[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. School Choice Ohio, Inc. v. Cincinnati Pub. School Dist., Slip Opinion No. 2016-Ohio-
5026.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-5026
     THE STATE EX REL. SCHOOL CHOICE OHIO, INC. v. CINCINNATI PUBLIC
                                 SCHOOL DISTRICT ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. School Choice Ohio, Inc. v. Cincinnati Pub.
                  School Dist., Slip Opinion No. 2016-Ohio-5026.]
Public records—R.C. 149.43—Requestor has clear legal right to access personally
        identifiable information of school district’s students whose parents had
        consented to release of the information—Requestor failed to establish clear
        legal right to compel district to amend its student-information policy—Writ
        of mandamus granted in part and denied in part.
     (No. 2014-0749—Submitted January 26, 2016—Decided July 21, 2016.)
                                       IN MANDAMUS.
                                 _____________________
                                SUPREME COURT OF OHIO




        LANZINGER, J.
        {¶ 1} This is a mandamus action in which a company seeks to compel a
school district to comply with a public-records request. We grant the request for a
writ of mandamus in part and deny it in part.
                               RELEVANT BACKGROUND
        {¶ 2} Relator, School Choice Ohio, Inc. (“School Choice”), is a private,
nonprofit corporation that informs Ohio parents about alternative educational
opportunities for their children, including publicly funded scholarships to attend
private schools. It provides this information by contacting parents via telephone,
e-mail, or mail. School Choice obtains the students’ contact information by
submitting public-records requests to Ohio public school districts.
        {¶ 3} Respondent, Springfield City School District (“Springfield” or “the
district”),1 is a public school district that includes one preschool, ten elementary
schools, three middle schools, one high school, and one alternative school. In
compliance with federal and state law, Springfield maintains extensive educational
and personal information about its students. Pursuant to federal and state privacy
laws, Springfield has an official policy in place to safeguard its students’ private
information.
        {¶ 4} For the 2012-2013 school year, Springfield’s policy provided notice
that some student information would be designated as “directory information” and
that prior parental consent to the disclosure of this information would be presumed.
The policy deemed the following nine categories of student information “directory
information”: (1) name, (2) address, (3) telephone number(s), (4) date and place of
birth, (5) participation in officially recognized activities and sports, (6) achievement
awards or honors, (7) weight and height, if a member of an athletic team, (8) dates
of attendance, and (9) date of graduation. The policy also informed parents that

1
  School Choice’s claims against the other respondent, Cincinnati Public School District, were
dismissed after those parties entered into a settlement agreement.




                                              2
                                 January Term, 2016




unless they “affirmatively withdr[ew] their consent to release in writing,” the
district would be free to release the directory information to requesting parties
without prior written consent.
       {¶ 5} In January 2013, School Choice sent a public-records request to
Springfield, asking the district to provide information regarding students enrolled
in the district during the 2012-2013 academic year. The request specifically asked
for the following information:


       1. Student and Parent’s/Guardian’s Name,
       2. Parent’s/Guardian’s complete address, including e-mail address,
       3. Parent’s/Guardian’s telephone contact information, and
       4. Student’s Grade Level for the 2012-13 School Year.


Springfield complied with the request in part. In its letter responding to School
Choice’s request, the district explained that it would release only information that
its 2012-2013 policy explicitly designated as directory information, which did not
include students’ grade levels or parents’ personal information.        Springfield
therefore provided to School Choice only the names and addresses of enrolled
students.
       {¶ 6} For the 2013-2014 school year, the district changed its student-
information policy. It designated the same nine categories of student information
as “directory information” but stated that the designation applied only to former
students and not to current students. For current students, Springfield provided
parents with a form entitled “Consent for Disclosure of Student Information for
Superintendent Approved Purposes” (the “consent form”). The consent form listed
the same nine categories of information that the prior policy had designated as
“directory information” but identified the list as “personally identifiable
information.” The consent form informed parents that their written consent was




