ESPN sues Ohio State
Yep. You read that right. ESPN is suing Ohio State over an alleged Open Meetings Act/Public records-ish type violation:
The sports entertainment giant filed a lawsuit Monday with the Ohio Supreme Court claiming the university violated Ohio’s public records laws by failing to make available three different sets of public records sought by ESPN earlier this year. The lawsuit is essentially asking the state’s highest court to force OSU into releasing the records to ESPN.
One set of records involves e-mails, letters and memos from Tressel, OSU President Gordon Gee, OSU director of sports compliance officer Doug Archie and Athletics Director Gene Smith related to Pennsylvania businessman Ted Sarniak that ESPN requested on April 20.
http://www.cleveland.com/open/index.ssf/2011/07/espn_sues_ohio_state_in_public.html
Popcorn?
Note the following in the papers allegations served to OSU:
May 27, 2011, Ohio State responded to the records request by stating that it
From my experience as an attorney in Ohio, OSU looks to be in a bad position with this suit. I'm familiar with Ohio's public records laws and it seems to me that unless FERPA applies, they will have to release all the records requested in accordance with state law.
This could be the straw that breaks the camel's back. I've heard from multiple people i trust, that more than just Tressel knew about the violations before this all came down.
Popcorn.
What defense are the bucknuts claiming under FERPA, that students were involved so this is all confidential information?
Correct me if I'm wrong, but OSU's argument is that the contents of the e-mails are educational records for purposes of FERPA. But if so, they couldn't have shared the information in them with Ted Sarniak, because he is not an authorized party under FERPA.
So, if they shared it with Sarniak, either (a) it isn't "educational records," and is therefore not covered by FERPA, or (b) they violated FERPA by sending the e-mail to Sarniak.
Am I reading this right?
But by my understanding of FERPA, ESPN and Ted Sarniak have the same level of privilege to student records: none. So if they could legally send the information in those e-mails to Sarniak, they can legally send that exact same information to ESPN. And if they couldn't legally send the information to Sarniak, but they did ANYWAY, then they're up an entirely different creek.
I'd encourage you (or anyone) to read FERPA and tell me if my reading is reasonable: http://www.law.cornell.edu/uscode/20/1232g.html (starting at major subsection (b))
(P.S. How nerdy is it that during my break from bar studying I am analyzing statutes?)
I am no expert on FERPA, but I just scanned the statute and noticed that the statute uses the phrase "education records," but does not contain a definition for "education records." I therefore turned to the implementing regulation, which is at 34 CFR Part 99, and found definitions for various FERPA terms there (at 34 CFR 99.3).
If you read through the affidavit, ESPN's lawyer cites several cases where courts have held that emails on a server don't fit the criteria for "maintained education records" (among at least a dozen or two cases that they cite.) In fact, some of the cases involve the media trying to get ahold of emails sitting on a university server that deal with NCAA violations.
The thing to remember is that ESPN likely has top lawyers versed in this law saying that the suit has a >50% chance of winning. Who knows what the suit will net or what will be revealed if it's successful, but I'm sure ESPN is confident of victory on legal advice.
I was unaware that offseasons could be fun
Can anyone see how they get out of this particular allegation? IMHO there is no legal defense for stupidly breaking the law out of ignorence or laziness:
Well if they were only asking for the records given to the NCAA why is this really a big deal? Even if they are forced to release them, the NCAA already has these so will this really be the ground breaking piece that shows others were aware? I'm excited but skeptical
it would atleast show to the public what the NCAA knows. would hold the NCAA's feet to the fire a bit so they have to come down on OSU properly and not brush it aside.
Yes, also ESPN and others could use that information to to do independent investigations. They would probably uncover some info that the NCAA didn't.
What I am hoping for is a real conspiracy to sweep this under the rug. The NCAA only gets volunteered info. If FOIA gets dragged in I think there is a greater chance the real documents see the light of day. Either way Ohio loses because more people hear about how poorly they handle legal problems. Seriously, everyone knows that you have to give a reason to deny public records requests. They didn't even make an attempt in the above example.
Why wouldn't osu just omit any potentially damaging emails? Another poster said that the hard drive would still have it but if anyone other than osu had access to the hard drive we wouldn't need a FOIA request.
It reminds me of the media making a big deal about the thousands of Sarah Palin emails. It's very possible that there was nothing interesting in there as was reported but what would stop a state or in the case of osu a university from just "accidently" omitting some potentially damaging emails? Unless there was a whistleblower I don't see how anyone would ever know. If I'm missing something here please let me in.
