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 ...