By D. Michael Crites and Barbara J. Jordan*
When a public records request is received, it is often difficult to know what you must supply and, if you feel you should deny the request, what steps you should take to ensure you are in compliance with the law. Defending your institution’s decision to deny a public records request can not only be costly, but a lawsuit over what unfortunately often appears to be an attempt to hide something can detrimentally affect your institution’s reputation. Every state has their own regulations concerning the release of public records. In addition, depending on what type of institution you are operating (such as an educational facility), federal law can come into play. Add to that possible attorney-client or work-product confidentiality exemptions, and the decision as to whether you must disclose or should deny a public records request can quickly become convoluted.
In the Ohio Supreme Court’s recent slip opinion, State ex rel. ESPN v. Ohio State Univ., a sometimes confusing patchwork of public records law was provided a little more clarification.[1] The case involved ESPN’s request for the release of public records concerning Ohio State University’s (“Ohio State”) athletic department, emails concerning several Ohio State officials and Ted Sarniak, a mentor to the former Ohio State football player Terrelle Pryor, as well as documents related to Ohio State’s current National Collegiate Athletic Association (“NCAA”) investigation.[2] Ohio State complied with the requests for the records concerning the athletic department, even providing ESPN with additional records that Ohio State had already supplied to other media outlets.[3] However, when it came to the records concerning Sarniak and the NCAA investigation, access was denied.[4]
Ohio State cited various reasons for denying the requests related to Sarniak and the NCAA investigation, including: (1) the over breadth of the requests, (2) the fact that the NCAA investigation was “ongoing,” and (3) that some of the documents were protected by federal confidentiality law.[5] The court’s opinion clarifies a significant amount of Ohio public records law as well as provides some broadly applicable lessons about what a public agency should and should not do in response to a public records request.
Consider all the exemptions the document may fall under before complying with the request.
There are various sources of law that could provide protection from disclosure for a specific document. However, it may be particularly difficult to decipher what documents do not fall under the classification of “public record” in your state. Even when enumerated lists of exemptions are provided, they are sometimes convoluted with cross-references to other portions of your state’s code or explained using complex or broad legal language. For example, Ohio R.C. § 149.43(A)(1), listing what public records are exempt from disclosure in Ohio, makes reference to more than 25 other sections of the code.[6]
The definition of “public record” under Ohio law also exempts any document that is protected from disclosure under federal law.[7] One of the most applicable federal laws regarding educational institutions is the Family Educational Rights and Privacy Act (“FERPA”).[8] FERPA applies to all agencies and institutions that receive federal funds, including elementary and secondary schools, colleges, and universities.[9] “Parochial and private schools at the elementary and secondary levels generally do not receive such funding and are, therefore, not subject to FERPA.”[10] “Private postsecondary schools, however, generally do receive such funding and are subject to FERPA.”[11]
Another important category of exemptions to consider is the attorney-client privilege and work-product doctrine. Investigative reports analyzing potential liability as well as documents containing legal advice and billing statements from your attorney describing the work they have performed, the issues they researched, or the communications they have made on your behalf are typically protected from disclosure laws.[12]
However, the fact that there is a civil or criminal investigation underway involving your institution will not, in and of itself, relieve you of the duty to provide otherwise accessible public records. In State ex rel. ESPN v. Ohio State Univ., the documents that ESPN requested were directly related to the NCAA investigation that Ohio State was being subjected to.[13] Despite this fact, the documents were not protected from disclosure because the court found that there was no exemption under state law for documents related to an “ongoing investigation.”[14] If the documents would have contained legal advice or personally identifiable information about a student, a different exemption would have protected the document from disclosure. You may want to consult legal counsel concerning the type of investigation that is underway and the type of documents that are being requested. There may or may not exist an exemption based on the possible scenario.[15]
Do not be vague about the reason you are denying the request.
Your response should provide the requesting entity with information about the reasoning behind your denial. For example, if their request was overly broad, make sure that you explain the way in which your public records are stored and ask that they rephrase their request in accordance with this system. In Ohio, a public office is required to keep an on-hand copy of their current records retention policy and inform the requester of its contents as well as provide them with an opportunity to revise their request to comply with this system.[16] If, however, your basis for denial is not something as general as the request being overly broad, cite legal authority supporting your denial of the request.
When possible, supply partial documents with any protected personal identifying information redacted.
If only a portion of a public record contains information that is exempted from disclosure, you cannot completely withhold the entire document. For example, when the records request is directed at obtaining information pertaining to a student, FERPA will be implicated. FERPA prohibits an educational institution from releasing “education records” that are “maintained” by the university or school.[17]
The Ohio Supreme Court provided clarification on these two terms in State ex rel. ESPN. Citing a Sixth Circuit Court of Appeals case, the court confirmed that “education records” should encompass any document that directly relates to a student and is maintained by the student’s university.[18] It is not limited to just academic grades or attainment.[19] A record is considered “maintained,” for the purposes of FERPA, whenever the institution has implemented a systematic filing and storage structure that organizes and retains these educational records.