                                         3
                              SUPREME COURT OF OHIO




now required in order for Springfield to release the student information falling into
the nine categories. But once given, parental consent would be implied on a
continuing basis unless the parents affirmatively withdrew their consent in writing.
Thus, under the updated policy, the same student information was subject to the
same ongoing release, though the information bore a different label and affirmative
parental consent was initially required.
       {¶ 7} Additionally, the new consent form specified categories of requesters
who would be eligible to receive student information. The form provided that
student information could be subject to disclosure only “for purposes approved by
the Superintendent or his designee.” It identified two categories of approved
purposes: (1) school-directed events or activities, such as yearbook publication or
theater presentations, and (2) “educational, health, service, or other non-profit
programs which may provide a benefit to the students of the District” that are
directed in part or in full by third-party “community leaders, community
organizations, and school-related organizations” approved by the superintendent as
“partnering” organizations.
       {¶ 8} In October 2013, School Choice sent another public-records request
to Springfield. This request sought the following information:


       1. Student and parent’s/guardian’s name,
       2. Parent’s/Guardian’s complete address, including email address,
       3. Parent’s/Guardian’s telephone contact information,
       4. Student’s grade level for the 2013-14 school year, and
       5. Student’s school building for the 2013-14 school year.


In a reply e-mail, without specifying whether it was accepting or rejecting School
Choice’s request, Springfield attached a copy of the new student-information policy
that it had adopted for the 2013-2014 school year. After School Choice sent a letter




                                           4
                                     January Term, 2016




following up on its request, Springfield eventually articulated in January 2014 that
it was categorically denying the request based on the new student-information
policy. But on other occasions during the same school year, the district released
students’ personally identifiable information to other organizations, including
Clark State Community College, Springfield Christian Youth Ministries, Global
Impact STEM Academy, Jostens, Inc., and the Clark County Combined Health
District.
         {¶ 9} In a May 2014 complaint, amended in October 2014 after the claims
against Cincinnati Public School District were dismissed, School Choice sought a
writ of mandamus compelling Springfield to produce the 2013-2014 student
information requested in October 2013 and to amend Springfield’s student-
information policy, including the parental notice-and-consent procedure. In the
first and second counts2 against Springfield, School Choice asserted that it was
entitled to the information under Ohio’s Public Records Act, R.C. 149.43, and
Student Privacy Act, R.C. 3319.321. In the third count, School Choice asserted
that it was entitled to the requested relief regarding Springfield’s student-
information policy pursuant to Ohio’s Student Privacy Act and Public Records Act
as well as the Family Educational Right to Privacy Act (“FERPA”), 20 U.S.C.
1232g. School Choice also requested an award of statutory damages, attorney fees,
and costs.
         {¶ 10} We issued an alternative writ in December 2014, 140 Ohio St.3d
1519, 2014-Ohio-5251, 20 N.E.3d 728, and the parties presented evidence, filed




2
 The first, second, and third count against Springfield are counts two, four, and six of the amended
complaint. The remaining counts relate to the dismissed respondent, Cincinnati Public School
District, and will not be addressed.




                                                 5
                                   SUPREME COURT OF OHIO




briefs, and gave oral arguments. The cause is now before us for consideration of
the merits.3
                                        LEGAL ANALYSIS
        I. Access to Student Information through the Public Records Act
         {¶ 11} The first count of the complaint for a writ of mandamus seeks to
compel Springfield to release under R.C. 149.43 the student information that
School Choice requested in its 2013-2014 public-records request. “Mandamus is
the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public
Records Act.” State ex rel. Physicians Commt. for Responsible Medicine v. Ohio
State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174,
¶ 6. Accord R.C. 149.43(C)(1). To be entitled to a writ of mandamus compelling
the production of public records, a relator must establish by clear and convincing
evidence that the relator has a clear legal right to the records and that the respondent
has a clear legal duty to provide them. State ex rel. Cincinnati Enquirer v. Sage,
142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. The respondent, in turn,
has the burden of proving that the records are exempt from disclosure under R.C.
149.43. State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79,
526 N.E.2d 786 (1988), paragraph two of the syllabus.
         {¶ 12} The policy underlying the Public Records Act is that “open
government serves the public interest and our democratic system.” State ex rel.
Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
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.

3
  Springfield argues for the first time in its merit brief that mandamus is not appropriate here because
School Choice has named the wrong party and Springfield lacks the capacity to be sued. Civ.R.
9(A) requires parties to claim lack of capacity by “ ‘specific negative averment,’ ” or else the matter
is waived. State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911, ¶ 30,
quoting Civ.R. 9(A). Because Springfield failed to raise its lack of capacity in its answers to School
Choice’s complaint and amended complaint, it has waived the argument and we will not consider
it.




