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Patton v. Solon City School District

Court of Claims of Ohio

December 27, 2017


          Sent to S.C. Reporter 1/11/18


          JEFFERY W. CLARK Special Master, Judge.

         {¶1} On November 8, 2016, requester David Patton made a public records request to the Solon Board of Education seeking "complete copies of: (i) All of the surveillance videos taken aboard Solon City School's bus number 36's morning and afternoon routes to and from Roxbury Elementary School from August 16, 2016 to October 21, 2016, inclusive." (Complaint, Exhibit A.) On November 11, 2016, Treasurer Tim Pickins responded that all responsive videos had been properly disposed of in accordance with the Solon City School District's ("Solon SD") records retention schedules, except for video from October 21, 2016. (Id., Exhibit B.) Pickens advised that the remaining video was being withheld from Patton's request as excepted under the Family Education Rights and Privacy Act (FERPA) and R.C. 3319.321.

         {¶2} On June 27, 2017, Patton filed a complaint under R.C. 2743.75 alleging denial of timely access to public records in violation of R.C. 149.43(B) by respondent Solon SD. The case proceeded to mediation, and on September 27, 2017, the court was notified that the case was not fully resolved. On October 11, 2017, Solon S.D. filed its answer and motion to dismiss (Response). On October 26, 2017, Solon S.D. filed an unredacted copy of the withheld video under seal, and a copy of the video redacted to disclose only Patton's son. On November 3, 2017, Patton filed a reply to Solon SD's response. On November 21, 2017, Solon S.D. filed a sur-reply.

         {¶3} The remedy of production of records is available under R.C. 2743.75 if the court of claims determines that a public office denied an aggrieved person access to requested public records in violation of R.C. 149.43(B). R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, and within a reasonable period of time. "[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed." State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, R.C. 149.43 must be construed "liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).

         {¶4} R.C. 2743.75(F)(1) states that public records claims filed thereunder are to be determined through "the ordinary application of statutory law and case law." Case law regarding the alternative statutory remedy of a mandamus action[1] provides that a relator must establish by "clear and convincing evidence" that they are entitled to relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14. Therefore, the merits of this claim shall be determined under the standard of clear and convincing evidence, i.e., "that measure or degree of proof which is more than a mere 'preponderance of the evidence, ' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         Motion to Dismiss

         {¶5} Solon S.D. moves to dismiss the complaint on the grounds that the withheld portions of the video have been properly redacted pursuant to R.C. 149.43(A)(1)(v), and specifically, that 1) federal privacy law prohibits the district from disclosing the requested video, 2) redacting the video to obscure only children's faces, as requested, is not enough to comply with FERPA regulations, and 3) state law likewise bars the district from providing the video as requested. In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.

         Suggestion of Mootness

         {¶6} In an action to enforce R.C. 149.43(B), a public office may produce the requested records prior to the court's decision, and thereby render the claim for production of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. A court considering a claim of mootness must first determine what records were requested, and then whether all responsive records were provided. Solon S.D. allowed Patton to inspect the video at length on November 2, 2016 (Complaint, Exhibit C; Reply, Exhibit B at ¶ 9-10.), and later provided him a copy from which all content had been redacted other than Patton's son. However, Patton's public records request was for a copy of the video, rather than inspection, and he disputes that the copy he was provided was properly redacted. I therefore recommend that the claim for a copy of the video be DISMISSED as moot only as to the unredacted portions provided to Patton. The court should proceed to determine on the merits whether the remaining portions of the video were withheld in violation of R.C. 149.43(B).

         The Video is a "Public Record"

         {¶7} Solon S.D. makes school bus video recordings for security and other purposes, and retained this video when it became part of its disciplinary process. (Sur-reply at 4.) On review, the unredacted video shows multiple students involved in physical and verbal altercation(s), at various times and in several ways. Throughout the video, approximately half of the filmed area captures images other than students, primarily of the floor, seat backs, and windows. The floor and seat backs are static features, other than as traversed by students. Occasional cars and street features can be seen through the windows. The unredacted video contains audio that cuts out at twelve minutes and 18 seconds into playback.[2] Respondent asserts that only a portion of the area filmed by the video is a "record" of the district because it "used this portion of the video in making disciplinary decisions for the students involved in the fight, " Id. Respondent does not identify what "this portion" consisted of.

