'Publicly funded,' not publicly accountable


Some colleges in Delaware and Pennsylvania use an exemption in their states' public records laws to withhold records. Now, state lawmakers' attempts to promote transparency are being met with resistance from college administrators.





Cady Zuvich wanted to dig deeper. The university had been planning to build a massive power plant with a private company without telling the public.

But when she tried to pursue the story, she ran into a roadblock, similar to other times The Review, the student newspaper at the University of Delaware, pursued an investigative story but fell short. She blamed a Delaware Freedom of Information Act exemption for the state’s two publicly funded universities, UD and Delaware State University.

“It’s frustrating from a journalist-in-training perspective because you want to have experience with using FOIA and knowing what you can get out of FOIA,” Zuvich said. “We hit a lot of roadblocks in stories because we can’t get the information we need.”

Delaware and Pennsylvania are the only states with open records exemptions for “publicly funded” or “state-related” universities — institutions that receive taxpayer dollars but receive a majority of their funding from private donors. The laws permit UD, Delaware State and four other institutions — University of Pittsburgh, Pennsylvania State University, Temple University and Lincoln University — to limit what information the public has access to.

Similar to other public entities, these colleges are subjected to the state’s open records laws, except when dealing with certain reports and disclosing information about privately-funded university contracts and agreements.

While lawmakers in both states have worked to end the exemptions, university resistance has prevented legislators from amending the laws to allow for more transparency.

With limited access to information, working on the power plant story “taught us the importance of going beneath the surface as journalists,” Zuvich said, “which I think will elevate our content throughout the next couple of years.”

Delaware legislators pass a new law

State Rep. John Kowalko, a Democrat from Delaware, had received complaints from his constituents about the construction of the 279-megawatt power plant that was to be built on a UD campus in the middle of his district. They were upset about the lack of public knowledge regarding its construction, Kowalko said, so he reacted with legislation.

“If they had these discussions earlier in public, it may not have been as contentious as it ended up being,” Kowalko said.

The public complained that the university denied requests to access the lease agreement between UD and the private contractor. The university ultimately decided to terminate the agreement, because the facility’s plans “are not a good fit” for the development of the campus, according to a statement from the university.

Kowalko said he is glad UD cancelled their plans to build the power plant.

“You make a decision, then you’re responsible for that decision,” Kowalko said. “Healthy, open dialogue will result in a more successful outcome.”

Nancy Willing, who writes for the blog Delaware Way, joined the Newark Residents Against the Powerplant organization, which filed public records requests for a year regarding the power plant lease. Willing said the group has been both successful and unsuccessful in receiving responses, adding that the exemption does not benefit “the public good.”

Because Delaware is one of only two states with the exemptions, public institutions in the other 48 states “somehow don’t feel like it’s the end of the world if they have to comply with FOIA,” Willing said.

Kowalko said UD did not operate transparently when it announced in 2011 — without public input — that its men’s track and cross country teams would become club sports and no longer compete in the National Collegiate Athletic Association.

According to a statement from UD, “When the university spends public funds, it has the same disclosure obligations as state agencies: all documents ‘relating to the expenditure of public funds’ are ‘public records’ and are subject to disclosure.” The statement also said that the university “receives 11 percent of its budget from the state” and the rest is from other sources, including private philanthropy.

Officials at Delaware State declined to comment when contacted by the Student Press Law Center. The editor-in-chief and faculty adviser at Delaware State’s student newspaper, The Hornet, were unable to be reached for comment.

Mike Grieco, the father of a UD track athlete, explained his frustration with the Freedom of Information exemption since his son was no longer allowed to play track for the school once the team was cut.

“I believe that things were done in subcommittee with minutes that aren’t available,” Grieco said.

In the past, UD has faced public outcry regarding their open records exemptions. The university’s president, Patrick Harker, was selected by the board of trustees’ executive committee in 2006. According to the attorney general at the time, since the full board of trustees did not convene to choose the president, the university is not legally required to release the records.

Delaware’s Freedom of Information Act was created in 1977. The exemptions for UD were made that same year. Delaware State became exempt in 1990.

State legislators in Delaware have attempted and failed two previous times to end the exemption. One of the bills, introduced in 1997, didn’t specifically name either university but would have applied the records law to institutions receiving at least $75 million in public aid. At the time, UD was the only institution that would have been affected.

More recently, in 2011, the state House of Representatives considered legislation that would include UD and Delaware State, as well as their “respective Board of Trustees” under the definitions of “public body,” “public record” and “meeting,” but the bill was tabled in committee. Kowalko co-sponsored that bill.

So Kowalko decided to write another bill that would eliminate the public records exemptions for the two universities. He spent the past few months trying to pass House Bill 331. The original intent of the legislation was altered with an amendment and barely changed university open records protocol.