                                                   6
                                January Term, 2016




Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334
(1996). And exceptions to disclosure must be strictly construed. State ex rel.
Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 247, 643 N.E.2d 126 (1994).
       {¶ 13} The first step in considering the merits of School Choice’s public-
records request is to determine whether the information requested meets the
definition of “public record.” Generally, to constitute a public record, a document
must be a record and it must be “kept by any public office.” R.C. 149.43(A)(1).
Springfield is a public office, given that “school district units” are specifically
enumerated in the statutory definition of public offices. Id. See also State ex rel.
Perrea v. Cincinnati Pub. Schools, 123 Ohio St.3d 410, 2009-Ohio-4762, 916
N.E.2d 1049, ¶ 14. To be a “record,” the personally identifiable student information
that Springfield maintains must be of a nature that “serves to document the
organization, functions, policies, decisions, procedures, operations, or other
activities of the office.” R.C. 149.011(G).
       {¶ 14} School districts are required by law to collect the personally
identifiable information of all their students and to compile the information in a
variety of forms: districts must collect student information, including names and
addresses, and a variety of data for demographic and funding purposes, R.C.
3301.0714(D)(1); district superintendents must keep uniform records regarding all
enrolled students, including names, studies pursued, and standing, R.C. 3319.32;
and reports of student names, ages, and addresses must be provided to the school
district board of education, R.C. 3321.12. Because a school district’s maintenance
of student information is one of its integral functions, the records containing
personally identifiable student information that Springfield maintains are records
within the meaning of R.C. 149.011(G).
       {¶ 15} Although school districts are public offices and the records
containing students’ personally identifiable information are records for purposes of
R.C. 149.011(G), they are not public records if they fall under one of the exceptions




                                         7
                             SUPREME COURT OF OHIO




enumerated in R.C. 149.43(A)(1), one of which is “[r]ecords the release of which
is prohibited by state or federal law.” R.C. 149.43(A)(1)(v). Springfield contends
that the records containing students’ personally identifiable information are records
prohibited from release by federal and state law. Specifically, the school district
asserts that release of the information is prohibited by FERPA and R.C. 3319.321
and that therefore the information is not a public record.
       {¶ 16} Both the federal and state statutes must be considered.
                          A. Prohibition by Federal Law
       {¶ 17} FERPA was enacted to protect the privacy rights of students and
their parents “ ‘by limiting the transferability of their records without their
consent.’ ” Gonzaga Univ. v. Doe, 536 U.S. 273, 295, 122 S.Ct. 2268, 153 L.Ed.2d
309 (2002), quoting 120 Cong.Rec. 39858, 39862 (1974). The receipt of federal
education funds by Ohio’s schools and education agencies, including Springfield,
is conditioned on their compliance with the privacy provisions of FERPA. State ex
rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970
N.E.2d 939, ¶ 19. If FERPA restrictions apply to a particular record, the release of
the record is prohibited by federal law under R.C. 149.43(A)(1)(v). Id. at ¶ 25.
       {¶ 18} FERPA broadly prohibits the release of education records but
provides a variety of exceptions to this prohibition. The only exception applicable
to this dispute is the exception for directory information. Thus, education entities
may not have “a policy or practice of permitting the release of education records
(or personally identifiable information contained therein other than directory
information, * * *) of students without the written consent of their parents.”
(Emphasis added.) 20 U.S.C. 1232g(b)(1).
       {¶ 19} FERPA defines “directory information” as including the following:


       Student’s name, address, telephone listing, date and place of birth,
       major field of study, participation in officially recognized activities




                                          8
                                January Term, 2016




        and sports, weight and height of members of athletic teams, dates of
        attendance, degrees and awards received, and the most recent
        previous educational agency or institution attended by the student.


