State ex rel. Miami Student v. Miami University

[This opinion has been published in Ohio Official Reports at 

79 Ohio St.3d 168

.]




 THE STATE EX REL. THE MIAMI STUDENT ET AL. v. MIAMI UNIVERSITY ET AL.
   [Cite as State ex rel. The Miami Student v. Miami Univ., 

1997-Ohio-386

.]
Mandamus to compel Miami University to provide records of student disciplinary
        proceedings held before the University Disciplinary Board to the
        university’s student newspaper—Writ granted, when.
       (No. 96-1596—Submitted January 21, 1997—Decided July 9, 1997.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} In the spring of 1995, relator Jennifer Markiewicz, then editor in chief
of Miami University’s student newspaper, The Miami Student, sought records of
student disciplinary proceedings held before the University Disciplinary Board
(“UDB”). Markiewicz intended to use these records to develop a data base and to
track student crime trends on campus. Initially, the university refused to provide
Markiewicz with the requested records. Markiewicz, and her successor editor in
chief, relator Emily Hebert, then made a written request pursuant to R.C. 149.43,
the Ohio Public Records Act, for all UDB records kept in the years 1993-1996. In
their letter, relators stated: “It is not a condition to this request that the subject
records contain the name, social security number, student identification number, or
other information that conveys the identity of any accused or convicted party. If
this identifying information cannot be deleted from the aforementioned records,
however, then the record[s] should be provided in their original form.”
        {¶ 2} On April 5, 1996, Miami University released copies of UDB records.
However, in reliance upon the confidentiality provisions of the Family Educational
Rights and Privacy Act (“FERPA”), Section 1232g(b), Title 20, U.S.Code, Miami
officials deleted from these records the identity, sex, and age of the accuseds, as
well as the date, time, and location of the incidents giving rise to the disciplinary
                             SUPREME COURT OF OHIO




charges. University officials also deleted certain internal memoranda, written
statements prepared by students appealing adverse UDB decisions, and the
disposition of certain proceedings.
        {¶ 3} Markiewicz and Hebert believed that the response to their public
records request was inadequate and that Miami University was required to provide
them with complete copies of the public records requested, redacted only with
respect to the “name, social security number, or student I.D. number of any accused
or convicted party.” Since the university also deleted other information from the
requested records, Markiewicz and Hebert filed an original mandamus action in this
court against respondents, Miami University, Miami University Board of Trustees,
University Disciplinary Board, Myrtis Powell, Vice President, Division of Student
Affairs, and Mary Link, former Chair, University Disciplinary Board, seeking full
disclosure of the UDB records requested.
        {¶ 4} The cause is now before this court for final disposition upon the
evidence and briefs.
                              __________________
        Sirkin, Pinales, Mezibov & Schwartz, Marc D. Mezibov and Ted L. Wills,
for relators.
        Betty D. Montgomery, Attorney General; Draper, Hollenbaugh & Briscoe
Co., L.P.A., Gerald L. Draper and Margaret R. Carmany, for respondents.
        Baker & Hostetler, Michael D. Dortch, David L. Marburger and Lisa
Hammond Johnson, urging issuance of the writ of mandamus for amicus curiae
Ohio Coalition for Open Government.
        Betty D. Montgomery, Attorney General; Bricker & Eckler and Kurtis A.
Tunnell, urging denial of the writ of mandamus for amici curiae twenty-two Ohio
public colleges and universities.
                              __________________
        FRANCIS E. SWEENEY, SR., J.




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                                January Term, 1997




       {¶ 5} The issue before this court is whether relators are entitled to the
requested records pertaining to Miami University Disciplinary Board proceedings
for the years 1993-1996. Since we find that university disciplinary records are not
“education records” under the federal law, FERPA, relators are entitled to these
records under R.C. 149.43 subject to relators’ own request that personal
information regarding the students be deleted. Accordingly, for the reasons that
follow, we grant relators a writ of mandamus.
       {¶ 6} The Ohio Public Records Act is intended to be liberally construed “to
ensure that governmental records be open and made available to the public ***
subject to only a few very limited and narrow exceptions.” State ex. rel. Williams
v. Cleveland (1992), 

64 Ohio St.3d 544, 549

, 

597 N.E.2d 147, 151

. R.C. 149.43
therefore provides for full access to all public records upon request unless the
requested records fall within one of the specific exceptions listed in the Act.
       {¶ 7} Respondents contend that the requested records fall under one such
exception, found in former R.C. 149.43(A)(1), now (A)(1)(o).            This section
excludes from the definition of public records those records “the release of which
is prohibited by state or federal law.” In particular, respondents argue that the
records sought are exempted from release under the federal law, FERPA.
       {¶ 8} Congress enacted FERPA, also known as the Buckley Amendment,
in 1974. The Act was passed to provide access to educational records to students
and parents while preventing educational institutions from carelessly releasing such
information to the public. 

