Tuesday, June 19, 2012

Ohio Supreme Court Rules On Tressel Document Disclosure

From the Ohio Supreme Court:

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.”

The opinion is linked here. (Mike Frisch)

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