State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools, 110520 OHSC, 2019-1433

Docket Nº2019-1433
Opinion JudgeSTEWART, J.
Party NameThe State ex rel. Cable News Network, Inc., et al., Appellants, v. Bellbrook-Sugarcreek Local Schools et al., Appellees.
AttorneyFaruki P.L.L., Erin E. Rhinehart, and Christopher C. Hollon, for appellants. Subashi, Wildermuth & Justice, Nicholas E. Subashi, and Tabitha Justice, for appellees. Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Mark W. Altier, Assistant Attorney General, urging reversal...
Judge PanelO'CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ., concur. Kennedy, J., dissents, with an opinion. Kennedy, J., dissenting.
Case DateNovember 05, 2020
CourtSupreme Court of Ohio

2020-Ohio-5149

The State ex rel. Cable News Network, Inc., et al., Appellants,

v.

Bellbrook-Sugarcreek Local Schools et al., Appellees.

No. 2019-1433

Supreme Court of Ohio

November 5, 2020

Submitted June 3, 2020

Appeal from the Court of Appeals for Greene County, No. 2019CA0047, 2019-Ohio-4187.

Faruki P.L.L., Erin E. Rhinehart, and Christopher C. Hollon, for appellants. Subashi, Wildermuth & Justice, Nicholas E. Subashi, and Tabitha Justice, for appellees.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Mark W. Altier, Assistant Attorney General, urging reversal for amicus curiae Ohio Attorney General Dave Yost.

Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Kris Banvard, urging reversal for amicus curiae WBNS-TV, Inc.

Baker & Hostetler, L.L.P., and Melissa D. Bertke, urging reversal for amici curiae The Reporters Committee for Freedom of the Press, The Brechner Center for Freedom of Information, The Media Institute, MPA-The Association of Magazine Media, The National Press Club, The National Press Club Journalism Institute, The National Press Photographers Association, The Ohio News Media Association, The Online News Association, Society of Professional Journalists, and Student Press Law Center.

Katie Townsend and Shannon Jankowski, urging reversal for amicus curiae The Reporters Committee for Freedom of the Press.

Frank D. LoMonte, urging reversal for amicus curiae The Brechner Center for Freedom of Information.

Covington & Burling, L.L.P, and Kurt Wimmer, urging reversal for amicus curiae The Media Institute.

Ballard Spahr, L.L.P., and Charles D. Tobin, urging reversal for amici curiae The National Press Club and The National Press Club Journalism Institute.

Mickey H. Osterreicher, urging reversal for amicus curiae National Press Photographers Association.

Davis Wright Tremaine, L.L.P., Laura R. Handman, Alison Schary, and Thomas R. Burke, urging reversal for amicus curiae Online News Association.

Baker & Hostetler, L.L.P., Bruce W. Sanford, and Mark I. Bailen, urging reversal for amicus curiae Society of Professional Journalists.

STEWART, J.

{¶ 1} At issue in this appeal is whether a public-school district must release records pertaining to a deceased adult former student in response to a public-records request. The Second District Court of Appeals found that R.C. 3319.321(B), a provision of the Ohio Student Privacy Act ("OSPA"), prohibits disclosure of such records without the written consent of the adult former student, with no exception for the former student's death. Because the OSPA unambiguously forbids disclosure of the requested records, we affirm.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 2} On August 4, 2019, 24-year-old Connor Betts killed nine people and injured 27 others in a mass shooting in Dayton. Police officers shot and killed Betts at the scene. Betts was a 2013 graduate of Bellbrook High School, which is part of the school district of appellee Bellbrook-Sugarcreek Local Schools (the "school district").

{¶ 3} Appellants in this case are seven local and national media organizations.1 On August 4 and 5, 2019, each of them submitted a public-records request to the school district under R.C. 149.43. They requested school records related to Betts, including but not limited to disciplinary records. The school district denied appellants' requests, stating that the records were exempt from disclosure under R.C. 149.43(A)(1)(v), which applies to records the release of which "is prohibited by state or federal law." Specifically, the school district identified the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g ("FERPA"), and the OSPA as statutes that exempted Betts's records from disclosure under R.C. 149.43(A)(1)(v). In an e-mail addressed to multiple members of the press, appellee school district superintendent Douglas A. Cozad, Ph.D., acknowledged that the federal government generally interprets FERPA rights as expiring upon a student's death but indicated that "Ohio law offers broader protections for students' records."

