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

Judges take broad view of FERPA student privacy law

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

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

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

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

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

“The records here generally constitute ‘education records’ subject to FERPA because the plan language of the statute does not restrict the term ‘education records’ to ‘academic performance, financial aid, or scholastic performance,’” the court wrote. “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 decision effectively overturns a 1997 ruling by the state high court, which held that FERPA only protects records related to a student’s academic performance or financial aid. It tracks the reasoning of a 2002 ruling by the 6th U.S. Circuit Court of Appeals.

Frank LoMonte, executive director of the Student Press Law Center, said the decision puts Ohio out of step with the majority of other states’ interpretations of FERPA.

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

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

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

He said the ruling is also a setback for public accountability.

“Nobody thinks that records about world famous athletes involved in a scandal were meant to be confidential education records,” he said. “It’s putting a very literal-minded reading of the law ahead of common sense 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 of the federal student privacy laws.

“Our student athletes are treated the same way as all of our 64,000 students, and we take seriously the obligation to protect the confidentiality of all our students’ education records,” Lynch said in a prepared statement. “At the same time, the university also takes seriously its obligation to provide public information in accordance with Ohio law.”

The release, however, does not mention what the court found to be “per se violations” of the Ohio Public Records Act when the university failed to explain how ESPN should modify its requests for information. OSU, instead, rejected the request as “overbroad” and wrongfully stated the university 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.

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