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

“Is there no ability for the state to do something different than what the federal government has done?”

Justice French, to counsel for the News Agencies

“Do you have any problem with the fact that if the young man in this case had gone to private school, this case would not be here?”

Justice Stewart, to the Solicitor General

“Generally, invasions of privacy die with the person involved, correct?”

Justice Fischer, to counsel for the School District

On June 3, 2020, the Supreme Court of Ohio heard 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 the Bellbrook-Sugarcreek Local School District Board of Education (“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 the 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, 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 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 nor 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. Read the oral argument preview of the case here.

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.

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.”)

*State ex rel. Findlay Publ’g Co. v. Schroeder, 76 Ohio St.3d 580 (1996)(court ordered release of a suicide victim’s records refusing to hold the deceased individual had a privacy right to prevent disclosure.)

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.’”)

*State ex rel. Souffrance v. Doe, 2012-Ohio-1906 (in deciding whether FERPA and the OSPA applied to former students, deference ought to be given to the U.S Department of Education’s interpretation of FERPA because its language charges the Department of Education with both interpretive and enforcement duties.)  

*Lang v. Dir., Ohio Dep’t of Job & Family Servs., 2012-Ohio-5366 (where a statute is silent, courts ought to defer to an agency’s interpretation for guidance.)

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).)

*cited by counsel at argument

At Oral Argument

The News Agencies shared oral argument time with the Attorney General’s office.

Arguing Counsel

Erin E. Rhinehart, Faruki PLL, Dayton, for Appellant News Agencies

Benjamin M. Flowers, Solicitor General, for the Ohio Attorney General, as Amicus in support of Appellant News Agencies

Tabitha Justice, Subashi, Wildermuth & Justice, Dayton, for Appellees Bellbrook-Sugarcreek Local School District Board of Education and Dr. Douglas Cozad

News Agencies’ Argument

The sole issue before this Court is whether either FERPA or its state counterpart, the OSPA, prohibit the release of a deceased adult’s education records. The answer is no. The overwhelming authority on this point is that when an adult student dies, the confidentiality protections of these statutes no long apply.

The OSPA should be interpreted consistently with FERPA, which, with exactly the same language, has consistently been interpreted to find that upon death, an adult student no longer has privacy rights and can no longer provide consent for the release of the records. 

It is obviously impossible for a student who dies to provide consent. This Court could find that someone else, such as an administrator or executor, could provide the necessary consent, which is improper under this Court’s precedent and would essentially be re-writing the statute. Or the Court could hold that where the statute is silent, it defers to the agency’s guidance. That is what this Court did in Souffrance, where the Court construed exactly the same statute and subsection at issue today consistently with FERPA.  Where, as here, the statute is silent on the express issue, agency deference should be afforded.

The parties in this case do not disagree that both statutes are silent on the specific issue before the Court.  Therefore, the Court must consider the intent of the legislature which is made clear when three things are considered. First is the common law against which both statutes were enacted, which does not extend privacy rights to the deceased. Second, the Department of Education has consistently interpreted FERPA’s confidentiality protections to terminate at death. Other states have found agency guidance applicable and have consistently applied it to both FERPA and their state analogues, and this Court has followed the Department of Education’s guidance when interpreting both FERPA and the OSPA. And third, this Court has held in the past that the enactment of the OSPA was to bring Ohio into compliance with FERPA. It is significant that the Ohio General Assembly chose to use the same language in the OSPA as was used FERPA. There is no reason to interpret the two statutes differently. Ohio should not be an outlier and be inconsistent with the way the federal law is interpreted since the OSPA was enacted to comply with it.

Amicus Attorney General’s Argument

This state has long appreciated the importance of maintaining public access to government records. The records in this case are vitally important because they may hold clues about any red flags raised by a mass shooter that may have been missed by local officials who should be held accountable.

The reason the law supports disclosure here is the text of both FERPA and the OSPA create a privacy right, but don’t completely bar disclosure. Rather, disclosure is allowed with consent. Because both create the privacy right, the manner in which privacy rights were understood at the time must be understood. At the time, privacy rights were deemed to lapse with death. That is still true today.

The state is not asking the Court to read an exception into the text of the statute, but rather to define the contours of that privacy right, much as the U.S. Supreme Court did in the Heller case in interpreting the Second Amendment, or as this Court did with the statutory codification of the attorney-client privilege in Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.  The nature of privacy rights at the time these laws were enacted were that they lapsed with death.  Nothing here contradicts that, so they are presumed to retain that meaning. 

