63 N.E.3d 1183 (Ohio 2016), 2014-0749, State ex rel. School Choice Ohio, Inc. v. Cincinnati Public School District

Docket Nº2014-0749
Citation63 N.E.3d 1183, 147 Ohio St.3d 256, 2016-Ohio-5026
Opinion JudgeLanzinger , J.
Party NameTHE STATE EX REL. SCHOOL CHOICE OHIO, INC. v. CINCINNATI PUBLIC SCHOOL DISTRICT ET AL
AttorneyMcDonald Hopkins, L.L.C., David T. Movius, Matthew J. Cavanagh, and Mark J. Masterson, for relator. Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott A. Sollmann; and Martin, Browne, Hull & Harper, P.L.L., and Karen W. Osborn, for respondent. Isaac, Wiles, Burkholder & Teet...
Judge PanelLANZINGER, J. PFEIFER, KENNEDY, and O'NEILL, JJ., concur. O'DONNELL, J., concurs in judgment in an opinion that FRENCH, J., joins. O'CONNOR, C.J., concurs in part and dissents in part in declining to award attorney fees. Pfeifer, Kennedy, and O'Neill, JJ., concur. O'Donnell, J., concurs in judgme...
Case DateJuly 21, 2016
CourtSupreme Court of Ohio

Page 1183

63 N.E.3d 1183 (Ohio 2016)

147 Ohio St.3d 256, 2016-Ohio-5026

THE STATE EX REL. SCHOOL CHOICE OHIO, INC.

v.

CINCINNATI PUBLIC SCHOOL DISTRICT ET AL

No. 2014-0749

Supreme Court of Ohio

July 21, 2016

Submitted January 26, 2016

Page 1184

McDonald Hopkins, L.L.C., David T. Movius, Matthew J. Cavanagh, and Mark J. Masterson, for relator.

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott A. Sollmann; and Martin, Browne, Hull & Harper, P.L.L., and Karen W. Osborn, for respondent.

Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, and Mark H. Troutman, urging denial of the writ for amici curiae Ohio School Boards Association, Buckeye Association of School Administrators, and Ohio Association of School Business Officials.

LANZINGER, J. PFEIFER, KENNEDY, and O'NEILL, JJ., concur. O'DONNELL, J., concurs in judgment in an opinion that FRENCH, J., joins. O'CONNOR, C.J., concurs in part and dissents in part in declining to award attorney fees.

OPINION

Page 1185

In Mandamus .

Lanzinger , J.

[¶1] This is a mandamus action in which a company seeks to compel a school district to comply with a public-records request. We grant the request for a writ of mandamus in part and deny it in part.

Page 1186

Relevant Background

[¶2] Relator, School Choice Ohio, Inc. (" School Choice" ), is a private, nonprofit corporation that informs Ohio parents about alternative educational opportunities for their children, including publicly funded scholarships to attend private schools. It provides this information by contacting parents via telephone, e-mail, or mail. School Choice obtains the students' contact information by submitting public-records requests to Ohio public school districts.

[¶3] Respondent, Springfield City School District (" Springfield" or " the district" ),1 is a public school district that includes one preschool, ten elementary schools, three middle schools, one high school, and one alternative school. In compliance with federal and state law, Springfield maintains extensive educational and personal information about its students. Pursuant to federal and state privacy laws, Springfield has an official policy in place to safeguard its students' private information.

[¶4] For the 2012-2013 school year, Springfield's policy provided notice that some student information would be designated as " directory information" and [147 Ohio St.3d 257] that prior parental consent to the disclosure of this information would be presumed. The policy deemed the following nine categories of student information " directory information" : (1) name, (2) address, (3) telephone number(s), (4) date and place of birth, (5) participation in officially recognized activities and sports, (6) achievement awards or honors, (7) weight and height, if a member of an athletic team, (8) dates of attendance, and (9) date of graduation. The policy also informed parents that unless they " affirmatively withdr[ew] their consent to release in writing," the district would be free to release the directory information to requesting parties without prior written consent.