20 U.S.C. 1232g(a)(5)(A).
        {¶ 20} Springfield asserts that because it no longer calls its nine categories
of student information “directory information,” none of the FERPA provisions
related to directory information apply. This argument is not well taken. While it
is true that FERPA affords school districts the choice whether to “mak[e] public
directory information” (emphasis added), 20 U.S.C. 1232g(a)(5)(B), it does not
afford them discretion to change the categories that fit within the term “directory
information” as defined in 20 U.S.C. 1232g(a)(5)(A). See United States ex rel.
Munoz v. Computer Sys. Inst., Inc., No. 11 C 7899, 2015 WL 4052853, *2 (N.D.Ill.
June 30, 2015), quoting Electronic Privacy Information Ctr. v. U.S. Dept. of Edn.,
48 F.Supp.3d 1, 20 (D.D.C.2014) (“ ‘Under FERPA, each educational institution
can choose whether to make the various categories of directory information public
or not’ ”).
        {¶ 21} A school district may release directory information without
obtaining parental consent for every request as long as it satisfies three conditions
provided in 20 U.S.C. 1232g(a)(5)(B). First, the school district must choose which
of the eligible categories of directory information to “mak[e] public.” Id. Second,
the school district must give public notice identifying its chosen categories of
information and its intended ability to release the information without prior parental
consent. Id. Third, the school district must allow parents an opportunity to opt out
by withdrawing their consent.       Id.   Parental consent is the key to whether
information can be released without violating FERPA.
        {¶ 22} Application of FERPA’s directory-information exception to this
case requires consideration of two aspects of Springfield’s notice-and-consent




                                          9
                             SUPREME COURT OF OHIO




procedure: (1) its initial-consent option and (2) its limitation of disclosure to
specific parties and for specific purposes.
             1. Parental notice and consent: initial-consent option
       {¶ 23} Under the terms of Springfield’s 2013-2014 policy, the district chose
to designate nine categories of student information—all of which fit the statutory
definition of directory information—as subject to release. The district notified
parents that it intended to disclose the information in response to future requests
without obtaining additional parental consent at the time of disclosure. But instead
of presuming parents’ initial consent and allowing them to opt out, the district asked
parents to give their initial written consent to this process. Springfield’s notice-
and-consent procedure thereby satisfied the first two conditions of 20 U.S.C.
1232g(a)(5)(B) and partially satisfied the third.
       {¶ 24} Because Springfield did not notify parents that their consent would
be presumed unless they opted out, Springfield would violate FERPA by releasing
the directory information of any students whose parents had failed to sign the
consent form. But Springfield would not violate FERPA by releasing personally
identifiable information of students whose parents had signed the consent form.
         2. Parental notice and consent: specific parties and purposes
       {¶ 25} FERPA’s provisions regarding directory information, 20 U.S.C.
1232g(a)(5)(A) and (B), identify the information that may be released without
parental consent, but the provisions are silent regarding the parties who are eligible
to receive the information. Further guidance, however, is provided in 34 C.F.R.
99.1 et seq., which “set[s] out requirements for the protection of privacy of parents
and students” pursuant to FERPA. 34 C.F.R. 99.2. The regulation governing
directory information, 34 C.F.R. 99.37, provides:


               In its public notice to parents * * *, an educational agency or
       institution may specify that disclosure of directory information will




                                         10
                                  January Term, 2016




       be limited to specific parties, for specific purposes, or both. When
       an educational agency or institution specifies that disclosure of
       directory information will be limited to specific parties, for specific
       purposes, or both, the educational agency or institution must limit its
       directory information disclosures to those specified in its public
       notice * * *.


(Emphasis added.) 34 C.F.R. 99.37(d).
       {¶ 26} Pursuant to this regulation, a school district has the power to adopt
policies and use consent forms that limit the scope of disclosure to specific parties
or for specific purposes. But if a district provides such limitations, disclosing
student-directory information to parties or for purposes that are outside the scope
of the notice given to parents would violate FERPA. Id. Again, parental notice
and consent is the key factor.
       {¶ 27} The relevant portion of Springfield’s consent form limits disclosure
to   “community        leaders,   community    organizations,   and    school-related
organizations” involved in “educational, health, service, or other non-profit
programs which may provide a benefit to the students of the District.” Releasing
student-directory information to parties or for purposes that are outside the scope
of these limitations would violate FERPA. But as a nonprofit organization whose
mission is to inform parents about the full range of educational opportunities
available to students in Ohio, School Choice easily fits the description of a
community or school-related organization involved in an educational or other
nonprofit program that could provide a benefit to the students of Springfield.
Accordingly, given the language in Springfield’s consent form, FERPA would not
prohibit Springfield’s release of student-directory information to School Choice
under the foregoing limitation.




