Opinion
2023-00637PQ
01-05-2024
FARNAZ MALEKY Requester v. OHIO STATE UNIVERSITY, OFFICE OF COMPLIMENT AND INTEGRITY Respondent
Sent to S.C Reporter 2/15/24
REPORT AND RECOMMENDATION
TODD MARTI SPECIAL MASTER
{¶1} This matter is before the special master for a R.C. 2743.75(F)(1) report and recommendation. He recommends that (1) Respondent be ordered to produce unredacted copies of most of the records filed for in camera review, (2) Respondent be ordered to either produce copies of the records described in Table 1 or certify that no such records exist, (3) Requester recover her filing fee and costs, (4) Respondent bear the balance of the costs of this case and (5) that all other relief be denied.
I. Background
{¶2} Requester Farnaz Maleky was a faculty member of the Respondent Ohio State University ("OSU"). She was accused of misconduct, triggering an investigation and sanctions by OSU.
{¶3} Dr. Maleky made several public records requests regarding the accusations and investigations. OSU produced a number of records, some redacted, but withheld others. Dr. Maleky filed this case to challenge the redactions and withholdings. She is proceeding pro se. Complaint, filed September 28, 2023.
{¶4} This case was not referred to mediation because that would delay the already protracted resolution of Dr. Maleky's requests. A schedule was set for OSU to file all responsive records for in camera review and for both parties to file evidence and memoranda supporting their positions. That schedule included a time for OSU to file a motion to dismiss or to otherwise respond to Dr. Maleky's complaint. Scheduling Order, entered October 10, 2023; Order, entered November 9, 2023.
{¶5} Before the time for OSU to respond to the original complaint had expired Dr. Maleky, still proceeding pro se, filed a pleading detailing her assertions that OSU has not produced all records responsive to her requests and that some of the records produced here improperly redacted. PQ Miscellaneous, filed October 30, 2023 ("Oct. 30 Submission"). Given Dr. Maleky's pro se status, the substance of that filing, the fact that it was made before the time that OSU had or was required to respond to the original complaint, and that OSU has not objected to the filing, the special master considers that submission to be an amended complaint. See Civ. R. 15(A).
{¶6} OSU has filed copies of what it asserts are the universe of responsive records for in camera review. PQ Sealed Documents Filed, November 29, 2023 ('In Camera Records'). Dr. Maleky and OSU have made all the submissions allowed under the case schedule. The Ohio State University's Motion to Dismiss, filed November 7, 2023 ("MTD"); Requester's Reply to Respondent's Motion to Dismiss the Complaint, filed December 13, 2023 ("Reply). The case is therefore ripe for decision.
II. Analysis.
A. Redactions and withholdings
{¶7} OSU bases its redactions and withholdings on two grounds: the attorney-client privilege and 20 U.C.C. § 1232g, the Family Educational Rights and Privacy Act ("FERPA"). Both are sufficient grounds for redacting or withholding public records-if proven. State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 542, 721 N.E.2d 1044 (2000) (attorney-client privilege); State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 25 (FERPA). The question here is whether OSU has proven those grounds.
1. OSU has not met its burden of proving that the attorney-client privilege applies
{¶8} OSU must carry a heavy burden to sustain its claim of privilege. That is established by cases construing both the Public Records Act and the attorney-client privilege itself.
{¶9} A public office asserting an exemption from its general duty to provide access to public records must "prove facts clearly establishing the applicability of the exemption." Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 27. See also, Id. at ¶¶ 35, 54. That burden must be carried with "competent, admissible evidence[.]" Id. at ¶¶ 53, 77. The public office must produce extrinsic evidence if the applicability of the exemption is "not obviously apparent and manifest just from the content of the record itself[.]" Id. at, ¶ 35. See also id. at ¶¶ 30, 50, 53. The office must make a strong showing. It "does not meet this burden if it has not proven that the requested records fall squarely within the exception," and the courts "resolve any doubt in favor of disclosure." Id. at ¶¶ 27, 63 (Emphasis added). See also id. at ¶¶ 50, 63. Given that, "it is not enough to say that a record is probably within a statutorily prescribed exemption[.]" Id. at ¶ 63 (Emphasis sic).
