Judge orders release of Pa. university foundation's donation records

PENNSYLVANIA — A state court judge on Monday ordered the release of East Stroudsburg University Foundation’s donation records, placing a hopeful capstone on a 2-year public records battle.

In February 2009 The Pocono Record, a regional paper in Pennsylvania, filed a public records request for funding information from the East Stroudsburg University Foundation in connection with the paper’s investigation of an ESU official suspected of sexual and financial impropriety.

The ESU Foundation is a nonprofit organization that collects private gifts and grants for the university.

The Record argued that the foundation’s files were subject to Pennsylvania’s Right to Know Law because the foundation performed government functions for the university and was a state-affiliated entity.

The university and foundation denied the request, however, arguing that the foundation was exempt because it is an independent contractor.

On May 24, 2010 a state appeals court sided with the Record, ordering the foundation to release donor information and pledge amounts made to the ESU Science and Technology Center, copies of ESU Foundation board meeting minutes regarding fundraising and fund management and the donor files and contributions from five specific donors and one corporate donor. The court allowed the university and foundation to redact names and identifying information.

In March 2011, the Supreme Court of Pennsylvania refused to hear the university’s appeal, requiring the university and foundation to release the information mandated by the lower court.

On April 15 the Record received a 187-page document of pledges and payments to the school’s science building from the university — all names were redacted. ESU Foundation board meeting minutes were also provided; the paper’s lawyer, Gayle Sproul, said the minutes were heavily redacted. The paper did not receive any documents regarding the six donors specified in its original request.

Sproul said the redactions to the board’s minutes and neglect of the specific donors’ files were a “flagrant violation.”

Unhappy with the information the paper received, Sproul wrote to ESU Public Information Officer Richard Staneski threatening legal action if more information was not released in compliance with the court’s order.

On May 5 the university filed a motion for clarification, seeking to “determine what, if any error,” was made by ESU. The university also argued that the release of the six specifically named donors was impossible without identifying the donors. Sproul then filed a motion to strike down ESU’s clarification plea, a motion to enforce the judge’s original ruling and a request for sanctions against the university for non-compliance.

The order handed down Monday by Judge Dan Pellegrini requires the university and foundation to provide the Record with all donor files of the foundation from the last three years by July 18. The redaction of names and identifying information is allowed.

The Record is allowed to request additional donor files as far back as 2000, though it has until June 16 to notify the university and foundation of the additional files it requests per year.

The judge found that ESU and the foundation properly redacted the minutes, but granted Sproul’s request for the university and foundation to provide any attachments to board meeting minutes that were not originally provided.

The release of all donor files since 2000 is significantly more information than originally requested by the Record. Sproul said this ruling was the judge’s way of following the state’s Right to Know Law without implicating the identities of the six specified individuals.

“He sort of went to the other side of the spectrum,” Sproul said. “It is a very good outcome. It is the appropriate way to construe the law. What he was trying to do was give effect to the law without implicating those specific donors.”

Sproul said she would be meeting with members of the Record staff to discuss what will be requested and the cost associated with that decision.

Frank LoMonte, executive director of the Student Press Law Center, said the most important aspect of this case is the court’s view on what entities are subject to public records law.

“I think what you are seeing in general is that the courts are using the common sense, functional approach rather than looking at what name is slapped on the entity. What matters is: are they doing the public’s business?” LoMonte said.

“You don’t have to be strictly a state government agency to be subject to the public records law, it is enough that you are performing an essential state function.”

LoMonte said subjecting affiliates of universities, like the ESU Foundation, maintains the accountability function of public records law.

“In the case of a foundation or another closely affiliated agency of a university, the public’s understanding is incomplete unless they can see what these affiliates are up to,” LoMonte said.

“It is sometimes the case that big donors put conditions on their gifts and try to steer certain policies, and if you can't see those communications there could be an invisible agenda going on that flies below the radar.”

East Stroudsburg University, news, Pennsylvania