                                          11
                                 SUPREME COURT OF OHIO




        {¶ 28} Springfield also argues that the consent form limits its ability to
disclose student information to “partnering” organizations and “for purposes
approved by the Superintendent or his designee.”                   Through this argument,
Springfield implies that if the superintendent does not want to partner with a
requesting organization or approve of the purpose involved, it would violate
FERPA to release student-directory information to that organization. Not so.
        {¶ 29} Allowing the superintendent to make discretionary limitations after
consent has been given does not limit the scope of parental consent. It therefore
would not violate FERPA for the superintendent to approve any party or purpose,
as long as disclosure to that party or for that purpose “may provide a benefit to the
students of the District,” as the consent form requires. Because School Choice fits
within the limitations specified in Springfield’s consent form and because the
superintendent cannot create a FERPA prohibition by making post-consent
discretionary decisions, disclosure of Springfield’s student-directory information
to School Choice would not be prohibited by FERPA.
        {¶ 30} In sum, after considering the two foregoing aspects of Springfield’s
parental notice-and-consent procedure, we conclude that FERPA’s directory-
information exception applies to the information of students whose parents had
signed the consent form. Release of these students’ information pursuant to
Springfield’s policy in response to School Choice’s request is not prohibited by
federal law.4
                               B. Prohibition by State Law
        {¶ 31} Ohio’s Student Privacy Act, R.C. 3319.321, was enacted to bring the
state’s public schools into compliance with FERPA. 1987 Ohio Atty.Gen.Ops. No.


4
  We observe that a portion of School Choice’s 2013-2014 request seeks information that does not
fall within the nine categories of personally identifiable student information enumerated in
Springfield’s policy and consent form. Disclosure of this information, being outside the scope of
20 U.S.C. 1232g(a)(5)(A), would violate FERPA, and it is not a public record as defined by R.C.
149.43(A)(1)(v).




                                               12
                                January Term, 2016




87-037, at 2-255; see also Ohio Legislative Service Commission, Summary of 1976
Enactments, January-July, at 87 (summary of Am.S.B. No. 367).
       {¶ 32} The state law bears many similarities to its federal counterpart, and
although it does not explicitly include many of the detailed requirements present in
FERPA, it incorporates by implication FERPA’s directory-information provisions.
See R.C. 3319.321(B)(2)(a). Ohio law’s only prohibition on the release of directory
information that is in addition to the FERPA prohibitions is found in R.C.
3319.321(A), which prohibits school districts from releasing directory information
if it is “for use in a profit-making plan or activity.” R.C. 3319.321(A).
       {¶ 33} The parties do not dispute that School Choice does not intend to use
the requested information in a profit-making plan or activity. Because the Student
Privacy Act prohibition against the release of student information for profit-making
purposes does not apply to School Choice, state law does not prohibit the release
of the requested information.
       {¶ 34} In the absence of any prohibition on the disclosure under either
federal or state law, the Public Records Act exception set forth at R.C.
149.43(A)(1)(v) is inapplicable. Therefore, the personally identifiable information
of Springfield’s students whose parents had provided written consent is a public
record subject to disclosure pursuant to R.C. 149.43.
           II. Access to Student Information through R.C. 3319.321
       {¶ 35} The second count against Springfield in School Choice’s mandamus
complaint contends that even if R.C. 149.43 were inapplicable, Springfield is
independently obligated under Ohio’s Student Privacy Act to release any student
information that it has already provided to other third parties. School Choice
contends that it has a right to the same 2013-2014 student information that was
provided to third parties, including Clark State Community College, Springfield
Christian Youth Ministries, Global Impact STEM Academy, Jostens, Inc., and the
Clark County Combined Health District.




