The OSBA Legal Assistance Fund (LAF) recently participated in an Ohio Supreme Court case between The Ohio State University (Ohio State) and ESPN. The LAF joined the Ohio Legal Rights Service, Community Legal Aid Services, and Northeast Ohio Legal Services, and submitted an amici curiae brief arguing that Ohio State was prohibited from disclosing the records requested by ESPN pursuant to Ohio's Public Records Act and the Family Education Rights and Privacy Act (FERPA).
In the case, State ex rel. ESPN Inc. v. Ohio State Univ., Slip Opinion No. 2012-Ohio-2690, ESPN filed a writ of mandamus to compel Ohio State to provide "all documents and emails, letters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since January 1, 2010, related to an investigation of football coach Jim Tressel" and "all emails, letters and memos to and from Jim Tressel, Gordon Gee, Doug Archie and/or Gene Smith with the key word Sarniak since March 15, 2007." Ohio State responded and claimed that FERPA prevented the school from releasing records related to Sarniak and denied the request of records related to the NCAA pending investigation.
ESPN then requested "any report, email or other correspondence between the NCAA and Doug Archie or any other Ohio State athletic department official related to any violation of NCAA rules involving the football program, since January 1, 2005." Ohio State also denied that request claiming it was too broad under Ohio's public records laws.
ESPN argued that Ohio State violated Revised Code Section (RC) 149.43 (B)(2) and (3) by denying requests for documents that listed the names of individuals who were barred from access to game tickets as well as documents related to the "ongoing investigation." ESPN also argued that FERPA penalized educational institutions only by withholding federal funding if those institutions permitted the release of certain records without parental consent. Ohio State contended that the records that were not provided to ESPN were protected under FERPA, the attorney-client privilege, and the work product privilege.
Ultimately, the Ohio Supreme Court denied the writ of mandamus in part because Ohio State "...established that FERPA and the attorney-client privilege prohibited the disclosure of the majority of the requested records", at 41. However, the court granted the writ in part after finding that Ohio State committed per se violations of the Public Records Act by denying ESPN the opportunity to amend its request after determining the request was too broad, and by stating that Ohio State had no obligation to provide documents that were part of an ongoing investigation.
The court agreed with Ohio State and ruled that the university was "prohibited by FERPA from systematically releasing education records without parental consent." Also, the court noted that records that could not be released under state or federal law were exempt from release under RC 149.43 (A)(1)(v).
ESPN contended that FERPA did not apply to any documents related to Sarniak or prior NCAA investigations because those records were not considered education records. However, the court determined that the records were education records and FERPA did apply because the records contained information that was directly related to students and contained information that identified student athletes. For FERPA to apply, as stated by the court, the 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 court found that Ohio State acted properly when it redacted the identifying information that concerned student athletes, but determined that ESPN was entitled to redacted copies of the few records that were completely withheld based on FERPA. Also, the court ruled that the attorney-client privilege applied to the requested records that were from or between Ohio State officials and attorneys that provided legal advice, interpretation and investigatory fact-finding.
As a result, the court declined to award attorney fees to ESPN because Ohio State complied with RC 149.43, for the most part, when the school responded to ESPN's records requests, and most of ESPN's claims were without merit.