Finally, the statutory purpose must be examined. Once a student becomes an adult, he or she alone has the power to grant or withhold consent to the disclosure of records. That matters because the only purpose these statutes serve once the student becomes an adult is to protect the student’s privacy, not his family’s or anyone else’s. When the student dies, he obviously no longer has that interest, which is why disclosure is important.

In regard to the 1990 Attorney General’s Opinion relied on by the School District, if, as the District suggests, it is inconsistent with the position the Attorney General’s office is taking today, the Office was wrong then and right today. But there is no inconsistency, because what the Attorney General recognized in that opinion was that in interpreting when confidentiality obligations lapse, the text must be examined. Here, the text suggests those obligations lapse with death.

Finally, this is the very sort of case for which the Public Records Act exists. It is so that individuals can obtain important information from their government that they can use to insist on legislation and potentially hold local and governmental officials accountable.

The task before this court is to figure out what this statute means. As written, and as uniform guidance from Attorneys General around the country and the Department of Education have recognized, the default rule is that privacy interests lapse at death.

School District’s Argument

Federal and state law prohibit school districts from producing educational records without consent. While the news media has presented a reasonable argument in this case as to why the statutory protections afforded education records should potentially expire on the death of a student, that argument is best presented to the legislature, not the Court.  Neither FERPA nor the OSPA expressly grant the School District permission to release education records in these circumstances. Nor does either statute say that the protections afforded education records expire upon the death of the student.

A public entity such as a school district must take the responsible course of action when faced with a public records request seeking confidential records. Wrongfully producing confidential student records has consequences for a school district, including a breach of the public trust and the withdrawal of federal funds.

Ultimately, if this Court concludes that the records should be produced, the School District will have clear guidance and instruction in the future, and it will be able to produce the records to the news media within a reasonable time.  But the reality is school districts throughout Ohio have been instructed for decades that both federal and state law require them to maintain the integrity and confidentiality of student records.

Historically this Court has been reluctant to add words to a statute where the General Assembly has not done so.  The fact that neither FERPA nor the OSPA includes an expiration date does not make them ambiguous. Neither the news media nor the Attorney General has pointed to any ambiguous words in the OSPA or in FERPA. Adding words to a statute that is not ambiguous disregards the legislature’s intent.

No one disputes the Attorney General’s position that the Public Records Act serves an important purpose.  Open government is an important policy, and the public is entitled to see what the government is doing. However, in fulfilling its function, the government collects significant private data about citizens. The public must have a certain level of confidence that the private information collected about themselves and their children will be protected.

School districts collect a great deal of information about students, some of which is protected by other laws such as HIPPA and the Individuals with Disabilities Education Act (IDEA). Often when the news media make requests like the one in this case, they are looking for student disciplinary records, which can also be covered by the guidance counselor privilege or IDEA.

It is not unusual for school districts to get requests from the news media for educational records of students that have been killed in car accidents, have committed suicide, or have been tragically killed in some fashion. But it also not unusual for school districts to deny those requests on the basis of FERPA and the OSPA.

While it is understandable that the media has chosen this particular case in which to challenge those protections, decisions like this cannot be based on a single incident, no matter how horrific. Decisions such as when a statutory protection should expire are best left to the legislature which can consider the needs of all students.

 The news media’s position that unless the privacy statute expressly states that it expires upon death would have a remarkably broad implication on a myriad of statutes. If that were the case the last paragraph of R.C. 149.43 (A)(1) would be virtually meaningless. That section expressly provides for an expiration date for confidentiality statutes that don’t include their own expiration date. That statute assumes there are some privacy and confidentiality statutes like the OSPA that extend indefinitely, and it places a 75-year time limit for all such statutes. 

Perhaps the facts of this particular case will change how the legislature look at this issue. Maybe the legislature will take another look and reconsider some of the exceptions or even add an exception for this exact circumstance. But at this time, Congress and the Ohio General Assembly have carefully crafted statutes to protect the confidentiality of education records. Both have shown they are capable of drafting expiration dates for those statutes based on death, or the passage of time. This Court should not imply an expiration date where none otherwise exists. The judgment of the court of appeals should be affirmed.

What Was on their Minds

The Explicit Language of the OSPA

What do we do with the last section of RC 3319.321(B), which says,  “or without the written consent of any student age 18 years or older,” asked Justice Fischer, commenting that seemed pretty clear. Wouldn’t the media’s disclosure argument undercut the sunset provision of 75 years?

