“…under the plain language of R.C. 3319.321(B), the school district is prohibited from releasing any personally identifying information about Betts without his consent.”

Justice Stewart, majority opinion

“The text of R.C. 3319.321(B) is written in the present tense and unambiguously limits the release of ‘personally identifiable information other than directory information concerning any student attending a public school’ (emphasis added); it does not prohibit a public school from releasing the records of a former student who is deceased and therefore not currently ‘attending’ that school.”

Justice Kennedy, dissenting opinion

On November 5, 2020, the Supreme Court of Ohio handed down a merit decision in State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools 2020-Ohio-5149. In a 6-1 opinion written by Justice Stewart, the Court held that the records of an adult school shooter could not be released to the media under the Ohio Student Privacy Act (“OSPA”). Justice Kennedy dissented. The case was argued June 3, 2020.

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 police officers on the scene. Betts was a 2013 graduate of Bellbrook High School, which is part of appellee Bellbrook-Sugarcreek Local Schools school district (the “school district”).

Appellants are seven local and national media organizations (these are listed in footnote one of the Court’s opinion, and for ease of reading will be referred to as the News Media throughout the post).

On August 4 and 5, 2019, pursuant to R.C. 149.43, each of the news media outlets submitted a public records request to the school district, requesting Betts’s school records, including but not limited to disciplinary records. The school district denied the requests on the grounds that the records were exempt from disclosure under R.C. 149.43(A)(1)(v), which prohibits the release of records where release is prohibited by state or federal law. The school district identified the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (“FERPA”), and the Ohio Student Privacy Act as the statutes that exempted Betts’s records from disclosure under R.C. 149.43(A)(1)(v). School Superintendent Dr. Douglas A. Cozad acknowledged in an email to the press that the federal government generally interprets FERPA rights as terminating on the death of a student but took the position that Ohio law offers broader protections for student records.

On August 9, 2019, the News Media collectively filed a mandamus action against the school district and Dr. Cozad in the Second District Court of Appeals. The News Media argued that they had a clear legal right to see Betts’s records under the Ohio Public Records Act, and that neither the OSPA nor FERPA prohibits the release of these records. The Second District denied the writ, finding that the OSPA unambiguously protects the school records of an adult former student from disclosure, with no exception for that former student’s death.  Because of this finding, the appeals court did not reach the issue of whether FERPA also prohibited the release of the records.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

R.C. 3319.321 (B) (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.”) 

R.C. 5119.28 (Confidentiality of Mental Health Records) (Privacy statute for mental health records which expressly provides an exception for when a personal record becomes public upon the death of an individual. “A person’s mental-health records are no longer considered confidential when the person has been deceased for 50 years.”)  

34 CFR 99.3 (As applied to FERPA, a student is defined as “any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.”) 

State ex rel. Miller v. Ohio State Hwy. Patrol, 2013-Ohio-3720 (“Exceptions to disclosure under the Public Records Act are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception.”)  

State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., 2017-Ohio-7577 (When a statute’s language is unambiguous, there is no interpretation required; the court must simply apply the statute as written.)   

Hulsmeyer v. Hospice of Southwest Ohio, Inc., 2014-Ohio5511 (Courts must not rewrite a statute under the guise of statutory interpretation. Courts must give effect to the words used in a statute, “making neither additions nor deletions from words chosen by the General Assembly.”) 

State ex rel. Souffrance v. Doe, 2012- Ohio-1906 (Requestor of public records denied access to educational records because FERPA barred disclosure. Requestor argued the records were not exempt from disclosure because they pertained only to persons who are no longer students. The Court stated this argument lacked merit because “the persons were students when the records were created and originally maintained” and FERPA mandates records of both current and former students be kept.) 

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)). OSPA was enacted to bring Ohio’s public schools into compliance with FERPA.) 

Dunbar v. State, 2013-Ohio-2163 (Inquiring into legislative intent is inappropriate absent an initial finding that the language of a statute is ambiguous.)  

State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580 (1996) (Held there is no common law right to privacy that shields records of deceased individuals from disclosure under R.C. 149.43. However, the Court hinted that had there been a statutory scheme, the result might have been different.)  

News Media’s 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.

Does the Court Adopt the News Media’s Proposed Proposition of Law?

The Court rejects the proposition insofar as it relates to the OSPA, and for that reason does not reach the issue of the release of records under FERPA.

Merit Decision

Analysis

Some Basics

In order to be entitled to a writ of mandamus, the News Media must show a clear legal right to the requested relief and a clear legal duty on the school district to provide it. In a public records request, the News Media need not show the absence of an adequate remedy at law. Public records requests are to be liberally construed in favor of disclosure.

