The first choice for faster results. Legal Issues in Higher Education CCAC College-wide Council Friday, July 13, 2012

The first choice for faster results. Legal Issues in Higher Education General Legal Issues – Scope of Representation & Preventative Counseling, Shon K. Worner, JD, Barry & Worner, LLC – Enterprise Risk Management, W. Randolf Gaab, Risk Manager Pennsylvanias Right to Know Law, Nancilee Burzachechi, JD, CFRE, Vice President, Institutional Advancement Civil Rights Review, Sumana Misra-Zets, Director, College Diversity Initiatives Hiring Process, Paul Schwarzmiller, Interim Vice President, Human Resources Title IX Overview, Sumana Misra-Zets, Director, College Diversity Initiatives

The first choice for faster results. Pennsylvanias Right to Know Law Presented by: Nancilee Burzachechi, JD, CFRE Vice President Institutional Advancement & External Relations

The first choice for faster results. N. Burzachechi, Background 1988 graduate of the University of Pittsburgh School of Law Sat for Pennsylvania Bar exam, July, 1988 Admitted to the Pennsylvania Bar, November 8, 1988 Continuously licensed to practice law in PA for nearly 24 yrs. Standard of care--Attorneys

The first choice for faster results. Pennsylvanias New Right to Know Law Enacted by the states legislature in 2008, effective January, 2009

The first choice for faster results. General Rule Unless otherwise provided by law a public record, legislative record or financial record shall be accessible for inspection and duplication A record shall be provided in the medium requested if it exists in that medium, otherwise, it will be provided in the medium in which it exists Public records shall be available for access during regular business hours

The first choice for faster results. Agencies, Access & Retention of Records Section 301: Defines state-affiliated entity – Specifically includes community colleges – Specifically excludes state-related institutions, Pitt, Penn State Section 502: Requires an agency to appoint an open records officer Section 506: Defines disruptive requests Section 507: Does not supersede any record retention policy or record disposition schedule

The first choice for faster results. Procedure Section 702: Requests may be verbal or written and may be anonymous – Requests must be written in order to pursue relief and/or remedies under this act Section 705: Creation of Record – Not required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record. Section 706: Redaction – If a public record contains information subject to access as well as information which is not subject to access, the information not subject may be redacted and the record released.

The first choice for faster results. Agency ResponseSection 901 Provides up to 5 business days from receipt of request to respond to the request May take up to 30 days to provide access if: – Records require redaction – Records are remotely stored – Staffing limitations – Legal review – Requestor non-compliance or refusal of payment – Nature of extent of the request precludes access within 5 business days

The first choice for faster results. ExceptionsSection 708(b) Outlines 30 exceptions to public record Categories of Exception include: – Security – Personal Information – Strategy – Education – Personnel – Business-related – Investigations – Other

The first choice for faster results. Security Exceptions Homeland Security Infrastructure Security Computer Security – Record regarding computer hardware, software and networks, if disclosed would be reasonably likely to jeopardize computer security Personal Security/Harm to Individual – Reasonably likely to result in substantial and demonstrable risk of physical harm or to personal security of an individual

The first choice for faster results. Personal Information Medical/psychiatric/disability history, includes DNA records and anything that would disclose individually identifiable health information Certain Personal information – Social Security numbers, drivers license #, employee ID # – Home, Cellular or Personal phone # – Personal address – Personal financial information

The first choice for faster results. Personal Informationcontd. – Spouses name, marital status, beneficiary information or dependent information – Home addresses of law enforcement and judges – Identity of covert law enforcement Salary, other compensation, and the length of service of a government employee is public., 65 P.S. SS67.708(b)(6)

The first choice for faster results. Strategy Records pertaining to strategy or negotiations related to labor relations, collective bargaining and related arbitration proceedings – except that final contracts and agreements and final awards and order of arbitrators are public Drafts of policies or management directives Research, memos or other documents reflecting pre- decisional deliberations and strategies – but public opinion surveys, requests for government funds (including grant applications), and documents presented to a quorum for public deliberation (board packets) are public

The first choice for faster results. Strategy Exceptionscontd. Draft minutes of agency meeting Minutes of Executive Sessions Real estate appraisal, engineering or feasibility estimates, environmental reviews, audits or evaluations regarding during acquisition of real estate or construction projects – Ceases to apply once decision is made to proceed with the lease, acquisition or disposal of real property

The first choice for faster results. Educational Exceptions Academic materials including unpublished, creative or scholarly works Unpublished lecture notes Unpublished manuscripts Research materials Academic transcripts Exams & scoring keys

The first choice for faster results. Personnel ExemptionsNOT PUBLIC Letters of recommendation – unless related to vacancy in elected office Performance ratings or reviews Applications of those not hired Workplace support services program information Written criticisms of employee Grievance material Information relating to discipline, demotion or discharge, except for final action of agency that results in demotion or discharge Academic transcripts 708(b)(7)

The first choice for faster results. Other exceptions Records that if disclosed would result in the loss of federal or state funds 708(b)(1)(i) Personal notes and working papers used by a public official or employee solely for that individuals own personal use, 708(b)(12) Identity of donors (except in the case of donation directed to a specific official or employee, 708(b)(13)