Update: On November 5, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On June 3, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio ex rel. Cable News Network, Inc. et al v. Bellbrook-Sugarcreek Local Schools, et al, 2019-0047. At issue in this case is whether the federal student privacy law, the Family Educational Rights and Privacy Act (“FERPA”), or its Ohio state law counterpart, the Ohio Student Privacy Act (“OSPA”) continue to prevent the release of student information after the student has died in adulthood.

Case Background

On August 4, 2019, 24-year-old Connor Betts opened fire on a crowd of individuals in Dayton, Ohio, leaving 9 dead and 27 others wounded. Betts was killed by law enforcement officers on the scene.

Following the shooting, numerous local, state, and national news agencies (“News Agencies”) promptly submitted public record requests to Bellbrook-Sugarcreek School District (“School District”) where Betts had graduated from high school in 2013. Hoping to gain insight into the shooter’s behavioral past, the News Agencies requested a full release of Betts’ personal, disciplinary, and educational records from the School District and its Superintendent.

The School District declined to release the disciplinary records on the grounds that doing so would violate both FERPA, the federal student privacy law, and OSPA, its Ohio state law counterpart. The School District contended Betts’ records are non-public and not eligible for release under the Ohio Public Records Act (“PRA”) which makes records non-public when release would violate federal or state law.

Mandamus Action

On August 9, 2019, the News Agencies filed an original action in the Second District Court of Appeals, seeking a writ of mandamus to compel the School District to release Betts’ records.

In a unanimous per curiam decision by Judges Jeffrey Welbaum, Mary Donovan, and Michael Tucker, the Second District Court of Appeals found that the News Agencies were not entitled to the writ of mandamus for Betts’ school records because they failed to establish that they have a clear legal right to receive the requested records and that the School District has a clear legal duty to provide those records.

The PRA requires public offices to release public records upon request. However, not every record kept by a public office is a public record. The PRA states that if the release of the records would violate a state or federal statute, the records may not be released by the public office. Records containing identifiable student information are generally excepted from the PRA’s release requirement because the release of school records violates FERPA and the OSPA.  

While both FERPA and the OSPA are silent on after-death release of educational records, the plain language of the OSPA alone bars release of Betts’ educational records. The OSPA, as an explicitly recognized exception to release under Ohio’s PRA, does not include an after-death-release exception. Neither the OSPA or the PRA is ambiguous, and the appeals court declined to read an unwritten exception into the OSPA.

To support an after-death-release exception to either FERPA or the OSPA, the News Agencies relied on a common law tort principle that the right to recover for wrongful invasion of privacy lapsed at death. The appeals court found this argument misplaced, and common law tort doctrine inapplicable to mandamus review.

In regard to FERPA, the News Agencies relied on an informal letter from the U.S. Department of Education interpreting Tennessee tort law from the 1960’s. The appeals court found this argument unpersuasive and not authoritative in interpreting the OSPA. The court found it more appropriate to rely on a 1990 Ohio Attorney General opinion that concluded the right to privacy does not end at death unless explicitly provided for by statute.

The appeals court acknowledged the keen public interest in Betts’ student records, but concluded that public policy interests are not considered in the statutory analysis for a writ of mandamus. The PRA serves an important function in government transparency, but the PRA does not provide an absolute right to every record kept by a public office. The statutory construction of the OSPA unambiguously prohibits the release of Betts’ student records.

The News Agencies appealed.

Votes to Accept the Case

Yes: Justices Kennedy, French, Fischer, DeWine, Donnelly, and Stewart

No: Chief Justice O’Connor

Key Statutes and Precedent

20 U.S.C. 1232g (Family Educational Rights and Privacy Act (FERPA))(forbids federal funding to schools that have a “policy or practice of permitting the release of education records or personally identifiable information contained therein other than directory information of students without the written consent of their parents.”)

R.C. 3319.321 (Ohio Student Privacy Act (OSPA)) (“No person shall release personally identifiable information other than directory information concerning any student attending a public school […] without the written consent of each such student who is eighteen years of age or older.”)

R.C. 149.43 (Ohio Public Records Act (PRA)) (“Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services. “Public record” does not mean any of the following: […] (v) Records the release of which is prohibited by state or federal law.”)

Ohio Attorney General Opinion No. 90-007 (In 1990, Ohio Attorney General Anthony Celebrezze issued an opinion concluding, “where state law prohibits the release of information, such prohibition remains effective despite death of the subject of the record.” Unless the General Assembly has expressed a clear and unequivocal exception, a variance from the terms of the statute may not be implied.)

Cordell v. Detective Publications, Inc., 419 F.2d 989 (6^th Cir. 1969) (interpreted Tennessee tort law holding the common law right to privacy, “lapses with the death of the person who enjoyed it.”)

