Ohio Supreme Court rules some OSU football investigation records can remain private

OHIO — The Ohio Supreme Court onTuesday ordered Ohio State University to hand over some – but not all – of thedocuments requested by ESPN in 2011 in relation to the NCAA’s investigation offormer football coach Jim Tressel.

Tressel, who has since resigned, failed to tell his superiorsat OSU and the NCAA about emails he received alerting him that his players weretrading OSU memorabilia for tattoos at a local tattoo parlor. Tressel onlyforwarded the messages to Ted Sarniak, who served as a mentor to one of hisplayers.

ESPN reporters made at least 21 different public recordsrequests relating to Ohio State’s athletic department in response to theincident, according to the court’s opinion. The university produced about 700pages of documents as a result but declined to provide the rest of theinformation.

In July 2011, ESPN filed an action in the Supreme Courtseeking copies of all of the requested documents.

Tuesday’s unanimous decision requires OSU to release a handfulof documents after students’ personal information is redacted, but declares therest of the records protected by attorney-client privilege and the FamilyEducational Rights and Privacy Act (FERPA), a federal law that protects theprivacy of student education records.

“The records here generally constitute ‘education records’subject to FERPA because the plan language of the statute does not restrict theterm ‘education records’ to ‘academic performance, financial aid, or scholasticperformance,’” the court wrote. “Education records need only ‘containinformation directly related to a student’ and be ‘maintained by an educationalagency or institution’ or a person acting for the institution.”

The decision effectively overturns a 1997 ruling by the statehigh court, which held that FERPA only protects records related to a student’sacademic performance or financial aid. It tracks the reasoning of a 2002 rulingby the 6th U.S. Circuit Court of Appeals.

Frank LoMonte, executive director of the Student Press LawCenter, said the decision puts Ohio out of step with the majority of otherstates’ interpretations of FERPA.

“It’s become pretty clear that the Sixth Circuit’s ruling isnot in the mainstream of FERPA cases,” LoMonte said. “What the Sixth Circuitgot wrong, and now this court has gotten wrong, is the notion that a documentcan be a FERPA record even if it’s not centrally maintained in some database ofrecords.”

How the document is maintained is a key factor, he said, andthe court overlooked that detail entirely.

“Lots of rulings have made clear that even if a documentrefers to a student, it’s not a confidential FERPA record unless it’smaintained by the university,” LoMonte said, noting a letter in a coach’s fileor an email saved to a desktop is not centrally maintained. “The vast majorityof recent rulings have defined FERPA in a narrow and common sense way, and thisruling goes against the tide.”

He said the ruling is also a setback for publicaccountability.

“Nobody thinks that records about world famous athletesinvolved in a scandal were meant to be confidential education records,” hesaid. “It’s putting a very literal-minded reading of the law ahead of commonsense and the public interest.”

ESPN attorney John Greiner was unavailable for comment Tuesday, and ESPN spokesman Josh Krulewitz declined comment.

OSU spokesman Jim Lynch said OSU appreciates the clarity ofthe federal student privacy laws.

“Our student athletes are treated the same way as all of our64,000 students, and we take seriously the obligation to protect theconfidentiality of all our students’ education records,” Lynch said in aprepared statement. “At the same time, the university also takes seriously itsobligation to provide public information in accordance with Ohio law.”

The release, however, does not mention what the court foundto be “per se violations” of the Ohio Public Records Act when the universityfailed to explain how ESPN should modify its requests for information. OSU,instead, rejected the request as “overbroad” and wrongfully stated theuniversity wasn’t required to disclose records during the NCAA’s investigation,the court ruled.

It was unclear Tuesday if ESPN would attempt any further legal action.

By Sydni Dunn, SPLC staff writer


CORRECTION: An earlier version of this story incorrectly identified the date of the court’s decision. The ruling was announced Tuesday.