COLUMBUS, Ohio (CN) — The Ohio Supreme Court heard arguments Wednesday over whether the school records of the deceased Dayton gunman who killed nine people last year should be made available to the public and press.
Last August, 24-year-old Connor Betts killed nine and injured 27 others when he opened fire outside a bar in a Dayton entertainment district. The police shot and killed Betts.
After news media descended on Dayton, many wondered whether there had been any warning signs in Betts’ past, and whether those red flags had been properly addressed.
Seeking answers, several journalists from various news outlets filed public records requests with Bellbrook-Sugarcreek Local School District. Betts had graduated from Bellbrook High School in 2013.
The requests were denied by the district’s superintendent and school board, citing the Family Educational Rights and Privacy Act and the Ohio Student Privacy Act. Both laws prohibit the release of the records without the student’s consent.
News organizations including CNN, the Associated Press and Cox Media Group – owner of the Dayton Daily News and WHIO-TV in Dayton – sought a writ of mandamus from Ohio’s Second District Court of Appeals to compel the school district to produce Betts’ student records. The court denied that request, prompting an appeal to the Ohio Supreme Court.
The Ohio Attorney General’s Office filed an amicus brief in support of the media companies, arguing the privacy laws do not protect the records of former students who died as adults. Columbus television station WBNS-TV filed another amicus brief, as did the Reporters Committee for Freedom of the Press along with 10 media organizations, all in support of CNN and the other news outlets.
Tuesday morning’s hearing before the state’s high court was held via teleconference due to the Covid-19 pandemic.
Erin Rhinehart, representing CNN and other news media, began by arguing that confidentiality dies with the student.
“Overwhelming authority from this court, the United States Department of Education and other states presented with this issue consistently find that, when an adult student dies, the confidentiality protections of these statutes are no longer applicable,” she said.
Justice Patrick Fischer pointed out that Ohio law states that a student over the age of 18 must give written consent for the release of records, to which Rhinehart replied that there are three options to address the problem. First, the court recognizes that when a student dies, they cannot give consent, she said, or the court rewrites the statute and provides that an administrator or an executor can give consent.
“Third, the court rules in favor of the appellant and finds that when the statute is silent, it defers to the agency’s guidance,” Rhinehart said.
The attorney noted the Ohio Supreme Court has in the past interpreted the state’s Public Records Act “liberally and in favor of broad access to records.”
Justice Judy French questioned Rhinehart on that assertion that the Education Department has determined that rights granted under the Family Education and Privacy Rights Act, or FERPA, end at death.
“I’m a little troubled by the idea that we, as the Ohio Supreme Court, have to look at just how FERPA has been interpreted and what the federal guidance has been,” she asked, wondering if Ohio could do something different than what was decided at the federal level.
Rhinehart said the state does have that ability, but Ohio’s General Assembly “chose, in this case, to use the same language used in the federal statute.”
Justice Patrick DeWine, son of Ohio’s Republican governor, then asked why the court can’t just apply the statute as written.
“If there’s not written consent, no person shall release [the records]. That seems straightforward,” he said.
Rhinehart replied that the statute is silent on the issue of whether FERPA rights die with the former student.
She then yielded the rest of her argument time to Ben Flowers from the Ohio Attorney General’s Office. He said office is involved in the case in its capacity to provide guidance to both the government entities and the public seeking the records. The attorney general believes that the law supports disclosure of the records, Flowers said.
“We look at both FERPA and the Ohio Student Privacy Act, both create a privacy right. They don’t create a complete bar on disclosure, but they rather allow disclosure with consent,” he said. “Given that it creates a privacy right, we look at the manner in which privacy rights were understood at the time. And, at that time, and even today, privacy rights were understood to lapse with death.”
He further argued that a case like this is why the Ohio Public Records Act exists.
“It’s so that individuals can obtain important information from their government that they can then use to insist on legislation and potentially hold government officials accountable,” Flowers said.
Arguing for the Bellbrook-Sugarcreek Local School District, Tabitha Justice said the statute does not expressly state that privacy expires upon death.
“School records are not just grades and attendance. Many school records contain information also protected under HIPAA,” she said, referring to the health care privacy law. “Often these records will include things like information contained in child abuse reporting statutes. We’re not just talking about their grades or their progress. There’s a lot of stuff in there that school districts collect about children.”
O’Connor asked about what specific records the media wanted, suggesting the news outlets are focused on disciplinary records and guidance counselor notes.
Justice said she believed that was true, but that she couldn’t speak on behalf of the news media.
“The reality is that when someone makes a request for educational records, we don’t look for one specific thing. And they didn’t limit it to just disciplinary records,” she said.
She went on to explain that requests of this nature are not unusual.
“School districts get requests from the news media for kids that have been killed in car accidents, students who have committed suicide and other students that have been tragically killed in some fashion or another, but it’s also not unusual for school districts to deny those requests on the basis of FERPA and the Ohio Student Privacy Act,” Justice said. “The news media has chosen this particular case in which to challenge those protections due to the especially compelling optics of a deceased student who is also a mass murderer.”
It is unclear when the Ohio Supreme Court will issue its decision in the case. Neither side was available for comment after the hearing.
Shannon Jankowski, legal fellow for the Reporters Committee for Freedom of the Press, said in an interview that “access to these records is essential.”
“The hope is to prevent events like this from happening, and access to records is vital to getting help to those students who need it in the future,” she said.