134 N.E.3d 268 (Ohio App. 2 Dist. 2019), 2019CA0047, State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools

Docket Nº2019CA0047
Citation134 N.E.3d 268, 2019-Ohio-4187
Opinion JudgePER CURIAM:
Party NameSTATE of Ohio EX REL. CABLE NEWS NETWORK, INC., et al., Relators v. BELLBROOK-SUGARCREEK LOCAL SCHOOLS, et al., Respondents
AttorneyErin Rhinehart, Christopher Hollon, Faruki PLL, Attorneys for Relators Tabitha Justice, Subashi, Wildermuth & Justice, The Greene Town Center, Attorney for Respondents Mark Altier, Office of the Ohio Attorney General, Attorney for Amicus Curiae, Dave Yost, Ohio Attorney General Andrew Storar, Pic...
Judge PanelJEFFREY M. WELBAUM, Presiding Judge, MARY E. DONOVAN, Judge, MICHAEL L. TUCKER, Judge
Case DateOctober 02, 2019
CourtCourt of Appeals of Ohio

Page 268

134 N.E.3d 268 (Ohio App. 2 Dist. 2019)

2019-Ohio-4187

STATE of Ohio EX REL. CABLE NEWS NETWORK, INC., et al., Relators

v.

BELLBROOK-SUGARCREEK LOCAL SCHOOLS, et al., Respondents

No. 2019CA0047

Court of Appeals of Ohio, Second District, Greene

October 2, 2019

Page 269

[Copyrighted Material Omitted]

Page 270

Erin Rhinehart, Christopher Hollon, Faruki PLL, Attorneys for Relators

Tabitha Justice, Subashi, Wildermuth & Justice, The Greene Town Center, Attorney for Respondents

Mark Altier, Office of the Ohio Attorney General, Attorney for Amicus Curiae, Dave Yost, Ohio Attorney General

Andrew Storar, Pickrel Schaeffer & Ebeling Co. LPA, Attorney for Relator, WDTN-TV2

DECISION AND FINAL JUDGMENT ENTRY

PER CURIAM:

INTRODUCTION

[¶ 1] Relator News Agencies seek a writ of mandamus to compel Bellbrook-Sugarcreek Local Schools to release records about a former student. The student, Connor Betts, graduated from Bellbrook High School in 2013 and is deceased. The News Agencies1 assert that the records they requested from the School2 are public records that must be disclosed under Ohio’s Public Records Act, R.C. 149.43. They posit that Betts’ right to privacy in his school records terminated upon his death and that the records must therefore be released.

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[¶ 2] The School asserts that the records are confidential education records, the release of which is prohibited by state and federal law, and therefore may not be released. The School argues that the relevant law contains no exception for the death of an adult former student. It asserts that it properly denied the public records requests presented to it.

[¶ 3] We conclude that a writ of mandamus will not issue, as the News Agencies have not shown that the School has a clear legal duty to release Betts’ school records.

BACKGROUND AND PROCEDURAL POSTURE

[¶ 4] On August 4, 2019, Connor Betts killed nine people, injuring 27 more during a mass shooting in which he was also killed. He was 24 years old at the time and a 2013 graduate of Bellbrook High School.

[¶ 5] In the days after August 4, the News Agencies electronically submitted public records requests to the School for records, including disciplinary records, concerning Betts. The School released "directory information" for Betts but otherwise denied the requests for records.

[¶ 6] On August 9, 2019, the News Agencies filed this lawsuit to obtain the unreleased records. The parties agreed to an expedited schedule and have submitted briefs on the merits of the case. Ohio Attorney General, Dave Yost, has also submitted an amicus curiae brief. The matter is ripe for decision.

LEGAL STANDARDS

Standard for a Writ of Mandamus

[¶ 7] "A writ of mandamus is an extraordinary remedy that only applies in a limited set of circumstances." State ex rel. Parisi v. Heck, 2d Dist. Montgomery No. 25709, 2013-Ohio-4948, 2013 WL 5975008, ¶ 4. It is an appropriate way to seek compliance with Ohio’s Public Records Act. R.C. 149.43(C)(1)(b); State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23.

[¶ 8] To be entitled to a writ of mandamus, the News Agencies must establish that they have a clear legal right to receive the public records they’ve requested, and that the School has a clear legal duty to provide those records. State ex rel. McQueen v. Weibling-Holliday, 150 Ohio St.3d 17, 2016-Ohio-5107, 78 N.E.3d 825, ¶ 6. Unlike other relators filing in mandamus, "persons requesting records under R.C. 149.43(C) need not establish the lack of an alternative, adequate legal remedy in order to be entitled to the writ." State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 171, 724 N.E.2d 411 (2000); State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Relators must, however, prove the elements of their mandamus claim by clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 55, quoting State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967) ("in mandamus cases, ‘[t]he facts submitted and the proof produced must be plain, clear, and convincing’ before a writ will be granted").

Standards for Public Records Act Requests

[¶ 9] Ohio’s Public Records Act (or "PRA") is codified in R.C. 149.43. The PRA requires a "public office" to provide "public records" kept by that office upon request, subject to certain exceptions and exemptions. The parties agree that Bellbrook-Sugarcreek Local Schools is a public office, and that requests were made. See R.C. 149.43(A)(1) (naming "school district

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units" as public offices). They disagree as to whether the requested records are public records.

[¶ 10] A "record" includes "any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." R.C. 149.011(G). "Because a school district’s maintenance of student information is one of its integral functions,3 the records containing personally identifiable student information that [a school district] maintains are records within the meaning of R.C. 149.011(G)." State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist., 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, ¶ 14. The parties have not parsed the particular records at issue here under this definition, except to note that disciplinary records have been requested. The parties instead treat the records concerning Betts as a collective whole that is or is not categorically protected. We follow their lead and do not analyze any individual records, instead analyzing the arguments as to the requested records as a whole.

[¶ 11] Under the PRA, public records are defined as "records kept by any public office." R.C. 149.43(A)(1). However, not all records kept by a public office are public records. The definition of public records excludes, among other things, "[r]ecords the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). In this case, the parties focus on a state law, Ohio’s Student Privacy Act (or "OSPA"), R.C. 3319.321, and a federal law, the Family Educational Rights and Privacy Act of 1974 (or "FERPA"), 20 U.S.C. 1232g.

[¶ 12] The Public Records Act "mandates access to public records upon request unless the requested records are specifically excepted from disclosure." Lucas Cty. Bd. of Commrs., 88 Ohio St.3d at 170, 724 N.E.2d 411, citing State ex rel. Miami Student v. Miami Univ., 79 Ohio St.3d 168, 170, 680 N.E.2d 956 (1997). "Release may be prohibited by an exception or by another statute providing protection to the subject of the information sought." Cuyahoga Cty. Bd. of Health v. Lipson O’Shea Legal Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d 499, ¶ 6. The records "custodian has the burden to establish the applicability of an exception" to release or access. State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30. Exceptions "are strictly construed against the public-records custodian." State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 24. The PRA itself " ‘is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.’ " State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7, quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).

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[¶ 13] Even with such a construction, a " ‘relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence.’ " Caster, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15, quoting State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. "Clear and convincing evidence is ‘that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ " State v. Corp. for Findlay Mkt., 135 Ohio St.3d 416, 2013-Ohio-1532, 988 N.E.2d 546, ¶ 15, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954)...

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