88 Stat. 571

, 572; 120 Congressional Record (1974)
39862-39866; Bauer v. Kincaid (W.D.Mo.1991), 

759 F.Supp. 575, 589

.
       {¶ 9} Section 1232g(b)(1), Title 20, U.S.Code provides:
       “No 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




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therein other than directory information * * *) of students without the written
consent of their parents * * *.”
        {¶ 10} Relators argue that FERPA is not an exception to Ohio’s Public
Records Act because the requested records are not education records.1 Therefore,
the records sought are subject to release. The Act defines “education records” as
those records that “contain information directly related to a student” and that are
“maintained by an educational agency or institution.” Section 1232g(4)(A), Title
20, U.S.Code.
        {¶ 11} In Red & Black Publishing Co. v. Bd. of Regents of Univ. Sys. of
Georgia (1993), 

262 Ga. 848

, 

427 S.E.2d 257

, the Georgia Supreme Court was
faced with the similar issue of whether FERPA restricts a public records request.
In that case, the student newspaper at the University of Georgia sought access to
records relating to the Organization Court of the Student Judiciary. The court
initially questioned whether FERPA applies, since it does not actually prohibit the
disclosure of records, but simply penalizes those educational institutions that
engage in a policy or practice of disclosing such records by withdrawing that
institution’s federal funding. The court then held that FERPA does not prohibit the
disclosure of such records. The court reasoned that the records sought, which
involved infractions allegedly committed by fraternities, were not education
records, since they did not relate to student academic performance, financial aid, or
scholastic probation. In reliance upon this case, relators contend that respondents
are likewise required to release the UDB records in their entirety because the
records sought here do not involve academic performance, financial aid, or
scholastic probation.



1. Relators make other arguments to support their position that the records do not fall within an
exception to R.C. 149.43. However, we do not address these arguments since we find that FERPA
is inapplicable on other grounds.




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                               January Term, 1997




       {¶ 12} In deciding this issue, we are mindful that inherent in R.C. 149.43 is
the fundamental policy of promoting open government, not restricting it. Thus, the
exceptions to disclosure are strictly construed against the custodian of public
records in order to promote this public policy. State ex rel. James v. Ohio State
Univ. (1994), 

70 Ohio St.3d 168,169

, 

637 N.E.2d 911, 912

. Any doubt of whether
to disclose public records is to be resolved in favor of providing access to such
records. State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 

70 Ohio St.3d 619, 621

, 

640 N.E.2d 174, 177

.
       {¶ 13} With these principles in mind, we turn to the facts of this case. At
Miami University, the University Disciplinary Board adjudicates cases involving
infractions of student rules and regulations, such as underage drinking, but may
also hear criminal matters, including physical and sexual assault offenses, which
may or may not be turned over to local law enforcement agencies. Thus, the UDB
proceedings are nonacademic in nature. The UDB records, therefore, do not
contain educationally related information, such as grades or other academic data,
and are unrelated to academic performance, financial aid, or scholastic
performance. Consequently, we adopt the reasoning of the Red & Black decision,
supra, and hold that university disciplinary records are not “education records” as
defined in FERPA.
       {¶ 14} Relators filed this complaint for a writ of mandamus in order to
compile enough information from UDB hearings to effectively track crimes and
student misconduct on campus.        Respondents have prevented relators from
accomplishing this task. By deleting relevant data, such as the general location of
the alleged misconduct, and, in some instances, the type of punishment imposed,
respondents have denied students at Miami University as well as the general public
the right to obtain invaluable information, including when and where alleged
offenses took place and how guilty offenders were punished.




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                             SUPREME COURT OF OHIO




       {¶ 15} Unfortunately, at present, crimes and other student misconduct are
escalating at campuses across the nation. For potential students, and their parents,
it is imperative that they are made aware of all campus crime statistics and other
types of student misconduct in order to make an intelligent decision of which
university to attend. Likewise, for students already enrolled in a university, their
safety is of utmost importance.        Without full public access to disciplinary
proceeding records, that safety may be compromised. By our decision today, we
believe we are following the dictates of R.C. 149.43, which is to foster openness
and to encourage the free flow of information where it is not prohibited by law.
       {¶ 16} Since the release of the requested UDB records is not exempt from
disclosure under R.C. 149.43(A)(1), respondents are required to comply with
relators’ public records request.     In their request for university disciplinary
proceeding records, relators informed the university that they need not disclose
personal information regarding the students, such as their name, Social Security
Number, student identification number, or other information that conveys the
identity of the accused or convicted party. The university, however, not only
deleted this information but also deleted the age and sex of the students charged
with disciplinary violations, the dates, times, and locations of the incidents, and the
disposition of certain proceedings. Although the university was warranted in
deleting information that relators never sought, some of the information which it
deleted was improperly withheld. Therefore, in accordance with relators’ request,
Miami University may delete from the UDB records the student’s name, Social
Security Number, and student identification number. The exact date and time of
the alleged incident may also be deleted, since this constitutes other information
that may lead to the identity of the student. The university must disclose, however,
the general location of the incident, the age and sex of the student (which does not
identify the student), the nature of the offense, and the type of disciplinary penalty
imposed.