I’m having a hard time understanding the argument that the Court would have to rewrite the statute to allow someone else to provide consent, commented Justice DeWine. Why wouldn’t we just apply the statute to do exactly what it says? If there is no written consent, “no person shall release.” That seems completely straightforward. What about the plain language of the statute itself? If I gave the statute to my 15-year-old kid, he could understand exactly what it says, he noted. Why wouldn’t we just apply that language? The statute says,  “no person shall release,” and the issue before the court is whether or not someone shall release. It doesn’t deal with a hypothetical situation. You don’t have to add or subtract words to the statute to apply it.

If only public schools are covered, wouldn’t that make all students in public schools more vulnerable to the disclosure of their information than students in private school, asked Justice Stewart?

Guidance from the U.S. Department of Education

I’m a little bit troubled that we as the Supreme Court of Ohio have to look at how FERPA has been interpreted and what the FERPA federal guidance has been, commented Justice French.  What’s the extent of Ohio’s ability to determine for itself when the confidentiality would end? Is there no ability for the state to do something different than what the federal government has done? Even if the language is the same, why does that necessarily mean that the interpretation has to be the same?

We are not bound by that, are we, asked Chief Justice O’Connor?

Consent

Couldn’t a student have provided consent before passing away, asked Justice Stewart?  Could the student in this case have consented to his records being released some time before his demise? Or does the statute prohibit consent prior to request?

What about approaching this through probate, asked Chief Justice O’Connor? If there were an executor or administrator appointed, would they be able to consent?  When counsel for the media answered no, she added that if the duly authorized administrator or executor with broad duties and responsibilities could not disclose, then it seems the legislature truly meant what is written here, nobody can do this, adding that the writers of the statute knew what they were doing in these instances and included specific language to establish their intent.

If the student is deceased, what standing do they have to complain, asked Justice Fischer?

The Types of Records Sought

What kind of records are we talking about here, asked Justice French? Not necessarily about this student, but in general, what would be collected about a student?

Weren’t the media mostly looking for disciplinary records and probably the guidance counselor’s notes, asked Chief Justice O’Connor?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Like a straight-up win for the School District. I think the Court will find the statute unambiguous, and the legislative intent clear-no after-death-release exception.  This Court certainly will not add words that aren’t there. They aren’t that kind of folks. Justices DeWine and Fischer made their positions emphatically clear right from the outset. The legislature clearly meant the records could not be released without consent, and there is no after-death exception. Also, the Court is clearly not going to be bound by the “guidance” from the U.S. Department of Education. That is a variation on the theme of the new judicial federalism, of which Justice French has been a strong proponent.

All three lawyers argued beautifully, but Ms. Justice for the School District especially so. The only thing she might have hammered on, but didn’t, was that the Court need not rely on the Department of Education for guidance, but that point was well handled in the news media’s argument. I commend her for giving such a calm, non-defensive argument, acknowledging the horrifics of this particular situation and the legitimacy of the public policy interests in openness without ever losing the main focus that the law is clear that these records cannot be released after death. This may well get a legislative fix. We’ll see.

To Student Contributor Brandon Bryer

I’m calling this one for the School District. Erin Rhinehart, counsel for the News Agencies presented a strong case, but faced numerous probing questions near the expiration of her time. I think the most influential moment of the entire oral argument came when Chief Justice O’Connor cleverly teased out multiple concessions from Rhinehart. The Chief Justice seized this moment and used the concessions to conclude the General Assembly knew exactly what it was doing by intentionally excluding an after-death release exception in the OSPA.

Through strict questioning of the News Agencies, Justice French and Chief Justice O’Connor appeared to prefer the autonomy of Ohio courts to interpret the OSPA rather than simply deferring to federal agencies and federal interpretations of FERPA. In fact, the Chief Justice got Rhinehart to concede the U.S Department of Education letter was not binding upon the Supreme Court of Ohio. Justice DeWine also interrogated the News Agencies’ argument because he believed the language of the OSPA was straightforward and could simply be applied. 

I found counsel for the School District, Tabitha Justice, to be very persuasive and principled. In response to a softball question from Justice French, Justice highlighted that a student’s records include far more than just grades or attendance, but rather encompass deeply personal and private information, some of which is protected from release by other privacy statutes. Further, Justice added a practical note that all seven justices and counsel for both parties have similar educational records that are currently being protected. When Justice Fischer questioned whether tort privacy actions lapsed at death, Justice convincingly argued that issue was not at the heart of this case.

I think Solicitor General Flowers made interesting and poignant arguments on behalf of the Ohio Attorney General; however, I do not believe his arguments will outweigh the justices’ emphasis on the clear language of the OSPA and the non-binding FERPA authority the News Media relies upon. Justices Kennedy and Donnelly did not ask a single question throughout the entire argument, so it will be interesting to see where they each land in this case.