Records of state official on PSU board are public

Bagwell v. Pennsylvania Department of Education
Commonwealth Court of Pennsylvania
No. 1916 C.D. 2012

July 19, 2013

The Commonwealth Court held that records received by the secretary of education as a member of the Penn State University Board of Trustees are considered agency records because they are in the possession of the Department of Education and state law requires the secretary to sit on the board.


Ryan Bagwell submitted a Right to Know Law request for records to the Pennsylvania Department of Education seeking copies of “letters, emails, reports, and memoranda” sent to the secretary of education in his capacity as a member of Penn State University’s board of trustees.

The department denied the request, citing the attorney-client and attorney work-product privileges, and the predecisional deliberation, noncriminal investigation, and personal information exceptions of the RTKL.

Bagwell appealed to the Office of Open Records.

The OOR dismissed the appeal, ruling that it did not have jurisdiction over the case because the request dealt with records from Penn State, which is not an agency subject to the Right to Know Law.

Bagwell appealed to the Commonwealth Court.

Commonwealth Court Decision

The Commonwealth Court explained that in determining whether records might be accessible under the RTKL, it does not matter that Penn State is not considered an agency subject to the law because the relevant inquiry is whether the requested documents are records of an agency, which includes correspondence that an agency receives.

In this instance, state law requires the secretary of education to serve on the Penn State board. Thus, the court explained, when serving on the board, the secretary “is acting in a governmental capacity” and any records received by the secretary become records of the agency.

Consequently, the requested records were in the possession of the agency and potentially subject to the RTKL. The OOR therefore should have heard the requester’s appeal.

Because the original appeal was wrongly dismissed, the court sent the case back to the OOR to consider whether the request was properly denied.