July 14, 2011
“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.