[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Frank v. Ohio State Univ., Slip Opinion No. 2020-Ohio-3422.]




                                           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. 2020-OHIO-3422
           THE STATE EX REL. FRANK v. THE OHIO STATE UNIVERSITY.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Frank v. Ohio State Univ., Slip Opinion No.
                                     2020-Ohio-3422.]
Mandamus—Public-records law—When requested records are sensitive in nature
        and subject to limitations on disclosure under federal law, it makes sense
        for certain institutions to refer the person who is making the public-records
        request to an office that will have the proper expertise for how to lawfully
        disclose the requested records and how to apply the relevant state and
        federal regulations—Writ denied.
       (No. 2019-0515—Submitted April 7, 2020—Decided June 25, 2020.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} Relator, Andrew Frank, brings this original action in mandamus to
compel the Ohio State University (“OSU”) to provide the documents that his
                             SUPREME COURT OF OHIO




attorney had requested in a public-records request. For the reasons set forth herein,
we deny the writ of mandamus. Also pending is Frank’s motion to strike portions
of OSU’s evidence, which we deny. However, we sua sponte order Kelly Smith’s
affidavit, Robert Moormann’s affidavit, and OSU’s exhibits L, M, and N to be
placed under seal.
                                  I. Background
       {¶ 2} On February 22, 2019, attorney Kevin L. Murphy submitted a public-
records request to OSU for certain records concerning Frank. Specifically, Murphy
requested:


       (1) any correspondence with the Clermont County Prosecutor’s
       office relating to Andrew Frank; (2) any correspondence with Scott
       O’Reilly relating to Andrew Frank; (3) any documents provided to
       the University by the Clermont County Prosecutor’s office relating
       to Andrew Frank; and (4) any documents provided to the University
       by Scott O’Reilly relating to Andrew Frank.


In a footnote, Murphy defined correspondence to mean “any disclosure, transfer, or
exchange of thoughts, opinion, or information of any nature, and by any method.”
And in a second footnote, Murphy defined document to mean “any writing,
photograph, image, and/or recording, whether in electronic form or hard copy.”
Murphy did not indicate that he was submitting the public-records request on
Frank’s behalf.
       {¶ 3} Murphy e-mailed the letter to PulicRecords@osu.edu, which is
OSU’s official e-mail address for public-records requests. Scott Hainer, OSU’s
public-records program coordinator, e-mailed Murphy acknowledging Murphy’s
public-records request and asking for some clarification regarding the scope of the
request. The public-records request was also given an identification number.




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                                      January Term, 2020




Murphy responded to Hainer’s e-mail that same day and provided some additional
details.
           {¶ 4} On March 19, 2019, Hainer e-mailed Murphy letting him know that
his public-records request was denied on the ground that the requested records were
exempt from disclosure under R.C. 149.43(A)(1)(v), which exempts “[r]ecords the
release of which is prohibited by state or federal law.” Hainer cited the Family
Education Rights and Privacy Act, 20 U.S.C. 1232g (34 C.F.R. 99) (“FERPA”),1
as the prohibitive federal law and advised Murphy to contact the Office of Student
Life Student Conduct “[t]o the extent [that he was] seeking student disciplinary
records.”
           {¶ 5} The next day, Murphy responded and informed Hainer that the
requested records were not exempt from disclosure under FERPA because Frank
“provided the University with a FERPA release.” On April 8, OSU’s director of
public records responded, indicating that “the records [Murphy was] seeking to
obtain continue to be subject to the requirements of FERPA despite [his]
submission of a waiver to [OSU].” The public-records director also advised
Murphy to contact OSU’s Office of Student Life Student Conduct for records
relating to student-disciplinary proceedings.
           {¶ 6} On April 10, 2019, Frank filed a complaint for a writ of mandamus in
this court.2 On September 25, 2019, we issued an alternative writ and ordered the
filing of briefs and submission of evidence pursuant to S.Ct.Prac.R. 12.05. 157
Ohio St.3d 1413, 2019-Ohio-3797, 131 N.E.3d 940. Both parties filed merits briefs


1. Hainer also cited R.C. 2907.322, which, among other things, prohibits the dissemination of
sexually oriented material involving a minor, as the prohibitive state law. Frank later clarified that
he was not seeking any documents containing child pornography, so the applicability of R.C.
2907.322 is not at issue in this case.

2. Frank’s complaint sought relief in connection with two public-records requests sent by Murphy—
the request that was made on February 22, 2019, and a second request that was made on March 12,
2019. But due to “events that have transpired since the filing of” the complaint, Frank indicates in
his merit brief that he now seeks relief concerning only the February 22 request.




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and submitted evidence. OSU’s evidence consisted of two affidavits and 14
exhibits. Frank filed a motion to strike both affidavits and two of the exhibits. OSU
opposes Frank’s motion.
                                  II. Legal Analysis
                    A.The merits of Frank’s public-records request
          {¶ 7} To be entitled to a writ of mandamus, a party must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Cleveland Right to Life v.
Ohio Controlling Bd., 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.
“Mandamus is [an] appropriate remedy to compel compliance with the Ohio Public
Records Act, R.C. 149.43, and a relator need not demonstrate the absence of an
adequate remedy in the ordinary course of the law.” State ex rel. Cincinnati
Enquirer v. Pike Cty. Gen. Health Dist., 154 Ohio St.3d 297, 2018-Ohio-3721, 114
N.E.3d 152, ¶ 12; see also State ex rel. Caster v. Columbus, 151 Ohio St.3d 425,
2016-Ohio-8394, 89 N.E.3d 598, ¶ 15-16; R.C. 149.43(C)(1)(b). Ohio’s Public
Records Act “ ‘ “is construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public information.” ’ ” 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, quoting Gilbert v. Summit Cty.,
104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 7, quoting State ex rel.
Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334
(1996).
          {¶ 8} A “public record” does not include “[r]ecords the release of which is
prohibited by state or federal law.” R.C. 149.43(A)(1)(v). 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 releasing, or
providing access to, any personally identifiable information in education records.”




