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08/31/2018

Urban Meyer probe failed to follow possible records violations

Dennis Hetzel 2018By Dennis Hetzel, Executive Director

It’s in Roman Numeral I, Point A, starting at Line 3 of a 23-page report.  Not Point B, not Point C, but Point A.  I’m referring to the “summary of findings” issued by the law firm tasked with investigating just what happened at The Ohio State University and just what Head Coach Urban Meyer did or didn’t do surrounding the performance and eventual firing of former assistant coach Zach Smith.

The very first paragraph of the report makes it clear that a top priority was to determine if Meyer violated his contract, various rules, policies and “any other state or federal laws.”

However, the investigators apparently didn’t think that Ohio’s open records law mattered very much, because there’s certainly evidence it may have been broken.

You can start with the failure to find out if or when anyone deleted text messages from the coach’s phone, as stated in the report:

We are also troubled by Coach Meyer’s interest following the publication of the negative social media report about how to change the message history setting on his phone. While we do not know if messages older than a year had been on Coach Meyer’s phone before August 1st or whether Coach Meyer deleted any messages, we do know that he at least thought about and discussed it with Brian Voltolini in response to learning of the negative article. Often, although not always, such reactions evidence consciousness of guilt. 

This raises three obvious questions: Were Meyer’s phone settings changed once he became aware of the media interest? If so, who did it? (Meyer’s lawyer told the Columbus Dispatch that Meyer made no changes to his phone.) Was a serious attempt made to retrieve older text messages for what they might reveal?  

You might argue no law was broken, no matter what happened. Ohio State’s murky policy for “transient” records suggests it would normally be OK for someone to delete most if not all older text messages after a short period of time.

Until it wasn’t. 

Here I cite Page 61 of the Ohio Attorney General’s manual for all public officials on how to interpret the public records and meeting laws : Records of legal value must have the highest retention period, not the lowest. It defines “legal value” in ways that clearly cover the purpose of the Meyer investigation.

In other words, if anyone deleted relevant text messages from Urban Meyer’s phone on or after Aug. 1, he or she likely violated Ohio’s open records law.

The investigation also documents how the university brushed aside public records requests from The Lantern, OSU’s student newspaper, that were filed on July 25. After an OSU lawyer forwarded the requests to the Athletic Department with instructions to be responsive, it appears nothing happened. Meyer appears to have been unaware such a request had been made, insulating him from direct accountability for another possible violation.

The law requires a response in a “reasonable” amount of time to public records requests. Courts have said this varies based on complexity and difficulty.  It’s certainly a more-than-fair standard for the government, including public universities.  The Lantern requested emails, texts and call history involving Meyer and Smith for specific periods of 2018 and 2015. Surely the university had ready access to some of this information even if 2015 requests weren’t available or couldn’t be retrieved. (In fairness, it should be noted that Ohio State has posted many relevant documents on the school’s website.)

The final troubling piece regarding open records is the ongoing refusal of the Powell Police Department to release the police reports of visits to the home of Courtney Smith, Zach Smith’s ex-wife.

Is Powell violating the law? The Columbus Dispatch has appealed to the Ohio Court of Claims to gain access, and I believe they should win since Powell had closed its investigation.

Those records appear to contain information that would have been important to the investigators.

On Thursday, The Dispatch reported that someone anonymously provided a copy of a Powell report to them. According to the report, Courtney Smith claimed to police in 2015 that an Ohio State lawyer had visited her home. Then, the officer wrote, she said that the lawyer convinced her to drop the charge “because it would embarrass OSU if she proceeded with the prosecution.”

Is this true? As of this writing, we don’t know, but if it is, it reflects terribly on the university. The summary report makes no reference to this allegation, so apparently the committee either didn’t know this or chose to ignore another obvious lead – contained in a public record -- if they did.

Maybe it’s only collateral damage, but the “summary of findings” also could have concluded that Ohio’s open records law was another victim in this ongoing mess.

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