I didn't see it coming, but the U.S. Department of Justice (DOJ) just joined the ESPN v. OSU case a couple days ago.
For those unfamiliar with the case, ESPN is trying to use a FOIA-type law to get potentially juicy emails from OSU. ESPN thinks those emails will contain information about NCAA violations. The two are duking it out in the Ohio Supreme Court.
Welcome the feds to the fight. See the documents announcing the DOJ's entrance here. My first reaction was shock. Now, however, I have a clue about what's going on.
OSU has been arguing that FERPA, a federal student privacy law, means that it can't share the emails with ESPN. ESPN says that FERPA doesn't cover these emails, and even if it did, OSU is not required to follow it because following FERPA is optional for state schools (all the statute does is condition federal aid on your school's compliance with the law).
Here's my guess at what happened next: OSU calls the federal agency responsible for enforcing the laws and says "hey DOJ, ESPN is saying your statute isn't worth wiping oneself with." The DOJ then comes out swinging, ready to defend the federal law.
While the DOJ will presumably be filing a "friend of the court" brief that he judges don't have to factor into their decision, I guarantee they will read it closely. Another bad thing: the DOJ's got a ringer. She clerked on the Supreme Court, she's ultra-smart, and basically she does this for a living. She regularly defends federal laws from these types of challenges:
This is really starting to get interesting now.
As many of you know, ESPN is suing OSU in the Ohio Supreme Court. ESPN claims that OSU rejected perfectly fine FOIA requests from ESPN asking for emails and other stuff related to some of the recent scandals. The media company survived the first couple legal obstacles erected by OSU and now they are starting to get into the substance of the case.
Today Ohio State filed several documents with the Ohio Supreme Court that anyone can view online. The first portion can be found here:
This first portion consists of affidavits from OSU staff, some letters, and other random stuff. One interesting tidbit came in an October 4 letter to ESPN’s lawyers:
“In particular, is ESPN seeking records regarding the specific NCAA investigation that led to Coach Tressel leaving the University? Or is ESPN seeking records related to any NCAA investigation involving Jim Tressel since January 1, 2010 (i.e. investigations of all matters, which involved the NCAA and, for which Jim Tressel had some involvement)? That distinction is important because the January 1, 2010, date significantly precedes the investigation that has been ESPN's primary focus. Further, as you can see from the records produced in response to ESPN's past violations request, several investigations since then did examine Coach Tressel's actions in the course of investigating matters completely unrelated to the investigation leading to Tressel's separation from OSU.”
Another interesting revelation came in Exhibit A to Sandra Anderson’s affidavit (about 3/4 of the way through the document). The exhibit shows that OSU has held back 51 documents containing the word, “Sarniak.” Considering that many of those are probably different emails within the same email thread, my guess is that this amounts to approximately 10 or 15 email threads. That’s a complete shot in the dark based simply on being involved in various court cases involving emails.
Finally, it appears from the affidavits in this first portion that OSU is putting all of its eggs in the FERPA (federal student privacy law) basket. OSU thinks it will be allowed to ignore these FOIA requests from ESPN based on the federal student privacy law. That battle will be played out over the coming weeks before the court.
The second portion of documents submitted by OSU are comprised of all the emails and attachments they have already produced to ESPN. There are lots of pages – I’m guessing hundreds. I couldn’t read through it all but if you are suddenly fueled by an urge to read volumes of emails that ESPN found uninteresting, then go for it:
Within the next 24 hours, we might also see some documents from ESPN.
What happens then?
Oct 21: ESPN files a brief with its legal arguments.
Nov. 10: OSU files a brief trying to debunk ESPN’s legal arguments.
Nov. 17: ESPN files a smaller brief trying to debunk the debunking of its arguments.
Somewhere in the distant future: the Ohio Supreme Court makes a decision.
Last week the Ohio Supreme Court issued a scheduling order in ESPN's case against Ohio State for not turning over documents. ESPN claims that a number of public records request have not been honored by OSU. Among the missing records are emails involving Sarniak, records regarding NCAA violations, and others.
The scheduling order sets a timetable for the case to be decided over the next few months. Because a many-months crawl to justice would be too quick for OSU, the university recently tried to slow things down.
