Sometimes people can apply laws in a manner that is inconsistent with the spirit in which the law was first enacted by the legislators. In the case of Ohio’s Open Records laws, the public’s right to know stems from a general mistrust of the English Monarchy.
In England the fountainhead of justice is the king. . . . The courts are his courts, and the government is his government. Whatever power the people have he has granted to them; and if no grant has been made to them to examine the public records, it may well have been in England that they have no such power.
But in this country . . . the people are the fountainhead of justice. The courts are their courts, and the government is their government. Whatever power they have not granted to their officials remains with them. . . .
As public records are but the people’s records, it would seem necessarily to follow that unless forbidden by a constitution or statute, the right of the people to examine their own records must remain.
It is in this spirit that Ohio’s General Assembly enacted the public records statute in the state. Because The Ohio State University is an entity formed by the government and carries out a public function and receives public funds, they are required by this law to not only keep and maintain all public records (including correspondences such as email and phone records), but also to turn these records over to anyone who would like to see them.
This is obviously a fundamental aspect of what democracy in America is all about. It allows the public to always have access to information and to make sure that it truly is the people who have the power in this nation. This freedom is meant as a defense against corruption and tyranny.
However, this law also means that anyone, including news agencies such as ESPN, can ask to read the emails of a football coach who is employed by the University. Now, I’m not so sure that this law is in place so we can know what is going on with the football coach at the school. That seems a tad silly, but the law is the law.
And so it is that ESPN has sued The Ohio State University in an attempt to force the University to turn over records that the University has deemed exempt from this open records law. I am by no means a lawyer, so I can’t even begin to opine on what falls under the exceptions listed under the state code, so for that aspect of this, we’ll simply let the courts decide.
However, what we can do is consider the meaning of all this. Why is ESPN still asking for these records and why is Ohio State not turning them over?
To figure out what it is that ESPN is digging for, a good place to start is by looking at the initial request. The case can be viewed on the Ohio Supreme Court’s website, and among the documents is an affidavit from ESPN reporter Tom Farrey. Exhibit A in said affidavit is a copy of the email Farrey sent to Ohio State on April 15, 2011 in which he made the initial request for documents. Exhibit C is a 2nd request for information sent on May 11, 2011.
The point of contention here is the information Ohio State has withheld. Exhibits B and D document Ohio State’s response, and they include a line item inventory of which records have already been turned over, which documents were still in the process of being collected, and which records Ohio State refused to turn over.
If we look at the email response OSU sent to ESPN on June 21, 2011, we can see which specific requests OSU denied to ESPN. Here are the items ESPN asked for, and OSU’s reason for denying them per Exhibit D in the affidavit:
ESPN: “All documents and emails, letters and memos related to NCAA investigations prepared for and/or forwarded to the NCAA since 1/1/2010 related to an investigation of Jim Tressel.”
OSU: “We will not release anything on the pending investigation.”
ESPN: “Any and all emails or documents listing people officially barred from student-athlete pass lists (game tickets) since January 1, 2007.”
OSU: “We would deem this to be overly broad per Ohio’s public record laws.”
ESPN: “Any report, email or other correspondence between the NCAA and Doug Archie or any other Ohio State athletic department official related to any violation (including secondary violations) of NCAA rules involving the football program, since January 1, 2005.”
OSU: “We would deem this to be overly broad per Ohio’s public record laws.”
ESPN: “Any handbook or similar document describing the investigative or other procedures of the Ohio State athletic compliance department.”
OSU: “Looking into this.”
ESPN: “Any reports, emails or other notes sent from or to any athletic department staffer, including but not limited to athletic compliance representatives, regarding Dennis Talbott. Please note that Talbott sometimes uses other forms of his name to identify himself, including ‘DJY Talbott’ and ‘D. Jay Talbott.’”
OSU: “I do not believe this is a proper records request as you are seeking information rather than a specific record, but I will provide you with information soon about Doug Talbott.”