Key Provision of the Public Records Act At Issue in this Case

R.C. 149.43(A)(1)(v) exempts from disclosure records the release of which is prohibited by state or federal law.

Applicability of R.C. 3319.321(B)

This is the Ohio Student Privacy Act, and where applicable, it creates an exception to the definition of a public record. No party in the case disputes that the protections of this provision apply to the records of adult former students.

Refuting the Dissent’s “Present Tense” Argument

Justice Stewart, for the majority, takes a swipe at Justice Kennedy’s view (which Stewart notes was not raised by any party or by the Second District) that this provision does not protect the records of former students at all because it is written in the present tense, and therefore only protects the personally identifiable information of students currently attending a public school.

The majority interprets the “any student attending a public school” language as speaking not to the current status of the person whose records are sought, but rather as a descriptor of the personally identifiable information being sought. The majority posits that its interpretation is supported by the fact that the OSPA was enacted to bring the state’s public schools into compliance with FERPA, which grants funding only to those educational institutions in compliance with its student privacy requirements. FERPA requires public schools to protect the records of both current and former students.

“The dissent would have us believe that the General Assembly intended for R.C. 3319.321(B) to fall short of FERPA requirements by limiting its application to current students. This would be a nonsensical reading of a statute specifically intended to bring Ohio into compliance with FERPA and to help ensure that Ohio schools can receive federal funds,” Stewart wrote.

The OSPA is Unambiguous and Prohibits Disclosure

First, the majority declares the language in R.C. 3319.3221(B) to be unambiguous, and that it creates an exception to release as a public record under R.C. 149.43(A)(1(v), regardless of whether the records are those of a current student or of an adult former student who has died.

R.C. 3319.321(B) generally forbids the release of personally identifiable information about any student without the written consent of the student’s parent or legal guardian if the student is a minor, or of the student himself, if over 18. And while there are specific exceptions to that general ban, including “directory information” and, for example, disclosure to law enforcement investigating a missing child, there is no exception for the death of an adult former student. Therefore, here, under the plain language of R.C. 3319.321(B), the school district cannot release any personally identifying information about Betts without his consent.

News Media Arguments

Common Law Right to Privacy

The News Media argued that FERPA and the OSPA were enacted against the backdrop of the common law right to privacy, which lapses with the death of the individual to whom it belonged, and if the federal and state legislative branches intended that these statutes extend beyond an individual’s death they would have expressly so stated, because to do otherwise would be to act in derogation of the common law.

Agency Interpretation of FERPA

The News Media also argued that the interpretation of the U.S. Department of Education, which is the federal agency charged with the interpretation of FERPA, should govern here. That department’s Family Policy Compliance Office has long taken the position that an adult student’s privacy rights under FERPA ends when the student dies, and that should govern the interpretation of R.C. 3319.321(B) since the OSPA was enacted to bring Ohio into compliance with FERPA.

Majority Rejects Media Arguments Since Statutory Language in Unambiguous

The majority agrees with the News Media and their amici that their arguments about common law privacy and agency interpretation of FERPA are appropriate considerations in determining legislative intent, but only if the statutory language is ambiguous.  The majority finds that the News Media have failed to establish in the first instance how R.C. 3319.321(B) is ambiguous with regard to the absence of an exception for an adult former student’s death, so no such interpretation is necessary. 

“Interpreting R.C. 3319.321(B)’s protections to expire upon the death of an adult former student would effectively rewrite the statute under the guise of interpretation,” Stewart wrote.

The majority goes on to state that even if the Court were to view R.C. 3319.321(B) through the lens of the common law right to privacy, the Court’s position would not change. The school district and Dr. Cozad did not rely on common law privacy rights to withhold Betts’s records. They relied on the duties imposed by statute, which unambiguously provides no textual basis to conclude that confidentiality expires along with the death of an adult former student. This case is about statutory, not common law obligations.

The Sunset Provision of R.C. 149.43(A)

This provision states that any record that is permanently maintained (which school records are) that is not a public record becomes a public record seventy-five years after its creation. This underscores the point that the legislature intended there to be no “death exception” in the OSPA.

Court Declines to Add an Exception to R.C. 3319.321(B)

It is undisputed that the Court liberally construes Ohio’s Public Records Act in favor of disclosure and broad access. But that general principle does not authorize a court to add language to a statute that is not there—in this case an exception for disclosure of the records for a deceased adult student. Acknowledging that there may very well be policy reasons to create such an exception, that is not the Court’s call to make.  Rather that call belongs firmly with the General Assembly.

What About Disclosure Under FERPA?

