Officials of the state-owned California University of Pennsylvania spent more than a year claiming in multiple legal venues they don’t have to provide the Observer-Reporter with records of donations from a contractor.
Now – having reached the end of its avenues for appeal – Cal U. is denying the records exist. The newspaper is weighing its next course of action after receiving the response Tuesday in a letter.
In a document accompanying the letter, Cal U. open-records officer Robert Thorn said no records exist that would comply with the August 2018 request for records from Manheim Corp., a Mt. Lebanon construction firm, to the Foundation for California University of Pennsylvania during a period spanning 2008 to 2013. The foundation raises funds and accepts gifts on behalf of the school.
Thorn’s attestation, dated Nov. 26, followed a state Supreme Court order a week earlier. The ruling denied Cal U.’s petition to appeal a lower court’s decision that the university would be required to make the material public.
Melissa Melewsky, media law counsel for Pennsylvania NewsMedia Association in Harrisburg, said the university should have decided whether or not the records existed at the beginning of the matter.
“The Right to Know Law requires agencies to conduct a good faith search for responsive records upon receipt of a request; the first thing the university should have done is looked for the records,” Melewsky wrote in an email. “It is not typical for agencies to force a requester to litigate for 16 months through the appellate courts before actually looking for responsive records because the law requires that to happen as part of the agency’s initial response.”
Melewsky added the “university’s process resulted in a massive waste of the requester’s time and money, and a colossal waste of public resources. Moreover, the university’s actions leave it open to the possibility of bad faith sanctions under the Right to Know Law. “
David Pidgeon, a spokesman for the Pennsylvania State System of Higher Education, said “typically we don’t discuss legal strategy. What I can say is following the court’s ruling the State System complied accordingly and will continue to do so.”
As part of the university’s official response, Thorn – who is also vice president for administration and finance – wrote in a document called an attestation that he forwarded the request for records to Denise Smith, executive director of the foundation.
In 2009, Manheim was awarded a $10.5 million contract to build the Vulcan Garage on the Mon Valley campus. The building opened the following year, but sat, unused, since a partial collapse on move-in day in 2016. No one was injured.
Last year, the university filed a lawsuit seeking damages from Manheim and others involved in the project. The defendants maintain they are not liable.
Weeks after the university brought that case, Observer-Reporter staff writer Gideon Bradshaw made the request for records concerning donations from Manheim to the Cal U. foundation. Thorn denied the request, claiming the university didn’t have to produce foundation records in the possession of the nonprofit.
Bradshaw appealed the denial to the Office of Open Records in Harrisburg, where a hearing officer agreed the records should be made public. Cal U. – represented by attorney Michael Ferguson of the state system – took the case to Commonwealth Court, where a three-judge panel issued a precedent-setting opinion that records of corporate donations are public, unlike those of “individuals” who make donations to government agencies.
Officials were ready to keep fighting in court. Following the May 31 ruling, Cal U. asked the state Supreme Court to hear the case. The university-affiliated foundation retained Jan Budman II, who indicated in filings the foundation intended to join Cal U.’s appeal if the Supreme Court would allow it.
The Supreme Court refused to hear the appeal in its Nov. 19 order.