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Judge Rules Against University, Grants Alumni Trustees Access to Freeh Docs

The litigation to get the documents that shaped Louis Freeh’s much maligned report into the hands of Penn State’s alumni trustees appears to now be over. While the Board was meeting in committee today at the Penn Stater, a Centre County judge ruled against Penn State and granted the request of seven alumni trustees to have access to all the Freeh report source files. Thus ends yearlong litigation brought on by the trustees against the university with a victory for the alumni trustees.

The majority of the board voted against allowing access to these documents, claiming that the confidentiality guaranteed to those who participated in interviews with Freeh and other related communication would be violated. President Barron, who promised to review the documents himself but has thus far not provided any updates on that endeavor, has said as much.

As a general rule of law for nonprofit corporations, fiduciaries (trustees) have access to all documents reasonably related to the performance of their duties. Penn State and many of the non-alumni trustees have spent most of the last year arguing that examining the documents that went into the Freeh report is not reasonably related to the duties of a trustee. The court disagreed.

“We are satisfied that a reasonable relationship exists,” Judge Daniel Lee Howsare wrote. “While the majority board of directors may control in deciding the affairs of the corporation, the majority could not deprive a minority director access to corporate information.”

The court also mandated a complete privacy agreement with the trustees so that they may not disclose any of the information contained in the documents, under the threat of sanctions for noncompliance.

The university put out a statement, trying to frame this decision as a win instead of a loss (even though it was unquestionably a loss as far as Penn State’s legal fight is concerned). Here it is in full:

“We are pleased with the court’s recognition of the university’s interest in maintaining the confidentiality of the materials, particularly the names and identities of those who were interviewed for the Freeh Report. The seven alumni elected trustees’ continuing demand to know ‘who said what?’ is contrary to the university’s efforts to create a climate where people feel safe in reporting possible wrongdoing.  The university offered repeatedly to provide essentially all of the approximately 3.5 million documents collected by the Freeh firm with no redactions whatsoever and all of the Freeh firm’s work product and interview memoranda with redactions of personally identifiable information, all under the conditions of a confidentiality agreement. This legal action was an unnecessary and wasteful expense.”

“While we would have hoped that a confidentiality agreement would have been sufficient to protect the university’s interests, the court’s order provides additional protection from any breach of the court’s confidentiality requirements.”

It is not yet known what the trustees plan to do with the 3.5 million documents they will soon have access to, but there is sure to be more discussion about this at tomorrow’s regularly scheduled full Board meeting, which begins at 1:30 p.m. at the Penn Stater. The administration has 45 days to turn over the documents.

You can view the full decision below.

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