As a supplement to the annual publication of the "Yellow Book" on the Ohio Sunshine Laws, the Ohio Attorney General will periodically issue Public Records and Open Meetings Act Bulletins on matters of emerging importance. This Ohio Public Records Act Bulletin highlights the disclosure obligations of public offices, including public universities, and focuses on the issues surrounding the release of student records by academic institutions.
Obligation of Public Offices
The Ohio Supreme Court has expressly cautioned public officials that the records in their possession belong to the people, and not to the government officials holding them.1 Accordingly, Ohio's public records laws must be interpreted liberally in favor of disclosure,2 and any exceptions in the law that permit certain types of records to be withheld from disclosure must be narrowly construed.3 If there is any doubt about whether to disclose a record, that doubt generally should be resolved by disclosure.
Pursuant to R.C. § 149.43(B), a public office has two basic duties under the public records law: to provide (1) prompt inspection of public records, and (2) copies within a reasonable period of time, if requested. A person's motive in requesting access to public records is typically irrelevant.4 However, a public office has discretion to determine the form in which it will keep its records,5 and the requestor has a duty to craft a request that describes with sufficient clarity the records desired.6
The Ohio Public Records Act requires public offices to organize and maintain public records "in a manner that they can be made available for inspection or copying" in response to public records requests.7 The General Assembly has imposed this requirement in order to "facilitate broader access to public records."8 A public office is not required to create new records to respond to a public records request, even if it is only a matter of compiling information from existing records.9 A public office must have a copy of its current records retention schedule at a location readily available to the public.10 The records retention schedule can also be a valuable tool for the public office to use to show a requester how the records kept by the office are organized and maintained.
Revised Code §§ 149.011(G) and 149.43 define a "record" as any item that is kept by a public office that: (1) is stored on a fixed medium, (2) is created, received, or sent under the jurisdiction of a public office and (3) documents the organization, functions, policies, decisions, procedures, operations, or other activities of the office. If any one of these three elements is absent, the item is not a record, and the public office has no presumed obligation of disclosure.
The third prong of the definition is often critical to the analysis of whether an item is a record. An item received by a public office is not a record simply because the public office could use the item to carry out its duties and responsibilities.11 However, if the public office actually uses the item it may thereby document the office's activities and become a record.12
The term "Records" includes any document, device, or item, regardless of physical form or characteristic. It is important to emphasize that e-mail messages must be analyzed like any other item to determine if they meet the definition of a record. Likewise, if a draft document kept by a public office meets the defining criteria of a record, it is subject to the Public Records Act and records retention law.13 The Ohio Supreme Court has noted that "disclosure [of non- records] would not help to monitor the conduct of state government."14 Some items that have been found not to "document the activities," etc. of public offices include public employee home addresses kept by the employer solely for administrative (i.e., management) convenience,15 personal calendars and appointment books,16 and non-record items and information contained in employee personnel files.17
In summary, it is the message or content, not the medium, that makes a document a record of a public office.18 Again, the records law must be construed liberally in favor of our State's interest in the public's right to disclosure.
FERPA's Impact on Disclosure
Public offices often must consider privacy concerns against the overarching presumption in favor of disclosure. When an office is faced with a record that, in part, contains information that is not subject to public disclosure (by virtue of a mandatory or discretionary exception), the office may redact the exempt portion of the record and should disclose the remainder.19 In so doing, the public office must make the redactions in good faith, and notify the requestor that all or a portion of the request has been denied.20 However, where excepted information is inextricably intertwined with the entire content of a particular record such that redaction cannot protect the excepted information, the entire record may be withheld.21
Issues surrounding redaction and withholding of records frequently arise in the context of education records. The federal Family Education Rights and Privacy Act (FERPA),22 prohibits academic institutions from releasing a student's "education records" without written consent. Under FERPA, "education records" are documents that: (1) contain information directly related to a student; and (2) are maintained by an educational agency or institution.23 Although the constraints on disclosure imposed by FERPA affect the obligations of a public educational institution with regard to the release of records, institutions must carefully examine whether the record requested truly meets the definition of an "education record" that must lawfully be withheld.
Importantly, even documents that "do contain information directly related to a student ... are records under the Act [and therefore prevented from disclosure] only when and if they 'are maintained by an educational agency or institution or by a person acting for such agency or institution'."24 With regard to the "maintenance" component of the education record definition, the United States Supreme Court has noted that the "ordinary meaning of the word 'maintain' is 'to keep in existence or continuance; preserve; retain.'"25 The Court also has observed that at least some degree of effort at centralizing or securing may be implied: "[t]he word 'maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled." The Sixth Circuit previously had equated the term "maintain" with "kept,"26 and the federal court for the Northern District Ohio has recently applied a similar preservation or retention concept to the definition.27 However, it is important to emphasize that, even when an educational institution "maintains" a record, FERPA does not prohibit disclosure unless the record also "directly relates" to an identifiable student.