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                                January Term, 1997




       {¶ 17} Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420, 426

, 

639 N.E.2d 83, 88-89

.      Accordingly, we grant a writ of mandamus to compel
respondents to provide the records specified above.
       {¶ 18} We also find that relators are entitled to attorney fees and costs. R.C.
149.43(C). Relators’ counsel is instructed to submit a bill to document their request
for attorney fees in accordance with DR 2-106. State ex rel. The Plain Dealer
Publishing Co. v. Cleveland (1996), 

75 Ohio St.3d 31

, 

661 N.E.2d 187

.
                                                                       Writ granted.
       MOYER, C.J., DOUGLAS, RESNICK and PFEIFER, JJ., concur.
       COOK, J., dissents in part and concurs in part.
       LUNDBERG STRATTON, J., dissents.
                              __________________
       COOK, J., dissenting in part and concurring in part.
       {¶ 19} I concur in Justice Lundberg Stratton’s dissent but write separately
to add the following observation.       Miami University withheld by redaction
information that should have been released. Review of the requested records shows
that Miami University deleted the following information that was not personally
identifiable, i.e., information that would not be easily traceable to the student’s
identity: the age and sex of the student, the general location of the incident, any
description of the student’s conduct leading to the disciplinary violation, and the
severity of the sanction imposed. Respondent additionally withheld entire records
on the basis that they contained personally identifiable information. However,
these records also contain information, such as that listed above, that would not
make the student’s identity easily traceable. Therefore, I would grant a limited writ
requiring disclosure of the records with only personally identifiable information
deleted.
                              __________________




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                             SUPREME COURT OF OHIO




       LUNDBERG STRATTON, J., dissenting.
       {¶ 20} I respectfully dissent from the majority. I would find that the Family
Educational Rights and Privacy Act (“FERPA”) requires respondents to delete
“personally identifiable information” from student disciplinary records.
“Personally identifiable information” includes the name of a student or student’s
family member and “information that would make the student’s identity easily
traceable.” Section 99.3, Title 34, C.F.R.
       {¶ 21} This court previously stated that Ohio’s Public Records Act, at R.C.
149.43(A), expressly excludes records, the release of which would violate state or
federal law. State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 

70 Ohio St.3d 605, 607

, 

640 N.E.2d 164, 166

. As federal law, FERPA provides:
       “No 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 * * *) of students without the written
consent of their parents * * *.” Section 1232g(b)(1), Title 20, U.S.Code.
       {¶ 22} Under FERPA, the statutory definition of “education records” is all-
inclusive, covering “those records, files, documents, and other materials, which (i)
contain information directly related to a student; and (ii) are maintained by an
educational agency or institution or by a person acting for such agency or
institution.” Section 1232g(a)(4)(A), Title 20, U.S.Code.
       {¶ 23} FERPA threatens the loss of federal funds for a policy or practice of
disclosure of education records. The majority finds that disciplinary records are
not education records. However, I believe this finding is clearly contrary to the
history, language and intent of FERPA, as is well documented by the Secretary of
Education in promulgating the regulations implementing FERPA. Therefore, I
believe we have no choice, despite my strong support for the value of open records
in our society, but to follow Congress’s dictates.




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                                January Term, 1997




       {¶ 24} The majority primarily relies on Red & Black Publishing Co. v. Bd.
of Regents of Univ. Sys. of Georgia (1993), 

262 Ga. 848

, 

427 S.E.2d 257

, as
authority for concluding that the disciplinary records in dispute are subject to
release because they are not education records and, consequently, not subject to
FERPA. However, Red & Black was decided prior to the 1995 amendments to
regulations implementing FERPA, in which the Secretary of Education clarified
that disciplinary records were always included as education records under FERPA.
       {¶ 25} The 1995 amendments laid out a clear definition of “law
enforcement records,” which the statute had specifically exempted from the
disclosure prohibition:
       “Law enforcement unit means any individual, office, department, division,
or other component of an educational agency or institution, such as a unit of
commissioned police officers or non-commissioned security guards, that is
officially authorized or designated by that agency or institution to -
       “(i) Enforce any local, State, or Federal law, or refer to appropriate
authorities a matter for enforcement of any local, State, or Federal law against any
individual or organization other than the agency or institution itself; or
       (ii) Maintain the physical security and safety of the agency or institution.”
Section 99.8(a)(1), Title 34, C.F.R.
       {¶ 26} Because the University Disciplinary Board is not a law enforcement
unit, the law-enforcement exception to FERPA does not apply.
       {¶ 27} The Secretary of Education invited public comment before the
amendments were promulgated. The Department of Education received over one
hundred and fifty comments, with the majority of those responding stating that “to
allow the release of student disciplinary records to the public without consent would
compromise what they believe to be the fundamental educational mission of the
campus judicial process.” Some argued that “campus judicial systems have been




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                              SUPREME COURT OF OHIO




effective in responding to violations of institutional policy because of the privacy
protections afforded to students by FERPA.” 

