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At least one person outside of Ohio State will soon see documents that the university has insisted are protected by privacy law.
On Wednesday, the Supreme Court of Ohio ordered the university to submit unredacted documents that are the subject of a lawsuit ESPN Inc., filed against OSU on July 11. ESPN sued OSU for withholding records that the sports network viewed as public documents.
In the suit, ESPN said OSU wrongfully cited the Family and Educational Rights and Privacy Act (FERPA) as a reason for withholding various documents.
Timothy Smith, a coordinator for the Ohio Center for Privacy and The First Amendment and a professor at Kent State University, said it is normal for the Supreme Court to require the university to provide unredacted documents.
“The Supreme Court wants to see what the files are and what the university wants to cut out, so they can make a determination as to whether or not this information truly does sit under FERPA,” Smith said.
Smith said that misuse of FERPA is common among universities.
“The university is doing what universities routinely do, which is to try and take (FERPA) and stretch it as far as they can to cover as much information as they think they can squeeze under that particular title,” Smith said.
OSU spokesman Jim Lynch, who is mentioned repeatedly in the lawsuit, did not provide comment to The Lantern on Wednesday, as he said was out of town. ESPN’s lawyer, John Greiner also did not immediately respond to a request for comment.
The court on Wednesday ordered both OSU and ESPN to file evidence by Oct. 11, in a document signed by chief justice Maureen O’Connor. ESPN must then file a brief within 10 days after filing evidence. OSU then will have 20 days to respond with its own brief.
ESPN stated in the lawsuit that producers at the sporting news network had made several public records requests for all emails sent or received by President E. Gordon Gee, athletic director Gene Smith, compliance officer Doug Archie and former head coach Jim Tressel, that included the keyword “Sarniak.”
Ted Sarniak is a businessman in Jeanette, Pa., closely associated with former OSU quarterback Terrelle Pryor.
It was widely noted that Sarniak was a mentor to Pryor during both his time at OSU and in his recruitment process.
In an email to the Columbus Dispatch, Archie described Pryor and Sarniak’s relationship.
“Mr. Sarniak is someone who Terrelle has reached out to for advice and guidance throughout his high-school and collegiate career,” Archie said in an email.
Timothy Smith said that FERPA is a “limited utility.”
“(FERPA does not cover) relationships with third parties or people of campus, or people not related to their education. And clearly all this stuff falls outside,” Smith said.
OSU’s media relations department cited FERPA as the reason for not initially supplying the records to ESPN.
On Aug. 12, a month after the lawsuit was filed, OSU supplied a heavily-redacted file of emails and compliance forms to ESPN and other members of the media. Also included in the university’s response to ESPN was a letter containing an explanation of the release of the records, and the university’s interpretation of the misunderstanding.
“Consistent with our long working relationship and many telephone conversations, we viewed the process of responding to several of those requests as ongoing,” the letter stated. “The university was unaware that ESPN thought otherwise.”
The university said through their letter that the withholding of records was not a malicious effort to block the records from ESPN, but a miscommunication of the clarity of the public record requests.
In July, Lynch told The Lantern that normally they do not comment on pending litigation, but due to the circumstances they released a statement.
“The university believes that it has adhered to all applicable state and federal laws,” Lynch said in the email. “The university has been inundated with public records requests stemming from its ongoing NCAA investigation and the university. These include voluminous requests from ESPN, which in turn has received a voluminous amount of information.”
After release of the letter in August, Lynch said there would be no further comment on the matter.
In addition to documents containing the word “Sarniak,” ESPN also requested several documents without success. ESPN said some of their requests were wrongfully denied for being overly broad.
According to the Ohio Revised Code, all denied public records requests citing that the request is too broad have to have legal reasons for the denial and be accompanied with a suggestion to make the appropriate request.
In an email to The Lantern in July, Lynch said the department actively works with media organizations to help fulfill requests.
“While the university often receives media requests that are overly broad, given Ohio’s public record laws, we generally try to work with reporters to help them find the information they are seeking, working within the boundaries of the applicable laws,” Lynch said in the July email.
Timothy Smith said the way the law is written, FERPA should not protect these files that OSU has redacted, but offered a warning about the tendencies of the Supreme Court.
“The Supreme Court has essentially demonstrated over the last decade or so continued and sustained hostility toward open records. The Supreme Court simply does not like to provide access to public records,” Smith said.
Lynn LoPucki. a professor of law at UCLA, said that rulings on privacy are ultimately up to the presiding judge.
“A judge can say whatever a judge chooses to say about (privacy),” LoPucki said Wednesday.
In both July and August, a lawyer from ESPN denied to comment on the litigation, and was not immediately available on Wednesday for comment.
Representatives from the Supreme Court of Ohio said in August that they do not comment on pending litigation.
Brittany Schock contributed to this story.