DAVID V. PATTON v. SOLON CITY SCHOOL DISTRICT
Case No. 2017-00570-PQ
Court of Claims of Ohio
December 27, 2017
[Cite as Patton v. Solon City School Dist., 2017-Ohio-9415.]
Special Master Jeffery W. Clark
{¶1} On November 8, 2016, requester David Patton made a public records request to the Solon Board of Education seeking “complete copies of: (i) All of the surveillance videos taken aboard Solon City School‘s bus number 36‘s morning and afternoon routes to and from Roxbury Elementary School from August 16, 2016 to October 21, 2016, inclusive.” (Complaint, Exhibit A.) On November 11, 2016, Treasurer Tim Pickins responded that all responsive videos had been properly disposed of in acсordance with the Solon City School District‘s (“Solon SD“) records retention schedules, except for video from October 21, 2016. (Id., Exhibit B.) Pickens advised that the remaining video was being withheld from Patton‘s request as excepted under the Family Education Rights and Privacy Act (FERPA) and
{¶2} On June 27, 2017, Patton filed a complaint under
{¶4}
Motion to Dismiss
{¶5} Solon SD moves to dismiss the complaint on the grounds that the withheld portions of the video have been properly redacted pursuant to
Suggestion of Mootness
{¶6} In an action to enforce
{¶7} Solon SD makes school bus video recordings for security and other purposes, and retained this video when it became part of its disciplinary process. (Sur-reply at 4.) On review, the unredacted video shows multiple students involved in physical and verbal altercation(s), at various times and in several ways. Throughout the video, approximately half of the filmed area captures images other than students, primarily of the floor, seat backs, and windows. The floor and seat backs are static features, other than as traversed by students. Occasional cars and street features can be seen through the windows. The unredacted video contains audio that cuts out at twelve minutes and 18 seconds into playback.2 Respondent asserts that only a portion of the area filmed by the video is a “rеcord” of the district because it “used this portion of the video in making disciplinary decisions for the students involved in the fight,” Id. Respondent does not identify what “this portion” consisted of.
{¶8}
“Records” includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.
The school bus video readily meets the first two elements of the definition, as an electronic document, created by Solon SD. Regarding the third element, “any record used by a cоurt to render a decision is a record subject to
{¶9} The Public Records Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner‘s Office, Slip Op. at 2017-Ohio-8988, ¶ 15. Further, the court has a duty to avoid construction of a statute that would circumvent the evident purpose of the enactment, or lead to unreasonable or absurd results.
{¶11} In State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, a requester sought trooper cruiser videos. In addition to images visible through the windows of a pursuit and arrest, the videos captured long stretches of incidеntal images such as passing traffic, a concrete barrier, and an empty rear seat in one of the cruisers. Id. at ¶¶ 17-18, 21. The Court found the videos qualified as “records” of the Highway Patrol, including those not directly used for investigation or prosecution, and that any portion not subject to an exception must be released. Id. at ¶¶ 33-34, 47-50. See also State ex rel. Rhodes v. City of Chillicothe, 4th Dist. Ross No. 12CA3333, 2013-Ohio-1858, ¶ 34-36 (images considered but rejected in
Application of Claimed Exceptions
{¶12}
Exceptions to disclosure under the Public Records Act,
R.C. 149.43 , are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. * * * A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10; accord State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 247, 643 N.E.2d 126 (1994). Where a public office claims an exception based on risks that are not evident within the records themselves, the office must provide more than conclusory statements in affidavits to support that claim. State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 400-404, 732 N.E.2d 373 (2000). Solon SD asserts that specified portions of the withheld records are subject to both the Family Education Rights and Privacy Act (FERPA), and
FERPA provides that
[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable informаtion contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization.
{¶13} FERPA contemplates the display of certain protected records to the parents of children in the course of disciplinary proceedings. Such statutory display is not a waiver of the statutory exception by Solon SD, and in any case only the parents of the other children involved may give consent to further release, not the school district. The duty to withhold is on the school, but the right of confidentiality belongs to each student. Thus, the portions of the video protected under FERPA may not be disclosed
R.C. 3319.321
Similar to FERPA, Ohio‘s
No person shall release, or permit access to, personally identifiable information other than directory information concerning any student attending a public school, for purposes other than those identified in division (C), (E), (G), or (H) of this section, without the written consent of the parent, guardian, or custodian of each such student who is less than eighteen years of age, or without the written consent of each such student who is eighteen years of age or older.
