by Ryan LaFlamme | Aug 8, 2016 | Board Policy & Representation, General, Legislation
Laws regarding public records are under scrutiny across the United States, including in Ohio. Advanced technology has brought myriad ways to communicate information to U.S. citizens, who continue to demand increased transparency. Public-records law continues to develop and change in the form of both legislation and court decisions. Below are a few recent Ohio bills and cases dealing with public records that have an effect on school districts throughout the state.
House Bill 585: Body Cameras
The Ohio House introduced HB 585 on July 11, proposing that the record of body cameras worn by law enforcement officers be considered generally a public record if the officer is performing official duties. (This bill does not include any regulations on police dash cams.) The bill will specify circumstances in which a nonpublic record would become a public record, and circumstances in which recordings would not be public records. Personal or nonrelevant information, and generally, recordings of minors or victims, would be redacted. The bill would also require a local records commission to maintain records from a body camera for a minimum of one year unless the law enforcement agency is subject to a records retention schedule that establishes a longer period of time.
Senate Bill 321
This bill, which was signed into law in June, becomes effective in late September. This new law provides a procedure for someone who has been denied access to public records, in the form of mediation or filing with the court of claims.
The bill also contains a provision that a public office which places all of its public records online may limit the number of records a person may request to receive digitally to 10 per month. The requirements and limitations are as follows:
1. All records must be online and accessible to the public except for during outages that are not within the control of the public office.
2. Records that are not online cannot be subject to the limit.
3. The limit also does not apply if the person making such requests certifies that the request responses are not being forwarded or used for commercial purposes.
The bill modifies the attorney fee provisions of the statutes. An award of fees is now mandated to be considered remedial and not punitive, and to enforce this, the bill limits fees to those that are incurred prior to the record being turned over plus the fees incurred to produce the proof of the amount and reasonableness of the fees incurred. The court may reduce the award of fees if it determines that the suit was not necessary and the records could have been obtained through less formal means. Finally, a public office may itself be awarded costs and fees if the court determines that the suit to enforce the fulfillment of a public records request is frivolous.
Attorney Billing Statements
In the 2016 case State ex rel. Pietrangelo v. Avon Lake, the Ohio Supreme Court ruled that, in certain circumstances, the professional fee summary of an attorney-fee billing statement is exempt from disclosure in a public-records request. In this case, the plaintiff, Pietrangelo, had requested certain public records from the City of Avon Lake, including attorney billing statements. The city complied with the request but redacted the following information from the attorney billing statements based on attorney-client privilege and attorney work product:
• Narrative descriptions of particular legal services rendered
• Exact dates on which such services were rendered
• The particular attorney rendering each service
• The time spent by each particular attorney on a particular day
• The billing rate of each particular attorney
• The total number of hours billed by each particular attorney for the invoiced period
• Total fees attributable to each particular attorney for the invoiced period
Pietrangelo then petitioned the Ninth District Court of Appeals for a writ of mandamus to compel the city to provide unredacted invoices, which the court granted. The Ohio Revised Code notes that “public records” do not include records that are prohibited from release by state or federal law.
In a previous decision, State ex rel. Anderson v. Vermilion (134 Ohio St.3d 120, 2012-Ohio-5320), the Ohio Supreme Court held that itemized statements, including dates of services, hours, rates, and money charged for the services, are not exempt from public-records law and therefore must be disclosed. However, in State ex rel. Dawson v. Bloom-Carroll Local School Dist. (131 Ohio St.3d 10, 2011-Ohio-6009), the same court found that the narrative portions of the statements were confidential but a summary of the invoice, including the attorney’s name, the invoice total, and the matter involved, was sufficient for the public-records request. One of the differences between the two cases, Anderson and Dawson, is that the matter in Dawson was pending litigation but the matter in Anderson was for general informational purposes.
In Pietrangelo v. Avon Lake, the Ohio Supreme Court held that this case resembles the Dawson case and that the records relating to the pending litigation were exempt from disclosure. “If disclosed, Pietrangelo may acquire information that would be useful in his litigation strategy against the city, whereas in Anderson, any harm from disclosure of attorney-client communication was remote or speculative.”
State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-2974.
Directory Information
The Ohio Supreme Court determined that School Choice Ohio was entitled to records that constitute directory information as defined by the district’s public records policy. However, the organization did not have the right to compel the district to amend its student records policy.
School Choice obtains students’ contact information from Ohio public school districts via public-records requests. In addition to requesting the court to compel the district to disclose the records requested, the organization also attempted to compel the district to amend its policy to expand directory information and to require disclosure to its company by amending the parent notice and opt-out provisions. According to the Family Educational Rights and Privacy Act (FERPA), “directory information” includes the following student information:
• Name, address, telephone listing, and date and place of birth
• Major field of study
• Participation in officially recognized activities and sports
• Weight and height of members of athletic teams
• Dates of attendance
• Degrees and awards received
• The most recent previous educational agency or institution attended
Pursuant to FERPA, districts must determine which of the items listed above are to be considered directory information. Districts must then provide public notice to parents of what it defines as directory information and give them an opportunity to opt out of directory information being disclosed without prior written consent.