Because the majority finds that the Ohio Student Privacy Act prohibits the disclosure of Betts’s school records, it does not reach the issue of whether disclosure is also prohibited under FERPA.

Bottom Line

The school district was correct in denying the News Media’s public records request. The language of the OSPA on this point is unambiguous.

Justice Kennedy’s Dissent

Justice Kennedy agrees R.C. 3319.321(B) is unambiguous and agrees there is no need for statutory interpretation here. But she takes a different meaning from the text than the majority does, focusing on the present tense of the statute, which limits the release of identifiable information from any student attending a public school, but does not expressly prohibit the release of the records of a former deceased student or any student otherwise not attending a public school. To her, the statute does not create an exception to the release of Betts’s school records under the Ohio Public Records Act.

Once Again, to Webster’s Third New International Dictionary

Justice Kennedy has a fondness for this dictionary. This time it is to define the word “attend.” Kennedy explains that the text of the statute at issue limits the release of records of students attending a public school. The dictionary tells us that “attend” means “to be present at” and “go to.” And “attending” “is a present participle form of that verb.” She further explains that Bryan A. Garner, author of Garner’s Modern English Usage 1020 (4th Ed.2016), defines “present participle” as “[a] nonfinite verb form ending in -ing and used in verb phrases to signal the progressive aspect”). Got it? It speaks to the present, not the past.

“The plain meaning of the phrase ‘any student attending a public school’ refers to a person who is currently and continuously going to that school. In contrast, a person who attended school in the past cannot be said to be attending the school under any common usage of that word,” wrote Kennedy. Nor can a student who died be considered a “student attending” a public school.

The Majority is Just So Wrong About it All, Says Kennedy

The rest of Kennedy’s dissent details the many ways in which she thinks the majority went astray. What follows is a synopsis of the points in support of her position. And she defends her “present tense” interpretation, even though no party argued this point, since, she reminds us, it is the duty of the courts to say what the law is (citing Marbury v. Madison!).

“This court abdicates that responsibility if it rejects out of hand a plain-meaning analysis of a statute just because a party failed to assert it,” Kennedy wrote.

Kennedy disagrees with the majority’s take that in Souffrance, the Court impliedly found that R.C. 3319.321(B)’s protections apply to records of an adult former student of a public school. She reads that opinion as dealing only with FERPA protections, not OSPA protections.

Kennedy goes on to accuse the majority of rewriting R.C. 3319.321(B),  saying that in order for the majority position to be correct, the words “or former student” or “former student who attended” would need to be added throughout the existing statute.  But the legislature didn’t write the statute that way. She accuses the majority of going beyond the four corners of the statute to consider canons of statutory construction such as the object of the statute, the circumstances under which it was enacted, the legislative history, and the consequences of a given construction, which should only be done when a statute is ambiguous, and not when the plain language is clear. She goes into considerable detail about this. For example, Kennedy addresses the matter of federal agency enforcement of FERPA though the Department of Education, noting that the Department does not withhold funds from schools that have a policy granting access to the school records of former students who died as adults.

“Despite the majority’s bluster, then, this case has nothing to do with federal funding of Ohio schools but is really about whether the people of this state have a right to access public records,” Kennedy wrote.

Bluster? Wait, there’s more, about those activists in the majority:

Kennedy writes, “[b]ut even if there were a risk to federal funding, it would not grant this court super-legislative authority to substitute its judgment for that of the General Assembly and rewrite the plain language that the General Assembly enacted. It may be good policy for Ohio to prohibit access to records pertaining to both current and former students of a public school, but it is the General Assembly, not this court, that is the ultimate arbiter of public policy in this state.” (citation omitted).

Bottom Line, for Kennedy

R.C. 3319.321(B) does not prohibit the release of Connor Betts’s school records in this case. Since the appeals court did not reach the argument that FERPA precludes the release of these records, she would reverse the judgment of the court of appeals and send the case back there to consider the FERPA issue.

Case Disposition

R.C. 319.321(B) prohibits the disclosure of Connor Betts’s school records sought by the News Media. Because of this finding, the Court does not reach the issue of whether FERPA also prohibits disclosure. The school district correctly denied the public records request, and the Second District’s judgment denying the writ of mandamus is affirmed.

Concluding Observations

Both student contributor Brandon Bryer and I correctly called this for the School District.

After argument, I wrote that it looked

“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.”

I found Justice Kennedy’s dissent overwritten, and with a very harsh tone (In fairness, the majority does call her reading of the OSPA “nonsensical’) Despite her many arguments, she persuaded no one else of her position. She also never addressed the sunset provision at all—a point that seemed particularly persuasive to Justice Fischer during oral argument, and to me as well.