I think federal prison is worse than looking for a new job/bowl game purgatory. Thats just my view but i would turn in to a whistleblower if things were this bad at Michigan. I hope they realize that integrity > wins.
At TSIO? Obviously not.
Integrity > Jail might win the day and provide a bit of clarity down there, however.
"Why wouldn't osu just omit any potentially damaging emails?"
Contempt is a hell of a motivator. No one at OSU is going to risk going to jail over this, especially the lower-level employees who would probably produce the stuff.
That's why I think it's possible that OSU withheld some of this stuff from the NCAA. The NCAA has no subpoena power, and has no contempt power. There's much less danger in omitting stuff sent to them. No one is gonna f*ck with the Ohio Supreme Court.
I asked before, but why wouldn't they have withheld the Cicero emails?
If you're going to withold stuff from the NCAA, wouldn't the emails that kicked off the whole fiasco be a good start?
And what's with people negging just to keep from having a conversation?
It was because the Cicero e-mails leaked from Cicero's end as a result of the federal investigation. Once people had a copy of the e-mails from the sender's end, it was impossible for Tressel to say, "what? He never sent me an e-mail." It would have looked ridiculous and disengenuous (because it would have been both).
As for the negging, there is an old saying about nature of haters and their propensity to act in conformity therewith.
The Cicero emails weren't discovered due to a Federal investigation. They were discovered "while looking into an unreleated matter" (or something like that... likely another FOIA request).
Also, OSU has released other Tressel to Sarniak emails. I think the issue here is how broad an FOIA request can be and how much feedback OSU is supposed to give a person when making an overly broad FOIA request.
From the Ohio public records act:
Moreover, R.C. §149.43(B)(2) requires that "[i]f a requester makes an ambiguous or
overly broad request or has difficulty in making a request for copies or inspection of publicrecords under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties."
If you look through most of the FOIA request, when they're denied, OSU gives feedback as to why. In the case of ESPN, this wasn't done (whether on error or a deliberate FU to ESPN).
Somebody can correct me if I am wrong, but essentially this was a situation in which OSU, Pryor and the other involved parties voluntarily provided information to, and otherwise cooperated with, the NCAA in an investigation of the existing NoA.
In doing so, they did not hide behind legalisms; the NCAA does not have subpoena power. The NCAA relies on the cooperation of member institutions and their staffs and student athletes.
It would make an awful lot of common sense to me, if the NCAA willingly conceded that materials disclosed under those conditions would be subject to FERPA, and that none of the privileges owed to a student-athlete under FERPA would be waived.
The NCAA cannot function without cooperation. They are not prosecutors, nor civil plaintiffs. They can't force depositions. They can't subpoena records. They can't compel production of documents or other things. All they can do is ask. And hope that the parties respond. (Granted, the imputation of a lack of cooperation would be bad for any responding party, but that's a separate matter.)
At the same time, the NCAA is not a state licensing bureau. It isn't the Judicial Tenure Commission, or the Board of Medicine. Its decisions are public, but they involve parties who are expected to cooperate if the system is to function effectively. But if the NCAA were the Jucidial Tenure Commission or the Board of Medicine, there would be many layers of privilege attaching to persons who appear for purposes of supplying documents or testimony. ESPN (or the New York Times or NPR) can't get those records. People would never cooperate in important civil investigations if they knew they'd be outed in public.
There are of course limits. Courtroom testimony is public; we all have an interest in the conduct of trials. Lots of other matters of official public interest are, too. That's why we have Public Meetings Acts.
Now I am not going to brief this issue for either side. And I'm not going to predict how it will be resolved. But on the basic philosophical issue, I find the OSU side to be the really compelling one.
And it is funny how ESPN would so jealously guard a confidential source of its own, in order to do an expose' of some claimed scandal. But the network apparently won't allow OSU or the NCAA to maintain even the kind of confidentiality that is specificially set forth under the United States Code.
This isn't about the NCAA investigation. This is about communications between tOSU and Pryor's "mentor," who is wholly unrelated to the school or the NCAA. The NCAA's investigations stuff will no doubt remain confidential, both for legal and prudential reasons.
As for whether there is a valid FERPA defense to the e-mails to Sarniak, I'd encourage you to read my posts above. Ohio State doesn't have a principled reason (or a legal one) to share information with one random private citizen and not with another random private entity.
