ESPN sues Ohio State over athletic records, challenges school's privacy claims

OHIO — Sports media giant ESPN on Monday sued Ohio State University,alleging violations of state public records law after the university denied itsrequests for records about an ongoing investigation of the school’s footballprogram.

The university citedfederal student privacy law in denying some of the requests, which ESPN ischallenging in a lawsuit filed Monday with the Ohio Supreme Court.

The NCAA investigationled to the resignation of football coach Jim Tressel and the withdrawal of starquarterback Terrelle Pryor as allegations emerged that improper benefits weregiven to Ohio State football players.

In a March 8 pressconference, Tressel revealed that he was notified by email in 2010 that somehis players may have exchanged signed sports memorabilia for tattoos. Theemails allegedly connect the players with the owner of a local tattoo parlorwho was the subject of a federal investigation. Authorities raided the owner’shome and found $70,000 in cash and numerous pieces of Ohio State memorabilia,according to ESPN.

When Tressel wasinitially told about the players’ connections, he did not notify his superiorsat the university. The only person he told was Ted Sarniak, a Pennsylvaniabusinessman and known mentor to Pryor.

As allegations of NCAAviolations surfaced, ESPN began filing public records requests with theuniversity. In documents filed with the state high court, the network citesthree separate denials by the university and claims each violated Ohio publicrecords law.

On April 20 an ESPNproducer requested internal and external documents between the NCAA, Ohio Stateand its representatives related to the NCAA’s investigation of Tressel and fivestudent athletes.

The request alsosought access to “all emails, letters and memos to and from Jim Tressel, GordonGee, Doug Archie and/or Gene Smith with key word Sarniak since March 15, 2007.”

Gee, Archie and Smithare all Ohio State officials.

The universityresponded to that request on May 27 and refused to release any of the emailsabout Sarniak saying the release was prohibited by the Federal EducationalRights and Privacy Act (FERPA).

FERPA is designed toprotect the privacy students’ education records. Under the law, the Departmentof Education can yank federal funding from schools with a “policy or practice”of releasing confidential student records – though the department has neveractually done so.

In a separate recordsrequest, filed by an ESPN correspondent April 15, the network asked for “alldocuments, emails, letters and memos related to NCAA investigations preparedfor and/or forwarded to the NCAA since 1/1/2010 related to an investigation ofJim Tressel.”

The university respondedthat it would not release anything on the pending investigation.

Ohio law requires thata public office or records official, when denying a request, give anexplanation for the denial. ESPN argues the university did not do that in itsreply to the April 15 request and therefore has violated state law.

On May 11, anotherESPN correspondent requested documents listing “people officially barred fromstudent-athlete pass lists (game tickets) since January 1, 2007.” The requestalso sought documents sent by any Ohio State athletic department officialrelating to all NCAA violations committed since January 1, 2005.

The university againresponded with a denial, this time saying the request was overly broad.

ESPN argues that theuniversity violated public records law by not allowing the channel to reviseits request and by failing to cite any legal authority in its denial.

Monday’s filing by ESPNattorney John Greiner asks the court for a writ of mandamus, which is an orderthat a government official or entity do its job as required by law. In Ohio, sucha request can be filed directly with the state supreme court.

Frank LoMonte,executive director of the Student Press Law Center, said the high-profilenature of the case could have a big impact on the debate about student privacylaw.

“This gives us achance to put the abuse of FERPA on a larger national stage,” he said. “Thewhole country is following what’s going on at Ohio State and they understandvery well that this is not about the confidentiality of student records – it’sabout damage control and image control.”

In a brief supportingits request, ESPN argues that FERPA does not actually prohibit the release ofrecords and only puts conditions on the receipt of federal funding – anargument accepted by a federal court in Illinois for the first time in March.That case is currently on appeal.

LoMonte said he agreeswith that interpretation but thinks the Ohio court might not have to addressit. It could simply find that the emails requested by ESPN are not privateeducation records.

“The courts have beenvery clear that FERPA records are the kinds of records kept with a student’spermanent file,” he said. “Emails between coaches about a booster are not keptwith a student’s permanent file.”

ESPN wants the courtto order the release of all the documents from its three records requests.It also wants Ohio State to pay its attorneys and legal fees.

Greiner said ESPN doesnot comment on pending litigation.

A spokesman for OhioState said the university believes it “has adhered to all applicable state andfederal laws.”

The university has 28days to file a response to ESPN’s complaint.