THE STATE EX REL. CABLE NEWS NETWORK, INC., ET AL., APPELLANTS, v. BELLBROOK-SUGARCREEK LOCAL SCHOOLS ET AL., APPELLEES.
No. 2019-1433
Supreme Court of Ohio
November 5, 2020
Slip Opinion No. 2020-Ohio-5149
Submitted June 3, 2020. APPEAL from the Court of Appeals for Greene County, No. 2019CA0047, 2019-Ohio-4187.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Public records law—
{¶ 1} At issue in this appeal is whether a public-school district must release records pertaining to a deceased adult former student in response to a public-records request. The Second District Court of Appeals found that
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} On August 4, 2019, 24-year-old Connor Betts killed nine people and injured 27 others in a mass shooting in Dayton. Police officers shot and killed Betts at the scene. Betts was a 2013 graduate of Bellbrook High School, which is part of the school district of appellee Bellbrook-Sugarcreek Local Schools (the “school district“).
{¶ 3} Appellants in this case are seven
of the
{¶ 4} On August 9, 2019, appellants filed an action in the Second District for a writ of mandamus against the school district and Dr. Cozad, in his official capacity as superintendent and the custodian of the records sought. Appellants alleged that they have a clear legal right to inspect Betts‘s records under
{¶ 5} The Second District denied the writ. The court first observed that it “does not appear to be controversial or unsettled” that the OSPA prohibits the release of public-school records about adult former students without their consent. 2019-Ohio-4187, 134 N.E.3d 268, at ¶ 17. The court then rejected appellants’ argument that the OSPA‘s privacy protections for an adult former student lapse at the former student‘s death. The Second District found that the OSPA unambiguously protects an adult former student‘s records from disclosure, with no exception for the former student‘s death. See id. at ¶ 23-25. Having found that the OSPA prohibited the school district from releasing Betts‘s student records, the Second District did not reach the issue of whether FERPA likewise prohibited their release. Id. at ¶ 30.
{¶ 6} Appellants appealed to this court as of right.
II. ANALYSIS
{¶ 7} We review a court of appeals’ judgment in a mandamus action filed there as if the action had been brought originally in this court. State ex rel. Dynamic Industries, Inc. v. Cincinnati, 147 Ohio St.3d 422, 2016-Ohio-7663, 66 N.E.3d 734, ¶ 7. To be entitled to a writ of mandamus, appellants must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief and (2) a clear
legal duty on the part of the school district to provide it. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. Because mandamus is the appropriate remedy to compel compliance with
{¶ 8} “We begin with the premise that ‘public records are the people‘s records, and that the officials in whose custody they happen to be are merely trustees for the people.’ ” State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 32, quoting State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 371, 171 N.E.2d 508 (1960). Consistent with that premise, the court construes
{¶ 9} The school district is a “public office” under
A. R.C. 3319.321(B) Applies to Former Students of a Public School
{¶ 10}
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)2 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.
(Footnote added.) When applicable,
{¶ 11} The intent of the General Assembly “is primarily determined from the language of the statute itself.” Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). And when a statute‘s language is unambiguous, there is no interpretation required: the court must simply apply the statute as written. State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., 151 Ohio St.3d 92, 2017-Ohio-7577, 86 N.E.3d 294, ¶ 19. This court will not insert language to modify an unambiguous statute under the guise of statutory interpretation. State ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148, 556 N.E.2d 467 (1990).
{¶ 12} The Second District acknowledged, and appellants do not dispute, that
students of a public school. 2019-Ohio-4187, 134 N.E.3d 268, at ¶ 17. We have also implied as much. In State ex rel. Souffrance v. Doe, 132 Ohio St.3d 38, 2012-Ohio-1906, 968 N.E.2d 477, the appellant was denied access to student records he requested, on the basis that FERPA barred disclosure. Id. at ¶ 1-2. The appellant claimed the records he requested were not exempt from public-records disclosure because they related “only to persons who are no longer students.” Id. at ¶ 2. Citing to both FERPA and
{¶ 13} Despite no party raising the issue here or in the Second District below, the dissent opines that we should decide this case on the basis that
{¶ 14} A valid interpretation of
identifiable information at issue relates to an individual‘s attendance at the public school.
{¶ 15} Bolstering this interpretation is the fact that the General Assembly enacted the OSPA to bring the state‘s public schools into compliance with FERPA, which grants funding only to those educational institutions that abide by FERPA‘s requirements for protecting the privacy of students. See
{¶ 16} The dissent would have us believe that the General Assembly intended for
B. R.C. 3319.321(B) Prohibits Disclosure
{¶ 17} We next turn to the question whether
{¶ 18}
C. There is No Ambiguity to Justify Appellants’ Interpretive Analysis
{¶ 19} Despite the plain language of the statute, appellants and their amici take the position that
effect. FERPA is significant, they argue, because the OSPA was enacted to bring Ohio‘s public schools into compliance with it. See School Choice Ohio, 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, at ¶ 31-32; see also Ohio Legislative Service Commission, Summary of 1976 Enactments, January-July, at 87 (summary of Am.S.B. No. 367, 136 Ohio Laws, Part I, 318).