They were very good; as they usually are.
I'm not going to fight this issue with you. I'm not in a good position to know it as well as I'd like to, since this is a peculiarly Ohio problem under their law, in the first instance, and a FERPA problem in the second instance.
I thought it was a very good explanation for the Board in the Comments above, as to why the Ohio Supreme Court would have original jurisdiction; I didn't see any mention of FERPA making it a federal question and the possibility of removal jurisdiction, but I suppose there is that too. News organizations usually attach a lot of urgency to these kinds of cases, and courts frequently honor those requests. I see this fight getting serious very quickly.
I think that this could be a wonderful case to learn from. I'm looking forward to others fighting this one out. Should be interesting.
I didn't see any mention of FERPA making it a federal question and the possibility of removal jurisdiction
The Well-Pleaded Complaint Rule (L&N Railroad v. Mottley): a federal defense is not sufficient to confer federal question jurisdiction. The federal issue must appear on the face of a well-pleaded complaint to allow removal. Bring on the bar.
As for why the Supreme Court would have original jurisdiction in a simple document request case... I have no flippin clue. It's Ohio.
Your query was answered above.
in many other states you can't bring a FOIA case directly to the state's Supreme Court. That's because usually the statute stipulates where the case must be brought (in a lower court), and the usual rule allowing you to bring a writ of mandamus to the highest court can be ignored.
This basically seems like a peculiarity of Ohio's Open Records Act.
Ok, how many of us are lawyers? Show of hands, here. My God...it's worse than I thought...
It would make an awful lot of common sense to me, if the NCAA willingly conceded that materials disclosed under those conditions would be subject to FERPA, and that none of the privileges owed to a student-athlete under FERPA would be waived.
I keep thinking this off-season can't get any better
how naive of me
jt
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<br>2 times tonight!
being in ohio and seeing all this come down on their heads, WOW.
the fan base is shrinking, buckeye gear is on sale and ppl aren't buying. It's down to 10% of the fans sporting gear.
i'm out of words.
that, despite OSU's attempts at secrecy, this particular legal battle will be fought in public.
but here it is anyway
And it will be used again. Im sure of it.
will vary depending on the state they are issued in. I'm only familiar with CA, where you have to go superior - appellate - then supreme, but OHIO is obviously different. Some interesting things:
1) In CA, if you can find a single document which wasn't produced per your request, you are eligible for attorney fees. That means big dollars if you go to the highest court.
2) Bodies subject to public records laws (such as Ohio), tend to restrict access instead of encourage disclosure. This is contrary to the entire premise behind Public Records laws, but you can only enforce it by going to court.
3) My personal bet, as a CA attorney, is they are fucked. ESPN will get the information they want with minimal retractions and Ohio will pay a settlement. They'll be all kinds of useless arguments about preemption and other stuff, but in the end the public right, especially when the student isn't being protected, outweighs the non-disclosure.
4) I'm kind of buzzed, sorry for any typos.
Go Blue!
What I would like to know is, if a new violation comes from these e-mails and phone records going public does that violate OSU's new self sanctioned probation?
I would think so. Unless it happens before OSU goes before the COI, and the NCAA pushes back the August 12th date. If it happens before, the NCAA could just send them a new updated notice of allegations and force them to responded to that new updated notice.
It'd be quite funny to see an ESPN report come out on August 13th claiming more wrongdoing at Ohio right after they were put on probation. That would pretty much screw them for the next 5-10 years, if not longer.
Could be a good thing if they win the lawsuit. It might force the NCAA compliance department to do its job.
This is why Mgoblog is so great! I was really interested in this story, and I didn't have to go anywhere else to get the ins and outs of the legality of such a law suit. Brilliant stuff, proud to br a part of this community.
I can't recall any better recent thread. There's easily 25 or 30 great posts in this thread. I think this thread could pass the essay portion of Bar Exam by itself. Props to the OP for stewarding the conversation, and the other lawyers (and the law students, and others!) for supplying the tutorials on civil procedure and conflicts of law. I haven't yet seen an article on the web about this topic that is pithier than this thread. A reporter who wanted to dig into this story would be smart to start with this thread to get started.
With each new Lie coming out of OSU and Gene Smth this long hot summer is flying by...THANKS O-LIE-O $tate...thank you
Now that's a new one...at least for me.