State ex rel. Espn, Inc. v. Ohio State Univ.

• Decision Date: 19 June 2012
• Docket Number: No. 2011–1177.,2011–1177.
• Citation: 970 N.E.2d 939,40 Media L. Rep. 2152,281 Ed. Law Rep. 1178,132 Ohio St.3d 212,2012 -Ohio- 2690
• Parties: The STATE ex rel. ESPN, INC. v. OHIO STATE UNIVERSITY.
• Court: Ohio Supreme Court

132 Ohio St.3d 212

970 N.E.2d 939

281 Ed. Law Rep. 1178

40 Media L. Rep. 2152

2012 -Ohio- 2690

The STATE ex rel. ESPN, INC.

v.OHIO STATE UNIVERSITY.

No. 2011–1177.

Supreme Court of Ohio.

Submitted April 3, 2012.

Decided June 19, 2012.

Graydon, Head & Ritchey, L.L.P., and John C. Greiner, Cincinnati, for relator.

Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, David M. Lieberman, Deputy Solicitor, and Damian W. Sikora and Todd R. Marti, Assistant Attorneys General, for respondent.

Carter M. Stewart, United States Attorney, Benjamin C. Glassman, Appellate Chief, and Alisa B. Klein, urging denial of the writ for amicus curiae United States.

Vorys, Sater, Seymour and Pease, L.L.P., John J. Kulewicz, and Daniel E. Shuey, Columbus; and Ada Meloy, urging denial of the writ for amici curiae American Council on Education, American Association of Collegiate Registrars and Admissions Officers, American Association of Community Colleges, Association of American Universities, Association of Public and Land–Grant Universities, and NASPA–Student Affairs Administrators in Higher Education.

Laura Osseck and Kristen Henry; Hollie Reedy; Community Legal Aid Services, Inc., Christina M. Janice, and Paul E. Zindle, Wooster; and Northeast Ohio Legal Services and James B. Callen, Youngstown, for amici curiae Ohio Legal Rights Service, Ohio School Boards Association, Community Legal Aid Services, Inc., and Northeast Ohio Legal Services.

PER CURIAM.

[Ohio St.3d 212]{¶ 1} This is a public-records action in which relator, ESPN, Inc. seeks certain records from respondent, the Ohio State University (“Ohio State”). Because ESPN has established its entitlement to the requested extraordinary relief for only a few of the requested records, we grant the writ only for those records. For the remaining records, we deny the writ.

[Ohio St.3d 213]Facts

{¶ 2} At a March 8, 2011 press conference, then Ohio State football coach Jim Tressel disclosed that in April 2010, he had received e-mails notifying him that certain Ohio State football players were connected to Eddie Rife, the owner of Fine Line Ink, a tattoo parlor, and the subject of a federal law-enforcement investigation. According to Tressel, the e-mails alerted him that players had exchanged Ohio State memorabilia for tattoos and that federal authorities had raided Rife's house and found $70,000 in cash and “a lot of Ohio State memorabilia.”

{¶ 3} Tressel did not forward the e-mails to his superiors at Ohio State or to the National Collegiate Athletic Association (“NCAA”). Tressel's decision ultimately led to his resignation and an NCAA investigation. Tressel did, however, forward the e-mails to Ted Sarniak, a mentor to Ohio State football player Terrelle Pryor during his high-school and collegiate career. Sarniak is not employed by Ohio State or the NCAA, and he is not a law-enforcement officer.

{¶ 4} Since February 2011, Ohio State has received more than 100 public-records requests relating to the NCAA investigation from more than 38 members of the media representing at least 20 media organizations. After the March 8, 2011 Tressel press conference, ESPN, a global sports-entertainment company, had at least seven different individuals make at least 21 different public-records requests relating to Ohio State's athletic department. In response to these requests, Ohio State provided ESPN with over 700 pages of responsive documents, made more than 350 pages available on its website, and provided—as a courtesy—more than 4,200 pages of additional records that were requested by, and provided to, other members of the media.

{¶ 5} On April 20, 2011, ESPN requested that Ohio State provide it with access to and copies of nine different categories of records, including “[a]ll 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” and “[a]ll emails, letters and memos to and from Jim Tressel, Gordon Gee, Doug Archie and/or Gene Smith with key word Sarniak since March 15, 2007.”

