More OSU dirt to come? The FOIA battle between the school and the media heats up

Submitted by BlueNote on May 28th, 2011 at 12:36 AM

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 ...

Comments

Tater

May 28th, 2011 at 12:54 AM ^

For years, and especially after Rosenpuke and Shyster's hatchet job, I have wished that somebody, anybody, would go after TSIO with such fervor.  Now that the Scarlet Wall of Silence has crumbled, news agencies are scrambling to get as many pieces of what is left as they can.  

Reading about all of this might be the second most fun one can have indoors.

SWFLWolverine

May 28th, 2011 at 2:21 PM ^

Someone certainly should criticize the use of that word, it is far too often that the MGoCommunity lets that word fly and there are only a very few who will take someone to task on it...criticize a group who can defend themselves though...and it is on. Is this hypocrisy? BTW, everyone on the face of this planet has selective sensitivity!

Edit: I am in no way suggesting that the use of other slurs is ok, just that some are more personal to individuals that others.

BlueAggie

May 28th, 2011 at 12:59 AM ^

If OSU is claiming that they can't release the emails due to the contents being protected, wouldn't Tressel have been legally barred from discussing such matters with Sarniak in the first place? 

I sort of doubt that Pryor formally designated Sarniak to act on his behalf.  Aren't universities increasingly sensitive about this stuff?  I was under the impression that most schools won't even discuss a student's record with the parents without prior permission. 

Would Pryor need to file a complaint against Tressel for someone to take action, or is there an independent body that monitors this sort of thing?  It just seems dubious to me that Tressel can discuss something with a third party, then OSU can claim that revealing the contents of the discussion would violate Pryor's privacy.

BluePants

May 28th, 2011 at 1:40 AM ^

The FERPA argument OSU is going to offer is generally weak because while FERPA does include both educational and behavioral records, it's not quite what is being investigated/sought after.

In the specific instance of the Tressel/Sarniak emails, the weakness is clear. First, on the issue of Sarniak & a potential FERPA violation with Tressel: Sarniak is simply an alumnus (that happens to be close to Pryor) that informed Tressel of imminent danger (the federal investigation). Certainly plenty of alumni communicate with their respective programs, and in that instance it's not OSU divulging disciplinary or educational records. More broadly, this hardly qualifies as any institutional record--though the exchange was between an alumnus & Vest on his OSU email, it was not (initially) part of TP's academic/disciplinary file. OSU will try to make the case that all of these e-mails are now indeed part of his record via their "investigation." This is a tough sell, at best. As stated above, their success with that claim will determine the FOIA requests' fate. Either way, you can guarantee the NCAA will demand everything on pain of severe penalty if they're being too publicly hoodwinked (I believe they have those handy FERPA waivers for these reasons?).

BluePants

May 28th, 2011 at 10:36 AM ^

Correction much appreciated-got a bit excited to do some lawyerin' and bungled the names.

Edit: more research on the issue of FERPA protections so I can be more precise. While most opinions do suggest any electronic file directly relatable to a student (ie name on an e-mail) held/maintained on an University computer are protected, there are exceptions. However, one opinion states that a student's educational file would be held in a single place (a file, either digital or physical), contradicting the university server umbrella. However, it is true that e-mails about a student from staff are mainly protected from release. Each side will enjoy exploring this murky territory in a litany of briefs (especially the directly relatable part if heavy redacting could possibly be done). If an FOIA could ask for messages that warned of an impending scandal(s) while redacting students' names entirely, it'll be a real tough slog for OSU to prove "the public" can put specific names in their proper places. Even a heavily redacted public
release would destroy Vest & OSU in the court of public opinion.

However, what's also important is the NCAA's FERPA waivers. While we may not be able to get the juicy stuff, they can and (hopefully) will. It will likely leak out & later trickle down in reports.

Max

May 28th, 2011 at 1:19 AM ^

Fantastic post. Informative.

I just wonder about documents that will remain under wraps simply because nobody has enough knowledge thereof to even request them in the first place.

How does one prove an entity to have been insufficiently forthcoming regarding a FOIA? [Edit] That is, if some particular documents weren't released, how can one prove them to exist?

