Penn State revoked at least two trustees’ access to an online file-sharing platform central to an ongoing court case between Spotlight PA and the university, creating a two-tiered system for sharing information with members of its governing body and potentially closing an avenue for public transparency.
In July 2023, as Spotlight PA sought Board of Trustees documents through an open records request, the university revoked state Secretary of Agriculture Russell Redding’s access to Diligent, a service that allows Penn State to control who can view or download certain files. Redding serves on the Board of Trustees.
Another trustee, Cynthia Dunn, secretary of the state Department of Conservation and Natural Resources, has not had access to the service for nearly two years, Spotlight PA has learned. Her work is also subject to Pennsylvania’s open records law.
It is not clear who requested the revocation of the trustees’ access, or why. But the change occurred before Pennsylvania’s courts could rule on the merits of an ongoing case between the university, the state Department of Education, and the newsroom.
“It’s a red flag any time we see agencies make moves that make access and transparency more difficult,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member.
Melewsky said Penn State and the agencies should provide an explanation for the change, and demonstrate how the trustees are receiving the necessary information to be on the board and perform their oversight duties.
A spokesperson for the Department of Agriculture told Spotlight PA that Redding’s access to the board’s file-sharing service was revoked more than two years ago. She declined to say why, instead deferring to Penn State for an explanation.
Neither Penn State’s Office of Strategic Communications nor board leadership responded to questions about why the change was made or how the board is securely sharing confidential information with the trustees who can no longer access the platform. The board continues to use the file-sharing service to communicate with other trustees — documents uploaded to the platform for trustee review were referenced during the board’s public November meeting.
The records dispute between Penn State and Spotlight PA began in May 2023, when the newsroom filed public records requests with Pennsylvania’s agriculture and education departments for documents Penn State provided to the secretaries, who serve on the board as part of their official duties as state employees.
The newsroom’s request specifically sought documents on Diligent. While the university is largely exempt from the state’s open records law due to a legal carveout, a 2013 court ruling said records that the agencies’ secretaries used as trustees could be accessed by the public.
The agencies said they did not possess or control the records, and denied the newsroom’s request. In July 2023, Spotlight PA appealed the decision to the Pennsylvania Office of Open Records.
That fall, the open records office ruled that some of the requested documents should be made public. Penn State and the Department of Education appealed the decision to Commonwealth Court. The university, in legal filings and in court this September, argued the state agencies did not possess or control the records Spotlight PA sought because Penn State housed the files on Diligent and controlled how they could be accessed.
In October, Commonwealth Court ruled the university must turn over the documents, writing in its decision that Penn State’s argument was “without merit.” (Last month, Penn State and the education department asked the Pennsylvania Supreme Court to hear the case. The state’s highest court has not yet decided whether to do so.)
After Commonwealth Court’s decision, Spotlight PA filed several new records requests with the agriculture and natural resources departments for board documents on Diligent about the university’s budget, President Neeli Bendapudi’s compensation, the plan to close seven campuses, and the Beaver Stadium renovation. The departments denied many of those requests because the respective secretaries did not have access to the board’s file-sharing platform.
The Department of Conservation and Natural Resources did not respond to emailed questions about the situation. However, in response to Spotlight PA’s records requests, the agency wrote that Dunn, the agency’s secretary and a Penn State trustee, “does not have access to the Diligent program, and the Secretary did not have access to the Diligent program or any files that would have been stored or saved on the program during the time periods you have requested.” The oldest documents the newsroom sought were from February 2024.
Amy Kristin Sanders, Penn State’s John and Ann Curley professor of First Amendment studies, told Spotlight PA that while state courts are determining whether documents on Diligent are accessible as public records, Penn State has an obligation to maintain the status quo. Revoking access is not a good faith move, she said, and goes against the spirit of transparency laws.