DAVID V. PATTON Requester
SOLON CITY SCHOOL DISTRICT Respondent
to S.C. Reporter 1/11/18
REPORT AND RECOMMENDATION
JEFFERY W. CLARK Special Master, Judge.
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.
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.
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).
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 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.
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.
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).
Video is a "Public Record"
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. 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"
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.
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.
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.
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).
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 ...