                                         13
                             SUPREME COURT OF OHIO




       {¶ 36} To be entitled to the writ on this basis, School Choice must establish
that the Student Privacy Act provides School Choice with a clear legal right to the
requested information, imposes a clear legal duty on Springfield to provide it, and
does not allow for an adequate remedy in the ordinary course of the law. State ex
rel. Brown v. Lemmerman, 124 Ohio St.3d 296, 2010-Ohio-137, 921 N.E.2d 1049,
¶ 9.
       {¶ 37} The Student Privacy Act provides no statutory mechanism for the
enforcement of its terms, and we have recognized that mandamus is an appropriate
vehicle to compel compliance. Id. at ¶ 12. In an attempt to establish a clear legal
right and corresponding duty under the Student Privacy Act, School Choice cites
the following provision:


       [N]o school district board of education shall impose any restriction
       on the presentation of directory information that it has designated as
       subject to release in accordance with the “Family Educational
       Rights and Privacy Act of 1974,” 88 Stat. 571, 20 U.S.C. 1232q [sic,
       1232g], as amended, to representatives of the armed forces,
       business, industry, charitable institutions, other employers, and
       institutions of higher education unless such restriction is uniformly
       imposed on each of these types of representatives.


(Emphasis added.) R.C. 3319.321(B)(2)(a).
       {¶ 38} School Choice contends that this language means that “a school
district cannot impose any burden on the release of information that qualifies as
‘directory information’ unless it imposes that same burden on all third parties.” But
the foregoing provision does not reach all third parties.        It applies only to
“representatives of the armed forces, business, industry, charitable institutions,




                                         14
                                 January Term, 2016




other employers, and institutions of higher education.” (Emphasis added.) R.C.
3319.321(B)(2)(a).
       {¶ 39} The reach of this language can be determined by its plain meaning,
construed according to the rules of grammar and common usage. State ex rel.
Antonucci v. Youngstown City School Dist. Bd. of Edn., 87 Ohio St.3d 564, 565,
722 N.E.2d 69 (2000). The placement of the term “other employers” in a separate
clause indicates that it is a catchall provision that supplements the list preceding it.
See State ex rel. Gyurcsik v. Angelotta, 50 Ohio St.2d 345, 346, 364 N.E.2d 284
(1977). See also Cracker Barrel Old Country Store, Inc. v. Cincinnati Ins. Co., 499
Fed.Appx. 559, 564 (6th Cir.2012), quoting 82 Corpus Juris Secundum, Statutes,
Section 443, at 572 (“ ‘The presence of a comma separating a modifying clause in
a statute from the clause immediately preceding it is an indication that the
modifying clause was intended to modify all the preceding clauses * * *’ ”).
Accordingly, other than representatives of “institutions of higher education,” the
statutory provision addresses representatives of employers, including “the armed
forces, business, industry,” and “charitable institutions.”
       {¶ 40} Even if the language of R.C. 3319.321(B)(2)(a) were ambiguous, the
legislative history and stated purpose of the language point to the same conclusion.
When subdivision (B)(2) was added to R.C. 3319.321 in 1987, the preamble stated
that the purpose of the amendment was to prohibit school districts “from imposing
any restriction on the presentation of career information to students” and to ensure
uniform release of student-directory information to entities related to that goal.
(Emphasis added.) Am.S.B. No. 75, 142 Ohio Laws, Part I, 151. See also Ohio
Legislative Service Commission, 1987 Summary of Enactments, January-August,
at 107-108 (summary of Am.S.B. No. 75) (“restrictions on the presentation of
career information” must be “uniformly imposed on representatives of the armed
forces, employers, and institutions of higher education,” and “restrictions on the
release of student directory information [must] be uniformly imposed on these same




                                          15
                              SUPREME COURT OF OHIO




types of representatives”).     Given the stated purpose behind adding R.C.
3319.321(B)(2) to the Student Privacy Act, we conclude that the uniform-
restriction rule applies only to entities that seek to employ students and to
institutions of higher education. Neither of these categories applies to School
Choice; it is not a prospective employer or an institution of higher education, and
although School Choice promotes the opportunity to learn about education
institutions, those institutions serve students in grades kindergarten through 12.
Compare R.C. 3310.03 (the educational-choice scholarship program applies only
to students in grades kindergarten through 12) with R.C. 3345.12(A)(2) (“higher
education” refers to colleges and universities).
       {¶ 41} Moreover, School Choice provides no argument to establish that it
fits within the categories of representatives listed in R.C. 3319.321(B)(2)(a).
School Choice has the burden of proving its right to the requested relief by clear
and convincing evidence. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-
Ohio-69, 960 N.E.2d 452, ¶ 13. By failing to provide any argument—let alone
evidence—that it fits within the categories of representatives listed in R.C.
3319.321(B)(2)(a), School Choice cannot establish that it has a clear legal right to
student records pursuant to Ohio’s Student Privacy Act.
       {¶ 42} Because School Choice cannot satisfy any element of its mandamus
claim premised on R.C. 3319.321, we deny the writ with respect to this count.
        III. Amendments to Springfield’s Student-Information Policy
       {¶ 43} In its third count against Springfield, School Choice seeks to compel
Springfield to amend its student-information policy—i.e., to change its definition
of “directory information” and to change its notice-and-consent procedure—so that
its policy requires the disclosure of the requested student information to the
company. School Choice relies on rights and duties that it purports are provided
under Ohio’s Public Records Act and Student Privacy Act—and indirectly under
FERPA.




