Supreme Court of Ohio Clerk of Court - Filed December 16, 2019 - Case No. 2019-1433
IN THE SUPREME COURT OF OHIO
STATE OF OHIO, ex rel. Case No. 2019-1433 CABLE NEWS NETWORK,INC., et al.,
Relators-Appellants, On Appeal from the Greene County v. Court of Appeals, Second Appellate District BELLBROOK-SUGARCREEK LOCAL SCHOOLS, et al., Court of Appeals Case No. 2019CA0047 Respondents-Appellees.
SUPPLEMENT TO MERIT BRIEF OF APPELLANTS
Erin E. Rhinehart(0078298) Nicholas Subashi(0033953) Counsel of Record Tabitha Justice (0075440) Christopher C. Hollon (0086480) SUBASHI, WILDERMUTH & JUSTICE FARUKI PLL 50 Chestnut Street, Suite 230 110 North Main Street, Suite 1600 Dayton, Ohio 45440 Dayton, OH 45402 Telephone: (937)427-8800 Telephone: (937) 227-3714 Telecopier: (937)427-8816 Telecopier: (937) 227-3717 Email: [email protected] Email: [email protected] [email protected] [email protected]
Counselfor Relators-Appellants Counselfor RespondentsAppellees TABLE OF CONTENTS
PAGE
Aug. 19, 2019 Joint Notice of Completion of Discovery, Stipulations, and Agreed Statement of Facts [Dkt. No. 20] 0001
Aug. 22, 2019 Affidavit of Erin E. Rhinehart in Support of Merit Brief of Relators [Dkt. No. 23, Ex. 1] 0007
Oregon Attorney General Order on Petition for Public Records Disclosure (June 15, 1998)[Dkt. No. 23, Ex. 2] 0016
i 2019 AUG 19 AM 10: 29 COUR OF APPFALS COM
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO SECOND APPELLATE DISTRICT
STATE OF OHIO, ex rel. Case No. 2019CA0047 CABLE NEWS NETWORK,INC., et al.
Relators, Original Action in Mandamus
vs.
BELLBROOK-SUGARCREEK LOCAL JOINT NOTICE OF COMPLETION SCHOOLS, et al. OF DISCOVERY,STIPULATIONS, AND AGREED STATEMENT OF Respondents. FACTS
Pursuant to the Court's August 13, 2019 Decision and Entry; Scheduling Order,
and Loc.App.R. 8(E), Relators Cable News Network, Inc.("CNN"); Cox Media Group Ohio,
Inc. d/b/a Dayton Daily News and WHIO-TV Channel 7("CMGO"); WDTN-TV2; Scripps
Media, Inc. d/b/a WCPO-TV; The Cincinnati Enquirer, a Division of GP Media, Inc.; The New
York Times Company d/b/a The New York Times; American Broadcasting Companies, Inc. d/b/a ABC News; and The Associated Press ("AP")(collectively, "Relators"), and Respondents
APPELANTS SUPP. 0001 Bellbrook-Sugarcreek Local Schools, also identified as the Bellbrook-Sugarcreek Local School
District Board of Education ("Bellbrook-Sugarcreek Local Schools") and Douglas A. Cozad,
Ph.D. (together, "Respondents"), give notice of the following Stipulations and Agreed Statement
of Facts. In light of the following stipulations, the parties give notice that discovery is complete.
Stipulations
1 The Court of Appeals of Ohio, Second Appellate District, Greene County, Ohio has
jurisdiction and venue over the above-captioned lawsuit.
2. Respondent Bellbrook-Sugarcreek Local Schools is a public office subject to R.C.
§§149.011(A), 149.43.
3. Respondent Douglas A. Cozad, Ph.D., in his capacity as Superintendent of the Bellbrook-
Sugarcreek Local Schools, is a person responsible for public records kept by Respondent
Bellbrook-Sugarcreek Local Schools and is subject to R.C. §149.43.
4. Connor Betts was a student at Bellbrook High School, which is part of the Bellbrook-
Sugarcreek Local Schools.
5. Connor Betts graduated from Bellbrook High School in 2013.
6. On August 4, 2019, in the Oregon District of Dayton, Ohio, Connor Betts killed nine
individuals and injured 27 more during a mass shooting.