However, even when the requested record includes personally identifiable information about a student, it does not mean the request can simply be denied. The Ohio Supreme Court indicates that if the records request was one of a more general nature (i.e., not an attempt to obtain information about a named student, but a request concerning the school generally), the personally identifiable information of students, parents, and other individuals associated with the student in a familial or personal capacity should be redacted and the remainder of the record should be produced.[20] The person responsible for the public record shall notify the requester of any redaction or make the redaction plainly visible.[21]
Reply promptly to initial requests as well as any subsequent correspondence from the requesting entity.
Not only is it a statutory requirement in Ohio to reply promptly to a public records request,[22] it can earn you favor in the eyes of the court. Although no one wants the denial of a public records request to result in a lawsuit, you should respond to a request in a manner that will reflect upon you positively if it does. Document the dates of all incoming and outgoing correspondence, even phone calls. It would be wise to maintain a file or record pertaining to every request received, the intermediate correspondence performed, the documents provided or denied access to, and the ultimate disposition.
Continue to work with the requesting entity even after a lawsuit is filed.
One of the pitfalls of ESPN’s case was that their complaint only asked the court to compel Ohio State to comply with the records request. They did not ask that Ohio State be ordered to instruct ESPN on how to revise their request or suggest that the denial resulted in an unreasonable delay in ultimately complying with the request for public records.[23] This general lack of an alleged injury left the court with no basis upon which to award ESPN any remuneration.[24] Although Ohio State did not instruct ESPN on how to revise their records request in their original denial, they did openly communicate with ESPN and continued to work with them even after the commencement of the case. If a public agency illustrates that they are sincerely trying to be responsive to a public records request, including providing instructions on how to revise an overbroad request, their potential claimant may not be able to allege a genuine injury.
The above considerations are certainly not all-inclusive. There will be special circumstances that arise with each public records request received by an educational institution. Because public records laws are typically construed in favor of disclosure, it is advisable to be well-versed in the state and federal rules applicable to your institution’s records and have a system in place to identify what steps to take when responding to a request.
* Barbara J. Jordan is a student at the Ohio State University Moritz College of Law and is currently serving as a Summer Associate in Dinsmore & Shohl’s Columbus office.
[1] State ex rel. ESPN v. Ohio State Univ., No. 2012-Ohio-2690, slip op. (June 19, 2012).
[2] Id. at 2–3.
[3] Id. at 2.
[4] Id. at 3.
[5] Id.
[6] Ohio Rev. Code Ann. § 149.43(A)(1) (LexisNexis 2012).
[7] Id. at § 149.43(A)(1)(v).
[8] See infra “When possible, supply partial documents with any protected personal indentifying information redacted.”
[9] 20 U.S.C. § 1232g(b) (2006).
[10] U.S. Dep’t of Educ., FERPA General Guidance for Students (February 2011), http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html.
[11] Id.
[12] See e.g., State ex rel. Dawson v. Bloom-Carroll Local Sch. Dist., 131 Ohio St. 3d 10 (2011): State ex rel. Toledo Blade Co. v. Toledo-Lucas Cnty. Port Auth., 121 Ohio St. 3d 537 (2009).
[13] State ex rel. ESPN v. Ohio State Univ., No. 2012-Ohio-2690, slip op. at 2–3 (June 19, 2012).
[14] Id.
[15] See, e.g., Ohio Rev. Code Ann. § 149.43(B) (LexisNexis 2012).
[16] Id. § 149.43(B)(2).
[17] 20 U.S.C. § 1232g(b) (2006). It is important to note that FERPA only protects from disclosure records that pertain to students. Teachers, coaches, and administrators are not protected by FERPA because they are employees, not students. See e.g., Briggs v. Bd. of Trs. Columbus State Cmty. Coll., 2009 U.S. Dist. LEXIS 92950 (S.D. Ohio July 8, 2009); Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Ohio 2004). This is why Ohio State was not protected from releasing records pertaining to former coach Jim Tressel or any other Ohio State official or administrator.
[18] State ex rel. ESPN v. Ohio State Univ., No. 2012-Ohio-2690, slip op. at 9 (June 19, 2012) (citing State ex rel. Miami Student v. Miami Univ., 294 F.3d 797, 812 (6th Cir. 2002)).
[19] Id.
[20] Id. at 11.
[21] Ohio Rev. Code Ann. § 149.43(B)(1) (LexisNexis 2012).
[22] Id.
[23] State ex rel. ESPN v. Ohio State Univ., No. 2012-Ohio-2690, slip op. at 5 (June 19, 2012).
[24] Id. at 6.
