Update (Nov. 5, 2020): The Ohio Supreme Court issued an opinion on Nov. 5 affirming the decision of the Second District Court of Appeals that the Ohio Student Privacy Act prohibits disclosures about a deceased adult former student in response to a public records request.
The Reporters Committee for Freedom of the Press and a coalition of 10 media organizations are supporting an appeal to the Ohio Supreme Court filed by news outlets seeking access to the high school disciplinary records of a man who killed nine people during an August mass shooting in Dayton, Ohio.
In a friend-of-the-court brief filed on Dec. 16, Reporters Committee attorneys and Melissa D. Bertke of Baker Hostetler LLP argue that a lower court erred in denying a request by CNN and other news organizations asking the court to order officials from Bellbrook-Sugarcreek School District to release records about Connor Betts, a 2013 graduate of Bellbrook High School who was killed by police shortly after the Aug. 4 mass shooting began.
The Ohio Second District Court of Appeals of Greene County ruled in October that releasing the records without Betts’ consent would violate the Ohio Student Privacy Act.
In the brief, however, Reporters Committee attorneys argue that the court failed to properly interpret the privacy statute in a way that follows longstanding common law principles that an individual’s right to privacy expires upon death. The brief also details the public benefit served when news organizations are able to report on the school disciplinary records of mass shooters. And it contends that the court’s restrictive interpretation of the Student Privacy Act “undermines public policy and runs contrary to the principles of liberal construction and broad access embodied in the Ohio Public Records Act.”
The media coalition urges the Ohio Supreme Court to reverse the ruling and send the case back to the lower court to issue an order compelling the school district to release all of the records requested by the news organizations.
“Ensuring that the press and the public have timely access to records relating to mass shooters is imperative,” the media coalition’s brief states. “Each day the public is deprived of information from these records, an opportunity to learn lessons that could help prevent another mass shooting is lost.”
In the days following the Dayton shooting, news organizations submitted requests for Betts’ school records under Ohio’s public records law. While the Bellbrook-Sugarcreek School District agreed to release “directory information” about the former student, they declined to provide other requested records, including Betts’ disciplinary records, prompting the news organizations to file a lawsuit on Aug. 9.
The Second District Court of Appeals sided with the school district, rejecting the news organizations’ arguments that, based on established common law rules in Ohio and other states, Betts’ privacy rights under the Student Privacy Act ended when he died and his records should be released.
According to Reporters Committee attorneys, because the Student Privacy Act doesn’t address the privacy rights of deceased former students, the court should interpret the statute through existing Ohio common law. The court’s refusal to do so is inconsistent with the purpose of the Student Privacy Act, which was enacted to ensure that the state’s public schools complied with the federal Family Educational Rights and Privacy Act. And as the coalition’s brief points out, “the U.S. Department of Education has consistently stated that, in accordance with common law principles, the privacy rights afforded to students under FERPA terminate upon the student’s death.”
Reporters Committee attorneys also stress how important it is for news organizations to investigate the backgrounds of mass shooters like Betts, who was reportedly obsessed with mass shootings. The coalition’s brief cites an independent review done in the aftermath of the Virginia Tech University mass shooting in 2007, in which a gunman killed 32 people in 2007. While many school officials and employees were worried about the shooter’s behavior before the shooting, the ensuing report concluded that they stopped short of sharing their concerns out of fear that doing so would violate the student’s privacy rights under FERPA.
“When school records reveal that warning signs were missed, or that schools failed to effectively act upon such signs,” the media coalition’s brief states, “the news media’s dissemination of this information ensures that educators, mental health professionals, law enforcement, and the public have the opportunity to use this information to implement change and help prevent future tragedies.”
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.
Photo by Becker1999