[¶5] In January 2013, School Choice sent a public-records request to Springfield, asking the district to provide information regarding students enrolled in the district during the 2012-2013 academic year. The request specifically asked for the following information: 1. Student and Parent's/Guardian's Name,

2. Parent's/Guardian's complete address, including e-mail address,

3. Parent's/Guardian's telephone contact information, and

4. Student's Grade Level for the 2012-13 School Year.

Springfield complied with the request in part. In its letter responding to School Choice's request, the district explained that it would release only information that its 2012-2013 policy explicitly designated as directory information, which did not include students' grade levels or parents' personal information. Springfield therefore provided to School Choice only the names and addresses of enrolled students.

[¶6] For the 2013-2014 school year, the district changed its student-information policy. It designated the same nine categories of student information as " directory information" but stated that the designation applied only to former students and not to current students. For current students, Springfield provided parents with a form entitled " Consent for Disclosure of Student Information for Superintendent Approved Purposes" (the " consent form" ). The consent form listed the same nine categories of information that the prior

Page 1187

policy had designated as " directory information" but identified the list as " personally identifiable information." The consent form informed parents that their written consent was now required in order for Springfield to release the student information falling into the nine categories. But once given, parental consent would be implied on a continuing basis unless the parents affirmatively withdrew their consent in writing. Thus, under the updated policy, the same student information was subject to the same ongoing release, though the information bore a different label and affirmative parental consent was initially required.

[147 Ohio St.3d 258] [¶7] Additionally, the new consent form specified categories of requesters who would be eligible to receive student information. The form provided that student information could be subject to disclosure only " for purposes approved by the Superintendent or his designee." It identified two categories of approved purposes: (1) school-directed events or activities, such as yearbook publication or theater presentations, and (2) " educational, health, service, or other non-profit programs which may provide a benefit to the students of the District" that are directed in part or in full by third-party " community leaders, community organizations, and school-related organizations" approved by the superintendent as " partnering" organizations.

[¶8] In October 2013, School Choice sent another public-records request to Springfield. This request sought the following information: 1. Student and parent's/guardian's name,

2. Parent's/Guardian's complete address, including email address,

3. Parent's/Guardian's telephone contact information,

4. Student's grade level for the 2013-14 school year, and

5. Student's school building for the 2013-14 school year.

In a reply e-mail, without specifying whether it was accepting or rejecting School Choice's request, Springfield attached a copy of the new student-information policy that it had adopted for the 2013-2014 school year. After School Choice sent a letter following up on its request, Springfield eventually articulated in January 2014 that it was categorically denying the request based on the new student-information policy. But on other occasions during the same school year, the district released students' personally identifiable information to other organizations, including Clark State Community College, Springfield Christian Youth Ministries, Global Impact STEM Academy, Jostens, Inc., and the Clark County Combined Health District.

[¶9] In a May 2014 complaint, amended in October 2014 after the claims against Cincinnati Public School District were dismissed, School Choice sought a writ of mandamus compelling Springfield to produce the 2013-2014 student information requested in October 2013 and to amend Springfield's student-information policy, including the parental notice-and-consent procedure. In the first and second counts2 against Springfield, School

Page 1188

Choice asserted that it was [147 Ohio St.3d 259] entitled to the information under Ohio's Public Records Act, R.C. 149.43, and Student Privacy Act, R.C. 3319.321. In the third count, School Choice asserted that it was entitled to the requested relief regarding Springfield's student-information policy pursuant to Ohio's Student Privacy Act and Public Records Act as well as the Family Educational Right to Privacy Act (" FERPA" ), 20 U.S.C. 1232g. School Choice also requested an award of statutory damages, attorney fees, and costs.

[¶10] We issued an alternative writ in December 2014, 140 Ohio St.3d 1519, 2014-Ohio-5251, 20 N.E.3d 728, and the parties presented evidence, filed briefs, and gave oral arguments. The cause is now before us for consideration of the merits.3

Legal Analysis

I. Access to Student Information through the Public Records Act

[¶11] The first count of the complaint for a writ of mandamus seeks to compel Springfield to release under R.C. 149.43 the student information that School Choice requested in its 2013-2014 public-records request. " Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. Accord R.C. 149.43(C)(1). To be entitled to a writ of mandamus compelling the production of public records, a relator must establish by clear and convincing evidence that the relator has a clear legal right to the records and that the respondent has a clear legal duty to provide them. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. The respondent, in turn, has the burden of proving that the records are exempt from disclosure under R.C. 149.43. State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph two of the syllabus.

[¶12] The policy underlying the Public Records Act is that " open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d...

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