BlueNote

May 28th, 2011 at 1:24 AM ^

Ultimately, you are asking how a reporter does his job.  He or she gets a lead, sometimes through dumb luck, and then chases it down.  A tenacious and talented reporter will know what to ask for, and will know when it's not there.

In some cases, a reporter will discover the existence of a document from an inside source, and then file a FOIA request targeted for that particular document.  In other cases, it's fishing expedition based on secondhand information or some other lead. 

If you recall how this all started, it was really dumb luck.  There was a federal investigation into the tattoo guy, and then it was off to the races for the news outlets.

To answer your question, there's really no way to know what you want if you have no clue.  But reporters pick up clues and chase them down.  That's just part of their job.

Max

May 28th, 2011 at 1:40 AM ^

While that is elucidating, I guess I'm more driving at the legal side of things.

Say the entity doesn't produce the document claiming that such a document doesn't exist.  Then what?  Convince a judge beyond the relevant standard of proof that the document does indeed exist?

BlueNote

May 28th, 2011 at 2:18 PM ^

As the media entity, you probably wouldn't throw money at the lawyers if you're not confident there's something interesting that actually exists.

If you're confident a document exists, and you're not getting it, there are many ways to go about getting it.  Ultimately, you would have to use the court process to show that the document (or class of documents) exists, and then use the pressure of the court to make OSU produce.  Once you get a court order for OSU to hand over the documents, you'll get them.

If you're not positive that something exists, you could try to get more information through written discovery (written questions and responses, other documents that support your point) or through depositions of OSU people.

turtleboy

May 28th, 2011 at 1:39 AM ^

as concerned about student privacy here as Tressel was about not interfering with a Federal inVESTigation ;) The AP will continue to dig as long as they think there's a juicy story waiting for them. 

Bobby Boucher

May 28th, 2011 at 10:22 AM ^

I think it's important for the media to win this. (I hate myself for saying that because Mama always said the media is the devil)  Anyways, I think it increases the chances of the NCAA actually doing their job if those records get published by some jerk-off willing to sell his soul for a story.

willow

May 28th, 2011 at 10:24 AM ^

http://www.cbssports.com/u/ce/multi/0,1329,2721316_56,00.html

This article was so interesting and thought-provoking that I remembered being in Milwaukee when the NCAA began investigating athletes at UDub receiving discounts and credit when purchasing athletic shoes at one store in 2000.  There was none of this caterwalling and ridiculous excuses we've been hearing from tOSU, instead everyone was waiting for the "other shoe to drop" on the entire athletic program over it.  The silence and palpable concern (both in the press and privately among friends) were almost eerie together.  There was a tremendous fear of what the NCAA might do.  In contrast to the seriousness of the allegations against the Newtons, USC and tOSU and the arrogance of the responses, it's almost laughable now.

BlueNote

May 28th, 2011 at 2:48 PM ^

A couple initial observations:

1.  I imagine that OSU will be able to brush off most of the FOIA requests from the smaller guys (Plain Dealer, Columbus Business First, etc...).  ESPN and the AP seem the most active and it seems like an attorney was involved in writing at least part of their requests.  They are the big dogs that OSU is probably most concerned about.

2. In March, OSU was attempting to tell the media that their requests were improper.  Probably because it was a silly argument they were making (that the requests were not specific enough), they eventually stopped making the same objection for later requests.  My guess is that the lawyers for the big media organizations got involved and nipped that argument in the bud. 

3. While there are a range of topics being pursued by the media (cars, ticket will call lists, booster lists, etc...), many of the FOIA requests focus on the role of the athletic department.  ESPN and the AP know that's where the big story is.  So far the administrators have managed to disassociate themselves from the Tressel morass, but that theme (bad coach, good department) will soon be tested. 

 

michelin

May 28th, 2011 at 11:12 AM ^

 

OSU refused to release the email records because it said doing so would mean giving up information without the student's consent.