Ohio law defines directory information similarly and places an additional condition on disclosure – that directory information cannot be requested or disclosed for profit-making activities. In fact, whether directory information is being used for profit-making activities is the one time in public records law where the public office is permitted to inquire about the purpose of the request.
Ohio law also provides that a district may not limit the disclosure of directory information 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. The court determined that School Choice Ohio is not any of these types of organizations.
However, the court ultimately concluded that even with the limited way in which the district defined its directory information, which was lawful, the organization fit within the definition and was entitled to the records.
What This Decision Means to Your District
Many districts have received the annual requests from this particular organization and from others. This case considered the question of whether the organization is engaged in profit-making activity and answered in the negative. Therefore, districts should continue to disclose records, including directory information, in accordance with the relevant policy. Remember to consult your list of opt-outs whenever directory information is going to be disclosed without prior written consent of the parent. If you are considering changes to your public-records policies, please contact an Ennis Britton attorney for assistance or review.
by Hollie Reedy | May 3, 2016 | Construction & Real Estate, General
The Ohio Board of Building Standards has finalized the door barricade device rules mandated by HB 64. Found in the Ohio Building Code, the rules address active shooter drills, emergency situations, and establishes conditions for the use of the temporary locking devices. The rules are effective as of April 18, 2016.
Generally, the building code requires door handles to be accessible, meaning they should not require tight grasping, pinching or twisting of the wrist to operate. The new rules provide an exception to the building code for temporary locking devices. Doors also must require only one motion to unlatch a door, but an exception has been built into the code for barricade devices. The devices may not be permanently mounted to the door. Individual parts of the device, such as bolts, stops, brackets, pins, etc. that don’t prevent ingress or egress through the door may be mounted permanently. If they affect the fire rating of a rated fire door assembly, they may not be permanently mounted.
To use the devices in compliance with the new code, the school district must have:
1. Adopted and filed a school safety plan.
2. The barricade devices may be used only in an emergency or during active shooter drills.
3. Only a trained member of the school staff may use the devices for a finite period of time, as determined by the school administrative authority according to the school safety plan.
4. The district must provide training to school staff on the temporary locking device, keep records of the training, and provide those records to the fire official upon request.
5. The district must provide proof to the building official that the fire and police officials with jurisdiction over the school building have been notified about the placement of the temporary locking devices.
6. The building official will approve the devices upon compliance with all rules, and will note the same on the certificate of occupancy.
Operation of the barricade device may not require more than one operation to be removed after it has been engaged. Two operations are permitted to remove the device only if the building has an automatic sprinkler system throughout the building. The building code notes that the Americans with Disabilities Act may affect the use and operation of temporary locking devices like door barricades, but states that this potential issue is outside the scope of the rules.
There are different vendors selling barricade devices, and not all of them may be compliant with the rules as outlined above. For example, the placement of the device (low, medium, or high on the door) or devices that require more than one motion to remove once engaged may be problematic. Carefully consider the requirements before selecting barricade devices for your schools: we suggest working with your local fire officials. Consult counsel for specific questions.
by Gary Stedronsky | Mar 30, 2016 | General
Senate Bill 297 was proposed by Senator Jim Hughes on March 21, 2016. This Bill seeks to amend Ohio’s student discipline statutes to address threats of violence made by students.
The proposed Bill would allow a board of education to adopt a resolution to permit a superintendent to expel a student for up to 60 days for “communicating a threat to kill or do physical harm to persons or property” if all of the following conditions are met:
- The threat is communicated verbally or in writing, in person or via telephone, computer, or with another electronic communication device; and
- The threat is made against persons or property at a school, on a bus, at an athletic competition, extracurricular event, other program or activity sponsored by the school district or in which the district participates, or at any other property controlled by the board of education; and
- The student engaged in “conduct that constitutes a substantial step in a course intended to culminate in the commission of the threatened act, as determined by the superintendent in consultation” with law enforcement.
As a condition to reinstatement from expulsion, the board of education can require the student to undergo an assessment to determine whether the student poses a danger to himself/herself or to others. The superintendent may extend the expulsion for not more than one calendar year if the student fails to undergo the assessment.
A student expelled under this Bill can only be reinstated if the superintendent determines that the student has shown sufficient rehabilitation.
Another provision in this Bill allows a board of education or law enforcement agency to file a civil action seeking recovery for restitution from the parent, guardian, or custodian of a student who is expelled under this Bill. Restitution sought is for the costs of the school district or law enforcement agency that are incurred with the student’s conduct that gave rise to the expulsion.
This Bill was just recently introduced and must make its way through the legislative process before it becomes law. We will continue to keep our clients updated on its status.
by Pamela Leist | Jan 21, 2016 | Board Policy & Representation, General
On January 26th, 2016, the Ohio Supreme Court will hear oral arguments in a case to determine whether a public school district may implement a more restrictive policy on release of student directory information by requiring that parents “opt in” before the information can be released.