7. On August 4, 2019, Connor Betts died.
8. At the time of his death on August 4, 2019, Connor Betts was 24 years old.
2
APPELANTS SUPP. 0002 9. Pursuant to R.C. §149.43, Relators each electronically submitted to Respondents written
requests for records relating to Connor Betts, including but not limited to disciplinary
records.
10. Respondents denied Relators' respective written requests for records relating to Connor
Betts.
1 1. The requested records relating to Connor Betts, including but not limited to disciplinary
records, are records under R.C. §§149.011(G), and the records are kept by Respondents.
12. Exhibits 7-12 to Relators' August 9, 2019 Complaint for Writ of Mandamus are each true
and accurate copies, the authenticity to which is stipulated.
Agreed Statement of Facts
Pursuant to the Ohio Public Records Act, R.C. §149.43, Relators Cable News
Network, Inc.("CNN"); Cox Media Group Ohio, Inc. d/b/a Dayton Daily News and WHIO-TV
Channel 7("CMGO"); WDTN-TV2; Scripps Media, Inc. d/b/a WCPO-TV; The Cincinnati
Enquirer, a Division of GP Media, Inc.; The New York Times Company d/b/a The New York
Times; American Broadcasting Companies, Inc. d/b/a ABC News; and The Associated Press
("AP")(collectively, "Relators") filed an original action for a writ of mandamus against
Respondents Bellbrook-Sugarcreek Local Schools, also identified as the Bellbrook-Sugarcreek
Local School District Board of Education ("Bellbrook-Sugarcreek Local Schools"), and Douglas
A. Cozad, Ph.D., in his official capacity as Superintendent of Bellbrook-Sugarcreek Local
Schools (together, "Respondents"). Complaint for Writ of Mandamus (filed Aug. 9, 2019). On
August 4, 2019, Connor Betts shot and killed nine people and injured 27 others in the Oregon
3
APPELANTS SUPP. 0003 District of Dayton, Ohio. The attack stopped when Betts was shot and killed by Dayton police
officers who were on patrol in the area. At the time of his death, Betts was 24 years old.
In the past, Betts attended and was a student at Bellbrook High School. Betts
graduated from Bellbrook High School in 2013.
Following the August 4 mass shooting in the Oregon District, on August 4 and 5,
Relators electronically submitted to Respondents respective written requests for records relating
to Betts, including but not limited to disciplinary records. Betts was deceased at the time of
Relators' respective requests for records.
Respondents denied Relators' respective written requests for records relating to
Connor Betts. Respondents stated that the requested records are exempt from disclosure under
R.C. §149.43(A)(1)(v) — specifically, The Family Educational Rights and Privacy Act
("FERPA")(20 U.S.C. §1232g), and Ohio's Student Privacy Act(R.C. §3319.321). Relators
dispute that the requested records are exempt from disclosure.
4
APPELANTS SUPP. 0004 Respectfully submitted,
Evi;, pliv,41,4)
r Erin E. Rhinehart(0078298) Tabitha Justice(0075440) (Lead Counsel) (Lead Counsel) Christopher C. Holton (0086480) SUBASHI, WILDERMUTH & JUSTICE FARUKI PLL The Greene Town Center 1 10 North Main Street, Suite 1600 50 Chestnut Street, Suite 230 Dayton, OH 45402 Dayton, OH 45440 Telephone: (937) 227-3714 Telephone: 937.427.8800 Telecopier: (937) 227-3717 Telecopier: 937.427.8816 Email: [email protected] Email: [email protected] [email protected]
Attorneys for all Relators Attorney for all Respondents L litIA'mt4.1(4) Swpi).1 Ali Pi 0217,0t-1-1-k, Andrew C. Storar (0018802) PICKREL, SCHAEFFER & EBELING CO. LPA 2700 Kettering Tower Dayton, OH 45402 Telephone: (937) 223-1130 Telecopier: (937) 227-0339 Email: [email protected]
Attorney for WDTN-TV2
5
APPELANTS SUPP. 0005 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Joint Notice of Completion Of Discovery,
Stipulations, and Agreed Statement of Facts has been served via electronic mail upon the
following counsel of record this 19th day of August, 2019:
Tabitha Justice, Esq. Subashi, Wildermuth & Justice 50 Chestnut Street, Suite 230 Dayton, Ohio 45440
Attorney for Respondents
Erin E. Rhinehart
1361590.1
6
APPELANTS SUPP. 0006 IN THE COURT OF APPEALS OF GREENE COUNTY,OHIO SECOND APPELLATE DISTRICT
STATE OF OHIO, ex rel. Case No. 2019CA0047 CABLE NEWS NETWORK,INC., et al. Original Action in Mandamus Relators,
vs.
