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Supreme Court Rules Most OSU Records Sought by ESPN In Tressel Case Protected by FERPA, Attorney-Client Privilege

Limited Writ Requires Disclosure of Some Documents With Student Information Redacted

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2011-1177.  State ex rel. ESPN v. Ohio State Univ., Slip Opinion No. 2012-Ohio-2690.
In Mandamus.  Writ granted in part and denied in part.  Request for attorney fees denied.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2690.pdf

(June 19, 2012) The Supreme Court of Ohio today issued a limited writ of mandamus ordering Ohio State University to provide ESPN with several documents related to the 2011 NCAA investigation of football coach Jim Tressel that the university had previously refused to provide to the network in response to public records requests.

However the court declined to order disclosure of most of the records sought by ESPN, finding that the requested documents fell within exceptions to the state Public Records Act for documents covered by attorney-client privilege and documents that may not be disclosed under the federal Family Educational Rights and Privacy Act (FERPA).

In today’s 7-0 per curiam opinion, the court also found that OSU officials had committed “per se” violations of the Public Records Act by failing to explain how ESPN could modify some of its record requests after the university had rejected them as “overbroad,” and by erroneously stating that the university was not required to disclose records related to an ongoing NCAA investigation.  Because ESPN’s complaint did not ask the court to award statutory damages or order other remedial action based on those alleged violations, the court limited its ruling on those issues to making official findings that violations had occurred.

The court denied ESPN’s request for an award of attorney fees “(b)ecause Ohio State complied with the vast majority of its obligations under R.C. 149.43 in responding to ESPN’s records requests, and ESPN’s claims are largely without merit.”

The court noted that, in the weeks following a March 8, 2011 news conference at which Tressel admitted that he had failed to inform his superiors after learning about possible NCAA rule violations by OSU players, the university received 21 separate public records requests from ESPN and provided more than 700 pages of documents in response to those requests. The university  declined to provide certain additional documents, including some communications between athletic department officials and the NCAA addressing the investigation of Tressel, documents identifying persons officially barred from access to student athlete pass lists, and communications to or from university officials that mentioned the name of Ted Sarniak, a Pennsylvania man who had been a friend and advisor to Terrelle Pryor, one of the football players implicated in the alleged rule violations.

In July 2011, ESPN filed an original action in the Supreme Court seeking a writ of mandamus to compel OSU to provide copies of all the requested documents. While that action, which is resolved by today’s decision, remained pending, the parties continued to negotiate, and OSU provided ESPN with some additional documents, but continued to deny access to others.

In rejecting ESPN’s argument that the exception to the Public Records Act for records that may not be disclosed under a state or federal law does not apply to FERPA, the court wrote: “ESPN argues that FERPA does not prohibit the disclosure of the requested records by educational agencies and institutions like Ohio State − it merely penalizes those educational agencies and institutions that have a policy or practice of permitting the release of those records without parental consent by withholding federal funding. ESPN’s contention lacks merit.  ... ‘(A) participant who accepts federal education funds is well aware of the conditions imposed by the FERPA and is clearly able to ascertain what is expected of it.  Once the conditions and the funds are accepted, the school is indeed prohibited from systematically releasing education records without consent.’”

“Ohio State received approximately 23 percent of its total operating revenues − over $919 million − in the 2010-2011 academic year from federal funds, and it is estimated that the university will receive the same amount of federal funds in the 2011-2012 academic year. Therefore, Ohio State, having agreed to the conditions and accepted the federal funds, was prohibited by FERPA from systematically releasing education records without parental consent. This result is consistent with the holdings of other state courts that have addressed this issue.”

“ESPN asserts that FERPA is inapplicable to the records responsive to its requests for documents related to Sarniak and the prior NCAA investigations because these records do not constitute ‘education records.’  ... ESPN relies on language from this court’s opinion in State ex rel. Miami Student v. Miami Univ. (1997), in which the court granted a writ of mandamus to compel the disclosure of student disciplinary proceedings for 1993 through 1996 by reasoning that because the cases, which involved infractions of student rules and regulations, were ‘nonacademic in nature,’ the records were not ‘education records’ subject to FERPA.” 

“Following our decision in Miami Student, however, the United States Court of Appeals for the Sixth Circuit held (in United States v. Miami University, 2002) that student disciplinary records were education records subject to FERPA and permanently enjoined Miami University and Ohio State from releasing records in violation of FERPA. ... The court held that ‘[u]nder a plain language interpretation of the FERPA, student disciplinary records are education records because they directly relate to a student and are kept by that student’s university.  Notably, Congress made no content-based judgments with regard to its “education records” definition.’”            

“Upon consideration of our opinion in Miami Student and the Sixth Circuit Court of Appeals’ opinion in Miami Univ., we agree with the Sixth Circuit and hold that the records here generally constitute ‘education records’ subject to FERPA because the plain language of the statute does not restrict the term ‘education records’ to ‘academic performance, financial aid, or scholastic performance.’  Education records need only ‘contain information directly related to a student’ and be ‘maintained by an educational agency or institution’ or a person acting for the institution ...  The records here − insofar as they contain information identifying student-athletes − are directly related to the students.”

Following its own in camera inspection of records that OSU had withheld as not disclosable under FERPA, the court determined that  a few of those documents should have been provided to ESPN after personal student information had been redacted.

The court wrote: “An e-mail chain between Tressel, the Ohio State athletics department official in charge of compliance, attorneys, and other officials scheduling a meeting includes no personally identifiable information concerning any student-athlete.  In e-mails to schedule a meeting to formulate a compliance plan for one of the student-athletes, aside from the name of the student-athlete and a person who agreed to attend the meeting, no personally identifiable information is included.  Another document refers to one person’s request to obtain a disability-insurance policy on behalf of a student-athlete, and with those names redacted, the document would not contain personally identifiable information. There are also two letters from Ohio State’s athletics department compliance director to the parents of a student-athlete concerning preferential treatment.  With the personally identifiable information concerning the names of the student-athlete, parents, parents’ addresses, and the other person involved redacted, FERPA would not protect the remainder of these records. ... Therefore, although the majority of the requested records were properly redacted before being provided to ESPN, ESPN is entitled to access to redacted copies of these few records that were completely withheld from it based on FERPA.”

“Ohio State properly withheld the remaining requested records based on attorney-client privilege. ... These records include requests from Ohio State officials for legal advice and interpretation, communications from or between the attorneys providing legal advice or information to Ohio State, and investigatory fact-finding related to the legal advice. ... ESPN’s contention that Ohio State cannot rely on attorney-client privilege to shield these records is unfounded  because ‘an attorney does not become any less of an attorney by virtue of state agency employment.’  ... (T)here is no requirement in public-records mandamus cases that public offices or officials must ‘conclusively establish’ the privilege by producing agreements retaining agents or joint-defense agreements with attorneys representing other clients. Therefore, Ohio State properly withheld the remaining requested records based on the attorney-client privilege.”

John C. Greiner, 513.629.2734, for ESPN.

Alexandra T. Schimmer, 614.995.2273, for the Ohio State University.