The case was brought by School Choice Ohio, Inc. (“SCO”) against the Springfield City School DistrictBoard of Education(“Springfield”). SCO is a registered non-profit corporation formed in the state of Delaware. The corporation informs students and parents across the state about scholarships the state provides, especially to students of low performing or at risk schools. SCO relies on school directory information that public schools provide through a records request to generate its mailing lists.
In January of 2013, SCO submitted a request for student directory information to Springfield. The District denied the request, citing a new policy it had recently passed which purportedly stopped the District’s collection of directory information, and further required parents to sign a consent to “opt in” to release of the data for lawful records requests. SCO countered that under state public records law, codified in ORC §149.43, the District does not have the authority to refuse an otherwise lawful request for directory information that the District maintains. Through its case, SCO seeks an order from the Ohio Supreme Court that would prevent Springfield from denying SCO’s requests for directory information on that ground.
State and federal law, specifically Ohio Revised Code §3319.321 and the Family Educational Rights and Privacy Act (20 USC §1232g/20 CFR Part 99), permit public schools to release limited student information defined as directory information in certain circumstances. In general, federal law defines directory information to include a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. Ohio’s definition of directory information is more expansive. However, schools are required to provide an annual notice to parents that allow them the opportunity to opt out of directory information releases. Schools also are prohibited from releasing directory information to anyone who may use the information for a profit making plan or venture.
The Supreme Court’s decision in this case could have far-reaching policy implications for districts, and may open the door for additional challenges to the release of directory information in the future. A decision from the Court is not expected before early summer 2016. We will keep you posted on the status of the case. In the meantime, seek legal counsel if you have questions about application of your directory information policies and procedures.
by Ryan LaFlamme | Jan 18, 2016 | General
The University of Toledo undertook a construction project consisting of an addition connecting two existing portions of the University’s hospital and a remodel of existing hospital space. The University hired an electrical contractor for the electrical trades work on the project. There were a number of delays on the project including material deliveries and progress of the work itself. There were additional issues with the project schedule that caused the electrical contractor to have to accelerate its work at additional expense.
The contractor, from time to time, issued letters to the University outlining various issues on the project and their impacts on the contractor’s work. Ultimately, about a month after the contractor’s work was substantially complete, the contractor provided the University with a “certified claim” in the amount of $450,898.29 representing additional compensation the contractor was due from the University due to the various delays and issues on the project that were not the fault of the contractor. The dispute was not resolved informally and a suit was filed by the contractor in the amount of $473,455.00.
In its defense, the University asserted that the contractor failed to comply with the procedures for submitting a claim to the University as required by the construction contract. The contract provided that any claims must be asserted within ten days of the time the event which gave rise to the claim occurred. According to the contract, failure to do so would result in a waiver of the contractor’s claim. Additionally, once the claim was submitted, there were additional steps required of the contractor to substantiate the claim. These too were not fully complied with by the contractor.
The Court of Claims sided with the University finding that the contractor did indeed fail to comply with the contractor claims requirements of the contract. Hence, even if the contractor was correct in its claim and was entitled to additional compensation, its failure to comply with the contractual procedures for submitting claims to the project owner had the effect of waiving such claims.
Districts should be aware that the burden is on them to prove a defense of non-compliance with contractual requirements. The District’s construction managers, architects, and owner representatives should take care to fully document the chain of events regarding any contractor claims in the event it becomes necessary to assert a defense such as this.
IPS Elec. Servs., L.L.C. v. Univ. of Toledo
by Pamela Leist | Nov 20, 2015 | General
The U.S. Department of Education Office of Civil Rights found that an Illinois district discriminated against a transgender student by failing to offer her the same facility access as other female students.
Each of the district’s five high schools have policies in place that allow transgender students to both use the restroom of their identified genderand to play on a sports team of their identified gender. However, an issue arose when it came to the locker rooms. Citing privacy, the district restricted transgender students’ use of the locker room of their gender identity.
The case began when the ACLU filed a complaint on a transgender student’s behalf in 2013. The student is a transgender female student who participates on a girls’ sports team, is referred to as “she” by school staff, is referred to by a female name, and is undergoinghormone therapy. She was denied unrestricted access to the girls’ locker room because of her transgender status.
The U.S. Department of Education Office for Civil Rights spent almost two years investigating the alleged violation under Title IX. It seemed that negotiations of the complaint would soon be ending when the school district decided to hang privacy curtains in the locker rooms. However, the district required only the transgender student to use the curtains. No other students were required to do so. Although thestudent indicated that she would probably use the curtain in the girls’ locker room, the ACLU argued that she should have to right to make that decision voluntarily and not be forced by school requirements.
OCR found that the school district’s action was a violation of the student’s rights under Title IX, which prohibits sex discriminationin education programs and activities that receive federal funding, because the district only compelled the transgender student to use the curtain. Federal officials deemed the solution insufficient.The district has 30 days to settle the matter or face an enforcement action which could involve administrative proceedings or a lawsuit by the U.S. Department of Justice. The district could also lose its Title IX funding.
