[Cite as Patton v. Solon City School Dist., 2017-Ohio-9415.]




DAVID V. PATTON                                         Case No. 2017-00570-PQ

        Requester                                       Special Master Jeffery W. Clark

        v.                                              REPORT AND RECOMMENDATION

SOLON CITY SCHOOL DISTRICT

        Respondent


        {¶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 SD filed
its answer and motion to dismiss (Response). On October 26, 2017, Solon SD 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 SD filed a sur-reply.
Case No. 2017-00570-PQ                                -2-       REPORT AND RECOMMENDATION


       {¶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 action1 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 SD 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

       1
           Formerly R.C. 149.43(C)(1), recodified in 2016 as R.C. 149.43(C)(1)(b), 2016 Sub. S.B. No. 321.
Case No. 2017-00570-PQ                     -3-     REPORT AND RECOMMENDATION


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 SD 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).
Case No. 2017-00570-PQ                            -4-      REPORT AND RECOMMENDATION


        The Video is a “Public Record”
        {¶7} Solon SD 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

        2 Audio in the redacted video cuts out at ten minutes and 22 seconds into playback. The redacted

video is shorter than 12 minutes overall. No specific explanation of this discrepancy is provided by
respondent, but any release ordered by the court is based on the longer, unredacted video. Both videos
submitted to the court appear to be extracts from a longer recording.
Case No. 2017-00570-PQ                       -5-      REPORT AND RECOMMENDATION


render a decision. State ex rel. Bowman v. Jackson City Sch. Dist., 4th Dist. Jackson
No. 10CA3, 2011-Ohio-2228, ¶ 16-17. Solon SD 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 SD 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.
Case No. 2017-00570-PQ                      -6-     REPORT AND RECOMMENDATION


       {¶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 SD
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
Case No. 2017-00570-PQ                       -7-      REPORT AND RECOMMENDATION


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
SD qualifies as a “record.” “‘Public record’ means records kept by any public office,
including * * * school district units.” R.C. 149.43(A)(1). As a record “kept by” Solon SD at
the time of the request, I conclude that the video is a public record, subject to any
applicable exceptions.
       Application of Claimed Exceptions
       {¶12} R.C. 149.43(A)(1) sets forth specific exceptions from the definition of
“public record,” as well as a catch-all exception for, “[r]ecords the release of which is
prohibited by state or federal law.” R.C. 149.43(A)(1)(v). The public office bears the
burden of proof to establish the applicability of any exception:
       Exceptions to disclosure under the Public Records Act, R.C. 149.43, are
       strictly construed against the public-records custodian, and the custodian
       has the burden to establish the applicability of an exception. * * *
       A custodian does not meet this burden if it has not proven that the
       requested records fall squarely within the exception.
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770,
886 N.E.2d 206, ¶ 10; accord State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d
245, 247, 643 N.E.2d 126 (1994). Where a public office claims an exception based on
risks that are not evident within the records themselves, the office must provide more
than conclusory statements in affidavits to support that claim. State ex rel. Besser v.
Ohio State Univ., 89 Ohio St.3d 396, 400-404, 732 N.E.2d 373 (2000). Solon SD
asserts that specified portions of the withheld records are subject to both the Family
Education Rights and Privacy Act (FERPA), and R.C. 3319.321.
Case No. 2017-00570-PQ                          -8-      REPORT AND RECOMMENDATION


       Family Education Rights and Privacy Act (FERPA)
       FERPA provides that
       [n]o funds shall be made available under any applicable program to any
       educational agency or institution which has a policy or practice of
       permitting the release of education records (or personally identifiable
       information contained therein other than directory information, as defined
       in paragraph (5) of subsection (a) of this section) of students without the
       written consent of their parents to any individual, agency, or organization.

20 U.S.C. 1232g(b)(1). See generally State ex rel. ESPN, Inc. v. Ohio State Univ., 132
Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 18-35. This language is considered
a prohibition that constitutes an exception to public records release of covered
information, under R.C. 149.43(A)(1)(v). Id. at ¶ 24. Student disciplinary records are
“education records” subject to FERPA. Id. at ¶ 28-31. Solon SD states that the images
of the children involved in an altercation on the bus have been used and maintained as
disciplinary records. (Sur-reply at 2, 4.) However, Solon SD concedes that the incidental
footage of students in the background is not an education record for those children.3
(Id. at 2; citing Exhibit A.) Thus, only the images of children involved in the altercation
on the bus (except for Patton’s son) are subject to withholding pursuant to FERPA, and
I conclude that these images may be redacted.
       {¶13} FERPA contemplates the display of certain protected records to the
parents of children in the course of disciplinary proceedings. Such statutory display is
not a waiver of the statutory exception by Solon SD, and in any case only the parents of
the other children involved may give consent to further release, not the school district.
The duty to withhold is on the school, but the right of confidentiality belongs to each
student. Thus, the portions of the video protected under FERPA may not be disclosed