60 F.R. 3464

.
       {¶ 28} A minority of the comments dealt with the need to know about crime
on campus. Concerning those comments, the Secretary stated, “[T]he issue of full
public access to disciplinary hearing records concerning criminal and other non-
academic misconduct is an important part of the ongoing debate concerning safety
on college campuses and * * *, given the competing interest involved, these issues
need to be aired and argued in the legislative arena.” 

Id.

 As a result, the Secretary
notified Congress of the need to address this important issue and offered to work
with Congress in writing an appropriate amendment to FERPA. 

Id.

       {¶ 29} In explaining the 1995 amendments, the Secretary of Education
acknowledged the holding in Red & Black, but noted that another state court more
recently had reached the opposite conclusion, citing Shreveport Professional
Chapter of Soc. of Professional Journalists v. Louisiana State Univ., Shreveport
(Mar. 4, 1994), First Judicial District Court, Caddo Parish, La., No. 393,332, which
found that student disciplinary records were not akin to law enforcement records
and were education records.
       {¶ 30} Further, as in the Shreveport case, the relators argue that FERPA is
not a law which prohibits disclosure, only that it provides for the withholding of
federal funds for institutions that have a practice of releasing educational records.
Regarding the question of whether FERPA prohibits not only funding but also
disclosure, the court stated, “However, the intent of Congress to withhold millions
of federal dollars from universities that violate [the] Buckley [Amendment] is
ample prohibition, regardless of how the word ‘prohibit’ is construed by the
plaintiffs.” Shreveport at 17.
       {¶ 31} In addition, Section 1232g(b)(6), Title 20, U.S.Code permits
postsecondary institutions to disclose to a victim of a crime of violence the results
of any disciplinary proceeding conducted by the institution against the perpetrator.




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                                 January Term, 1997




The Secretary noted that this specific statutory exception to the prohibition of
disclosure, enacted in 1990 as part of the Student Right-to-Know and Campus
Security Act, P.L. 101-542, Section 203, 

104 Stat. 2381

, 2385, and implemented
by Section 99.31(a)(13), Title 34, C.F.R., demonstrated Congress’s view that
disciplinary records are education records under FERPA.                

60 F.R. 3465

.
Information about the type and the amount of crime on college campuses is also
available under Section 668.47(a)(6), Title 34, C.F.R. (Student Assistance General
Provisions), which implements the Student Right-to-Know and Campus Security
Act, and requires postsecondary institutions to report annually statistics regarding
certain campus crimes, including sexual assaults, that have been reported to local
police agencies or to any official of the institution who has significant responsibility
for student and campus activities. 

60 F.R. 3465

.
       {¶ 32} A federal administrative agency, the Department of Education, has
definitively interpreted the issue of whether disciplinary records are education
records.   When interpreting statutes, courts must give due deference to an
administrative interpretation formulated by an agency which has accumulated
substantial expertise, and to which Congress has delegated the responsibility of
implementing the congressional command. Griggs v. Duke Power Co. (1971), 

401 U.S. 424, 433-434

, 

91 S.Ct. 849, 854-855

, 

28 L.Ed.2d 158, 165

.
       {¶ 33} The FERPA regulations leave no doubt that the records of the
University Disciplinary Board are education records. In comments to the 1995
amendments, the Secretary of Education concluded:
       “The Secretary remains legally constrained to conclude that records of an
institution’s disciplinary action or proceedings are ‘education records’ under
FERPA, not law enforcement unit records, and that excluding these records from
the definition of ‘education records’ can be accomplished only through a statutory
amendment of FERPA by Congress.” 

60 F.R. 3464

. Because their release is
prohibited by federal law, as interpreted by a federal administrative agency, these




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                             SUPREME COURT OF OHIO




records fall under the exception to release under Ohio’s Public Records Act, R.C.
149.43(A).
       {¶ 34} Therefore, I would grant a limited writ, requiring disclosure of the
records with any personally identifiable information, such as the name of the
student, the date and time of the incident, or any other easily traceable information
(e.g., residence hall room numbers, names of roommates) deleted. Because most
of these records have already been released with such deletions, I would deny
attorney fees.
                              __________________




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