Yesterday, OSU asked the Ohio Supreme Court to refer the case to mediation. If the court agreed, then the scandal-hungry media company and the scandal-plagued university would try to resolve things amicably with a powerless neutral person to help facilitate the dialogue. As you could imagine, mediation has a wonderful chance of making both sides extremely happy. /s
ESPN must respond to OSU's recent request on Monday. Presumably, ESPN will oppose mediation, mainly because there remain fundamental differences between both sides over the scope and effect of FERPA (the federal student privacy law). ESPN thinks it doesn't apply to emails about NCAA violations, and OSU disagrees. Based on the letters from both sides that appeared in yesterday's filing, the two sides have no chance of meeting in the middle. ESPN would undoubtedly leave mediation without the smoking guns it so desperately seeks.
I view Ohio State's request for mediation as having two main objectives: (1) to take this fight out of the public eye; and (2) to prolong the process. Dragging things out is in OSU's interest because it increases ESPN's costs and it also promises that any revelations from the mysterious documents (if they ever see the light of day) will be old news once they emerge.
This would be a wonderful opportunity for the Ohio Supreme Court to punt, so to speak. While I don't think there's much merit to the mediation request due to the intractable FERPA issue, I would never underestimate an elected official's aversion to making a controversial decision.
Yes, these judges are elected. Long live democracy.
[edit: as always, the court documents can be found at this link]
The most recent tidbit from the Associated Press indicates that the battle over public records is just beginning to heat up. The AP noted that it received some public records in response to its requests, and as you could imagine they are fairly boring documents (performance reviews of Doug Archie, etc.). OSU also refused to turn over many other records and expressed its concern for student privacy. I have little doubt that the most problematic emails were not handed over to the AP.
The AP is one of many news organizations seeking public documents from the university. I’ve counted no less than five FOIA requests for Tressel and OSU Athletic Department emails (I say “FOIA” for simplicity’s sake, because in Ohio it’s the Open Records Act that applies to state bodies). Here’s the breakdown of the media organizations and the scope of their known FOIA requests:
- Yahoo Sports: phone and email records of Tressel and other OSU Athletic Department administrators
- Columbus Dispatch: emails between Tressel and Sarniak
- ESPN: according to Sportsbybrooks.com, these include Tressel emails
- Sports Illustrated: according to Sportsbybrooks.com, these include Tressel emails
And now we can add the Associated Press to the mix. As of now, it appears the AP is the first of these to receive any documents in response (although the rumors circulating about an impending story from Sports Illustrated might suggest that SI also received some responses to FOIA requests recently).
OSU's recent document production to the AP, although seemingly sparse, provides some insight into the battle over public documents that has quietly been brewing for months.
Takeaway #1: OSU has started producing documents
With the sort of comprehensive FOIA requests received by OSU months ago, a school does not respond immediately like it might for a simple request for a single document. Instead, it can take weeks or months for OSU to have IT personnel retrieve emails, and then have attorneys and administrators review them to see (1) if they are responsive to the request, (2) whether OSU is legally required to produce, and (3) what needs to be redacted.
What usually happens in highly charged situations like this is that the least interesting documents come out first. Then both sides (the school and the media) exchange nasty, threatening letters. If OSU doesn’t blink, then the media organization can file a lawsuit in Ohio state court if it believes it was improperly denied documents.
In the near term, I would expect more of these half-hearted document productions by the university. I would also expect more bland stories, based on documents produced by OSU, which are ultimately tangential to the heart of the unfolding controversy.
In the long term, well ... that depends on who wins the legal battle.
Takeaway #2: The battle is over student privacy
The Associated Press sought through a public records request any emails, notes or other information about the relationship between Jeannette, Pa., businessman Ted Sarniak and Pryor, who has been suspended for the first five games this fall for taking improper benefits from a Columbus tattoo-parlor owner.
In an email on Friday, Ohio State's Office of Legal Affairs declined to release the records because it said doing so would mean giving up information without the student's consent.
Over the last couple years, we’ve had discussions on this blog about how FOIA requests are affected by student privacy. The main law in question is the Family Educational Rights and Privacy Act (FERPA), a federal statute that prevents schools, including universities, from revealing student information without the student’s consent. Like any statute, it contains exceptions and can be complex to apply to a given situation like the one at hand.