{¶ 20} Appellants first emphasize that FERPA and the OSPA were enacted against a backdrop of the common-law right to privacy. This is significant because under the prevailing case law at that time, a common-law cause of action for invasion of privacy lapsed with the death of the individual to whom it belonged. See, e.g., Young v. That Was The Week That Was, 423 F.2d 265, 265-266 (6th Cir.1970) (applying Ohio law). Thus, if Congress or the General Assembly intended in FERPA or the OSPA, respectively, to extend those statutes’ privacy protections beyond an individual‘s death, appellants argue that they would have done so expressly because to do otherwise would have been in derogation of the common law.
{¶ 21} Appellants also argue that agency interpretation of FERPA should inform our analysis. The United States Department of Education is the federal agency charged with construing FERPA.
{¶ 22} The factors emphasized by appellants and their amici are consistent with those that a court may consider in determining legislative intent. But inquiry into any of these factors is inappropriate absent an initial finding that the language of
{¶ 23} Appellants use interpretive guides to argue that
{¶ 24} The language of
{¶ 25} Moreover, even if we were to view
{¶ 26} The premise that applying
{¶ 27} Appellants also cite State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 669 N.E.2d 835 (1996), in support of their argument that the application of the OSPA to records of deceased adult former students is in derogation of the common law and should therefore be interpreted not to protect the confidentiality of information after an adult former student‘s death. Schroeder was a public-records mandamus case in which a newspaper sought to compel a county coroner to disclose records for cases in which the cause of death was suicide. Id. at 580. Among other justifications for confidentiality, the coroner relied upon the right to privacy as a basis for withholding the records under
disclosure of otherwise public records, it was unclear whether the exemption would apply to the coroner‘s records concerning suicides. Id. at 583. This court therefore found that the release of the suicide-victim records was not prohibited by state or federal law and granted a writ of mandamus compelling the coroner to disclose them under
{¶ 28} Schroeder is distinguishable and does not help appellants’ position. Schroeder supports the proposition that there is no common-law right to privacy that shields records of deceased individuals from disclosure under
D. R.C. 149.43(A)‘s Sunset Provision
{¶ 29} The so-called sunset provision in
A record that is not a public record under division (A)(1) of this section and that, under law, is permanently retained becomes a public record on the day that is seventy-five years after the day on which the record was created, except for any record protected by
the attorney-client privilege, a trial preparation record as defined in this section, a statement prohibiting the release of identifying information signed under
section 3107.083 of the Revised Code , a denial of release form filed pursuant tosection 3107.46 of the Revised Code , or any record that is exempt from release or disclosure undersection 149.433 of the Revised Code .
(Emphasis added.)
{¶ 30} Thus, any record that is not a public record because of an applicable exception becomes a public record 75 years after its creation. In other words, the exceptions in
{¶ 31} As we stated earlier, the fact that
E. Liberal Construction of the Public Records Act Does Not Justify Adding an Exception to R.C. 3319.321(B)
{¶ 32} Appellants and their amici also call attention to this court‘s liberal construction of the Public Records Act, contending that this principle should militate in favor of finding that
records of a deceased adult former student from disclosure. Indeed, this court liberally construes
{¶ 33} But principles like these do not authorize a court to rewrite statutory language. See Presbyterian Retirement Servs., Inc., 151 Ohio St.3d 92, 2017-Ohio-7577, 86 N.E.3d 294, at ¶ 20. Neither a liberal construction of the Public Records Act nor a strict construction of its exceptions gives license to add language to
III. CONCLUSION
{¶ 34} Having found that
Judgment affirmed.
O‘CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ., concur.
KENNEDY, J., dissents, with an opinion.
KENNEDY, J., dissenting.
{¶ 35} The text of
{¶ 36} Accordingly, I dissent and would reverse the judgment of the Second District Court of Appeals and remand this matter for that court to determine in the first instance appellee Bellbrook-Sugarcreek Local Schools’ alternative argument that the Family Educational Rights and Privacy Act,
Law and Analysis
{¶ 37} Although the appellant media organizations argue that neither the
Statutory Construction
{¶ 38} This case presents a narrow issue regarding the meaning of
explained long ago, “[t]he question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. “When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). Rather, “[a]n unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.
The Public Records Act
{¶ 39} The Public Records Act requires a public office to make copies of public records available to any person upon request, within a reasonable period of time.