                                         16
                                January Term, 2016




       {¶ 44} As discussed in our above analysis of School Choice’s second count
against Springfield, the company has not established a clear legal right to any relief
under the Student Privacy Act. The appropriate relief under the Public Records Act
would be the disclosure of records, which we already granted in part with respect
to School Choice’s first count against Springfield. Finally, as we have explained
above, neither FERPA nor 34 C.F.R. 99.37(d) require Springfield to allow all third
parties to access its student-directory information. And FERPA does not convey
any private rights to third parties like School Choice. Gonzaga Univ., 536 U.S. at
287, 122 S.Ct. 2268, 153 L.Ed.2d 309 (“FERPA’s nondisclosure provisions fail to
confer enforceable rights”); 34 C.F.R. 99.60 et seq. (FERPA is enforced through
administrative action).
       {¶ 45} School Choice cannot establish a clear legal right to this separately
requested relief. We therefore deny the writ with respect to School Choice’s third
count against Springfield.
                          IV. Fees, Damages, and Costs
       {¶ 46} Because we are granting the writ in part and ordering compliance
with a portion of School Choice’s request pursuant to the Public Records Act, R.C.
149.43(C)(1) requires an award of $100 for each business day that Springfield
withheld the information requested, up to a maximum of $1,000. And because
School Choice complied with the requirements of R.C. 149.43(C)(1) in bringing its
action, we are required by R.C. 149.43(C)(2)(a) to award court costs. Finally, we
find that Springfield did not provide a timely affirmative or negative response to
School Choice’s October 2013 public records request and that School Choice is
entitled to a mandatory award of attorney fees under R.C. 149.43(C)(2)(b)(i). See
State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d
1136 (“the absence of any response over a two-month period constitutes a violation
of the ‘obligation in accordance with division (B)’ to respond ‘within a reasonable
period of time’ per R.C. 149.43(B)(7)” [emphasis sic]). Although it is within our




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discretion to reduce the statutory damages award pursuant to R.C. 149.43(C)(1)(a)
and (b) and to reduce the award of attorney fees pursuant to R.C. 149.43(C)(2)(c),
we decline to do so in this case.
       {¶ 47} We therefore grant $1,000 in statutory damages and costs and
attorney fees associated with School Choice’s mandamus action requesting relief
pursuant to Ohio’s Public Records Act. School Choice must provide the court with
a detailed application for reasonable attorney fees and costs to be awarded pursuant
to R.C. 149.43(C).
                                    CONCLUSION
       {¶ 48} We hold that School Choice has a clear legal right to access the
personally identifiable information of Springfield’s students whose parents had
consented to the release of the information. We also hold that School Choice failed
to establish a clear legal right to compel Springfield to amend its student-
information policy.
       {¶ 49} Accordingly, we grant in part and deny in part the complaint for a
writ of mandamus. Springfield is ordered to provide the records requested by
School Choice that pertain to students whose parents had signed Springfield’s
consent form and that fall within any of the nine categories of personally
identifiable information identified in Springfield’s consent form. We award costs,
statutory damages, and attorney fees, the total amount of which will be determined
pending School Choice’s itemized application.
                                                            Judgment accordingly.
       PFEIFER, KENNEDY, and O’NEILL, JJ., concur.
       O’DONNELL, J., concurs in judgment in an opinion that FRENCH, J., joins.
       O’CONNOR, C.J., concurs in part and dissents in part in declining to award
attorney fees.
                               _________________




