by Kyle Swenson
One of the leftovers from the OSU scandal is the legal beef between the school and ESPN over public records. After the initial tremblings of Tresselgate, OSU was drowned in hundreds of requests for paper that might spell out a trail of impropriety on the part of players and program bosses. When the school didn't comply with some of the network's requests, ESPN filed a mandamus action to force open the public institution's files.
Today, the Ohio Supreme Court ruled on the matter, largely in favor of the school. Legal nerd stuff aside, once you start swimming through the order, you get an idea what the network was digging for, how the school kept some info under lock and key, and what the school now has to hand over.
The first issues the court addressed were the denials of two requests from the network: any emails and docs related to individuals who were banned from OSU players' pass list, of list for game tickets; and emails and correspondences “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.” The school shot down the first request for being too broad, the second for being related to pending investigations.
The court initially seems to side with ESPN on this one – they say the school should have worked further with the network on paring down the “broad” request on pass lists. Also, the Ohio statute – interestingly – doesn't contain an exemption for public records related to a pending investigation.
But even though the bench says the school violated the statute, ESPN failed to go through the proper procedural hoops – asking the school to help sharpen up their “broad” request or asking for legal justification for the denial based on a pending investigation. Instead, the network just pulled the trigger on the mandamus action (The court: “although Ohio State committed per se violations . . . in initially responding to ESPN's records requests, ESPN is not entitled to relief for these beyond that finding”). You would think a mega-conglomerate like ESPN would have squads of Ivy League-sharpened litigators who would have their procedural shit down pat.
The second main area of legal headbutting is about student info. That kind of data is protected, and when OSU dumped thousands of pages on ESPN in response to the original records requests, the school redacted certain items – “the names of the student-athlete, his parents, his parents’ addresses, and the person associated with the student-athlete mentioned therein”— from the paper trail on that basis. Other such material was simply withheld.
But the court determined that certain requested paperwork the school kept in its pocket on the basis of student info protection is fair game for the network if someone just takes some white-out to the sensitive personal information. What were those requested docs?
An e-mail chain between Tressel, the Ohio State athletics department official in charge of compliance, attorneys, and other officials scheduling a meeting . . . e-mails to schedule a meeting to formulate a compliance plan for one of the student-athletes . . . Another document refers to one person’s request to obtain a disability-insurance policy on behalf of a student-athlete . . . There are also two letters from Ohio State’s athletics department compliance director to the parents of a student-athlete concerning preferential treatment.
The court says ESPN can get their hands on that documentation once the student info is redacted, and, as you can see, any journalist would be interested in putting their hands on information about who was getting preferential treatment or a disability-insurance policy. Some story-worthy tidbits there. But today those scraps are about all ESPN took home.
Not exactly a earth-moving win for journalism, when you consider the big picture. A pattern of misbehavior wormed through every level of a billion-dollar public institution, and the whole path probably hasn't been completely sketched. It probably never will be. This ruling burns the writing right into the wall: when the said billion-dollar public institution is a university, the press' tool box is pretty limited.