Gov. Jack Markell signed the bill along with the amendment into law July 15. The addition to the law says universities must indicate that proposals or bids are public information when an expenditure is made out of public funds. Under the legislation, meetings of the full Board of Trustees are still the only events where university decisions must be made in public.

Markell’s spokeswoman, Kelly Bachman, said that the bill aligns with the governor’s priority to promote government transparency.

The importance of the bill is “requiring the University of Delaware and Delaware State University to provide clear disclosure of projects that disburse public funds,” Bachman said. “He was happy to sign it into law.”

The governor did not have a further comment regarding whether he would support ending the exemptions for the two universities in Delaware.

In 2011, Markell signed an executive order to amend the state’s public records law that reduced copying costs, simplified request forms and required each executive agency to have a “FOIA Coordinator.” It did not, however, change the open records exemption for “publicly funded” universities.

Bachman said the executive order was about “improving responses to FOIA from executive branch agencies.” Markell can only encourage other “branches of government, state and local governments, or Delaware universities” to follow such an order, Bachman said.

“That order encouraged, but did not require, other governmental entities in Delaware to evaluate adopting similar policies,” Bachman said.

Kowalko said he remains committed to removing the exemptions for UD and Delaware State.

“I’m going to bring a lot of this stuff back next year,” Kowalko said. “Transparency and openness is really the way to achieve consensus and good results.”

Looking forward for Delaware

Mark Fowser, president of the Delaware Press Association, said the exemptions make it more difficult for student journalists to do their jobs.

“It puts another hurdle in the way of trying to spread awareness and get to the bottom of an issue,” Fowser said.

Jan Blits, a professor in UD’s honors program, said he is against changes to Delaware’s Freedom of Information Law because additional transparency could force faculty to give up some of the privacy that they are used to having, including emails on university accounts.

Additionally, changes to the law would have “no effect on what the university administration would reveal,” Blits said, because “they have ways of avoiding such laws when they want to.”

John Flaherty, president of the Delaware Coalition for Open Government, believes that passing House Bill 331, even with the amendment, made progress in Delaware, since “this is the first time this issue has made it to the floor of the House.”

“Fifty percent of something is better than 100 percent of nothing,” Flaherty said. “I hope this will have a bigger discussion and find out why the University of Delaware feels that it’s going to be negatively impacted by this,” Flaherty said.

UD did not respond to phone calls and emails requesting a comment on the Kowalko legislation.

In Pennsylvania, a similar story

State-related universities in Pennsylvania get “hundreds of millions of dollars from the state every year,” said Erik Arneson, a spokesman for Sen. Dominic Pileggi. However, he said these institutions do not have to comply to the same public records laws as public universities.

“A strong case can be made that there should be additional disclosure,” Arneson said.

In response, Pileggi wrote Senate Bill 444, which would require police departments at the four state-related institutions to disclose records in the same way as any municipal department.

The legislation would also require Pitt, Penn State and Temple to disclose the salaries of the institution’s highest-paid employees; current law requires the salaries of the 25 highest-paid employees to be disclosed. All public meeting minutes would be available online and in print for a minimum of 20 years.

The bill passed unanimously on the Senate floor and will subsequently be reviewed by the state’s House..

Melissa Melewsky, media law counsel at the Pennsylvania NewsMedia Association, explained that her organization lobbies against the exemption.

“The reason we advocate for full inclusion is because [the universities] receive a signficiant amount of public funds and have control of millions of lives of many Pennsylvanians,” Melewsky said.

Eugene DePasquale, the Pennsylvania auditor general and a former state representative, had a difficult time talking to his constituents back in 2011 about the benefits of their tax dollars, knowing that four universities in the state are exempt from revealing certain information.

Despite the changes, however, DePasquale said he was unable to get rid of the state-related university exemptions that were put into law in 2008.

“It was something I was disappointed not to get done,” DePasquale said.

He had helped revise the Right-to-Know law in 2008, which had not been revamped since 1957. DePasquale explained that Pennsylvania had one of the weakest Right-to-Know laws in the nation before it was altered.

Terry Mutchler, executive director of the Pennsylvania Office of Open Records, said that under the 2008 update, “every record in the Commonwealth of Pennsylvania held by an agency was presumed open and available for inspection.” Previously, “citizens had the burden to prove why a record was available,” she said. The 2008 law also created the OOR as an independent agency, which has jurisdiction over which documents can be revealed if a citizen is denied a record.

“This model of government where you have a very strong Right-to-Know Law, an independent agency reviews records and a binding authority is extremely successful,” Mutchler said.

Mutchler added that “state-related universities were the primary push in ensuring that they controlled the release of information in 2008.”

So DePasquale wrote a bill in 2011 that he hoped would have changed the new exemption for the universities. He said that at the time, the legislators that were against it “didn’t want to open up the open records law again and rehash that debate.”

“What public interest do you have in not having publicly funded universities not part of the state’s Right-to-Know Law? I believe that the exemption serves zero public interest,” DePasquale said.