         {¶8} R.C. 149.011(G) provides a three-part definition of "records, " as used in Revised Code Chapter 149:

"Records" includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

         The school bus video readily meets the first two elements of the definition, as an electronic document, created by Solon SD. Regarding the third element, "any record used by a court to render a decision is a record subject to R.C. 149.43." (Citations omitted.) State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 27. The same is true of any record used by a school district to render a decision. State ex rel. Bowman v. Jackson City Sch. Dist, 4th Dist. Jackson No. 10CA3, 2011-Ohio-2228, ¶ 16-17. Solon S.D. affirms that "the video in question here is undoubtedly an educational record for the students involved in the altercation because the District maintained it for disciplinary purposes" (Sur-reply at 2, 4; Response at 5.), but asserts broadly that "[t]he rest of the video - footage that depicts empty seats, windshields [sic], and so on - does not document the District's decisions, policies, activities, etc., and is not a public record at all." (Sur-reply at 4.) Solon S.D. argues that it may withhold "the rest of the video" as non-record material not subject to the Public Records Act.

         {¶9} The Public Records Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, Slip Op. at 2017-Ohio-8988, ¶ 15. Further, the court has a duty to avoid construction of a statute that would circumvent the evident purpose of the enactment, or lead to unreasonable or absurd results. R.C. 1.47(C); R.C. 1.49(E); Toledo Blade Co. v. Seneca Cty. Bd. of Comm'rs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 31; State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 543, 668 N.E.2d 903 (1996). Whether or not the availability of an empty seat or the movement of other students ultimately figured in the district's disciplinary decision, it is instructive to ask whether the district would have felt comfortable having a video editor black out the windows, seat backs, floor, empty seat(s), uninvolved students - all context other than free-floating images of the "involved" students on a redacted-black background, before it reviewed the video for disciplinary purposes. A construction of R.C. 149.011(G) and R.C. 149.43 that allows public offices to prune away every space, word, or image that it claims did not figure directly in a decision to which the record as a whole relates would unreasonably limit the legislative intent of full disclosure of public records.

         {¶10} Public offices may redact demonstrably personal information kept only for administrative convenience when releasing a larger record in which that information exists. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 25-29; State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 369, 2000-Ohio-345, 725 N.E.2d 1144; State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 610 N.E.2d 997 (1993). However, the court is aware of no case holding that a public office may redact the empty margins of a letter, borders of a table, white space between paragraphs, or pagination numbers simply by claiming that it "did not actually utilize" such incidental images, blanks, and figures in conducting its activities. See State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 39 ("the redacted page numbers for the deposition quotations are not supported by any exemption from disclosure.") Nor is the court aware of any case authority approving a public office cropping photographs or editing video recordings to obscure all incidental content (or absence of content) as "non-record." While there is no reason that the holding in Dispatch may not be applied to record media other than paper, Solon S.D. does not provide clear and convincing evidence that Dispatch may be applied to obscure incidental images behind, around and between the several students involved in the altercation(s).

         {¶11} In State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety,148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, a requester sought trooper cruiser videos. In addition to images visible through the windows of a pursuit and arrest, the videos captured long stretches of incidental images such as passing traffic, a concrete barrier, and an empty rear seat in one of the cruisers. Id. at ¶¶ 17-18, 21. The Court found the videos qualified as "records" of the Highway Patrol, including those not directly used for investigation or prosecution, and that any portion not subject to an exception must be released. Id. at ¶¶ 33-34, 47-50. See also State ex rel. Rhodes v. City of Chillicothe, 4th Dist. Ross No. 12CA3333, 2013-Ohio-1858, ¶ 34-36 (images considered but rejected in decision to issue citations were still "records" of the office.) Here, as in Enquirer, the bus videos are routinely made, the camera captures a field of view set by the agency, and there are multiple activities that the recording may potentially document, e.g., bus crashes, parent/driver altercations, law enforcement activity, etc., in addition to student discipline. (Sur-reply at p. 1-2.) I conclude that the entire school bus video kept by Solon S.D. qualifies ...

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