CREDIT THE OHIO ATTORNEY GENERAL WITH AN ASSIST

Dave Yost, the Ohio Attorney General recently took a stand supporting governmental transparency by filing an amicus curiae brief in a case seeking high school disciplinary records of the shooter in the mass shooting in Dayton this summer.

A coalition of media outlets made a public records request to the Bellbrook-Sugarcreek Local School District for the high school disciplinary records of Connor Betts, the 24 year old shooter who was killed during the shooting.  The media outlets hoped that the records could shed some insight about what school officials knew and when they knew it.

The school district declined to produce the records, and the coalition sued in the 2d District Court of Appeals seeking a court order compelling the release of the records. The school district argued that the Federal Education Records Privacy Act (FERPA) prohibited the district from releasing the records.  That was not a big surprise – schools and school districts routinely invoke FERPA to shield requested records.  The 2nd District Court of Appeals agreed with the school district.  The coalition is appealing to the Ohio Supreme Court.  The AG has filed a “friend of the court” (that’s what amicus curiae means) brief in support of the coalition.

The ironic thing is, by its plain terms, FERPA doesn’t actually prohibit the release of records.  What it says is:

No 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 educational records (or personally identifiable information contained therein …) of students without the written consent of their parents to any individual, agency, or organization, [except as otherwise authorized by statute].

A school that only releases records in response to periodic public record requests does not have a “policy or practice” of releasing records.  That argument seems logical to me, but unfortunately, courts have not agreed.  So despite the language, courts have allowed schools and school districts to use FERPA as a shield.  The 2d District did the same here.

But according to AG Yost, the highest ranking lawyer in the state,  FERPA has no application to the records a deceased 24 year old former student.  In his brief, AG Yost argues that because FERPA is silent on whether it applies to the records of a deceased former student, the court should consider the common law (decisions in other court cases) in deciding the question.  And at common law, privacy interests end at death.  So in the case of Connor Betts, there is no reason to withhold his records.

Interestingly, the amicus brief notes that the U.S. Department of Education agrees with the AG’s analysis.  And given that the DOE is charged with enforcing FERPA, that should carry some weight.

We’ll see what happens in the Supreme Court. But no matter what that Court rules, it is nice to see the Attorney General take a stand for transparency.