       3   The entire video was determined to be a “record” in the preceding section. Application of
FERPA exceptions requires the separate determination of what type of record may be withheld from
within the larger video record, i.e., an education record.
Case No. 2017-00570-PQ                      -9-    REPORT AND RECOMMENDATION


under the Public Records Act. State ex rel. Wallace v. State Med. Bd., 89 Ohio St.3d
431, 434-436, 732 N.E.2d 960 (2000).
      R.C. 3319.321
      Similar to FERPA, Ohio’s R.C. 3319.321(B) provides:
      No person shall release, or permit access to, personally identifiable
      information other than directory information concerning any student
      attending a public school, for purposes other than those identified in
      division (C), (E), (G), or (H) of this section, without the written consent of
      the parent, guardian, or custodian of each such student who is less than
      eighteen years of age, or without the written consent of each such student
      who is eighteen years of age or older.
This language prohibits release of student disciplinary records, Schuckert v. Bd. of Ed.,
9th Dist. Summit No. 12162, 1985 Ohio App. LEXIS 9170, *5-6 (October 30, 1985).
Unlike FERPA, however, the statute is not limited to “education records,” but broadly
prohibits release of any personally identifiable information other than directory
information concerning any student attending a public school. “Personally identifiable
information” is not defined in the Ohio Revised Code for purposes of Chapter 3319, and
the court must therefore refer to the related FERPA definition at 34 C.F.R. § 99.3:
      Personally Identifiable Information
      The term includes, but is not limited to -
      (a) The student’s name;
      (b) The name of the student’s parent or other family members;
      (c) The address of the student or student’s family;
      (d) A personal identifier, such as the student’s social security number,
      student number, or biometric record;
      (e) Other indirect identifiers, such as the student’s date of birth, place of
      birth, and mother’s maiden name;
      (f) Other information that, alone or in combination, is linked or linkable to
      a specific student that would allow a reasonable person in the school
      community, who does not have personal knowledge of the relevant
      circumstances, to identify the student with reasonable certainty; or
Case No. 2017-00570-PQ                           -10-      REPORT AND RECOMMENDATION


       (g) Information requested by a person who the educational agency or
       institution reasonably believes knows the identity of the student to whom
       the education record relates.
The video does not contain any of the information listed in subsections (a) through (e).
However, Solon SD provides clear and convincing evidence that Patton became aware
of the identity of all the students involved in the incident prior to making his public
records request. (Response at p. 3-4, 6-8; Exhibit 1, Regano Aff. at ¶ 10; Exhibit 1A;
Patton Aff. at ¶ 7-10.) Pursuant to R.C. 3319.321(B), I conclude that Solon SD is
required to withhold all “personally identifiable information,” as defined in C.F.R. § 99.3
subsections (f) and (g), of all students in the bus video.
       Extent of Redaction
       {¶14} Public records may be redacted only to withhold exempt information, and
the public office “shall make available all of the information that is not exempt.”
R.C. 149.43(B)(1); accord ESPN at ¶ 33-35. Patton has offered that “the District could
simply blur or otherwise obscure the faces and any other identifying student information
in the school bus surveillance video. The District can even charge me for the costs of
this redaction. See R.C. §149.43(B)(6).” (Complaint, ¶ 4.) Patton expresses specific
interest in video of an “empty seat across the aisle.” (Reply at 7; Complaint, Exhibit C,
p. 1), and “the windshield [sic - only side windows are visible].” Id.
       {¶15} As the District observes, it is in the best position to evaluate what personal
characteristics and other information in the video would disclose a student’s identity.
(Response at 6.) The unredacted video captures student faces, hair, body shapes,
clothing, backpacks, phones, voices,4 and actions during the altercation, and other
items that may serve to identify a student to a parent who is already familiar with that
information and those characteristics. I find that at the discretion of Solon SD, any such
items may be obscured, including the entire student where protected information is
       4 Although personally identifiable audio information would be subject to redaction on the same
bases as video images, the entire audio track appears to have been released to Patton with the redacted
video.
Case No. 2017-00570-PQ                           -11-      REPORT AND RECOMMENDATION