BELLBROOK-SUGARCREEK LOCAL AFFIDAVIT OF ERIN E. SCHOOLS,et al. RHINEHART IN SUPPORT OF MERIT BRIEF OF RELATORS Respondents.
STATE OF OHIO ) SS: COUNTY OF MONTGOMERY )
I, Erin E. Rhinehart, being first duly sworn and cautioned, state that I have personal knowledge of, and am competent to testify to, all of the following facts:
1. I am a partner with the law firm Faruki PLL, and I represent Relators in the above-captioned lawsuit.
2. I make this Affidavit in support of the Merit Brief of Relators, which is being filed in the above-captioned lawsuit.
3. The documents attached to this Affidavit as Exhibits 1-A through 1-C are true and accurate copies.
FURTHER AFFIANT SAYETH NAUGHT.
1
APPELANTS SUPP. 0007 Erin E. Rhinehart
Sworn to and subscribed by me by Erin E. Rhinehart in my presence this 22nd day of August, 2019.
Notary Public
PATRICIA L KALT, Notary Public and for the State of Ohio In 2021 My Commission Expires July 27,
1363395.1
2
APPELANTS SUPP. 0008 EXHIBIT 1-A
APPELANTS SUPP. 0009 From: Tabitha Justice
THIS MESSAGE ORIGINATED FROM OUTSIDE FARM+.
Erin,
As you know, we represent Bel'brook-Sugarcreek Local School District with respect to your client's requests for records of former student Connor Betts. Assuming you have read both the federal and state student records laws, you know that the Ohio law is broader in some respects than FERPA and that there are fewer exceptions for the disclosure of records, For instance, there is a law enforcement exception under FERPA that does not exist under state law.
We understand that the U.S. Department of Education has stated that FERPA does not extend beyond death under federal common law. However, federal common law does not dictate or even provide persuasive authority as to how a state statute should be interpreted. State common law often extends protections after death, including the attorney/client privilege. There are dozens of Ohio statutes dealing with the confidentiality of what would otherwise be public records. Some such statutes expressly state whether they apply after death. See 5119.28; 5153.171. Others do not. The Ohio Attorney General has previously found that "(W)here state law prohibits the release of information in a record kept by ODJFS, a county department of Job and Family Services or a children services board, such prohibition remains effective despite the death of the subject of the record." 1990 Op. Att'y Gen. No. 90-007. This was true even though the relevant statutes did not expressly state as much.
If you are aware of an actual decision or legal authority that says that Ohio's student records law does not apply after death, even an attorney general advisory opinion, we likely would be able to provide some or all of the records requested. Please know that we are not trying to be obstinate in this matter. We have reached out to other attorneys in the state to see if there are any common pleas decisions that are unavailable on Lexis or Westlaw that would allow us to turn over the records and are hoping to hear back today. You could also file a court action under R.C. 149,43 and a judge could order us to release the records if your interpretation is correct. We would agree to have your mandamus action expedited through the local court if the court were willing to do so, However, there must be limited briefing so that we can explain the good faith basis for the denial of records. Feel free to call me today if you wish to discuss this further.
Thank you for your time and consideration.
