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Court denies ESPN access to NCAA investigation records under FERPA

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  1. Freedom of Information
The Ohio Supreme Court denied ESPN, Inc. access to certain records relating to the NCAA's investigation of Ohio State University…

The Ohio Supreme Court denied ESPN, Inc. access to certain records relating to the NCAA's investigation of Ohio State University football players who allegedly traded sports memorabilia for tattoos. The court's ruling, released today, cited a federal act that withholds funds to public schools that release educational records in denying ESPN's request.

The court did, however, grant the sports news organization access to limited records that the court considered public following the redaction of students' personally identifying information.

Ohio State withheld the records based on the Federal Educational Rights and Privacy Act (FERPA), which prevents an educational agency or institution from receiving federal funds if it "has a policy or practice of permitting the release of education records" of students without parents’ written consent.

“With the personally identifiable information concerning the names of the student-athlete, parents, parents’ addresses, and the other person involved redacted, FERPA would not protect the remainder of these records,” according to the opinion.

ESPN filed a series of public records requests after then-Ohio State football coach Jim Tressel said in a March 2011 press conference that he received e-mail messages alerting him that players exchanged Ohio State memorabilia for tattoos, but did not forward them to university officials. Tressel did forward the e-mail messages to an Ohio State football player's mentor.

The university rejected ESPN's records request and claimed that materials that are covered by FERPA are exempt from the state open records law.

ESPN filed a lawsuit, asserting that FERPA does not prohibit Ohio State from disclosing the requested records, but merely penalizes the institution and others like it by withholding federal funds for permitting the release of those records without parental consent.

The court disagreed with ESPN's assertion and likened the institution’s accepting federal funds to entering a contract.

“Ohio State, having agreed to the conditions and accepted the federal funds, was prohibited by FERPA from systematically releasing educational records without parental consent," according to the opinion.

The court also pointed out that under state law, records prohibited from being released by state or federal law are exempt from the definition of a public record.

Once personally identifying information was redacted, a chain of e-mail messages between Tressel, attorneys and university officials qualified as public record, according to the court.

The institution also claimed it could not release documents related to the NCAA investigation because it would “not release anything on the pending investigation” and it deemed ESPN’s requests to be “overly broad."

The court found that the institution violated the state’s record laws by failing to provide ESPN with “an opportunity to revise the request" or to properly citing an exemption under the law.

While the court recognized the university violated the law, the court held that ESPN should have asked the court to force the university to provide it with guidelines to revise its request or to provide a legal basis for withholding the records, but instead, only asked that the court mandate the records be released.

The court also ruled that records documenting Ohio officials seeking advice from counsel are exempt from disclosure under attorney-client privilege.

Related Reporters Committee resources:

· FERPA, HIPAA and DPPA