This statement would imply that the student should be asked if he wishes to give out information.   Yet, in practice, OSU is taking active steps to prevent just that.  Active steps are taken to prevent team members from even communicating with the press.  In fact, the head PR person for the University—who had stellar credentials—was recently demoted after she allowed a student athlete to speak to the press.   Tressel broke his promise to her that she would have complete autonomy.  She was then replaced by a person of highly questionable repute (see link).

 

http://www.sportsbybrooks.com/tressel-breaks-promise-ousts-football-pr-person-29693

Maize and Blue…

May 28th, 2011 at 3:05 PM ^

Since OSU seems to be highly sensitive to FERPA when it suits them I wonder if they have a signed release from TP for Tressel's emails to Sarniak?  Without one  Tressel, a OSU employee, and the university would be in violation of FERPA.  Could the Pryors take action legally if they so desired?  Would the media be able to use this violation as precedence in the case to at least get redacted releases?

Zone Left

May 28th, 2011 at 4:23 PM ^

I think they probably could sue to prevent disclosure, but it would be a fight they would probably lose if Pryor signed a FERPA waiver of some sort--although OSU is probably making the argument that they'd be liable if they released the emails. 

Litigation is really, really hard and expensive. I don't know what the Pryor's means are, but OSU would crush them under a tide of paperwork and motions until they ran out of money.

Zone Left

May 28th, 2011 at 12:26 PM ^

First, great diary. It's always nice when people use their specific area of expertise to help the rest of us understand issues in college sports. Thank you.

I have a question about the NCAA as it relates to FOIA/FERPA/other relevant statutes. Do students waive their rights under these laws when they sign their yearly scholarship requests for purposes of a NCAA investigation?

I know they generally waive the right to profit from their images on TV and probably absolve the university of a lot of liability for what happens on the field, but what else do they waive? 

The reason I ask is that the NCAA only does the back half of what you might think of as a typical legal system's  job. Think about a Law and Order episode. They don't drive around in a cop car looking for boosters handing money to students. They get a report from a tipster or from a newspaper article and then do the equivalent of Jack McCoy style lawyerin'. If students waive their FERPA/FOIA/whatever rights, then it would be pretty easy for the NCAA to follow the trail the papers have led it to. If not, then we're relying on the media to figure everything out for the NCAA and the NCAA will just act as judge and jury.

BlueNote

May 28th, 2011 at 2:24 PM ^

BluePants seems to say that there are special NCAA waivers that relinquish students' rights to privacy for the purposes of NCAA investigations.  My guess is that it allows the NCAA to view student athletes' private information but not the general public.  I don't have much knowledge about this in practice though.

BluePants

May 29th, 2011 at 1:18 AM ^

Yep. NCAA athletes sign FERPA releases-makes the NCAA an authorized 3rd party. Think about it: they need to have all sorts of info on students that would be considered confidential under FERPA (grades, disciplinary reports, e-mails from boosters warning of an impending federal investigation, records relating to financial aid, car records).

They don't waive FERPA protection from the media. The only real basis the media can present for the public release of the documents is the Tressel issue. They wouldn't get near those emails if they said "we're trying to go after the students." OSU will argue that, as a result of the publicity & suspensions, the public will be able to determine who's being referenced, regardless of any redactions.

03 Blue 07

May 28th, 2011 at 4:07 PM ^

All I can say is, having done FOIA's about five times (so take with grain of salt) on behalf of requesting party, they are ALWAYS a fight, and it takes months to really get what you want. But you can get the info you need. OSU's position is legal maneuvering and can likely be defeated. But it may take some time. Like 6 months. Unless...a remedy in equity. That might be best way to go (declaratory or injuctive relief). Probably 2 months that way, but may not succeed, really, because what is the imminent harm to the requesting parties? Being "scooped"? Hmm. Seems dubious.

03 Blue 07

May 29th, 2011 at 1:35 PM ^

Yes, I've only seen it done when there's something far more imminent and drastic pending, such as something about to be demolished (like a building) or something like that that once done can't be undone.

03 Blue 07

May 28th, 2011 at 4:13 PM ^

Imminent harm is important because that has to be the justification for why youre seeking drastic and immediate relief from the court and not using normal channels, which would take a little more time.