This language prohibits release of student disciplinary records, Schuckert v. Bd. of Ed., 9th Dist. Summit No. 12162, 1985 Ohio App. LEXIS 9170, *5-6 (October 30, 1985). Unlike FERPA, however, the statute is not limited to “education records,” but broadly prohibits release of any personally identifiable information other than directory information concerning any student attending a public school. “Pеrsonally identifiable information” is not defined in the Ohio Revised Code for purposes of Chapter 3319, and the court must therefore refer to the related FERPA definition at
Personally Identifiable Information
The term includes, but is not limited to -
(a) The student‘s name;
(b) The name of the student‘s parent or other family members;
(c) The address of the student or student‘s family;
(d) A personal identifier, such as the student‘s social security number, student number, or biometric record;
(e) Other indirect identifiers, such as the student‘s date of birth, place of birth, and mother‘s maiden name;
(f) Other information that, alone or in cоmbination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.
The video does not contain any of the information listed in subsections (a) through (e). However, Solon SD provides clear and convincing evidence that Patton became aware of the identity of all the students involved in the incident prior to making his public records request. (Response at p. 3-4, 6-8; Exhibit 1, Regano Aff. at ¶ 10; Exhibit 1A; Patton Aff. at ¶ 7-10.) Pursuant to
Extent of Redaction
{¶14} Public records may be redacted only to withhold exempt information, and the public office “shall make available all of the information that is not exempt.”
{¶15} As the District observes, it is in the best position to evaluate what personal characteristics and other information in the video would disclose a student‘s identity. (Response at 6.) The unredacted video captures student faces, hair, body shapes, clothing, backpacks, phones, voices,4 and actions during the altercation, and other items that may sеrve to identify a student to a parent who is already familiar with that information and those characteristics. I find that at the discretion of Solon SD, any such items may be obscured, including the entire student where protected information is
Timeliness
{¶16} Solon SD did not provide an initial, redacted version of the requested video until more than seven months after Patton‘s November 8, 2016 request, and has not provided any explanation for the delay in its response. I find that Solon SD failed to comply with its obligation under
Inquiry as to Purpose of Public Records Request
{¶17} Patton asserts that during a meeting on May 31, 2017, an official of Solon SD askеd him, “Why do you want the video?” (Complaint at ¶ 8; Reply, Exhibit B, ¶ 15-19.) Patton claims that this question constituted a violation of
(4) Unless specifically required or authorized by state or federal law or in accordance with division (B) of this section, no public office or person responsible for public records may limit or condition the availability of public records by requiring disclosure of the requester‘s identity or the intended use of the requested public record. Any requirement that the requester disclose the requester‘s identity or the intended use of the requested public record constitutes a denial of the request.
(Emphasis added.) The official‘s inquiry as to purpose was posed six months after Solon SD denied Patton‘s initial request, and four months after he had reiterated the request and received a second denial. The statutory language does not create a per se violation for inquiring as to intended use, but instead forbids an office to ”limit or condition the availability of public records by requiring disclosure of * * * the intended use of the requested public record.” Id. The fact that the office had twice denied the
{¶18}
Conclusion
{¶19} Upon consideration of the pleadings, attachments, and responsivе records filed under seal, I recommend that the court find that Solon SD‘s motion to dismiss the claim as moot be GRANTED as to the portion released to Patton prior to this report and recommendation. I further recommend that the court find that the entirety of the bus surveillance video is a record of Solon SD, but that Solon SD is entitled to redact those portions of the video prohibited from release under FERPA and
{¶20} I recommend that the court issue аn order GRANTING Patton‘s claim for relief for production of records as detailed above. I further recommend that the court order that Patton is entitled to recover from Solon SD the costs associated with this action, including the twenty-five dollar filing fee.
JEFFERY W. CLARK
Special Master
cc:
David V. Patton
33595 Bainbridge Road
Suite 200A
Solon, Ohio 44139
Kathryn I. Perrico
Miriam Pearlmutter
1301 East Ninth Street
Suite 3500
Cleveland, Ohio 44114-1821
Filed December 27, 2017
Sent to S.C. Reporter 1/11/18