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ESPN’s lawsuit against Ohio State involving privacy laws got less private this week as both sides submitted evidence to the Supreme Court of Ohio.
The case involves both the redaction and withholding of several university records.
The files in question involve several aspects of the NCAA’s investigation of the university, which led to the forced-resignation of former head coach Jim Tressel.
In the suit, ESPN said OSU wrongfully cited the Family and Educational Rights and Privacy Act (FERPA) as a reason for withholding various documents.
On Aug. 24, attorney for OSU, Todd Marti, wrote a letter to John Greiner, attorney for ESPN, that said OSU will continue to stand by the FERPA defense, according to documents obtained Oct. 11.
“(You object) to redaction(s) of personally identifiable student information in certain documents, but these redactions are required by FERPA,” Marti wrote.
Greiner responded on Sept. 16.
“With respect to the FERPA defense, we simply disagree, and I believe we will need to have the Supreme Court sort this out,” Greiner wrote.
On Sept. 21, the court ordered both OSU and ESPN to file evidence by Oct. 11.
Both the university and the sports news network have filed the necessary evidence and ESPN now has eight days to file a brief. OSU then will have 20 days to respond with its own brief.
On Oct. 4, the Supreme Court of Ohio denied OSU’s motion to settle the lawsuit with ESPN out
In a letter dated Oct. 4, and signed by Chief Justice Maureen O’Connor, the Court said, “Upon consideration of respondent’s motion for referral to mediation and for stay of the scheduling entry, it is ordered by the Court that the motion is denied.”
ESPN stated in the lawsuit that producers at the sporting news network had made public records requests for all emails sent or received by president E. Gordon Gee, athletic director Gene Smith, compliance officer Doug Archie and 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.
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 its 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, Jim Lynch, spokesman for the university, 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.”
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,” Lynch said in the July email. “Working within the boundaries of the applicable laws.”
An attorney for ESPN has declined comment on several occasions saying “ESPN does not comment on pending litigation.”