{¶10} Similar standards control the attorney-client privilege. Because the privilege hinders the pursuit of the truth, claims of privilege are examined "with the primary assumption that there is a general duty to give what [information] one is capable of giving, and that any exemptions *** are distinctly exceptional[.]" In re Story, 159 Ohio St. 144, 148, 111 N.E.2d 385 (1953). "The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges," so the privilege "should be recognized only within the narrowest limits required by principle." Id. at 149. Accord, Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003- Ohio-3358, 790 N.E.2d 817, ¶ 26 (8th Dist.) ("The privilege *** should be strictly confined within the narrowest possible limits underlying its purposes"). In short, there "must be good reason, plainly shown" for recognizing a privilege. In re Story, 159 Ohio St. at 149.
{¶11} Because of those principles, "the party claiming the privilege has the burden of proving that the privilege applies[.]" Westfield Ins. Group v. Silco Fire & Sec, 5th Dist. Stark No. 2018CA00122, 2019-Ohio-2697, ¶ 47 (authorities and internal punctuation omitted); MA Equip. Leasing I, LLC v. Tilton, 2012-Ohio-4668, 980 N.E.2d 1072 (10th Dist.), ¶ 21. That requires proof of every element of the privilege. Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., Ct. of Cl. No. 2019-00789PQ, 2020-Ohio-4856, ¶ 20, adopted 2020-Ohio-5281. The privilege applies:
"'(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.'" State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 27.
{¶12} OSU's submissions do not address any of those elements. It has submitted no evidence beyond the disputed records themselves. The MTD does not address those elements, let alone explain how any of the records establish any of those elements, apparently expecting the court to figure that out for itself. Not only does that that fall well short of a "good reason, plainly stated," In re Story, 159 Ohio State at 149, it misconceives the court's function. It "is not the role of [a] court to search the record or formulate arguments on behalf of the parties[.]" State ex rel. Stevenson v. King, 169 Ohio St.3d 61, 2022-Ohio-3093, 201 N.E.3d 873, ¶ 18 (internal punctuation omitted, quoting State ex rel. McKenney v. Jones, 168 Ohio St.3d 180, 2022-Ohio-583, 197 N.E.3d 520, ¶ 28).
{¶13} In short, OSU has presented nothing more than conclusory assertions of privilege, and that is not sufficient to carry its heavy burden. See Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., Ct. of Cl. No. 2019-00789PQ, 2020-Ohio-4856, ¶¶ 20- 28, adopted, 2020-Ohio-5281. See also, In re Guardianship of Marcia S. Clark, 10th Dist. Franklin No. 09AP-871, 2009-Ohio-6577, ¶ 9 (conclusory assertions are insufficient, even if some the material is arguably privileged). The special master therefore recommends that the court hold that OSU's redactions and withholdings are not supported by the attorney-client privilege.
2. Some of the redactions are supported by FERPA, but most of the disputed records are outside FERPA's scope.
{¶14} 20 U.S.C. §1232g(b) prohibits federally funded educational institutions from releasing "education records" without students' consent. The public record and the record in this case establish that FERPA supports some of the redactions at issue, but that most of the disputed records are not protected by FERPA.
{¶15} The public record establishes that OSU is covered by FERPA. Its most recent state audit reflects that OSU receives federal funding. Ohio Auditor of State, Financial Statements as of and for the years ended June 30, 2022 and 2021 and Report on Federal Financial Assistance Programs in Accordance with the OMB Uniform Guidance for the year ended June 30, 2022, (May 23, 2023),https://ohioauditor.gov/auditsearch/Reports/2023/Ohio State University Franklin 22-Franklin FINAL.pdf (accessed December 20, 2023), p. 28. The special master takes judicial notice of that fact pursuant to State ex rel. Pike Cty. Convention & Visitor's Bur v. Pike Cty. Bd. of Commrs., 165 Ohio St.3d 590, 2021-Ohio-4031, 180 N.E.3d 1135, ¶ 3, n. 2. OSU must therefore comply with FERPA.