Tabitha
Tabltha Justice I Attorney tiusticePswiohlolaw.com
Subashl, Wildermuth & Justide I The Greene Town Center 50 Chestnut Street, Suite 230 I Dayton, OH 45440 937.427.8800 1 937.427.8816 fax I www.swlohlolaw.com
APPELANTS SUPP. 0010 EXHIBIT 1-B
APPELANTS SUPP. 0011 Ma, Margaret Parker Florida Department of Education 325 West Gaines Street Room 1244 Tallahassee, Florida FEB10 2009 Dear Ms, Parker:
This is respond.to your SepteMber 29, 2008, letter regarding Florida's State Child Abuse Death Review Committee(Conunittee) that provides for the review of the circumstances of all deaths ofchildren. occurring as a result of abuse or neglect. In order to conduct the reviews, Florida laW provides that certain State officials shall he provided with access to any information or records that pertain to a child whose death is being reviewed by the Coniniittee and that are necessary for the committee to carry out its duties, including inforrnatiOn or records that. pertain. to the child's family. You also note that Florida law provides the Committee with the authority to subpoena students' education records. This Office administers the Family Educational Rights and Privacy Act(FERPA) and is responsible for providing technical assistance to educational. agencies and.institutions .On. the law.
You ask 'whether a court order or subpoena is necessary when the Committee is requesting the education records of a deceased child. Specifically, you ask whether the protections and requirements of FERPA that pertain to education records still apply when the child is deceased. This Office has received many inquiries about this question, and our longstanding guidance on it is provided herein.
FERPA provides specifically that the rights afforded by FERPA belong to the studern once he or she becomes an eligible student,. 34 CFR § 99.3 "Eligible student." The FERPA rights of eligible student's lapse or expire upon the death of the student. This interpretation is based on the common law principle that a cause of action based upon an invasion of privacy is personal, and the right to bring such an action lapses with the death of the person who held it. See, e,g„ Cordell v. Detective Pnblications, Inc., 41.9 F. 2d 989,990 and n. 1(6th Cir. 1969). Therefore,.FERPA would not protect the education records of a deceased- eligible student and an educational agency or institution may disclose such records at its discretion.
However, FERPA rights. do notlapse or expire upon the death of a non.eligible student. FERPA provides:specifically that the rights it affords rest with the parents of students until that.student reaches 1 8 years of age or attends an institution of pestsecendarY education. There is nothing to suggest that parents' rights under FERPA should
APPELANTS SUPP. 0012 Page 2 — Ms. Margaret Parker terminate solely because their child is deceased. Rather, since the parents hold the rights in these circumstances, they may exercise those rights so long as the education records exist. Accordingly, FERPA would not permit the disclosure of the education records of a deceased non-eligible student without the parent's prior written consent or a subpoena, See §§ 99.30 and 9931(a)(9)of the FERPA regulations.
trust that the above information is responsive to your inquiry. If you have any additional questions, please do not hesitate to contact this Office again.
Sincerely,
Paul Oammill Director Family Policy Compliance Office
APPELANTS SUPP. 0013 EXHIBIT 1-C
APPELANTS SUPP. 0014 Mr. Gregory S, Frayser Cline Williams Wright Johnson & Oldfather, L.L.P. Attorneys at Law 233 South 13th Street 17 2011 1900 U.S. Bank Building FEB Lincoln, Nebraska 68508-2095
Dear Mr. Frayser:
This is in response to your letter, dated February 15, 2011, regarding the applicability of the Family Educational Rights and Privacy Act(FERPA) to records of a deceased. student sought by a third party. This office administers FERPA and provides technical assistance to educational agencies and institutions to ensure compliance with the statute and regulations, which are codified at 20 U.S.C, § 1232g and 34 CFR Part 99 respectively.
FERPA provides specifically that the rights afforded by FERPA belong to the student once he or she becomes an eligible student. 34 CFR § 99.3 "Eligible student." The FERPA rights of eligible students lapse or expire upon the death of the student, This interpretation is based on the common law principle that a cause of action based upon an invasion of privacy is personal, and the right to bring such an action lapses with the death of the person who held it. Therefore, FERPA would not protect the education records of a deceased eligible student and an educational agency or institution may disclose such records at its discretion.
However, FERPA rights do not lapse or expire upon the death of a non-eligible student. FERPA provides specifically that the rights it affords rest with the parents of students until that student reaches 18 years of age or attends an institution of postsecondary education. There is nothing to suggest that parents' rights under FERPA should terminate solely because their child is deceased, Rather, since the parents hold the rights in these circumstances, they may exercise those rights so long as the education records exist,
I trust this is responsive to your inquiry.