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                                      January Term, 2020




20 U.S.C. 1232g(b)(2). FERPA “unambiguously conditions the grant of federal
education funds on the educational institutions’ obligation to respect the privacy of
students and their parents.” United States v. Miami Univ., 294 F.3d 797, 809 (6th
Cir.2002). Therefore, when FERPA applies to a record, it constitutes a prohibition
on the release of the record under R.C. 149.43(A)(1)(v). State ex rel. ESPN, Inc. v.
Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 25.
         {¶ 9} There is no dispute that the records in question are student records
containing “personally identifiable information.”3 The parties therefore frame the
issue in this case as one involving the applicability of FERPA to the requested
records. But there is another issue presented in this case—whether OSU actually
denied Frank’s public-records request.
         {¶ 10} FERPA permits the release of personally identifiable information
with the consent of the student or his parents. 20 U.S.C. 1232g(b)(2)(A); 34 C.F.R.
99.30(a). The written consent must (1) specify the records to be disclosed, (2) state
the purpose of the disclosure, and (3) identify the parties or class of parties to whom
the disclosure may be made. 34 C.F.R. 99.30(b). Frank contends that he is entitled
to the requested records because he executed a valid FERPA waiver. But that
waiver was not attached to Murphy’s original public-records request, dated
February 22, 2019. From OSU’s perspective, Murphy’s February 22 public-
records request was a request from a third party for a student’s records, which were
exempt from disclosure pursuant to R.C. 149.43(A)(1)(v) and FERPA. Moreover,
Murphy did not identify himself as Frank’s agent nor did he provide OSU with a
written consent form in the February 22 public-records request. Therefore, to the




3. “Personally identifiable information” includes, but is not limited to, “the student’s name, a family
member’s name, the address of the student or family member, personal identifiers such as the
student’s social security number or student number, and personal characteristics or other information
that would make the student’s identity easily traceable.” Miami Univ., 294 F.3d at 806, fn. 9, citing
34 C.F.R. 99.3.




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                            SUPREME COURT OF OHIO




extent that OSU’s first response (dated March 19, 2019) constituted a denial of the
February 22 public-records request, that denial was well founded.
       {¶ 11} As for OSU’s second response, dated April 8, 2019, we need not
decide whether Frank executed a valid consent form or even whether the records in
question are subject to R.C. 149.43 at all, because OSU did not deny the request.
Rather, OSU advised Murphy:


       [T]o the extent you are seeking student disciplinary records, please
       contact the Office of Student Life Student Conduct. Pursuant to
       FERPA, Student Conduct allows for inspection and review of
       records related to disciplinary proceedings by involved students, and
       as appropriate, their advisors. They can explain the process for
       inspection and review of records related to student disciplinary
       proceedings as well as documentation that may be necessary to
       allow for inspection and review.


R.C. 149.43 does not require institutions like OSU to provide records through a
specific public-records office.   But when, as here, the requested records are
sensitive in nature and subject to limitations on disclosure under federal law, it
makes sense for OSU to refer Murphy to an office that will have the proper
expertise for how to lawfully disclose the requested records and how to apply the
relevant state and federal regulations. Accordingly, in OSU’s April 8 response to
Murphy, OSU did not deny the public-records request (and we offer no opinion
whether OSU legitimately could have denied the request), it merely referred
Murphy to a different office. And there is no evidence in the record to suggest that
either Frank or Murphy followed up on this opportunity.
       {¶ 12} We conclude that OSU responded promptly and fully to Murphy’s
request and that Frank is not entitled to a writ of mandamus. It follows that Frank




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                               January Term, 2020




is also not entitled to an award of statutory damages, attorney fees, or court costs
under R.C. 149.43(B) or (C).
                           B. Frank’s motion to strike
        {¶ 13} Although Frank abandoned any claims relating to a separate public-
records request that he had made on March 12, 2019, OSU still addressed that
request in its merit brief and submitted evidence to support its arguments for
rejecting it. On October 2, 2019, Frank filed a motion to strike portions of OSU’s
evidence, specifically Kelly Smith’s affidavit, Robert Moormann’s affidavit, and
exhibits L and N. OSU opposes the motion. Frank claims that these documents
should be stricken because they include student information protected by FERPA.
Even if that were so, striking the documents is the wrong relief because that simply
means that this court will not consider them when deciding the case.            The
documents remain a part of this case’s docket and thus available for the public to
see. The proper remedy is to place the documents under seal. Erring on the side of
caution, but without expressing a view as to whether filing these documents
violated FERPA, we order that Smith’s affidavit, Moormann’s affidavit, and
exhibits L and N be placed under seal. We also sua sponte order that OSU’s exhibit
M be placed under seal.
                                 III. Conclusion
        {¶ 14} For the reasons stated, we deny the writ of mandamus and order that
Smith’s affidavit, Moormann’s affidavit, and exhibits L, M, and N be placed under
seal.
                                                                       Writ denied.
        O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
        KENNEDY, J., concurs in judgment only.
                               _________________
        Murphy Landen Jones, P.L.L.C., and Kevin L. Murphy, for relator.




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       Dave Yost, Attorney General, Kristine L. Hayes, Senior Assistant Attorney
General, and Stephanie M. Swiger, Assistant Attorney General, for respondent.
                             _________________




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