The Ohio Student Privacy Act
{¶ 40} Part of the
[n]o 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.
(Emphasis added.)
{¶ 41} A plain reading of the unambiguous text of the statute limits the release of records concerning any student attending a public school. The word “attend” means “to be present at” and “go to,” Webster‘s Third New International Dictionary 140 (2002), and the word “attending” is a present participle form of that verb, id.; see also Thomas v. Principal Fin. Group, 566 So.2d 735, 739 (Ala.1990) (” ‘Attending’ is the present participle of ‘attend’ “); Bryan A. Garner, Garner‘s Modern English Usage 1020 (4th Ed.2016) (defining “present participle” as “[a] nonfinite verb form ending in -ing and used in verb phrases to signal the progressive aspect“); Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331, 336 (7th Cir.2019) (citing Garner‘s definition of a present participle).
{¶ 42} Use of the present participle denotes present and continuing action. Webster‘s at 1794 (explaining that a present participle “typically expresses present action in relation to the time expressed by the finite verb in its clause and * * * is used in the formation of the progressive tenses“); see also Shell at 336 (” ‘Having’ means presently and continuously. It does not include something in the past that has ended or something yet to come. To settle the technical debate, it is a present participle, used to form a progressive tense“); Khakhn v. Holder, 371 Fed.Appx. 933, 937 (10th Cir.2010) (explaining that by using the present participle “applying,” Congress unambiguously excluded people who had already had their applications denied); United States v. Hull, 456 F.3d 133, 145 (3d Cir.2006) (Ackerman, J., concurring in part and dissenting in part) (“Congress‘s use of the present participle ‘committing’ connotes present, continuing action“); Competitive Energy Servs., L.L.C. v. Pub. Util. Comm., 2003 Me. 12, 818 A.2d 1039, ¶ 20, fn.
10 (” ‘Purchasing’ is a present participle of the verb ‘purchase,’ indicating the present tense“).
{¶ 43} 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.
{¶ 44} The conclusion that
{¶ 45} Moreover, this court has held that the OSPA, ”
{¶ 46} The General Assembly therefore knew how to limit access to student records that are maintained by Ohio‘s public schools or that pertain to a person who has been in attendance, yet it nonetheless chose to use only present-tense limiting language when enacting the release-of-records statute to those concerning “any student attending a public school.”
{¶ 47} Accordingly, pursuant to its plain meaning,
The Majority‘s Analysis
{¶ 48} Although the majority admits that the General Assembly used the present-tense verb “attending,” it suggests that it is somehow improper to apply what I view to be the plain meaning of a statute when no party has asserted it. But the meaning of a statute is a question of law that we review de novo. See Bur. of Workers’ Comp. v. Verlinger, 153 Ohio St.3d 492, 2018-Ohio-1481, 108 N.E.3d 70, ¶ 6. Our role in exercising the judicial power granted to us by the Ohio Constitution is to interpret and apply the statute as the General Assembly enacted it. See Slingluff, 66 Ohio St. 621, 64 N.E. 574, at paragraph two of the syllabus. The parties may espouse arguments regarding the meaning of a statute, but in the end, it is the courts that have the authority and the duty to “say what the law is,”
Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803). 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.
{¶ 49} The majority also asserts that in Souffrance, we “implied” that
{¶ 50} Further, the court in Souffrance referenced the OSPA only at the tail end of a string citation with a “see also” signal. That reference came behind citations to the Code of Federal Regulations and the Court of Appeals of Indiana and without any explanatory parenthetical. Even if the
{¶ 51} Nonetheless, the majority holds that
[t]he language of
R.C. 3319.321(B) is unambiguous and is not truly susceptible to differing interpretations. The records of a person who attended a public school can be disclosed only with the consent of the student, if that student is 18 years of age or older. If that student is deceased, he is no longer available to grant consent. But R.C.
3319.321(B) provides no exception for that circumstance. If the General Assembly intended for the death of a person to alter the confidentiality of certain information, it could have expressly enacted such a rule. Indeed, in other contexts, the General Assembly has done so. See, e.g.,R.C. 5119.28(A)(16) (a person‘s mental-health records no longer considered confidential when the person has been deceased for 50 years). InterpretingR.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.
(Emphasis added.) Majority opinion at ¶ 24.
{¶ 52} But it is the majority that effectively rewrites the statute. It holds that
No person shall release, or permit access to, personally identifiable information other than directory information concerning any student attending [or any former student who attended] a public school * * * without the written consent of the parent, guardian, or custodian of each such student [or former student] who is less than eighteen years of age, or without the written consent of each such student [or former student] who is eighteen years of age or older.
(Brackets added.) If the General Assembly had enacted that language in
enacted, and the majority therefore contravenes the fundamental precept that “a court may not rewrite the plain and unambiguous language of a statute under the guise of statutory interpretation,” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 20.