inextricably intertwined. Non-personally identifying information, such as the side
windows, the intermittent appearance of unoccupied seats, seat backs, and the floor,
should not be obscured unless inextricably intertwined with student identity or actions.5
        Timeliness
        {¶16} Solon SD did not provide an initial, redacted version of the requested video
until more than seven months after Patton’s November 8, 2016 request, and has not
provided any explanation for the delay in its response. I find that Solon SD failed to
comply with its obligation under R.C. 149.43(B)(1) to provide copies of the requested
records “within a reasonable period of time.”
        Inquiry as to Purpose of Public Records Request
        {¶17} Patton asserts that during a meeting on May 31, 2017, an official of Solon
SD asked him, “Why do you want the video?” (Complaint at ¶ 8; Reply, Exhibit B, ¶ 15-
19.) Patton claims that this question constituted a violation of R.C. 149.43(B). The
referenced prohibition is found in R.C. 149.43(B)(4):
        (4) Unless specifically required or authorized by state or federal law or in
        accordance with division (B) of this section, no public office or person
        responsible for public records may limit or condition the availability of
        public records by requiring disclosure of the requester’s identity or the
        intended use of the requested public record. Any requirement that the
        requester disclose the requester’s identity or the intended use of the
        requested public record constitutes a denial of the request.
(Emphasis added.) The official’s inquiry as to purpose was posed six months after
Solon SD denied Patton’s initial request, and four months after he had reiterated the
request and received a second denial. The statutory language does not creat e a per se
violation for inquiring as to intended use, but instead forbids an office to “limit or
condition the availability of public records by requiring disclosure of * * * the intended
use of the requested public record.” Id. The fact that the office had twice denied the

        5  Other than the required redaction of personally identifying student information, the parties
remain at liberty to negotiate the editing in any way that reduces time for respondent, and costs to the
requester.
Case No. 2017-00570-PQ                      -12-      REPORT AND RECOMMENDATION


request in writing before an official posed the question during a later discussion
constitutes persuasive circumstantial evidence that Solon SD did not limit or condition
the availability of the records based on disclosure of Patton’s purpose. This conclusion
is consistent with the fact that the explanation and legal authorities provided in the
written denials, if applicable, prohibited Solon SD from releasing the subject records
even if it were so inclined. I conclude that Patton fails to show by clear and convincing
evidence that Solon SD’s actions on May 31, 2017 constituted a violation of
R.C. 149.43(B)(4).
       {¶18} R.C. 149.43(B)(5) has no application here, as the provision applies only to
situations where a public office believes that knowing the intended use would enhance
the ability of the public office to “identify, locate, or deliver the records sought.” Here,
both parties were already aware of the identity and location of the requested record, and
Solon had twice refused to deliver it. As with (B)(4), this statute does not create a per se
violation for asking the question, but instead frames a limited option for a public office to
make a useful inquiry where that inquiry would otherwise violate (B)(4).
       Conclusion
       {¶19} Upon consideration of the pleadings, attachments, and responsive records
filed under seal, I recommend that the court find that Solon SD’s motion to dismiss the
claim as moot be GRANTED as to the portion released to Patton prior to this report and
recommendation. I further recommend that the court find that the entirety of the bus
surveillance video is a record of Solon SD, but that Solon SD is entitled to redact those
portions of the video prohibited from release under FERPA and R.C. 3319.321, as
detailed above under Extent of Redaction.
       {¶20} I recommend that the court issue an order GRANTING Patton’s claim for
relief for production of records as detailed above. I further recommend that the court
order that Patton is entitled to recover from Solon SD the costs associated with this
action, including the twenty-five dollar filing fee. R.C. 2743.75(F)(3)(b).
Case No. 2017-00570-PQ                     -13-     REPORT AND RECOMMENDATION


        {¶21} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).




                                               JEFFERY W. CLARK
                                               Special Master

cc:
David V. Patton                              Kathryn I. Perrico
33595 Bainbridge Road                        Miriam Pearlmutter
Suite 200A                                   1301 East Ninth Street
Solon, Ohio 44139                            Suite 3500
                                             Cleveland, Ohio 44114-1821


Filed December 27, 2017
Sent to S.C. Reporter 1/11/18