Morgan v. Adult Parole Auth., 68 Ohio St.3d 344 (1994) (“Courts do not have the authority to ignore the plain and unambiguous language of a statute under the guise of either statutory interpretation or liberal construction; in such situation, the courts must give effect to the words utilized.”)

State ex rel. Woods v. Oak Hill Community Med. Ctr., Ohio St.3d 459 (2001) (Rejected reliance on common law and non-statutory sources to grant a mandamus action. “Rights and duties enforced in mandamus must be legislatively created, not judicially created, meaning that common law rights are not determinative or particularly relevant.”)

State ex rel. Dann v. Taft, 2006-Ohio-1825 (“The policy underlying the Public Records Act is that ‘open government serves the public interest and our democratic system.’”)

Ohio Neighborhood Fin., Inc. v. Scott, 2014-Ohio-2440 (“It is not the role of the courts to establish legislative policy or to second-guess policy choices the General Assembly makes.”)

School Choice Ohio, Inc. v. Cincinnati Pub. School Dist., 2016-Ohio-5026. (Explicitly recognized the OSPA as an exception to the PRA under 149.43(A)(1)(v))

News Agencies’ Argument

FERPA and the OSPA are both silent as to the protection of a deceased adult student’s educational privacy. Therefore, neither statute should be liberally construed to protect such privacy interest. Rather, it is the Public Records Act that is to be liberally construed in favor of broad disclosure and Connor Betts’ records should thus be released. The Second District’s refusal to read an exception into FERPA or the OSPA, in effect, creates an even broader exception to the PRA and undermines governmental transparency.

Before FERPA and the OSPA were enacted, the overwhelming common law approach, including in Ohio, was that privacy rights did not extend beyond death. For example, at common law, suicide victims had no privacy right to block public disclosure of their identities. FERPA and the OSPA were ratified upon this no-privacy- after-death background. Other statutes which were ratified upon this no-privacy-after-death background explicitly stated an intention to abrogate the common law. For example, HIPPA, the healthcare privacy law, expressly extends privacy protections to patients 50 years after their death. If Congress or the Ohio General Assembly truly intended to protect educational records after death, they would have expressly done so as was standard practice for similar statutes.  

The language of FERPA itself grants the U.S. Department of Education full interpretive and enforcement authority, and this Court should consider agency construction of these statutes.  Consistent with this grant of authority, the Education Department established the Family Policy Compliance Office to oversee and enforce FERPA. The Family Policy Compliance Office, in an official interpretation of FERPA, held that the privacy of educational records lapses at death. To arrive at such a conclusion, the Department of Education similarly relied on the common law principle that the right to bring causes of action for invasion of privacy lapses upon death. Schools across the nation have consistently relied on this long-standing interpretation of FERPA. The Department’s interpretation is accurate and further aligns FERPA with common law privacy rights. Since this Court has already recognized that the OSPA has many similarities with its federal counterpart, it follows that FERPA authority should be considered persuasive in interpreting the OSPA.

Other jurisdictions have followed the view that deceased adults’ educational records are not protected from disclosure. Attorney General opinions from Texas, Utah, Oregon, and Kentucky have relied on the same Department of Education interpretation of FERPA and recognized it as binding law in their states.

Finally, the approach taken by the Department of Education and adopted in similar jurisdictions is most accurately aligned with FERPA and Congressional intent.

To affirm the Second District would be to seal the educational records of adult students forever. Such an approach promotes governmental secrecy and undermines the interests of openness and transparency that motivated adoption of the PRA and is necessary in a democratic society.  

School District’s Argument

FERPA and the OSPA do not speak to privacy protections after death. Therefore, the statutes should not be construed to eliminate such  posthumous rights. There are already many privacy-related statutes in Ohio that are exempt from disclosure as a public record by virtue of the “[r]ecords the release of which is prohibited by state or federal law” language in R.C. 149.43(A)(1)(v).

The News Agencies’ arguments are founded upon non-binding and unpersuasive authority that do not support a judge-created exception to an unambiguous statute. The issue at hand is best left to legislative judgment.

A writ of mandamus is a stringent standard which the News Agencies have failed to meet. A writ of mandamus is reserved for very limited, narrow cases. The News Agencies cannot establish that the School District had a clear legal duty to provide access to confidential educational records.

It is not FERPA or the OPSA, but rather Ohio’s Public Records Act that is in derogation of the no-privacy-after-death common law principle upon which the Media Networks so heavily rely. Before and after ratification of Ohio’s PRA, the public did not have access to educational records at common law. The student privacy rights guaranteed by FERPA and the OSPA actually make the PRA more consistent with this common law principle by refusing to allow the release of private records.  Courts should not overreach and create an expiration date upon student privacy.