{¶ 53} ” ‘The preeminent canon of statutory interpretation requires us to “presume that [the] legislature says in a statute what it means and means in a statute what it says there.” ’ ” (Brackets added in BedRoc.) State ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-5718, 817 N.E.2d 76, ¶ 27, quoting BedRoc Ltd., L.L.C. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004), quoting Connecticut Natl. Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
{¶ 54} But although the majority claims to be simply applying the plain and unambiguous language of
{¶ 55} In concluding that “the ‘any student attending a public school’ language speaks to whether the information at issue relates to a student‘s attendance at a public school,” majority opinion at ¶ 14—even though the phrase “relates to a student‘s attendance” does not appear in the statute—the majority relies on what it asserts is the object of the statute, the circumstances under which the statute was enacted, the legislative history, and the consequences of a particular construction. See
{¶ 56} For example, the majority asserts that “the General Assembly enacted the OSPA to bring the state‘s public schools into compliance with FERPA.” Majority opinion at ¶ 15, citing School Choice Ohio, 147 Ohio St.3d 256, 2016-Ohio-5026, 63 N.E.3d 1183, at ¶ 31. But School Choice Ohio relied on an opinion of the attorney general, who actually opined that ”
{¶ 57} In addition, School Choice Ohio cited to a summary of enactments prepared by the Ohio Legislative Service Commission. However, Ohio does not maintain a comprehensive legislative history of its statutes, State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 20, and we have long recognized that “a report of the Legislative Service Commission, with respect to proposed legislation, may not be used to give a meaning to a legislative enactment other than that which is clearly expressed by the General Assembly,” Cleveland Trust Co. v. Eaton, 21 Ohio St.2d 129, 138, 256 N.E.2d 198 (1970).
{¶ 58} The majority also applies a canon of construction in considering the consequences of a particular construction, claiming that its interpretation is needed “to help ensure that Ohio schools can receive federal funds,” majority opinion at ¶ 16. But FERPA does not condition education spending on the enactment of state legislation, and giving effect to the plain language of
{¶ 59} The United States Supreme Court has held that FERPA‘s nondisclosure provisions are enforced solely by the Secretary of Education through her distribution of federal funds. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). And as the majority acknowledges in rejecting the appellants’ argument that the OSPA should be construed in accord with the secretary‘s interpretation of FERPA, the Department of Education does not withhold funds from schools that have a practice or policy of 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.
{¶ 60} But 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, Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 59. Our role “in reviewing legislative enactments is limited to interpreting the meaning of statutory provisions and determining whether they are in accord with the federal and state Constitutions.” Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 31. Second-guessing the wisdom of the legislature‘s public-policy decisions does not fall within the scope of that review. See State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 20.
{¶ 61} Because the unambiguous language of the statute as enacted by the General Assembly protects the records of “any student attending a public school,”
opinion at ¶ 14, it does not extend that protection to students who are deceased or otherwise not attending a public school.
Conclusion
{¶ 62}
Faruki P.L.L., Erin E. Rhinehart, and Christopher C. Hollon, for appellants.
Subashi, Wildermuth & Justice, Nicholas E. Subashi, and Tabitha Justice, for appellees.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Mark W. Altier, Assistant Attorney General, urging reversal for amicus curiae Ohio Attorney General Dave Yost.
Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Kris Banvard, urging reversal for amicus curiae WBNS-TV, Inc.
Baker & Hostetler, L.L.P., and Melissa D. Bertke, urging reversal for amici curiae The Reporters Committee for Freedom of the Press, The Brechner Center for Freedom of Information, The Media Institute, MPA—The Association of Magazine Media, The National Press Club, The National Press Club Journalism Institute, The National Press Photographers Association, The Ohio News Media Association, The Online News Association, Society of Professional Journalists, and Student Press Law Center.
Katie Townsend and Shannon Jankowski, urging reversal for amicus curiae The Reporters Committee for Freedom of the Press.
Frank D. LoMonte, urging reversal for amicus curiae The Brechner Center for Freedom of Information.
Covington & Burling, L.L.P, and Kurt Wimmer, urging reversal for amicus curiae The Media Institute.
Ballard Spahr, L.L.P., and Charles D. Tobin, urging reversal for amici curiae The National Press Club and The National Press Club Journalism Institute.
Mickey H. Osterreicher, urging reversal for amicus curiae National Press Photographers Association.
Davis Wright Tremaine, L.L.P., Laura R. Handman, Alison Schary, and Thomas R. Burke, urging reversal for amicus curiae Online News Association.
Baker & Hostetler, L.L.P., Bruce W. Sanford, and Mark I. Bailen, urging reversal for amicus curiae Society of Professional Journalists.