsel] and
LeGrande [v. Department of Corrections], it is quite possible that the attorney work-product and attorney-client privileges can never be waived under the RTKL," she said.
According to Simpson, Bagwell requested letters, memos, reports, contracts and emails from Tomalis, but the Department of Education denied his request, in part based on attorney-client and work-product privileges. The department gave some responsive records, but redacted some information. Bagwell appealed to the Office of Open Records, and asked for an in camera review. The department submitted 673 pages of responsive records.
After Penn State became an interested party in the case, the school advised that Freeh had been engaged as counsel to the board and to the Special Investigations Task Force of the board, and counsel said Tomalis' role had been as fiduciary to Penn State. The university also said that, although Freeh had provided periodic updates of the investigation to the National Collegiate Athletic Association and the Big Ten Conference, privileged information was not revealed.
Bagwell argued there was no attorney-client privilege because Freeh had been hired as a fact-finder and not to provide legal advice.
Following an in camera review, the Office of Open Records determined that the records were protected and that the university had not waived any privilege.
According to Simpson, on appeal, Bagwell asked the court to consider his "novel construction" of the work-product doctrine to limit it only to records that are prepared in anticipation of litigation.
Citing case law, including the court's 1994 decision in
Sedat v. Department of Environmental Resources, which said the rule protecting an attorney's mental impressions is "unqualified," Simpson said anticipation of litigation is not an absolute requirement when it comes to the work-product doctrine.
"Our Supreme Court explained that discovery of material prepared in anticipation of litigation may be obtained provided it does not include an attorney's mental impressions or opinions," he said. "Requester's construction restricts the doctrine, whereas decisional law does not."
However, Simpson said even if litigation was a requirement, "given the surrounding circumstances and the impact of the Sandusky scandal on a national scale, it is apparent that PSU anticipated related litigation."
"Because we hold the work-product privilege is not limited to the litigation context, PSU did not need to establish that Freeh was retained in anticipation of litigation," he said.
Bagwell's attorney, Joshua Bonn of Nauman, Smith, Shissler & Hall, said Bagwell was disappointed the appeal was denied. The case, Bonn said, raised issues of public concern, including the lack of due process for requesters in right-to-know proceedings.
"If a corporation publicizes the results of an internal investigation, it should not be able to use the attorney-client privilege to preclude a public agency from disclosing the underlying facts of that investigation," Bonn said. "In the interest of fundamental fairness a requester should have the opportunity to confront evidence in support of nondisclosure of government records."
Robert L. Byer of Duane Morris, who is representing Penn State, did not return a call for comment about the Supreme Court's order.
The press secretary for Pennsylvania's Office of General Counsel, which represented the Department of Education, also did not return a call for comment.
Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.
Read more:
http://www.thelegalintelligencer.com/id=1202731731569/Justices-Deny-Bid-to-Get-Freeh-Report-Documents#ixzz3fdGpsgYz