{¶ 6} Ohio State rejected ESPN's request for the Sarniak records by citing the confidentiality provisions of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. 1232g(b), to support its denial of the request. Ohio State later denied ESPN's request for documents related to the NCAA investigation because it would “not release anything on the pending investigation.” In this e-mail, Ohio State attempted to respond to 16 separate requests by ESPN for public records.

[Ohio St.3d 214]{¶ 7} On May 11, 2011, by e-mail, ESPN requested access to and copies of seven different categories of records from Ohio State, including “[a]ny and all emails or documents listing people officially barred from student-athlete pass lists (game tickets) since January 1, 2007,” and “[a]ny 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 violation) of NCAA rules involving the football program, since January 1, 2005.” Ohio State rejected ESPN's requests because the university deemed them to be “overly broad per Ohio's public record laws.”

{¶ 8} On July 11, 2011, ESPN filed this action for a writ of mandamus to compel Ohio State to provide access to the requested records. After the lawsuit was filed, Ohio State claimed that its communications with ESPN concerning the public-records requests were not intended to be its final word on the requests and were part of what the university believed to be continuing communications with ESPN concerning the requests. Following the commencement of this case, Ohio State worked with ESPN to help refine its public-records requests and to provide responsive documents. Ohio State submitted an answer to ESPN's complaint for a writ of mandamus, and we granted an alternative writ and issued a schedule for the submission of evidence and briefs. 129 Ohio St.3d 1472, 2011-Ohio-4751, 953 N.E.2d 839.

{¶ 9} This cause is now before the court for our consideration of the merits.

Legal Analysis

R.C. 149.43(B)(2) and (3)

{¶ 10} ESPN first claims that Ohio State committed per se violations of R.C. 149.43(B)(2) and (3) in its responses to ESPN's requests for pass lists and documents regarding past and current NCAA violations and NCAA investigations. Ohio State initially denied the requests for pass lists and the documents regarding violations because they were “overly broad” and the documents regarding the current investigation because it would “not release anything on the pending investigation.”

{¶ 11} We agree with ESPN's contentions that Ohio State violated R.C. 149.43(B)(2) and (3). For its denials based on overbreadth of the requests, Ohio State did not provide ESPN, in accordance with R.C. 149.43(B)(2), “with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties.” And for Ohio State's denial of ESPN's request for documents concerning the current investigation, “R.C. 149.43 does not contain an ‘ongoing investigation’ exemption for public records.” [Ohio St.3d 215]State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor, 89 Ohio St.3d 440, 446, 732 N.E.2d 969 (2000).

{¶ 12} Nevertheless, although we conclude that Ohio State violated R.C. 149.43(B)(2) and (3) in this regard, we hold that ESPN did not specifically seek relief to remedy these violations. R.C. 149.43(C)(1) provides:

If a person allegedly is aggrieved by the failure of a public office or the person responsible for public records to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office or the person responsible for public records to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, that awards court costs and reasonable attorney's fees to the person that instituted the mandamus action, and, if applicable, that includes an order fixing statutory damages under division (C)(1) of this section.

(Emphasis added.) Although ESPN alleged that Ohio State failed to comply with R.C. 149.43(B)(2) and (3) in its complaint and briefs, ESPN did not ask that Ohio State be ordered to inform it of the way the university maintains its records concerning pass lists and NCAA violations so that ESPN could revise its requests, or to cite legal authority for the university's denial of the request for records relating to the NCAA investigation. Instead, ESPN limited its request for relief to a writ of mandamus to compel Ohio State to provide access to the requested records.

{¶ 13} Nor does ESPN seek statutory damages for Ohio State's claimed failure to comply with R.C. 149.43(B)(2) and (3), for which injury arising from the lost use of the requested information could be conclusively presumed. R.C. 149.43(C)(1). And insofar as ESPN seeks attorney fees, these violations comprise only a small portion of its true claims here.

{¶ 14} Finally, ESPN does not suggest in its argument that any claimed failure by Ohio State to comply with R.C. 149.43(B)(2) and (3) in its initial responses to its requests resulted in an unreasonable delay in Ohio State's ultimately complying with the requests—except for the redacted and withheld portions of the responsive records that ESPN contests.

{¶ 15} Based on the foregoing, under these particular facts, although Ohio State committed per se violations of R.C. 149.43(B)(2) and (3) in initially responding[Ohio St.3d 216]to ESPN's records requests, ESPN is not entitled to relief for these...