RIGHT TO KNOW LAW APPEAL DENIAL OR PARTIAL DENIAL Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225 Fax: (717) 425-5343 E-mail:
[email protected]
12/2/2014 Today’s date: ___________________
Ryan Bagwell Requester’s name: _____________________________________________________________________ 5219 Shorecrest Drive, Middleton, WI 53562 Address/City/State/Zip: __________________________________________________________________ Request submitted by: □ Fax □ Mail ✔ □ E-mail □ In-Person (Please check one) Nov. 2, 2014 Date of Right to Know request: ________________ Date of Agency Response: ___________________ Telephone and fax number: ____________/______________ E-mail: ____________________________ 608-466-6195
[email protected]
Name and address of Agency: ____________________________________________________________ Pa. Department of Education E-mail Address of Agency________________________________ Fax of Agency ___________________
[email protected] Name and title of person who denied my request: ______________________________________________ Larry McComsey
I submitted a request for records to the agency named above. The agency either denied or partially denied my request. I am appealing that denial to the Office of Open Records (OOR), and I am providing the following information: I was denied access to the following records (attach additional pages if necessary):________________ see attached pages __________________________________________________________________________________ The agency’s denial of my request is flawed and the requested records are public records because (check all that apply) (REQUIRED): □ the records document the receipt or use of agency funds. □ the records are in the possession, custody or control of the agency and are not protected by ✔ any exemptions under Section 708 of the Right-to-Know Law, are not protected by privilege, and are not exempted under any Federal or State law or regulation. see attached pages □ Other _____________________________________________________________________. ✔ (attach additional pages if necessary)
□ I have attached a copy of my request for records. (REQUIRED) ✔ □ I have attached a copy of all responses from the agency regarding my request. (REQUIRED) ✔ □ I have attached any letters or notices extending the agency’s time to respond to my request. ✔ □ I hereby agree to permit the OOR an additional thirty (30) days to issue a final order in this ✔ appeal. Respectfully Submitted, _______________________________________ (must be signed) You should provide the agency with a copy of this form and any documents you submit to the OOR.
The requested records are not exempt from the RTKL’s disclosure mandates for the following reasons: 1. the doctrine of res judicata does not apply to a request for public records; 2. the department has not demonstrated that the request has placed an unreasonable burden on the Department; 3. the requested emails between Tomalis and employees of Freeh, Sporkin & Sullivan (“FSS”) are not subject to the attorneyclient and/or attorneywork product privileges because: a. FSS conducted an investigation and did not provide legal advice; b. to the extent the Office of Open Records finds an attorneyclient relationship existed, Penn State waived its right to invoke any privilege claims when it instructed FSS to cooperate fully with the Office of Attorney General and share any and all work product and communications with third parties. 4. any communications between Tomalis and PSU attorneys regarding business with the National Collegiate Athletic Association are not protected by a privilege because Penn State expressly waived any privileges that may have applied to those communications. 5. the Noncrminal Investigation Exception does not protect the requested records because any investigation conducted by FSS was not made pursuant to a statutory or regulatory purpose. 6. the Predecisional Deliberation Exception does not apply because the requested records do not reflect discussions of official policymaking.
5219 Shorecrest Drive Middleton, WI 53562 Larry McComsey Agency Open Records Officer Pa. Department of Education 333 Market St., 15th Floor Harrisburg, PA 17126-0333 Delivered via e-mail to RA-RTK-
[email protected] November 2, 2014 Dear Mr. McComsey: This is a request for public records from the Department of Education (“Department”) pursuant to the Pennsylvania Right-to-Know Law (“RTKL”), 65 P.S. §67.101 et seq. I hereby request copies of the e-mails listed in “Attachment A,” which were sent and/or received by former Secretary of Education Ronald Tomalis on the specified dates and times. Please note that these e-mails were sought in a previous request to the Department dated July 26, 2013 (Request no. 2013-117). Whenever possible, please provide any responsive records in an electronic format such as Adobe PDF, and send the records by e-mail to
[email protected]. I look forward to hearing from your office as soon as possible, but in any event within five business days as required by statute. Additionally, I ask that you correspond with me by e-mail or telephone instead of U.S. Postal Service mail. Please don't hesitate to contact me with any questions at
[email protected] or by telephone at 608-466-6195. Thank you for your time. Sincerely, Ryan Bagwell
Attachment A List of requested records
BATES NUMBER
DATE/TIME
PARTICIPANTS
SUBJECT
3
07/25/12 12:33 - 12:43 PM
Ammennan,P Members of the Board of Trustees Guadagnino, F DunhamS.
