[Cite as State ex rel. ESPN v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690.]




           THE STATE EX REL. ESPN, INC. v. OHIO STATE UNIVERSITY.
                   [Cite as State ex rel. ESPN v. Ohio State Univ.,
                        132 Ohio St.3d 212, 2012-Ohio-2690.]
Public records—Mandamus sought to compel respondent to release records—
        R.C.    149.43(B)(2)      and    (3)—Exemptions        from     disclosure—Family
        Educational Rights and Privacy Act, 20 U.S.C. 1232g—Attorney-client
        privilege—Writ granted in part and denied in part.
       (No. 2011-1177—Submitted April 3, 2012—Decided June 19, 2012.)
                                      IN MANDAMUS.
                                  __________________
        Per Curiam.
        {¶ 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.
                                           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.”
                            SUPREME COURT OF OHIO




       {¶ 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



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investigation.” In this e-mail, Ohio State attempted to respond to 16 separate
requests by ESPN for public records.
          {¶ 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



                                         3
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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.” 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



                                          4
                                  January Term, 2012




       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 to ESPN’s records requests, ESPN is not entitled to relief for these
violations beyond that finding.




                                          5
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                 Exemptions from Disclosure under R.C. 149.43
       {¶ 16} ESPN next claims that Ohio State erred in redacting some
information and withholding other records in their entirety in responding to its
records requests. “R.C. 149.43(A)(1)(v) exempts ‘[r]ecords the release of which
is prohibited by state or federal law’ from the definition of ‘public record.’ ”
State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10,
2011-Ohio-6009, 959 N.E.2d 524, ¶ 27.
       {¶ 17} Ohio State did not provide some of the records that might
otherwise have been responsive to ESPN’s request, claiming that those records
were exempt under FERPA, the attorney-client privilege, and the work-product
privilege. Each of these exemptions is next considered.
                 FERPA—Prohibition on the Release of Records
       {¶ 18} Ohio State refused to release documents in response to ESPN’s
request for e-mails with the key word “Sarniak,” claiming that those documents
were exempt from disclosure based on FERPA. FERPA provides that


       [n]o funds shall be made available under any applicable program to
       any educational agency or institution which has a policy or practice
       of permitting the release of education records (or personally
       identifiable information contained therein other than directory
       information, as defined in paragraph (5) of subsection (a) of this
       section) of students without the written consent of their parents to
       any individual, agency, or organization.


20 U.S.C. 1232g(b)(1).
       {¶ 19} “Congress enacted FERPA under its spending power to condition
the receipt of federal funds on certain requirements relating to the access and
disclosure of student educational records.” Gonzaga Univ. v. Doe, 536 U.S. 273,



                                        6
                                January Term, 2012




278, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).           “FERPA is directed to the
conditions schools must meet to receive federal funds * * *.”               Owasso
Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426, 430, 122 S.Ct. 934,
151 L.Ed.2d 896 (2002).
       {¶ 20} ESPN argues that FERPA does not prohibit the disclosure of the
requested records by educational agencies and institutions like Ohio State—it
merely penalizes those educational agencies and institutions that have a policy or
practice of permitting the release of those records without parental consent by
withholding federal funding.
       {¶ 21} ESPN’s contention lacks merit.         “Under FERPA, schools and
educational agencies receiving federal financial assistance must comply with
certain conditions. [20 U.S.C.] 1232g(a)(3). One condition specified in the Act is
that sensitive information about students may not be released without parental
consent.” (Emphasis added.) Falvo at 428.
       {¶ 22} “Based upon these clear and unambiguous terms, a participant who
accepts federal education funds is well aware of the conditions imposed by the
FERPA and is clearly able to ascertain what is expected of it. Once the conditions
and the funds are accepted, the school is indeed prohibited from systematically
releasing education records without consent.”         (Emphasis sic and citations
omitted.)   United States v. Miami Univ., 294 F.3d 797, 809 (6th Cir.2002).
Although the court at footnote 11 limited this conclusion to federal government
action to enforce FERPA, we agree with Ohio State that this limitation merely
clarifies the means of enforcing FERPA and does not alter universities’ duties
under FERPA. In effect, “ ‘legislation enacted pursuant to the spending power
[, like the FERPA], is much in the nature of a contract; in return for federal funds,
the States agree to comply with federally imposed conditions.’ ” (Bracketed
material sic.) Id. at 808, quoting Pennhurst State School & Hosp. v. Halderman,
451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).



