In Columbus, Ohio, most autumns are filled with speculation about which BCS bowl game the Ohio State Buckeyes will be playing in and which players will be receiving Heisman consideration. This year, the BCS and Heisman talk have been sidelined in favor of wondering what punishment the football team will receive for NCAA violations committed by its players and former coach Jim Tressel.
In December, the NCAA suspended five Ohio State players for selling memorabilia and awards in exchange for improper benefits. Although all parties believed that the matter had been resolved with the players' suspensions, the scandal resurfaced a month later. In an unrelated investigation, Ohio State discovered that head coach Jim Tressel had known since the previous spring that quarterback Terrelle Pryor and at least one other player had sold memorabilia to a Columbus tattoo parlor, but had never told the university or the NCAA. The revelation eventually led to Tressel's resignation and an August hearing in front of the NCAA infraction committee. As Ohio State awaits its punishment from the NCAA, it is also waiting a decision from the Ohio Supreme Court. In July, ESPN filed a complaint in that court seeking a writ of mandamus that would require that the university be compelled to release internal correspondence related to the NCAA violations.
In April, ESPN made a written request under the Ohio Public Records Act for Ohio State to produce copies of internal correspondence between Tressel and other university personnel. ESPN's document request focused on e-mails concerning Tressel's conduct after he had been informed that his players had broken NCAA rules.
The Ohio Public Records Act (OPRA) allows individuals to request records maintained by any public office, including public universities. OPRA requires public offices to promptly produce any records requested under the regulation, unless doing so would require providing "records the release of which is prohibited by state or federal law." Citing this exception, Ohio State denied ESPN's document request, claiming that complying with it would have required the university to make disclosures that would have violated the Family Educational Rights and Privacy Act (FERPA).
FERPA is a federal regulation intended to protect the privacy of students who attend schools and universities that receive federal funding. The regulation does not allow an educational institution to receive federal funds if it has a "policy or practice of permitting the release of educational records" without written consent. As a university that receives federal research grants, Ohio State falls under the purview of FERPA.
In a letter to ESPN, Ohio State told ESPN that complying with the network's request would require the university to release personally identifiable information about certain student athletes in violation of FERPA. Ohio State also noted that it considered ESPN to be making a "targeted request," an information request that would have required the university to release information that could have been reasonably linked to specific students. FERPA prohibits schools from responding to targeted requests.
In its complaint, ESPN argued that the documents requested, e-mails between various university employees, could not be considered education records under FERPA, and that releasing them would therefore not violate the regulation. ESPN also claimed that the records requested did not contain the type of personally identifiable information that was protected by FERPA because the focus of the request was correspondence related to the conduct of a coach, not information about any students.
On August 2, Ohio State filed its answer to ESPN's complaint with the Ohio Supreme Court, reiterating its position that the documents requested could not be released due to FERPA. Although the court has not made a final decision, it did issue an alternative writ of mandamus in a September 21 court order, which compelled Ohio State to submit under seal unredacted copies of the documents requested by ESPN, so that it can determine whether they are protected from public disclosure by FERPA.
The September 21 court order also gave ESPN and Ohio State 20 days to submit evidence, with briefs due shortly thereafter. As both parties await the court's decision, it is safe to say that Ohio State fans hope their team starts making headlines on the field again instead of in the courtroom.