ESPN vs. OSU: From covering sports to news to making it

“The Uni­ver­sity believes that it has adhered to all applic­a­ble state and fed­eral laws.”

— Doug Archie

OSU Com­pli­ance Officer

“FERPA has no appli­ca­tion here and this Court should not per­mit it to be used in a man­ner that is equal parts cyn­i­cal and hypocritical.”

— John Greiner

Attor­ney for ESPN

Unlike their fed­eral coun­ter­parts at the U.S. Supreme Court, Ohio’s seven jus­tices work through­out the year and their sched­ule remains busy through the sum­mer months. Sev­eral major cases found their way onto or off of the Ohio Supreme Court docket in the past week in major, news­wor­thy ways.

The largest splash came from a case that found its way onto the docket at the state’s high­est court, not as an appeal, but rather as an orig­i­nal action seek­ing com­pli­ance with the state’s pub­lic records law. Seek­ing to gather all pos­si­ble infor­ma­tion about Ohio State’s recent foot­ball trans­gres­sions, ESPN (along with other media out­lets) is try­ing to gain access to addi­tional emails between OSU offi­cials about the NCAA violations.

At issue is Ohio’s pub­lic records law, found at sec­tion 149.43 of the Ohio Revised Code. At its most basic point, the sec­tion pro­vides sim­ply that, “Upon request all pub­lic records respon­sive to the request shall be promptly pre­pared and made avail­able for inspec­tion to any per­son at all rea­son­able times dur­ing reg­u­lar busi­ness hours.” Almost any­thing can be a pub­lic record as the sec­tion also con­tains the broad def­i­n­i­tion that a pub­lic record is “any record kept by any pub­lic office.” Because OSU is a state uni­ver­sity, it too is a pub­lic office.

That’s where the sim­plic­ity ends, how­ever. The pub­lic records law con­tains dozens of exemp­tions. Exempted from dis­clo­sure are med­ical records, adop­tion records, law enforce­ment inves­ti­ga­tory doc­u­ments, DNA records, organ donor records, res­i­den­tial infor­ma­tion of a law enforce­ment offi­cer, social secu­rity num­bers, bank account num­bers and, most impor­tantly for this case, infor­ma­tion that can­not be released because of other state and fed­eral laws.

Legally, the case is about the inter­sec­tion of fed­eral stu­dent pri­vacy law and Ohio’s pub­lic records act. Prac­ti­cally, the case is more about ESPN’s rat­ings and their desire to fully inves­ti­gate the OSU vio­la­tions story. We know that a Colum­bus attor­ney con­tacted Jim Tres­sel about NCAA rules vio­la­tions com­mit­ted by his play­ers. We know that Tres­sel emailed a men­tor of then quar­ter­back Ter­relle Pryor and that Tres­sel later admit­ted that he failed to notify the NCAA of vio­la­tions and lied about when he was first aware of them.

It appears that ESPN is try­ing to deter­mine whether Tres­sel let any­one else at OSU know about those vio­la­tions. That is, whether the ‘cover-up’ goes higher than Tres­sel to ath­letic direc­tor Gene Smith or uni­ver­sity pres­i­dent Gor­don Gee. If he did, then OSU would be guilty of more seri­ous and sys­temic NCAA vio­la­tions. In order to dis­cover whether Tres­sel informed any­one else of the vio­la­tions, ESPN asked for all emails that Tres­sel sent inter­nally that might deal with that subject.

OSU denied that request and sev­eral oth­ers. They cited mul­ti­ple rea­sons, but the two cited most clearly and most often were that the requests were ‘too broad’ and that the infor­ma­tion that was requested would vio­late the Fed­eral Edu­ca­tional Rights and Pri­vacy Act (FERPA). FERPA was enacted in 1974 and gives stu­dents access to their records. It also pro­hibits edu­ca­tional insti­tu­tions from releas­ing cer­tain infor­ma­tion, includ­ing grades and dis­ci­pli­nary records.

Most cases that come before the Ohio Supreme Court do so as an appeal from a lower court. This case is an “orig­i­nal action” before the Supreme Court. Nearly all orig­i­nal actions before the court are, like this one, a request for an “extra­or­di­nary writ.” Those writs include habeas cor­pus, proce­dendo, pro­hi­bi­tion, quo war­ranto and man­damus. ESPN’s suit seeks a writ of man­damus — one that com­pels or man­dates a state offi­cial to do something.

The sides will file their legal briefs over the com­ing weeks. Though it is pos­si­ble that the Court could set the case for oral argu­ment, it is more likely that the Jus­tices will decide the case based solely on the writ­ten fil­ings of each side. Other par­ties could file briefs in sup­port of either side in the case and at least one news­pa­per has asked for the same doc­u­ments that ESPN has requested. A deci­sion is likely to come within the next few months and will be released in full on the Supreme Court of Ohio’s web­site at supremecourt.ohio.gov.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Jul 14 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.