                                         7
                            SUPREME COURT OF OHIO




       {¶ 23} Ohio State received approximately 23 percent of its total operating
revenues—over $919 million—in the 2010-2011 academic year from federal
funds, and it is estimated that the university will receive the same amount of
federal funds in the 2011-2012 academic year. Therefore, Ohio State, having
agreed to the conditions and accepted the federal funds, was prohibited by
FERPA from systematically releasing education records without parental consent.
       {¶ 24} This result is consistent with the holdings of other state courts that
have addressed this issue. See Osborn v. Bd. of Regents of Univ. of Wisconsin
Sys., 254 Wis.2d 266, 647 N.W.2d 158, ¶ 22 (2002); Unincorporated Operating
Div. of Indiana Newspapers, Inc. v. Trustees of Indiana Univ., 787 N.E.2d 893,
904 (Ind.App.2003); DTH Publishing Corp. v. Univ. of North Carolina at Chapel
Hill, 128 N.C.App. 534, 496 S.E.2d 8, 12 (1998).
       {¶ 25} Therefore, FERPA, if applicable, does constitute a prohibition on
the release of records under R.C. 149.43(A)(1)(v).
                    FERPA—Policy or Practice of Permitting
                        the Release of Education Records
       {¶ 26} Notwithstanding ESPN’s claim to the contrary, if this court were to
hold either that R.C. 149.43 does not recognize any exemption for FERPA or that
personally identifiable information in records related to NCAA investigations is
not covered by FERPA, we would be compelling educational agencies and
institutions throughout Ohio to adopt a “policy or practice” permitting the release
of education records. See Miami Univ., 294 F.3d at 819-820.
                          FERPA—Education Records
       {¶ 27} ESPN asserts that FERPA is inapplicable to the records responsive
to its requests for documents related to Sarniak and the prior NCAA
investigations because these records do not constitute “education records.” For
purposes of FERPA, the term “education records” means “those records, files,
documents, and other materials which—(i) contain information directly related to



                                         8
                               January Term, 2012




a student; and (ii) are maintained by an educational agency or institution or by a
person acting for such agency or institution.” 20 U.S.C. 1232g(a)(4)(A).
       {¶ 28} ESPN first claims that the requested records are not education
records because records concerning Sarniak, a Pennsylvania businessman who
was the mentor to an Ohio State football player implicated in the NCAA
investigation concerning trading memorabilia for tattoos, and records relating to
compliance by Ohio State coaches and administrators with NCAA regulations do
not directly involve Ohio State students or their academic performance, financial
aid, or scholastic performance. ESPN relies on language from this court’s opinion
in State ex rel. Miami Student v. Miami Univ., 79 Ohio St.3d 168, 171-172, 680
N.E.2d 956 (1997), in which the court granted a writ of mandamus to compel the
disclosure of student disciplinary proceedings for 1993 through 1996 by reasoning
that because the cases, which involved infractions of student rules and
regulations, were “nonacademic in nature,” the records were not “education
records” subject to FERPA.
       {¶ 29} Following our decision in Miami Student, however, the United
States Court of Appeals for the Sixth Circuit held that student disciplinary records
were education records subject to FERPA and permanently enjoined Miami
University and Ohio State from releasing records in violation of FERPA. Miami
Univ., 294 F.3d 797. The court held that “[u]nder a plain language interpretation
of FERPA, student disciplinary records are education records because they
directly relate to a student and are kept by that student’s university. Notably,
Congress made no content-based judgments with regard to its ‘education records’
definition.” Id. at 812.
       {¶ 30} Upon consideration of our opinion in Miami Student and the Sixth
Circuit Court of Appeals’ opinion in Miami Univ., we agree with the Sixth Circuit
and hold that the records here generally constitute “education records” subject to
FERPA because the plain language of the statute does not restrict the term



                                         9
                              SUPREME COURT OF OHIO




“education records” to “academic performance, financial aid, or scholastic
performance.” Education records need only “contain information directly related
to a student” and be “maintained by an educational agency or institution” or a
person acting for the institution. 20 U.S.C. 1232g(a)(4)(A)(i) and (ii). The
records here—insofar as they contain information identifying student-athletes—
are directly related to the students.
        {¶ 31} In fact, in Miami Student, we permitted Miami University to redact
certain personally identifiable information in accordance with FERPA. Miami
Student, 79 Ohio St.3d at 172, 680 N.E.2d 956. “With these court-imposed
redactions, the mandamus [granted by this court in Miami Student] appears to
comport with the FERPA’s requirements.” Miami Univ., 294 F.3d at 811, citing
Miami Student at 173 (Cook, J., dissenting). Thus, the records here are education
records in that they contain information that is directly related to students.
        {¶ 32} ESPN’s next claim, that the requested records do not constitute
“education records” under FERPA because they are not “maintained by an
educational agency or institution or by a person acting for such agency or
institution,” 20 U.S.C. 1232g(a)(4)(A)(ii), also lacks merit. Ohio State submitted
sufficient evidence to establish that the responsive records are “maintained” for
purposes of FERPA. Ohio State’s Department of Athletics retains copies of all e-
mails and attachments sent to or by any person in the department; the e-mails
cannot be deleted. The department also retains copies of all documents scanned
into electronic records, which are organized by student-athlete. Ohio State has
additionally collected documents related to its investigation of student-athletes
who exchanged memorabilia for tattoos and Tressel’s failure to report that activity
that were requested by the NCAA and has kept those documents in two secure
electronic files. These records are not similar to the transient records involved in
Falvo, 534 U.S. at 433, 122 S.Ct. 934, 151 L.Ed.2d 896.