Everything else that Farrey asked for Ohio State either had already provided or were still in the process of pulling those records.
Furthermore, the documents also include an affidavit from an ESPN producer named Justine Gubar who asked for all emails that pertained to Jim Tressel, Terrelle Pryor, Devier Posey, Daniel Herron, Mike Adams, Solomon Thomas, Ed Rife, Ted Sarniak, Chris Cicero, Gene Smith, Gordon Gee, and Doug Archie. Ohio State denied this request by citing FERPA, which protects the privacy of student records at public universities.
Again, I won’t comment on the legality of applying FERPA to this request. However, the fact that ESPN is still trying to get these records, specifically the emails pertaining to Jim Tressel, tells me that ESPN believes that Jim Tressel did indeed forward this information to Gene Smith and that, contrary to OSU’s assertion, this was not an oversight by one rogue operative.
It would be dangerous to start making assumptions either way, but there are some variables to consider here.
First and foremost, the very fact that Ohio State self reported the initial Tressel emails makes me skeptical that there’s some grand cover up here. If Gene Smith knew what had happened and knew what Tressel had done, it would seem to be a bizarre move to initiate a self report which would open Ohio State to this kind of scrutiny.
Second, it’s hard to fathom just how large this cover up would presumably have to be. If Tressel really did forward the emails from Cicero, the cover up wouldn’t end with Gene Smith, it would have to include Doug Archie, lower members of compliance, the legal office, and maybe even other assistant coaches, perhaps even Luke Fickell. Would Ohio State really undertake such a massive cover up effort, only to self report the violation several months later? It’s possible, but doesn’t seem especially likely.
Finally, I have to question whether Jim Tressel would allow his reputation, his legacy, and his livelihood all to get unceremoniously tossed aside just in the name of not implicating the higher ups at Ohio State. As I have stated before, NCAA compliance is the duty of the compliance officers. If Tressel really did forward the email, he surely would have sent it to at least the compliance office and to Gene Smith, thus the point of emphasis on any cover up with lie with them more so than even Tressel.
And therein lies the crux of this issue. ESPN is looking for a lack of institutional control. The same LOIC that the NCAA has not found at Ohio State. OSU may not have turned over the pertinent emails to ESPN, but that doesn’t mean that the NCAA hasn’t seen them. I would be remiss to sit here and tell you that there’s no way there’s a larger cover up at play here. There very well could be, and if there is, the results would be absolutely disastrous. So make no mistake, this is pretty serious. ESPN is looking for proof to essentially kill the Ohio State football program.
But they can’t find what doesn’t exist. So why would Ohio State deny their request if they have nothing to hide? I remember some people saying the same kind of thing when the Patriot Act was first enacted. “If you don’t have anything to hide and you’re not guilty, then why should you care if your rights are violated?”
One of my favorite quotes of all time is the famous Benjamin Franklin saying “He who would trade liberty for some temporary security, deserves neither liberty nor security.” Above all else, this speaks to principle. Just because you’re innocent doesn’t mean you’re not entitled to your privacy and your rights. This is the issue that the courts will decide. Does Ohio State’s status as a public institution supersede the football program’s right to maintain its confidential records?
Whatever happens, this is a fascinating case. It is pitting the largest sports media outlet head to head with the largest athletic department in the country. It’s a colossal battle that could have significant ramifications no matter what the outcome. When you consider the fact that ESPN is producing the Longhorn Network for the University of Texas and also owns the SEC Network, the issue takes on another twist as well (but that’s a completely different topic). Intrigue, rights, conspiracy, possible conflict of interest, perceived bias…this case really has a little bit of everything.
This has been an exhausting process for Ohio State and its fans. I think most of us had hoped that Ohio State’s response to their notice of allegations was the beginning of the end. If ESPN wins this case, and if they do find incriminating evidence, then we are only at the beginning of the next stage. And that stage is one no Ohio State fan wants to go down. Here’s to hoping that Jim Tressel really did act alone in this.