{¶ 4} On August 9, 2019, appellants filed an action in the Second District for a writ of mandamus against the school district and Dr. Cozad, in his official capacity as superintendent and the custodian of the records sought. Appellants alleged that they have a clear legal right to inspect Betts's records under R.C. 149.43(B) and that neither FERPA nor the OSPA prohibits the school district from releasing them.

{¶ 5} The Second District denied the writ. The court first observed that it "does not appear to be controversial or unsettled" that the OSPA prohibits the release of public-school records about adult former students without their consent. 2019-Ohio-4187, 134 N.E.3d 268, at ¶ 17. The court then rejected appellants' argument that the OSPA's privacy protections for an adult former student lapse at the former student's death. The Second District found that the OSPA unambiguously protects an adult former student's records from disclosure, with no exception for the former student's death. See id. at ¶ 23-25. Having found that the OSPA prohibited the school district from releasing Betts's student records, the Second District did not reach the issue of whether FERPA likewise prohibited their release. Id. at ¶ 30.

{¶ 6} Appellants appealed to this court as of right.

II. ANALYSIS

{¶ 7} We review a court of appeals' judgment in a mandamus action filed there as if the action had been brought originally in this court. State ex rel. Dynamic Industries, Inc. v. Cincinnati, 147 Ohio St.3d 422, 2016-Ohio-7663, 66 N.E.3d 734, ¶ 7. To be entitled to a writ of mandamus, appellants must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief and (2) a clear legal duty on the part of the school district to provide it. State ex rel Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. Because mandamus is the appropriate remedy to compel compliance with R.C. 149.43, appellants need not demonstrate the absence of an adequate remedy in the ordinary course of law. State ex rel. Cincinnati Enquirer v. Pike Cty. Gen. Health Dist, 154 Ohio St.3d 297, 2018-Ohio-3721, 114 N.E.3d 152, ¶ 12.

{¶ 8} "We begin with the premise that 'public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people.'" State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 32, quoting State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 371, 171 N.E.2d 508 (1960). Consistent with that premise, the court construes R.C. 149.43 liberally in favor of broad access and resolves any doubt in favor of disclosure. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 17. "Exceptions to disclosure under the Public Records Act [R.C. 149.43] are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception." State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 23.

{¶ 9} The school district is a "public office" under R.C. 149.43(A)(1). And the parties do not dispute that the school district's records pertaining to Betts are "records" as defined by R.C. 149.011(G). The parties' dispute centers upon the applicability of R.C. 149.43(A)(1)(v), which exempts from disclosure records the release of which is prohibited by state or federal law. The Second District held that the OSPA, R.C. 3319.321, is a state law that prohibits the school district's disclosure of records pertaining to Betts, notwithstanding his death.

A. R.C. 3319.321(B) Applies to Former Students of a Public School

{¶ 10} R.C. 3319.321(B) states: No person shall release, or permit access to, personally identifiable information other than directory information concerning any student attending a public school, for purposes other than those identified in division (C), (E), (G), or (H)2 of this section, without the written consent of the parent, guardian, or custodian of each such student who is less than eighteen years of age, or without the written consent of each such student who is eighteen years of age or older.

(Footnote added.) When applicable, R.C. 3319.321(B) creates an exception to the definition of a public record under R.C. 149.43(A)(1). See R.C. 149.43(A)(1)(v); 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, ¶ 15-16, 31-34. The school district and Dr. Cozad argue that the court need not go further than the plain language of R.C. 3319.321(B) to conclude that the statute applies to Betts's student records.

{¶ 11} The intent of the General Assembly "is primarily determined from the language of the statute itself." Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). And when a statute's language is unambiguous, there is no interpretation required: the court must simply apply the statute as written. State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., 151 Ohio St.3d 92, 2017-Ohio-7577, 86 N.E.3d 294, ¶ 19. This court will not insert language to modify an unambiguous statute under the guise of statutory interpretation. State ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148, 556 N.E.2d 467 (1990).

{¶ 12} The Second District acknowledged, and appellants do not dispute, that R.C. 3319.321(B)'s protections apply to records pertaining to adult former students of a public school. 2019-Ohio-4187, 134 N.E.3d 268, at ¶ 17. We have also implied as much....

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