The emergence of DePasquale’s bill happened to appear around the time of the Jerry Sandusky sex abuse controversy at Penn State. Sandusky, a former assistant football coach, was convicted of child molestation. DePasquale said that the incident was not the trigger of his legislation because it was a “new bill, not a new idea.”

The debate in Pennsylvania

Sam Janesch, editor-in-chief of The Daily Collegian, the student newspaper at Penn State, said that the newspaper staff has difficulty accessing public records from the university, adding that their main way of getting information is through the university’s public relations office.

But if Pileggi’s bill is passed into law, Janesch said student reporters would have more access to information about campus crimes and complaints.

“We get the police logs every day and they give us minimal information,” Janesch said. “At some points, we have had trouble dealing with them in terms of what they can say.”

Penn State responded to the legislation in a statement from university spokeswoman Lisa Powers. She explained that the university supports the change to have campus police “treated like a municipal police force.”

Mahita Gajanan, interim editor-in-chief of The Pitt News, the student newspaper at the University of Pittsburgh, said she has not experienced issues obtaining open records from the university, adding that the communication director usually points her in the right direction to access information.

“I hope that universities can work to make things more transparent and just kind of make it easier because really we just want to know what’s going on and I don’t think anyone has ulterior motives,” Gajanan said.

Gajanan gets frustrated by the minimal amount of information that the university police department provides student journalists, she said.

“Other than what they send us in the blotter, I don’t think they really give out any information,” Gajanan said. “It is kind of difficult to get.”

Natalie Daher, incoming editor-in-chief of The Pitt News added that she typically sends reporters to open meetings, rather than relying on minutes from the university. She said that she has not experienced “any trouble with the laws that are currently in place,” but supports “anything that could bridge administrative decisions and the student body.”

Pitt’s Vice Chancellor of Communications, Kenneth Service, said in a statement that that the university makes “a great deal of information about the University of Pittsburgh available to the public in a convenient and accessible manner.”

He added that the university supports the potential to change the legal requirements of the campus police force.

The editor-in-chiefs at Temple’s student newspaper, Temple News, and Lincoln’s student newspaper, The Lincolnian, were unable to be reached for comment.

Hillel Hoffmann, a spokesman for Temple, said the institution “would follow the proposed changes with the same rigor as it follows current law.”

Robert Richards, a journalism professor at Penn State, as well as the co-founder of the Pennsylvania Center for the First Amendment and the vice president of the Pennsylvania Freedom of Information Coalition, said state-related universities are “a different animal,” adding that he understands the four universities’ argument. Even if Penn State did not have the public records exemption, he said news on the Sandusky scandal may not have been released any sooner.

“The only thing we would’ve had is Jerry Sandusky’s salary,” Richards said. “Personnel records have an exemption as it is. I don’t think it would have changed at all.”

Sara Ganim, current CNN correspondent who broke the Sandusky story for the Patriot-News in 2011 and won a Pulitzer Prize for her crime investigation, agreed and said that writing the story did not require public records.

“When you’re looking for police records, you can always attempt to go through the victims, who usually have access to their own cases,” Ganim said.

She added that as a crime reporter for The Daily Collegian during college, she did not run into too many roadblocks dealing with the university police. She added that public records do help “provide a fantastic story,” but she turns “to people and their experiences.”

“The problem is that every situation is different,” Ganim said. “You have to think creatively.”

More action needed

Student journalists working at college papers whose universities are exempt from releasing certain public records have agreed that the law negatively impacts the quality of their journalism.

By finding out more information about special projects, police records and the spending of funds, Zuvich said that her paper at UD can avoid “he said, she said” journalism and focus on investigative pieces.

“It’s frustrating that the minority of universities don’t [give us] access to information that FOIA laws guarantee us,” Zuvich said.

DePasquale, Pennsylvania auditor general, said that he treats students journalists “at the same level as constituents.”

“Students have a more direct impact,” DePasquale said. “Those taxpayer dollars are meant to impact their educational experience. Make sure those dollars are used.”

Blits, a UD professor, supports transparency, but doesn’t think Kowalko’s specific bill achieves that.

“I would be very glad if the administration and the board were more open, but I don’t think this change in the law is going to do anything,” Blits said. “They have ways of getting away with non-disclosure.”

Fowser, president of the Delaware Press Association, said that, ultimately, information is what journalists need to practice good journalism.

“Information is what we deal with,” Fowser said. “Without access to information, our ability to interact with audiences, to inform our audiences is impaired and I think it holds back civic engagement to put up hurdles like this, to have exemptions like this. The best idea is to just knock them down one by one.”


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More Information

'State-related' universities in Delaware and Pennsylvania:

  • University of Delaware
  • Delaware State University
  • University of Pittsburgh
  • Pennsylvania State University
  • Temple University
  • Lincoln University