Privileged and Confidential
6
05/17/12 5:18PM
Ammerman,P Members of the Board of Trustees
FW: New Civil Filing
7-9
04/09112 12:39- 1:24PM
McNeill, 0 Tomalis, R. Frazier, K Freeh, L
Re: Judge severely restricts what lawyers can say in ex-Penn State coach Sandusky's sex abuse case
10-14
04/07112 7:40AM-2:29PM
McNeill, 0 Tomalis, R Frazier, K Freeh, L
RE: Please set up a call for all trustees on Monday night, April 9th at 5:30pm
15-18
03/17112 !0:20AM03/18112 6:56PM
McNeill, 0 Tomalis, R Frazier, K Freeh, L
Re: Legal Conference Call
19-25
03/10/2012 10:53 AM03/15/12 5:14PM
McNeil, 0 Frazier, K Tomalis, R
Re: Report on Freeh Recommendation
31 .. 32
03/10/2012 10:53 AM03/13112 2:24PM
.. McNeil, 0 Frazier, K Tomalis, R
RE: Report on Freeh Recommendations
38-39
02117/12 6:02PM
-
Ammerman, P Members of the Board of Trustees
FW: Attorney- Client Privileged (1) Narrative re Nov 9 decision; (2) possible op-ed for Centre Daily Times or to be posted; (3) memo re: Paterno re-naming ' -.
BATES NUMBER
DATE/TIME
PARTICIPANTS
SUBJECT
40-54
02117/12 8:28AM
Ammerman, P Members of the Board of Trustees
Attorney - Client Privileged - ( 1) Narrative re Nov 9 decision; (2) possible op-ed fot Centre Daily Times or to be posted; (3) memo re: Paterno re-naming
55-56
02/11/12 6:29- 6:46 PM
Frazier, K McNeill, 0 Tomalis, R Freeh, L
RE: Investigation
57-58
02/11/12 ' 6:29- 6:43 PM
Frazier,K McNeill,O Tomalis, R Freeh, L
RE: Investigation
59-61
01/20/12 8:33PM01/21/12 5:52PM
Frazier, K McNeill,O Tomalis, R Freeh, L
RE: follow-up about Senate meeting
62-64
01/20/12 8:33PM01/21/12 5:50PM
Frazier, K McNeill,O Tomalis, R Freeh, L
RE: follow-up about Senate meeting
65-67
01/16/12 10:40AM
Frazier, K McNeill,O Tomalis, R Freeh, L
PSU- Special Investigations Task Force/Board of Trustees Meetings
68-69
12119111 5:46PM12/20/11 9:00AM
Tomalis, R Erickson, R Guadagnino, F Baldwin, C Garban, S Surma, J Frazier, K
RE: RE: Grand Jury Subpoena Compliance
71-78
12/19/11 6:57PM
McNeill,O Fraizer, K To:thalis, R
PSU
BATES NUMBER
DATE/TIME
PARTICIPANTS
SUBJECT
101-102 (inadvertent duplicate 105-106)
11/30/11 4:21-9:51 PM
Ammerman, P Frazier, K Tomalis, R Dambly,M Peetz, K Guadagnino, F
BOT Communication
103-104 (inadvertent duplicate 107-108)
11/30111 3:29PM
Ammerman, P Members of the Board of Trustees
Communication from Counsel Guadagnino regarding Trustee interview and document production protocol
109-111
07/06/12 3:24-4:01 PM
Frazier, K McNeill, 0 Tomalis, R
RE: Briefing for new board members
113-122
06/10/12 9:33PM06/11112 7:17AM
Frazier, K Tomalis, R
Fwd. Leak
123-124
06/11112 6:30- 6:42 AM
Frazier, K Thompson, J
Re: Possible Leaks
140-155
06/07/12 3:37PM06/08/12 6:34PM
Frazier, K Tomalis, R McNeill, 0 Freeh, L
Re: Checking in
156-160
06/07/12 3:37-8:31 PM
Frazier, K Tomalis, R McNeill, 0 Freeh, L
Re: Checking in
161-162
06/06/12 8:21AM12:35 PM
Frazier, K Tomalis, R McNeill,O Freeh, L
RE: Core Team Call Questions
BATES NUMBER
DATE/TIME
PARTICIPANTS
SUBJECT
179-180
05/05/12 7:23PM05/06/12 7:48AM
Frazier, K Tomalis, R McNeill,O Freeh, L
FW: New Trustees
181-182
04/20/12 8:45AM04/26/12 11:01 AM
Frazier, K Tomalis, R
FW: Committee on Audit, Risk, Legal and Compliance
255-256
01/16/12 10:40AM1:42PM
Frazier, K Tomalis, R McNeil, 0 Freeh, L
Re: PSU- Special Investigations Task Force/Board of Trustees Meetings
317-318
07/08/12 10:38 PM07/09/12 8:04AM
Frazier, K McNeill, 0 Freeh, L Tomalis, R Paw,G Disney, K Sheehan, J
Re: Penn State investigator in exexec at finn with PSU ties
319-320
07/06/12 8:12PM-8:34PM
Freeh, L Frazier, K McNeill, 0 Tomalis, R
Re: ESPN Report to shed light on PSU scandal
324-326
05/25/12 3:55PM05/29/12 12:00PM
Frazier, K Freeh, L McNeill,O Tomalis, R Paw,G Disney, K Sheehan, J.