Sincerely,
Ellen Campbell Acting Director Family Policy Compliance Office
APPELANTS SUPP. 0015 June 15, 1998
Germaine A. Cross P. 0. Box 827 Silverdale, WA 98383-0827
Re: Petition for Public Records Disclosure Order: University of Oregon Records
Dear Ms. Cross:
This letter is the Attorney General's order on your petition for disclosure of records under the Oregon Public Records Law, ORS 192.410 to 192.505. Your petition, which we received on June 8, 1998, requests the Attorney General to direct the University of Oregon to make the following records available:
The historic academic transcript of Opal Whiteley, a former student who attended the university from 1916 to 1918.
ORS 192.502(9) exempts from disclosure public records or information "the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law." ORS 192.502(8) exempts from disclosure public records or information "the disclosure of which is prohibited by federal law or regulations." In addition, the Public Records Law specifically exempts student records that "are required by state or federal law to be exempt from disclosure." ORS 192.496(4). We consider first at the relevant state laws and then at the federal laws.
1. State Laws Concerning Student Records
In examining state laws related to postsecondary education, we conclude that state confidentiality requirements do not confer more expansive privacy rights concerning student records than
APPELANTS SUPP. 0016 Germaine A. Cross September 14, 2000 Page 2
• those under the federal Family Educational Rights and Privacy Act (FERPA). ORS 351.070(4) (e) authorizes the State Board of Higher Education to -
"Caidopt rules relating to the creation, use, custody and disclosure of student education records of the institutions that are consistent with the requirements of applicable state and federal law."
This statute does not itself establish substantive confidentiality rights beyond those under other provisions of state and federal law; however, it does empower the State Board of Higher Education to adopt substantive rules relating to student records. Pursuant to the authority granted under ORS 351.070(4), the State Board has adopted OAR 588-013-0035(1), which provides that personal student records "designated as confidential pursuant to ORS 351.070 or pursuant to the Federal Family Educational Rights and Privacy Act" may not be released to any person or agency without the student's written consent. This rule adopts as its reference the confidentiality requirements of FERPA. Similarly, rules of the University of Oregon refer to and track the language of FERPA in prescribing confidentiality requirements for student records. See OAR 571-020-0010 and 0030. Thus, we do not find under rules of the State Board or the University of Oregon an intent to enlarge or modify student rights to confidential records beyond those rights under FERPA. Accordingly, we next consider your request in light of the FERPA restrictions.
2. The Family Educational Rights and Privacy Act (FERPA)
ORS 192.502(8) exempts from disclosure records the release of which is prohibited under provisions of federal law or regulations. FERPA provides that no federal funds shall be made available to educational institutions that have a policy or practice of permitting the release of educational records without the written consent of the student to whom the records pertain. 20 USC § 1232g(b). We have previously concluded that a federal statute that cuts off funding if an agency discloses specified information amounts to a federal prohibition on disclosure for purposes of ORS 192.502(8). See Public Records Order, April 13, order 1987, Bristol. Accordingly, the Attorney General will not disclosure of the academic transcripts sought by the petitioner if their disclosure is prohibited under FERPA.
APPELANTS SUPP. 0017 Germaine A. Cross September 14, 2000 Page 3
Education records are defined under FERPA as records containing information directly related to a student and maintained by an educational agency or institution. 20 USC § 1232g(a)(4) (A). See also 34 CFR § 99.3. The academic transcripts of Opal Whiteley relate directly to a specific student and are maintained by the University of Oregon. Thus, these records are "education records" under FERPA.1"
We next consider whether a student's rights under FERPA lapse or expire upon the death of the student. The statutory language of FERPA does not expressly answer this question. The Family Policy Compliance Office of the United States Department of Education has taken the position that a student's right to prohibit disclosure of education records does not continue beyond the student's death. See attached letter from Leroy Rooker, Director of Family Policy Compliance Office, to Honorable John J. Duncan, Jr., dated March 3, 1993. The Family Policy Compliance Office concluded that the student's right to privacy under FERPA is personal and lapses upon the death of the person who holds it, The United States Department of Education is charged with enforcing the provisions of FERPA through investigating and adjudicating violations of the Act. 20 USC § 1232g(f) and (g). Under federal rules of construction, an administering agency's interpretation of inexact or ambiguous terms of a statute is entitled to deference, and courts examine whether the agency's interpretation of the statute is based on a permissible construction. Chevron, U.S.A., Inc. v. Natural Resources Defense, 467 US 837, 842, 104 S Ct 2778, 81 L Ed2d 694 (1984); Legacy Emanuel Hosp. and Health Center v. Shalala, 97 F3d 1261, 1265 (9th Cir, 1996). In addition, the Oregon Attorney General's interpretation of federal laws and regulations is not as authoritative as our interpretation of state law issues. Letter of Advice dated November 1, 1984, to Gerald G. Johnson, Children's Services Division. We find the interpretation of the U.S. Department of Education to be reasonable and consistent with Congress's intent. It seems unlikely that Congress intended to seal indefinitely the records of a student after the student's
. 1/ Under FERPA, a student includes both a current and former student of the educational institution. 20 USC § 1232g(a)(2).
