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 In and for the State of Ohio My Commission Expires July 27, 2021 1363395.1 2 APPELANTS SUPP. 0008 EXHIBIT 1-A APPELANTS SUPP. 0009 From: Tabitha Justice <tjustice@swohiolawcom> Sent: Tuesday, August 06, 2019 11:34 AM To: Rhinehart, Edo E.; Holton, Christopher C. Cc: Nicholas Subashi Subject: [EXTERNAL] Student Record Request (Connor Betts) 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.