RE: PRNILEGED AND CONFIDENTIAL
327-328
05/25/12 3:55PM5/29/12 8:01AM
Frazier, K Freeh, L McNeill, 0 Tomalis, R
RE: PRNILEGED AND CONFIDENTIAL
BATES NUMBER
DATE/TIME
PARTICIPANTS
SUBJECT
351-352
05/05/12 6:49AM05/05/12 10:30AM
Frazier, K Freeh, L McNeill,O Tomalis, R
Re: Meeting with Dan McGinn
355
05/05/12 6:49AM05/05112 9:54AM
McNeill,O Frazier, K Freeh, L Tomalis, R
Re: Meeting with Dan McGinn
359-361
04/09/12 12:39 PM04/09/12 3:42PM
Frazier, K Tomalis, R McNeill Freeh
Re: Judge severely restricts what lawyers can say in ex-Penn State coach Sandusky's sex abuse case
362-364
04/06/12 7:40AM 04/07112 6:48PM
Frazier, K Freeh, L Tomalis, R McNeill,O
Re: Please set up a call for all trustees on Monday night, April 9th at 5:30pm
369-370
02/25/12 5:59PM
Ammerman,P Guadagnino, F Members of the Board of Trustees
Freeh Group RequestPRIVILEGED AND CONFIDENTIAL
371-372
02/17112 10:43 AM7:06PM
Ammerman,P Members of the Board of Trustees
CONFIDENTIAL/ATTORNEYCLIENT PRIVILEGED COMMUNICATION/ATTORNEY WORK PRODUCT
373-376
02/17/12 11:43 AM12:48 PM
Frazier, K Tomalis, R McNeill,O
Re: PSU
377
02/02/12 10:22AM11:13 AM
Frazier, K Freeh, L Tomalis, R McNeill,O
RE: Baldwin
BATES NUMBER
DATE/TIME
PARTICIPANTS
SUBJECT
381
01/16/12 10:40 AM-4:26 PM
McNeill,O Frazier, K Freeh, L Tomalis, R
RE: PSU - Special Investigations Task Force/Board of Trustees Meetings
383-384
01/16/12 10:40 AM-4:26PM
McNeill,O Frazier, K Freeh, L Tomalis, R
RE: PSU - Special Investigations Task Force/Board of Trustees Meetings
385-388
01/16/12 10:40 AM-2:03 PM
McNeill, 0 Freeh, L Frazier, K Tomalis, R
RE: PSU - Special Investigations Task Force/Board of Trustees Meetings
389-394
01/16/12 10:40 AM-7:53PM
Frazier, K McNeill, 0 Tomalis, R Freeh, L
RE: PSU - Special Investigations Task Force/Board of Trustees Meetings
398-400
01/16/12 10:40 AM-4:40PM
Frazier, K McNeill,O Tomalis, R Freeh, L
RE: PSU- Special Investigations Task Force/Board of Trustees Meetings
403
07/03/12 10:26AM10:48 AM
Frazier, K Tomalis, R
FW: Briefing the newest board members
420-423
03/22/12 3:58PM-4:14PM
McNeill, 0 Frazier, K Tomalis, R Freeh, L
RW: Chronicle Conversation
588-590
04/20/12 8:45AM04/27/12 11:48 AM
Frazier, K Tomalis, R McNeill,O
RE: Committee on Audit, Risk, Legal and Compliance