Even accepting the News Agencies’ other arguments, Ohio’s PRA itself explicitly provides a procedure for the release of private records when no statutory mandate exists. Unless another act of the Ohio Revised Code states a contrary intention, a permanently retained record becomes public 75 years after it was created. Since the OSPA does not provide a contrary timeline, the PRA’s express mandate of a 75-year period eliminates the need for the courts to read in an unwritten exception. Betts’ records will become public 75 years after they were created, not immediately after his death.

The Department of Education’s interpretation of FERPA is stated in vague terms, did not adhere to the plain language of the statute, and is non-binding. Even if the Department’s interpretation of federal law is found to eliminate privacy protection at death, the OSPA, as a state law, provides broader protections to student records and is not bound by the Department’s interpretation. The most persuasive authority as to the OSPA is the 1990 Ohio Attorney General opinion explicitly stating educational records do not lose protection upon death unless otherwise mandated by statute. The Attorney General opinions in other states should not overrule the long-held approach in Ohio.

Some Ohio privacy statutes have death provisions, others do not. Judicially created exceptions to legislative intent is a dangerous infringement on separation of powers. A court is the wrong place to establish legislative policy goals or create impromptu rules.

Finally, the News Agencies’ arguments have broad ranging and dangerous policy implications. Ohio’s PRA provides privacy exceptions that prevent the release of medical, adoption, or DNA records. The News Agencies’ position would carve out vast exceptions to these provisions and make deeply personal records public upon death. The personal records of an eighteen-year-old student who commits suicide would be thrust into the public realm. The medical records of a student who dies in a car accident would be freely available to the public. Such an approach eliminates any privacy protections afforded to the families and loved ones of those who have died. The Second District’s decision should be affirmed.

News Agencies’ Proposition of Law Accepted for Review

Neither the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, nor the Ohio Student Privacy Act, R.C. 3319.321, prohibits the release of a student’s education records or other personally-identifiable information under the Ohio Public Records Act, R.C. 149.43, when that student attains eighteen years of age and subsequently dies.

School District’s Proposed Counter Proposition of Law

The confidentiality protections afforded by the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, and the Ohio Student Privacy Act, R.C. 3319.321, do not terminate upon the death of a student.

Amici in Support of  News Agencies

Ohio Attorney General Dave Yost

The Ohio Attorney General (“OAG”) submitted an amicus brief in support of the News Agencies. Ohio law tasks the Attorney General with ensuring transparency in government which includes informing public officials of their duties under Ohio’s Public Records Act.

The OAG argues that FERPA does not protect the school records of former students who die as adults, and the OSPA does not provide greater protection in this regard than FERPA does. Therefore, a deceased student’s records are subject to disclosure under both laws, and the judgment of the court of appeals should be reversed.

OAG’s Proposed Proposition of Law 1

FERPA does not protect the records of former students who die in adulthood.

OAG’s Proposed Proposition of Law 2

Ohio’s Student Privacy Act, R.C. 3319.321, does not provide more protection than FERPA and a deceased student’s records are public records subject to disclosure under Ohio’s Public Records Act.

WBNS-TV Inc.

WBSN-TV is a Columbus news broadcasting agency that has an interest in the broad enforcement of the public’s rights under Ohio’s Public Records Act. WBSN-TV was denied access to Betts’ records. WBSN-TV argues that the Second District improperly emphasized the strictness of a writ of mandamus action whereas this case is simply about statutory construction. Statutes that attempt to change the common law should be read to retain long-standing common law principles unless the statute expressly states otherwise. Therefore, if FERPA and the OSPA intended to be in derogation of the common law principle that privacy lapses at death, they should have stated that intention. The Second District in effect created its own rule that privacy protections of educational records never expire and will remain sealed forever. The court of appeals decision should be reversed.

WBSN-TV Inc.’s Proposed Proposition of Law

The protections afforded under the federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and the Ohio Student Privacy Act, R.C. 3319.321, expire upon the death of a student who has reached adulthood, such that neither statute prohibits release of records under the Ohio Public Records Act exception for “[r]ecords the release of which is prohibited by state or federal law,” R.C. 149.43(A)(1)(v).

The Reporters Committee for Freedom of the Press and Ten Media Organizations

Amici are 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 (Collectively, “The Reporter Amici”)

The Reporter Amici argue that educational records are instrumental in identifying the behavioral tendencies of mass shooters and broad access to such records can prevent other tragedies in the future. The Reporter Amici note the disciplinary records of the Virginia Tech and Parkland High School shooters revealed numerous warning signs and missed opportunities. To ensure the public is not deprived of potentially-life saving information, the Second District should be reversed.

Reporter Amici’s Proposed Proposition of Law 1

Absent express evidence of statutory intent, statutes which invade the common law should not be construed to abrogate longstanding common law principles.

Reporter Amici’s Proposed Proposition of Law 2

The Ohio Public Records Act and public policy favor broad disclosure of public records.

Student Contributor: Brandon Bryer