State Ex Rel. ESPN, Inc. v. Ohio State University
132 Ohio St. 3d 212
| Ohio | 2012Background
- ESPN seeks public records from Ohio State University related to NCAA investigations and a Sarniak-related email chain.
- March 8, 2011 Tressel press conference disclosed 2010 emails about players trading memorabilia for tattoos and a federal investigation of Eddie Rife.
- Tressel forwarded emails to Terrelle Pryor’s mentor Sarniak; Sarniak is not an OSU employee or law-enforcement officer.
- OSU received numerous public-records requests post-press conference; responded with extensive production, website postings, and large volumes of records provided as a courtesy to others.
- ESPN sought nine categories of records in April 2011 and later seven categories in May 2011; OSU denied some as overly broad and some due to ongoing NCAA investigation.
- ESPN filed mandamus in July 2011 to compel access; proceeding included evidence and briefing on exemptions and privileges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSU violated R.C. 149.43(B)(2)/(3) in initial responses | ESPN argues OSU committed per se violations by denying as overbroad and by withholding records on a pending investigation. | OSU contends de facto compliance with some process, and that not all failures merit mandamus relief. | OSU violated B(2)/(3); relief limited to that finding; not entitled to broad remedy. |
| Whether FERPA prohibits disclosure of the requested records | ESPN argues FERPA does not prohibit release of records not education records or not directly involving students. | OSU contends FERPA prohibition applies where funds are received and records concern students; release would breach FERPA. | FERPA prohibits disclosure to the extent records contain education records; governs disclosure. |
| Whether the requested records are 'education records' under FERPA | ESPN asserts records about Sarniak and NCAA compliance are not education records. | OSU maintains records are education records because they contain information directly related to students and are maintained by the institution. | Records generally constitute education records; redaction of personally identifiable information permitted. |
| Whether the records withheld on attorney-client/work-product grounds were properly exempt | ESPN challenges reliance on attorney-client/work-product privilege to shield records. | OSU properly withheld records under attorney-client and work-product privileges. | Records properly withheld under attorney-client privilege; work product privilege addressed but not separately required. |
| Whether ESPN is entitled to attorney fees | ESPN seeks attorney fees under R.C. 149.43(C)(1). | OSU notes most claims lacked merit and fees should be denied given overall compliance. | ESPN denied request for attorney fees. |
Key Cases Cited
- State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor, 89 Ohio St.3d 440 (2000) (no ongoing 'ongoing investigation' exemption in PUBLIC RECORDS Act)
- Miami Univ. v. Falvo, 534 U.S. 426 (2002) (FERPA conditions; education records; parental consent considerations)
- Owasso Ind. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002) (FERPA framework; confidential information protections)
- United States v. Miami Univ., 294 F.3d 797 (6th Cir. 2002) (FERPA-related disclosure considerations; education records scope)
- Miami Univ., 79 Ohio St.3d 168 (1997) (Miami Student decision onFERPA education records scope and redactions)
- State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535 (2000) (attorney-client privilege in public-records context)
- Osborn v. Bd. of Regents of Univ. of Wis. Sys., 647 N.W.2d 158 (Wis. 2002) (FERPA education records scope)
- Unincorporated Operating Div. of Indiana Newspapers, Inc. v. Trustees of Indiana Univ., 787 N.E.2d 893 (Ind. App. 2003) (FERPA and public records considerations)