{¶16} The record establishes that portions of the materials at issue here-those concerning changes to graduate students' advisors and teaching duties-are "education records." "For purposes of FERPA, the term 'education records' means '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.'" State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 27 (quoting 20 U.S.C. § 1232g(a)(4)(A)). A review of the In Camera Records reveals that the disputed materials are "records, files, documents, and other materials[.]" That is evident from the materials themselves; no extrinsic evidence of this element is needed. See Welsh-Huggins, 163 Ohio St.3d 337, at ¶¶ 30, 35, 50, 53. A comparison of the records Requester filed as "Appendix A" to her Reply (and that OSU filed as pp. 1-28 of the In Camera Records) to the unredacted versions (id. at pp. 258-285) reveals that those records contained "information directly related to" several graduate students: who would advise them and what teaching would be required of them. The fact that OSU was able to produce those records shows that they were "maintained" by that "educational *** Institution." The redactions were limited to personally identifiable information about those students. Those redactions were therefore supported by FERPA.
{¶17} Most of the other records at issue are not education records and hence should be produced. Although FERPA broadly protects information about students, it expressly excludes certain types of records from the category of "education records," even though they contain such information. One category of records excluded are those generated in proceedings addressing the actions of non-student employees:
"the term 'education records' does not include-in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person's capacity as an employee and are not available for use for any other purpose." 20 USCS § 1232g(a)(4)(B)(iii).
{¶18} Consistent with that, courts in Ohio have held that records generated in connection with proceedings addressing educator misconduct are not "education records" protected by FERPA. Baker v. Mitchell-Waters, 160 Ohio App.3d 250, 2005-Ohio-1572, 826 N.E.2d 894 (2d Dist.), ¶¶ 26, 27, 29; Ellis v. Cleveland Mun. School Dist, 309 F.Supp.2d 1019, 1022-1023 (N.D. Ohio 2004); Briggs v. Bd. of Trustees Columbus State Community College, S.D. Ohio No. 2:08-CV-644, 2009 U.S. Dist. LEXIS 92950 (July 8, 2009), **14-15. They have done so even though the records contained students' personally identifiable information. Ellis, 309 F.Supp.2d at 1022; Briggs, 2009 U.S. Dist. LEXIS 92950 at **14-15. Those decisions are in accord with the overwhelming weight of precedent from elsewhere. Wallace v. Cranbrook Educational Community, E.D.Mich. No. 05-73446, 2006 U.S. Dist. LEXIS 71251 (Sep. 27, 2006), **2, 12-13; Brouillet v. Cowles Pub. Co., 114 Wash.2d 788, 790-791, 800, 791 P.2d 526 (1990); City of Boston Sch. Commt. v. Boston Teachers Union, Local 66, 22 Mass.L.Rep. 15 (2006); Matter of Hampton Bays Union Free School Dist. v. Pub. Emp. Relations Bd., 62 A.D.3d 1066, 1069, 2009 NY Slip Op 3656, 878 N.Y.S.2d 485; Bd. Of Edn. v. Colonial Edn. Assn., Ch. Civil Action No. 14383, 1996 Del. Ch. LEXIS 27, at **17-18 (Feb. 28, 1996). See also Klein Indep. School Dist. v. Mattox, 830 F.2d 576, 579 (5th Cir.1987). But see contra, Rhea v. Dist. Bd. of Trustees of Santa Fe College, 109 So.3d 851, 857-858 (Fla.App.2013).
{¶19} A review of the In Camera Records reveals that the bulk of those records were generated in connection with proceedings focused on an employee, Dr. Malek. Id., at pp. 45-257, 286-301, 317-331, 410-487, 495-501, 507-511, 516-519, and 520. There is no evidence that Dr. Maleky is also a student at OSU. Those records are therefore outside the scope of FERPA and should be produced in unredacted form.
{¶20} That result is not changed by the broad, general, definition of "education records" announced in ESPN, 132 Ohio St.3d 212, ¶¶ 27-31. That definition was based on FERPAs overall definition of the term, and did not consider the specific exclusion made by § 1232g(a)(4)(B)(iii).