APPELANTS SUPP. 0018 Germaine A. Cross September 14, 2000 Page 4
death, especially since the statute contains no mechanism for disclosure after a student's death.2"
3. General Public Records Law Exemptions. from Disclosure
Having concluded that the consent requirements of FERPA do not apply to the records of a deceased student, we must also consider whether any other provisions of the Public Records Law would exempt these records from disclosure. ORS 192.502(2) exempts from disclosure information of a personal nature such as that kept in a personal, medical or similar file when the public disclosure would constitute an unreasonable invasion of privacy. In such cases, the party seeking the records has the burden to show that disclosure would not constitute an unreasonable invasion of privacy. Student records, including academic transcripts, might in some instances fall under this exemption. There might also be instances in which personal privacy considerations would continue to apply even after the death of a the student. However, we need not address that issue in this instance because ORS 192.495 states:
Notwithstanding ORS 192.501 to 192.504 and except as otherwise provided in ORS 192.496, public records that are more than 25 years old shall be available for inspection.
Because ORS 192.495 operates "notwithstanding ORS 192.501 to 192.505," the personal privacy exemption under ORS 192.502(2) is no longer applicable after 25 years. Since the academic transcripts of Opal Whiteley were created during the period from 1916 to 1918, the records are not exempt from disclosure under ORS 192.502(2).
2/ We reached a similar conclusion in a Letter of Advice dated September 23, 1976, to J.D. Bray, Mental Health Division (OP 3708), concerning a statute that prohibited the release of mental health records without the patient's consent. We concluded that the statute's prohibition did not apply to the records of deceased persons. Our reasoning was based in part on the fact that the statute provided no mechanism for release of records following the patient's death.
APPELANTS SUPP. 0019 Germaine A. Cross September 14, 2000 Page 5
Based on the conclusions we express in this letter, the University of Oregon has agreed to disclose these records to you. Accordingly, your petition is denied as moot.
Sincerely,
DAVID SCHUMAN Deputy Attorney General
JA1W2C05 C: Peter Swan, College of Law, University of Oregon Herbert Chereck, Registrar, University of Oregon
APPELANTS SUPP. 0020 GERMAINE A CROSS P 0 BOX 827 SILVERDALE WA 98383-0827
APPELANTS SUPP. 0021 PETER SWAN LAW SCHOOL 1221 UNIVERSITY OF OREGON EUGENE OR 97403-1221
APPELANTS SUPP. 0022 HERBERT CHERECK REGISTRAR'S OFFICE 5257 UNVERSITY OF OREGON EUGENE OR 97403-5257
APPELANTS SUPP. 0023 Respectfully submitted,
s/ Erin E. Rhinehart Erin E. Rhinehart(0078298) Counsel of Record Christopher C. Hollon (0086480) FARUKI PLL 110 North Main Street, Suite 1600 Dayton, OH 45402 Telephone: (937) 227-3714 Telecopier: (937) 227-3717 Email: [email protected] [email protected]
Counselfor Relators-Appellants CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Supplement to Merit Brief of Appellants has been served via electronic mail upon the following counsel of record this 16th day of December,
2019:
Nicholas Subashi, Esq. Tabitha Justice, Esq. SUBASHI, WILDERMUTH & JUSTICE 50 Chestnut Street, Suite 230 Dayton, Ohio 45440 Email: [email protected] [email protected]
Counselfor Respondents-Appellees
s/ Christopher C. Hollon Christopher C. Hollon
1388768.1