                                          10
                               January Term, 2012




       {¶ 33} Therefore, Ohio State properly withheld identifying information
concerning the student-athletes by redacting it from the records that the university
released. See 34 C.F.R. 99.3, which defines “personally identifiable information.”
       {¶ 34} Nevertheless, a review of the sealed records that were responsive
to ESPN’s request but were withheld based on FERPA indicates that Ohio State
should provide access to these records after redacting the personally identifiable
information.    An e-mail chain between Tressel, the Ohio State athletics
department official in charge of compliance, attorneys, and other officials
scheduling a meeting includes no personally identifiable information concerning
any student-athlete. In e-mails to schedule a meeting to formulate a compliance
plan for one of the student-athletes, aside from the name of the student-athlete and
a person who agreed to attend the meeting, no personally identifiable information
is included.   Another document refers to one person’s request to obtain a
disability-insurance policy on behalf of a student-athlete, and with those names
redacted, the document would not contain personally identifiable information.
There are also two letters from Ohio State’s athletics department compliance
director to the parents of a student-athlete concerning preferential treatment. 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.
       {¶ 35} Therefore, although the majority of the requested records were
properly redacted before being provided to ESPN, ESPN is entitled to access to
redacted copies of these few records that were completely withheld from it based
on FERPA.
                             Attorney-Client Privilege
       {¶ 36} Ohio State properly withheld the remaining requested records
based on attorney-client privilege. See State ex rel. Besser v. Ohio State Univ., 87
Ohio St.3d 535, 542, 721 N.E.2d 1044 (2000).



                                        11
                                  SUPREME COURT OF OHIO




         {¶ 37} These records include requests from Ohio State officials for legal
advice and interpretation, communications from or between the attorneys
providing legal advice or information to Ohio State, and investigatory fact-finding
related to the legal advice. These are covered by the attorney-client privilege.
         {¶ 38} ESPN’s contention that Ohio State cannot rely on attorney-client
privilege to shield these records is unfounded because “an attorney does not
become any less of an attorney by virtue of state agency employment,” State ex
rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824
N.E.2d 990, ¶ 29, the attorney-client privilege applies to agents working on behalf
of legal counsel, see Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 346, 575
N.E.2d 116 (1991), and there is no requirement in public-records mandamus cases
that public offices or officials must “conclusively establish” the privilege by
producing agreements retaining agents or joint-defense agreements with attorneys
representing other clients. Therefore, Ohio State properly withheld the remaining
requested records based on the attorney-client privilege.1
                                         Attorney Fees
         {¶ 39} Because Ohio State complied with the vast majority of its
obligations under R.C. 149.43 in responding to ESPN’s records requests, and
ESPN’s claims are largely without merit, we deny ESPN’s request for attorney
fees. See State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497,
2010-Ohio-5995, 940 N.E.2d 1280, ¶ 64 (denying request for attorney fees when
public-records claims are mostly lacking in merit).




1. Ohio State also withheld some of the requested records based on the work-product privilege.
Because all of the records for which it requested application of this privilege were also covered by
the previously discussed attorney-client privilege, we need not address this contention.




                                                12
                               January Term, 2012




                                   Conclusion
       {¶ 40} “The Public Records Act serves a laudable purpose by ensuring
that governmental functions are not conducted behind a shroud of secrecy.
However, even in a society where an open government is considered essential to
maintaining a properly functioning democracy, not every iota of information is
subject to public scrutiny.   Certain safeguards are necessary.”      State ex rel.
Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 438, 732 N.E.2d 960
(2000). “The General Assembly has provided these safeguards by balancing
competing concerns and providing for certain exemptions from the release of
public records pursuant to R.C. 149.43.” Mahajan, 127 Ohio St.3d 497, 2010-
Ohio-5995, 940 N.E.2d 1280.         By incorporating exemptions to disclosure
provided by other federal and state law, R.C. 149.43(A)(1)(v) acknowledges these
competing concerns that weigh in the favor of nondisclosure.
       {¶ 41} Because, for the most part, Ohio State established that FERPA and
the attorney-client privilege prohibited the disclosure of the requested records, we
deny the writ to that extent. For those limited records that should have been
disclosed—at Respondent’s Evidence, Vol. III, Part 2, pages 668, 829-835, 859-
863, 999-1001, and 1009-1012, following the redaction of personally identifiable
information, that is, the names of the student-athlete, his parents, his parents’
addresses, and the person associated with the student-athlete mentioned therein—
and were thus not exempt from disclosure based on FERPA, however, we grant
the writ. We also deny ESPN’s request for attorney fees.
                                                            Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
                              __________________
       Graydon, Head & Ritchey, L.L.P., and John C. Greiner, for relator.




                                        13
                            SUPREME COURT OF OHIO




       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; 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; and Northeast Ohio Legal
Services and James B. Callen, for amici curiae Ohio Legal Rights Service, Ohio
School Boards Association, Community Legal Aid Services, Inc., and Northeast
Ohio Legal Services.
                           ______________________




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