                                        18
                                January Term, 2016




       O’DONNELL, J., concurring.
       {¶ 50} I agree with the majority that the personally identifiable information
of students of the Springfield City School District (“Springfield or “the district”)
whose parents have provided written consent to disclose that information is a public
record subject to disclosure pursuant to R.C. 149.43, that School Choice Ohio, Inc.
(“School Choice”) failed to prove its mandamus claim premised on R.C.
3319.321(B)(2)(a), that School Choice did not establish a clear legal right to compel
Springfield to amend its student information policy, and that School Choice is
entitled to statutory damages, costs, and attorney fees. However, in my view, the
reason that R.C. 3319.321(B)(2)(a) does not apply is because it precludes a school
district board of education from imposing “any restriction on the presentation of
directory information that it has designated as subject to release in accordance with
the ‘Family Educational Rights and Privacy Act of 1974,’ 88 Stat. 571, 20 U.S.C.
1232q [sic, 1232g], as amended” to representatives of certain entities and
Springfield had not so designated the information at issue.
       {¶ 51} Instead of following the procedure set forth in 20 U.S.C.
1232g(a)(5)(B) to make directory information available to the public, i.e.,
designating categories of public directory information, giving public notice of the
categories of information so designated, and giving parents a reasonable time to opt
out and inform the district that any or all of the designated information should not
be released without prior parental consent, Springfield created a policy whereby
certain categories of student information could, with prior written parental consent,
be disclosed to third parties “for purposes approved by the Superintendent or his
designee.” One approved purpose was the release of information to partnering
“community leaders, community organizations, and school-related organizations”
involved in “educational, health, service, or other non-profit programs which may
provide a benefit to the students of the District.”
       {¶ 52} The majority aptly observes that




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       as a nonprofit organization whose mission is to inform parents about
       the full range of educational opportunities available to students in
       Ohio, School Choice easily fits the description of a community or
       school-related organization involved in an educational or other
       nonprofit program that could provide a benefit to the students of
       Springfield.


Majority opinion at ¶ 27. Nonetheless, the superintendent exercised his discretion
to deny the request of School Choice for student information even though he
granted requests made by other entities, such as Clark State Community College,
Springfield Christian Youth Ministries, Global Impact STEM Academy, the Clark
County Combined Health District, Jostens, Inc., and the Miami Valley Educational
Computer Association.
       {¶ 53} “ ‘An abuse of discretion implies an unreasonable, arbitrary, or
unconscionable attitude.’ ” State ex rel. Greene v. Montgomery Cty. Bd. of
Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 12, quoting
State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections, 80 Ohio
St.3d 302, 305, 686 N.E.2d 238 (1997).
       {¶ 54} Here, the superintendent had no rational basis for treating School
Choice differently than the entities to which he released student information.
According to the superintendent, the district had no partnership with School Choice
whereby it could be certain that School Choice “would include any of the
opportunities offered by Springfield in the information it disseminated to students”
or “ensur[e] the accuracy of the information dispensed.” However, the district
cannot ensure the accuracy of information dispensed to students by any outside
organization, and the policy created by Springfield focuses on the possible benefit
to the students from the release of their personal information—not the benefit to




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the district. Accordingly, in my view, the superintendent acted unreasonably and
abused his discretion when he denied the request of School Choice.
       {¶ 55} Moreover, the superintendent’s release of student information to
other entities operated as a waiver of the right to claim that the information was
excepted from disclosure pursuant to the public records law. See State ex rel.
Cincinnati Enquirer, Div. of Gannett Satellite Information Network, Inc. v. Dupuis,
98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 22 (“Voluntarily disclosing
the requested record can waive any right to claim an exemption to disclosure”).
School Choice is therefore entitled to the student information pursuant to the Public
Records Act.
       FRENCH, J., concurs in the foregoing opinion.
                                  _________________
       McDonald Hopkins, L.L.C., David T. Movius, Matthew J. Cavanagh, and
Mark J. Masterson, for relator.
       Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Scott
A. Sollmann; and Martin, Browne, Hull & Harper, P.L.L., and Karen W. Osborn,
for respondent.
       Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, and Mark H.
Troutman, urging denial of the writ for amici curiae Ohio School Boards
Association, Buckeye Association of School Administrators, and Ohio Association
of School Business Officials.
                                  _________________




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