ESPN sues Ohio State over athletic records, challenges school's privacy claims

OHIO — Sports media giant ESPN on Monday sued Ohio State University, alleging violations of state public records law after the university denied its requests for records about an ongoing investigation of the school’s football program.

The university cited federal student privacy law in denying some of the requests, which ESPN is challenging in a lawsuit filed Monday with the Ohio Supreme Court.

The NCAA investigation led to the resignation of football coach Jim Tressel and the withdrawal of star quarterback Terrelle Pryor as allegations emerged that improper benefits were given to Ohio State football players.

In a March 8 press conference, Tressel revealed that he was notified by email in 2010 that some his players may have exchanged signed sports memorabilia for tattoos. The emails allegedly connect the players with the owner of a local tattoo parlor who was the subject of a federal investigation. Authorities raided the owner’s home and found $70,000 in cash and numerous pieces of Ohio State memorabilia, according to ESPN.

When Tressel was initially told about the players’ connections, he did not notify his superiors at the university. The only person he told was Ted Sarniak, a Pennsylvania businessman and known mentor to Pryor.

As allegations of NCAA violations surfaced, ESPN began filing public records requests with the university. In documents filed with the state high court, the network cites three separate denials by the university and claims each violated Ohio public records law.

On April 20 an ESPN producer requested internal and external documents between the NCAA, Ohio State and its representatives related to the NCAA’s investigation of Tressel and five student athletes.

The request also sought access to “all emails, letters and memos to and from Jim Tressel, Gordon Gee, Doug Archie and/or Gene Smith with key word Sarniak since March 15, 2007.”

Gee, Archie and Smith are all Ohio State officials.

The university responded to that request on May 27 and refused to release any of the emails about Sarniak saying the release was prohibited by the Federal Educational Rights and Privacy Act (FERPA).

FERPA is designed to protect the privacy students’ education records. Under the law, the Department of Education can yank federal funding from schools with a “policy or practice” of releasing confidential student records – though the department has never actually done so.

In a separate records request, filed by an ESPN correspondent April 15, the network asked for “all documents, emails, letters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since 1/1/2010 related to an investigation of Jim Tressel.”

The university responded that it would not release anything on the pending investigation.

Ohio law requires that a public office or records official, when denying a request, give an explanation for the denial. ESPN argues the university did not do that in its reply to the April 15 request and therefore has violated state law.

On May 11, another ESPN correspondent requested documents listing “people officially barred from student-athlete pass lists (game tickets) since January 1, 2007.” The request also sought documents sent by any Ohio State athletic department official relating to all NCAA violations committed since January 1, 2005.

The university again responded with a denial, this time saying the request was overly broad.

ESPN argues that the university violated public records law by not allowing the channel to revise its request and by failing to cite any legal authority in its denial.

Monday’s filing by ESPN attorney John Greiner asks the court for a writ of mandamus, which is an order that a government official or entity do its job as required by law. In Ohio, such a request can be filed directly with the state supreme court.

Frank LoMonte, executive director of the Student Press Law Center, said the high-profile nature of the case could have a big impact on the debate about student privacy law.

“This gives us a chance to put the abuse of FERPA on a larger national stage,” he said. “The whole country is following what’s going on at Ohio State and they understand very well that this is not about the confidentiality of student records – it’s about damage control and image control.”

In a brief supporting its request, ESPN argues that FERPA does not actually prohibit the release of records and only puts conditions on the receipt of federal funding – an argument accepted by a federal court in Illinois for the first time in March. That case is currently on appeal.

LoMonte said he agrees with that interpretation but thinks the Ohio court might not have to address it. It could simply find that the emails requested by ESPN are not private education records.

“The courts have been very clear that FERPA records are the kinds of records kept with a student’s permanent file,” he said. “Emails between coaches about a booster are not kept with a student’s permanent file.”

ESPN wants the court to order the release of all the documents from its three records requests. It also wants Ohio State to pay its attorneys and legal fees.

Greiner said ESPN does not comment on pending litigation.

A spokesman for Ohio State said the university believes it “has adhered to all applicable state and federal laws.”

The university has 28 days to file a response to ESPN’s complaint.

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