{¶21} Based on the foregoing, the special master recommends that OSU not be required to take any action regarding the records filed as pp. 1-28 of the In Camera Records, but that it be ordered to produce the records filed as pp. 45-257, 286-301, 317-331, 410-487, 495-501, 507-511, 516-519, and 520 of the In Camera Records.
B. Additional records
{¶22} Dr. Maleky asserts that OSU failed to provide several dozen records responsive to her requests. Oct. 30 Submission, pp. 1-9; Reply, pp. 2, 3, 5, 6, 7. She is entitled to most, but not all, of those records or a certification that no such records exist.
{¶23} If there is sufficient evidence that a public office has failed to produce all responsive public records the office must either produce the remaining responsive records or certify that none exist. State ex rel. Sultaana v. Mansfield Corr. Inst., ____ Ohio St.3d ____, 2023-Ohio-1177, ____ N.E.2d. ____, ¶¶ 37-43, 50; State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶¶ 15, 18. The sufficiency of evidence to trigger that obligation varies depending on the office's response. Clear and convincing evidence is required if the office provides affidavit testimony or its equivalent that no additional records exist. State ex rel. McCaffrey v. Mahoning Cty Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶¶ 22-26. However, "some evidence" is sufficient if the office does not provide affidavit testimony negating the existence of additional responsive records. Sultaana, 2023-Ohio-1177, ¶¶ 37-43. Some evidence exists if the requester establishes facts that would usually result in the existence of the additional records. Id. at. ¶¶ 41 -43; Mattis v Toledo Police Dept., Ct. of Cl. No. 2023-00600PQ, 2023-Ohio-4878, ¶¶ 31-33, 35-36. Some evidence also exists if other records refer to or otherwise suggest the existence of the additional records. Id. at ¶¶ 17, 24.
{¶24} OSU did not provide affidavit testimony negating the existence of other records. Dr. Maleky is therefore entitled to the additional records she seeks, or a certification that no such records exist, if there is some evidence that the additional records exist.
{¶25} There is some evidence of the existence of most of the additional records Dr. Maleky seeks. Those additional records and the evidence supporting their existence are described in Table 1. The special master therefore recommends that OSU be required to either produce any additional responsive records that existed as of the date of the last public records request Dr. Maleky has sued on (January 13, 2023) or certify that they do not exist. See Taxpayers Coalition v. City of Lake wood, 86 Ohio St.3d 385, 392, 715 N.E.2d 179 (1999) (office has no duty to produce records generated after the date of the public records request). Some of those additional records are likely among those improperly withheld on FERPA grounds, as discussed above. If they are, OSU should be required to identify which of those records correspond to the specific assertions summarized in Table 1 when it produces those records.
{¶26} There is either no evidence supporting the existence of the other records Dr. Makely claims are responsive to her requests or there are legal barriers preventing this court from ordering action on those claims. Dr. Maleky's claims regarding such records and the reasons for rejecting those claims are set out in Table 2. The special master therefore recommends that OSU not be required to take any further action in connection with those assertions.
C. Requester is entitled to recover her filing fee and costs.
{¶27} R.C. 2743.75(F)(3)(b) provides that the "aggrieved person shall be entitled to recover from the public office or person responsible for the public records the amount of the filing fee of twenty-five dollars and any other costs associated with the action[.]" Requester was aggrieved by OSU's failure to produce or negate the existence of some responsive records. She is therefore entitled to recover her filing fee and costs. OSU should bear the balance of the costs of this case.
III. Conclusion.
{¶28} Considering the foregoing, the special master recommends that:
Respondent be ordered to produce unredacted copies of pp. 45-257, 286-301, 317-331, 410-487, 495-501, 507-511, 516-519, and 520 of the In Camera Records.
Respondent be ordered to either produce unredacted copies of the records described in Table 1 or certify that no such records exist.
Requester recover her filing fee and costs and that Respondent bear the balance of the costs of this case.
All other relief be denied.
{¶29} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this report and recommendation. Any objection shall be specific and state with particularity all grounds for the objection. A party shall not assign as error on appeal the court's adoption of any factual findings or legal conclusions in this report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).