The question of whether a document contains information "directly related" to a student is not resolved simply because a student is identifiable in a document. Ohio courts and others across the nation closely scrutinize the direct-relation component of the education record definition. See, e.g., United States v. Miami Univ., Ohio St. Univ. (instructing that documents that relate directly to school employees, or others who are not students at the educational institution, and only indirectly to students are not shielded by FERPA); 28 Briggs v. Bd. of Trustees Columbus State Comm. College (concluding that FERPA disclosure limitations "do not apply to plaintiff's request for the production of documents relating to all student complaints of sexual harassment");29 Ellis v. Cleveland Municipal School District (holding that documents relating to alleged incidents of assault against named students by substitute teachers "do not implicate FERPA" because, although they "clearly involve students as alleged victims and witnesses, the records themselves are directly related to the activities and behaviors of the teachers themselves");30 and NCAA v. The Associated Press (finding NCAA hearing transcript was not shielded by FERPA because "these records pertain to allegations of misconduct by the University Athletic Department, and only tangentially relate to the students who benefited from that misconduct").31
The current state of Ohio public records law is that FERPA applies to bar disclosure only with regard to records maintained by an educational institution that "contain information directly related to a student," and not those that contain only tangential or incidental student references. Significantly, analysis of whether a document is "directly related" to an identifiable student should assess the nature of the document itself (to determine whether it is an "education record"), and not the source, nature or intent of the request. Further, redaction, where effective truly to shield the identity of students, can transform a document that otherwise would be an "education record" into a document not protected under FERPA and subject to disclosure under the Public Records Act.32
Please consult the Sunshine Laws Manual for a more detailed discussion of the Ohio Public Records Act.
1 White v. Clinton Cty. Bd. of Comm'rs. (1996), 76 Ohio St.3d 416.
2 State ex rel. Mahajan v. State Medical Bd., 2010 Ohio 5995, ¶21.
3 State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, at ¶10.
4 Gilbert v. Summit County, 2004-Ohio-7108, *10, 821 N.E.2d 564.
5 R.C. § 149.43(B)(2).
6 State ex rel. Dillery v.Icsman (2001), 92 Ohio St.3d 312.
7 R.C. 149.43(B)(2). State ex rel. Bardwell v. City of Cleveland, 126 Ohio St.3d 195, 2010-Ohio-3267.
8 R.C. 149.43(B)(2).
9 State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 1999-Ohio-447 (1999); State ex rel. Warren v. Warner, 84 Ohio St.3d 432, 1999-Ohio-475 (1999); State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 1998-Ohio-242 (1998); State ex rel. Wilson-Simmons v. Lake County Sheriff's Dept. (1998), 82 Ohio St.3d 37, 42; State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197.
10 R.C. 149.43(B)(2); for additional discussion, see Chapter Five, Section A of the Sunshine Law Manual, "Records Management."
11 See State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St.3d 61, 1998-Ohio-180.
12 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-149, at ¶27.
13 Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, at ¶20 (2006) ("document need not be in final form to meet the statutory definition of a 'record'"); State ex rel. Calvary v. City of Upper Arlington (2000), 89 Ohio St.3d 229, 2000-Ohio-142 (finding that a written draft of an oral collective bargaining agreement submitted to city council for its approval documented the city's version of the oral agreement and therefore met the definition of a record).
14 State ex rel. Dispatch v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, at ¶27.
15 Dispatch v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384.
16 International Union, United Auto., Aerospace & Agric. Implement Workers v. Voinovich (1995), 100 Ohio App.3d 372, 378.
17 Fant v. Enright (1993), 66 Ohio St.3d 186.
18 State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 461.
19 R.C. § 149.43(B)(1).
20 State ex rel. Toledo Blade Co. v. Telb, 50 Misc.2d 1 (1990); R.C. § 149.43(B)(1).
21 See, State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 1996-Ohio-300. See also, State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59, 60 (where exempt information is so "intertwined" with the public information as to reveal the exempt information from the context, the record itself, and not just the exempt information, may be withheld).
22 20 U.S.C.S. § 1232g.
23 20 U.S.C.S. § 1232g(a)(4)(A).
24 Owasso Independent School District v. Falvo, 534 U.S. 426, 431 (2002) (quoting statute) (practice of peer grading in which students exchange papers to grade them does not violate FERPA because such papers to that point are not "maintained" by the school).
25Id. at 433. Adding that "FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms," the Court explicitly left open the question of whether an individual teacher's grade book is "maintained" so as to be a FERPA record -- that point was assumed, but not decided. Id.
26 United States v. Miami Univ., Ohio St. Univ., 294 F.3d 797, 812 (6th Cir. 2002) (stating that "[u]nder a plain language interpretation of the FERPA, student disciplinary records are education records because they directly relate to a student and are kept by that student's university").
27 See, e.g, Board of Education of the Toledo City School Dist. v. Horen, 2010 U.S. Dist. Lexis 98231 (N.D. OH) (finding that a teacher's tally sheets of students' daily activities were not "maintained" because they were "temporary vehicles assisting school staff in memorializing notes in the students' permanent records, but never themselves went into a 'records room,' the students' 'permanent file,' or on 'a permanent secure database'").
28 294 F.3d 797, 812 (6th Cir. 2002).
29 2009 U.S. Dist. LEXIS 92950, *15 (S.D. Ohio 2009).
30 309 F. Supp.2d 1019, 1023 (N.D. Ohio 2004).
31 18 So. 3d 1201, 1211 (Fla. Ct. App. 2009).
32 See, e.g., United States v. Miami University, Ohio St. University, 294 F.3d 797 (6th Cir. 2002).