Ohio’s Open Records Act, like Michigan’s FOIA, states that you may not seek public records that are protected under FERPA, i.e. records that reveal personal information about an identifiable student (such as Terrelle Pryor). If you are able to redact the student’s name and release the document, and if the student is not identifiable through the context of the document, then you still must produce the document (assuming no other FOIA exception applies).
I wasn’t planning on doing an in-depth analysis of FERPA in this post, but suffice to say that one of the media’s biggest problems right now is that too much of the Tresselgate situation is already public. In many cases, an informed person would be able to determine, by looking at the context of a particular email, which student is involved.
As explained above, however, the answer on FERPA is by no means clear. The analysis would differ for each email. And after some searching, there are few, if any court opinions in Ohio to provide guidance on how the Open Records Act interacts with FERPA in the context of situations like this.
Takeaway #3: OSU is playing hardball
The general crappiness and irrelevance of the documents retrieved by the AP signals to me that OSU is handing over very little. The school is challenging the AP to keep fighting.
Takeaway #4: The fight will continue
The fact that the AP actually published a story about Doug Archie’s 2009 performance evaluation means that this topic is gold to the media. If this non-story gets major national press, imagine what the AP could expect from a story about Sarniak emails?
What to Expect from the Legal Battle
The major news organizations keep good counsel. They are national media who are not afraid to spend thousands of dollars on attorneys’ fees while chasing a front-page story. They will argue the ins and outs of FERPA and any other exceptions to which OSU is no doubt clinging for dear life.
There are a handful of attorneys (probably less than that) who work for big law firms, charge high fees, and specialize in getting public records from Ohio government bodies. They are very talented at their craft. They know the usual tricks, and they will employ all appropriate countermeasures if they have financial backing. I trust ESPN has enough $$$ to cover a retainer.
If it wanted to, Ohio State could probably string this FOIA deal along for several more months. If that happens, a court case will ensue, brought perhaps by a collection of media (to share the cost of legal fees), or possibly by the one or two most inclined to fight. A judge will probably view the records in his or her chambers to see if the exceptions apply. And then the court will make its ruling. Since this will most likely happen in state court in Columbus, one may wonder whether the elected judge will dare rule against OSU. But any ruling could be appealed to an higher court still within Ohio but with less localized sensitivities. Once again, more months of waiting.
In addition to the easily predictable media fallout from shady emails, here’s where it could get hairy for OSU. According to Gene Smith’s press conference when this news first broke, the university worked with the NCAA to conduct an expeditious one-month investigation into the Cicero emails. Naturally, it behooves OSU for the investigation to be quick, since it leaves more stones unturned. If OSU ever attempted to game the system, the game was to feign cooperation with the investigation but, in reality, drag its heels for one month and drain the clock.
What happens if OSU is forced to produce emails in response to the FOIA requests that its one-month investigation with the NCAA failed to discover? If you were the NCAA investigator on campus in February 2011, and you never ran across the “Sarniak forward,” wouldn’t you have been peeved when it splashed across the headlines? Wouldn’t you question whether Ohio State had really been forthcoming in its ostensibly cooperative investigation? And wouldn’t you then commence to drop the hammer?
Armageddon slowly but deliberately approaches the outskirts of Columbus. The truly juicy documents are still sitting on Gene Smith’s desk, and they may someday see the light of day. And guess what: in the wake of the auto dealership revelations, the Ray Small comments, and other details that have steadily trickled out, I have no doubt OSU’s stack of FOIA requests is growing by the week.
Edit: Follow-Up on Impending SI Article
Word on the street is that a game-changing Sports Illustrated article is coming out this Tuesday. My guess is that it doesn't include any public documents that are clear and standalone bombshells (like an email from Tressel to Gene Smith saying "Hey these kids are violating NCAA rules, but let's just cover it up"). I don't think OSU, even if it were to release such a document, would release it this soon.
My GUESS is that the article will be a mixture of traditional investigative journalism coupled with focused FOIA requests. These would have to be the type of requests that don't seem important to OSU (thus meaning that OSU had no problem turning them over), but combined with a comprehensive media investigation those documents provided important corroborating evidence and form part of a bigger mosaic.
Or maybe OSU was careless enough to turn over the bombshell email. Who knows? I'm excited though ...