Ohio AG’s FERPA interpretation sends a message, but is Ohio State listening?

Ohio State University has been digging in its cleats for months against disclosure of public records relating to a blossoming athletic department scandal that has already claimed head football coach Jim Tressel as a casualty. The university claims that federal student privacy law forbids the release of records, such as emails written by members of the Buckeyes coaching staff, sought by the news media.

On Wednesday, the lawyer whose office would be responsible for defending OSU in a public-records lawsuit served notice that he interprets student confidentiality law to be a narrow and limited exception to the normal rule that the records of public agencies are open for public inspection.

If Ohio State is paying attention, Wednesday’s legal interpretation from Attorney General Mike DeWine is a stark wake-up call that even the university’s own legal advocate may not be able to defend OSU’s aggressive use of the Family Educational Rights and Privacy Act. Ohio State has fallen back on FERPA to deny public-records requests from the Columbus Dispatch, the Associated Press, and other news outlets investigating the athletics scandal, “highlights” of which include an alleged swap of football memorabilia for tattoos.

DeWine’s entire interpretation is viewable here, but some noteworthy points include:

  • Reminding educational institutions that confidentiality is not an all-or-nothing proposition. If truly confidential student information can be extracted from the document and the balance of the document produced, then the agency must do so, rather than withhold the entire record.
  • Quoting a 2002 U.S. Supreme Court interpretation, FERPA allows schools to withhold only documents that are formally “maintained” by the school — suggesting that FERPA covers only documents kept in some kind of a central records storage place, not in an individual employee’s drawer. (DeWine relied additionally on a recent federal district court ruling from Ohio, in which a judge held that “tally sheets” compiled by Toledo school employees to track the progress of special-ed students were not covered by FERPA because they were not “maintained” in a central school repository.)
  • To be a confidential FERPA record, a document must “directly relate” to an individual student. Records of employee misconduct that tangentially pertain to students are not confidential FERPA documents, and if they are covered by state sunshine laws, then FERPA is no excuse for secrecy.

The attorney general did not go quite as far as an Illinois federal judge, who in March ruled that FERPA is no excuse whatsoever for denying an otherwise-lawful public records request. That ruling, in a dispute between the Chicago Tribune and the University of Illinois, is not legally binding in Ohio and is under appeal.

But DeWine’s interpretation is, on balance, a pro-disclosure one that emphasizes the importance of transparency in making FERPA judgment calls.

Ohio State has called an exceedingly wide FERPA strike zone in refusing to disclose, for example, email correspondence between deposed coach Tressel and a Pennsylvania businessman who has been described as a “mentor” to now-departed Buckeyes quarterback Terrelle Pryor. It is difficult to see how such correspondence could qualify as an “education record” if DeWine is reading FERPA correctly.

Tressel’s emails clearly are not “maintained” by Ohio State in any formalized way — indeed, Tressel presumably could have deleted them at any time — and their relevance to the media is what they say about Tressel’s conduct and that of his coaching staff, not what they say about individual students.

While the attorney general in no way referenced OSU in Wednesday’s release, the school undoubtedly must be reassessing whether its sweeping reliance on FERPA is defensible. Insisting on secrecy is, in any event, destined to be a losing battle, as any incriminating correspondence will become public once the NCAA decides whether sanctionable violations occurred under Tressel.