On Wednesday, an Ohio appellate court ruled that the media was not entitled to the education records of a deceased former student.

On Aug. 4, 2019, a 24-year-old man killed nine people, injuring 27 more during a mass shooting in which he was also killed. The gunman was a 2013 graduate of Bellbrook High School. In the days following the shooting, several news agencies submitted public records requests to the school for education records concerning the former student. The school released “directory information” for the former student but otherwise denied the requests for records. In doing so, the school asserted that the records were confidential education records, the release of which was prohibited by RC 3319.321 and the Federal Educational Rights and Privacy Act (FERPA).

The Ohio Supreme Court has recognized RC 3319.321 as an exception to the Ohio Public Records Act. The parties did not dispute that the statute prohibits the release of records about adult former students without their written consent. However, the media asked the court to recognize an exception to RC 3319.321 and hold that an adult former student’s right to privacy ends at the student’s death.

In making its request, the media relied in large part on the common law in Ohio and other states concerning a tort plaintiff’s right to recover for a wrongful invasion of privacy. In prior court decisions, it has been held that the common law right to privacy “lapses with the death of the person who enjoyed it.” However, the court found the media’s reliance on tort law and its focus on an individual’s right to privacy to be misplaced. Instead, the court held that the focus should be on the school’s legal duties under the public records act and RC 3319.321. The court found that the language of RC 3319.321 was clear and unambiguous. It contained no exception for the death of an adult former student, and the court refused to read one into it. As a result, the court held the requested records did not fall within the definition of public records and the school did not have a clear legal duty to release them.

Since the court concluded that the plain language of RC 3319.321 barred release of the records, it did not determine whether FERPA prohibited release of the records. However, the court noted that FERPA also does not contain a statutory exception for the death of a student. Although the Department of Education’s Family Policy Compliance Office (FPCO) has opined that FERPA does not prohibit the release of records about a deceased, adult former student, the court found more persuasive a 1990 Ohio Attorney General opinion. In that letter, former Ohio Attorney General Anthony Celebrezze opined that an exception for a person’s death should not be read into a different confidentiality statute that was also silent on that point. As a result, the court did not find FPCO’s letter to be persuasive in interpreting an unambiguous Ohio statute that bars release without written consent.

Posted by Sara C. Clark on 10/4/2019