Urban Meyer's Texts Raise Open Records Question For Ohio State
Any attempt by Ohio State coach Urban Meyer to eliminate work-related text messages on his university-issued phone to hide information would be illegal, open records experts said following a two-week investigation into his handling of domestic violence allegations against an assistant coach.
Ohio State suspended Meyer for three games after investigators concluded he mishandled Zach Smith's repeated professional and behavioral problems and instead protected his protege for years through domestic violence allegations, a drug problem and poor job performance.
Among the many questions raised by the investigation into the highly successful coach of the fifth-ranked Buckeyes was how he responded when the story broke.
On Aug. 1, investigators say, Meyer and the team's director of operations discussed ways to change the settings on his phone to eliminate messages older than a year. The discussion came the same day a story said Smith's then-wife had shared allegations of domestic violence with Meyer's wife, Shelley Meyer, via texts.
"A bad article," Brian Voltolini, director of football operations, told Meyer on the practice field, according to investigators.
Courtney Smith alleged her husband attacked her in 2015. Zach Smith has never been criminally charged with domestic violence. The university put Meyer on paid leave and began investigating after Courtney Smith spoke out publicly, sharing text messages and photos she traded in 2015 with Shelley Meyer, who is a registered nurse and instructor at Ohio State. Zach Smith was fired last month after his ex-wife asked a judge for a protective order.
When the university obtained Meyer's phone on Aug. 2, it was set to only retain texts within a year. Investigators said they couldn't determine if that setting was made in response to the breaking news story.
"It is nonetheless concerning that his first reaction to a negative media piece exposing his knowledge of the 2015-2016 law enforcement investigation was to worry about the media getting access to information and discussing how to delete messages older than a year," the report said, referring to Meyer.
The latest university records retention policy doesn't single out text messages. A category covering "transient" records includes telephone messages, some emails, drafts and other documents that "serve to convey information of a temporary value, have a very short lived administrative, legal and/or fiscal value."
Those should be disposed of once their "administrative, legal or fiscal use has expired," but no fixed time is allotted. It could be "as short as a few hours and could be as long as several days or weeks," the 2016 policy says.
As murky as the policy seems, Fred Gittes, a veteran open records lawyer in Columbus, said any elimination of texts on Meyer's university-issued phone related to his coaching responsibility would break Ohio's open records law. He also noted that a lack of older text messages would make it difficult to determine whether NCAA recruiting rules were violated.
Open records advocate Dennis Hetzel questioned why investigators didn't do more to track down any older messages.
"What happened to these text messages seems like a pretty big thing to ignore or not pay a lot of attention to," said Hetzel, executive director of the Ohio News Media Association.
Tom Mars, an attorney who pried phone records out of the University of Mississippi in a lawsuit on behalf of former Rebels coach Houston Nutt in 2017, questioned why Ohio State couldn't determine if Meyer deleted text messages from his university phone.
"If you can get possession of the phone, with the right software, the right forensic expert, you can retrieve everything the user thought was deleted," Mars said.
He added: "I have a lot of respect for the people who oversaw that investigation, but I think they owe the public an explanation why they weren't able to recover deleted text messages, assuming they made that effort."
Nutt himself had more than 1,000 text messages exposed by a public records request in 2007 when he was the coach at Arkansas. His lawyer pulled phone records from former Ole Miss coach Hugh Freeze in a lawsuit Nutt filed against the school. The records revealed a one-minute call to an escort service and led to an internal investigation that resulted in Freeze's resignation.
While smartphone technology can create a trove of public records, it also allows someone to try to hide them with a simple keystroke or reset, said Adam Marshall, litigation attorney at the Reporters Committee for Freedom of the Press.
"The issue of retaining, searching and producing text messages and other records is a huge problem across the nation when it comes to implementation of public records law," Marshall said.
A public entity such as a major university like should be able to easily create policies and programs to hold on to text messages for extended periods, he added.
The investigation was led by Mary Jo White, an attorney and former chair of the U.S. Securities and Exchange Commission. The investigative team said the "lack of clarity" surrounding Meyer's text messages was compounded by the university's failure to promptly respond to two open records requests by the student newspaper, the Lantern, on July 25.
The newspaper asked for emails and text messages and call histories between Meyer and Zach Smith from July 18-July 24, 2018, and between Oct. 25, 2015 and Dec. 1, 2015. The paper asked for the same communications between athletic director Gene Smith — no relation to Zach Smith — and Meyer for the same time period for any materials "pertaining to Zach Smith."
Although top Ohio State lawyers and athletic officials were aware of this records' request, "no one appears to have actually checked Coach Meyer's phone or even approached him about the requests," the investigation found.
The Associated Press made a request for similar information on Aug. 2; the university has yet to respond.
Jo Potuto, a former chairwoman of the NCAA Division I Committee on Infractions and a law professor at Nebraska, said a distinct protocol should be in place for retaining records.
"You don't want to be in a situation as an employer that there is such a heavy level of suspicion as to how you're doing your job that you have to retain records going back forever," she said. "On the other hand, I do believe strongly a university should have policies that if an investigation or the start of an inquiry is being triggered, then there should be a policy that nobody should be erasing texts from that point forward."