Cincinnati Enquirer v. Univ. of Cincinnati ( 2020 )

[Cite as Cincinnati Enquirer v. Univ. of Cincinnati, 2020-Ohio-5279.]
THE CINCINNATI ENQUIRER, A Case No. 2020-00144PQ
DIVISION OF GANNETT GP MEDIA,
INC. Judge Patrick M. McGrath
Requester DECISION AND ENTRY
v.
UNIVERSITY OF CINCINNATI
Respondent
{¶1} Respondent University of Cincinnati (UC) objects to a special master’s
report and recommendation (R&R) issued on September 17, 2020.
I. Background
{¶2} On February 27, 2020, pursuant to R.C. 2743.75(D), requester The
Cincinnati Enquirer, A Division of Gannett GP Media, Inc. (Enquirer) brought a civil
lawsuit against UC in which the Enquirer alleged a denial of access to public records.
The court appointed a special master in the cause. The court, through the special
master, referred the case to mediation. After mediation partially resolved disputed
issues between the parties, UC responded to the complaint and moved to dismiss. On
September 17, 2020, the special master issued a R&R wherein he recommended
denying the motion to dismiss. (R&R, 3.) The special master also recommended the
following:
I recommend the court order respondent to provide requester with
unredacted copies of the UCPD [University of Cincinnati Police
Department] records filed under seal. I further recommend the court order
respondent to provide requester with all “public files (including but not
necessarily limited to: personal notes, written communications, interview
transcripts, etc.) [of] the investigative case created by Andrea Goldblum
on 2/13/19 regarding William Houston and backlash that followed his
Case No. 2020-00144PQ -2- DECISION & ENTRY
reception of a triumph cord due to his criminal history in late January-early
February 2019” that have not already been released. I recommend the
court order that requester is entitled to recover from respondent the
amount of the filing fee of twenty-five dollars and any other costs
associated with the action that it has incurred. I recommend that costs be
assessed to respondent.”
(R&R, 15-16.)
{¶3} On September 28, 2020, UC filed written objections to the R&R. UC’s
counsel served a copy of UC’s objections on the Enquirer’s counsel by means of the
court’s Odyssey eFileOH system and email, according to a certificate of service
accompanying UC’s objections.
{¶4} On October 6, 2020, the Enquirer filed a written response to UC’s
objections.1 The Enquirer’s counsel served a copy of the document on UC’s counsel by
means of the court’s Odyssey eFileOH system and email, according to a certificate of
service accompanying the document. The next day the Enquirer filed an amended
certificate of service wherein the Enquirer’s counsel certified that he served a copy of
the Enquirer’s response on UC’s counsel via certified mail on October 7, 2020.
II. Law and Analysis
{¶5} R.C. 2743.75(F)(2) governs objections to a special master’s R&R. Pursuant
to R.C. 2743.75(F)(2), either party “may object to the report and recommendation within
seven business days after receiving the report and recommendation by filing a written
objection with the clerk and sending a copy to the other party by certified mail, return
receipt requested. * * * If either party timely objects, the other party may file with the
clerk a response within seven business days after receiving the objection and send a
1 On October 5, 2020, the Enquirer filed a document labeled “Response of the Cincinnati Enquirer to the
Supplemental Brief of Respondent University of Cincinnati.” This document appears to be substantially
similar to the Enquirer’s response of October 6, 2020.
Case No. 2020-00144PQ -3- DECISION & ENTRY
copy of the response to the objecting party by certified mail, return receipt requested.
The court, within seven business days after the response to the objection is filed, shall
issue a final order that adopts, modifies, or rejects the report and recommendation.”
{¶6} UC has timely objected to the R&R. UC has failed, however, to comply with
R.C. 2743.75(F)(2)’s requirement to serve a copy of its written objections by certified
mail, return receipt requested. UC’s objections therefore are procedurally deficient
under R.C. 2743.75(F)(2).
{¶7} The Enquirer has timely responded to UC’s written objections. The Enquirer
has complied with R.C. 2743.75(F)(2)’s requirement to serve a copy of its response by
certified mail, according to an amended certificate of service.2
{¶8} Despite UC’s failure to comply with R.C. 2743.75(F)(2)’s procedural
requirements, the court will consider UC’s objections in the interest of justice.
{¶9} Pursuant to R.C. 2743.75(F)(2), any objection to a report and
recommendation “shall be specific and state with particularity all grounds for the
objection.” UC presents the following objections:
(1) “Request No. 1 should be denied because FERPA [The Family
Education Rights and Privacy Act] prohibits the disclosure of records
with personally identifiable information and the records requested are
not law enforcement records as that phrase is defined;” and
(2) “Request No. 2 should be denied because FERPA was implicated by the
request for records of a named student, and the request was overbroad,
vague and lacked clarity under well-established law.”
{¶10} UC characterizes Request No. 1 in its objections as: “All Records shared
with Andrea Goldblum, former UC Title IX coordinator, by Lt. David Brinker of UC Police
2 The Enquirer’s amended certificate of service of October 7, 2020 does not identify whether a return
receipt was requested with the certified mailing.
Case No. 2020-00144PQ -4- DECISION & ENTRY
regarding William Houston, the same William Houston shown in the attached photo. All
other records shared by anyone else with UCPD with Goldblum regarding Houston.”
{¶11} UC characterizes Request No. 2 in its objections as: “All public files
(including but not limited to: personal notes, written communications, interview
transcripts, etc.) pertaining to the investigative case created by Andrea Goldblum on
2/13/19 regarding William Houston and backlash that followed his reception of a triumph
cord due to this criminal history in late January – early February 2019.”3
{¶12} Because UC’s objections are interrelated, the court shall consider UC’s
objections together. UC contends in its first objection that the special master did not
apply Krouse v. Ohio State Univ., Ct. of Cl. No. 2018-00988PQ, 2018-Ohio-5014, in the
R&R. UC further contends in its first objection that the requested records are not “law
enforcement records” based on the definition of that phrase in FERPA, and are not
“post-enrollment records” that are exempted from FERPA. It is true that the special
master did not discuss Krouse in the R&R, but such an omission is not fatal. However,
34 C.F.R. 99.8(b)(1) (which applies to FERPA) provides: “Records of a law enforcement
unit means those records, files, documents, and other materials that are —(i) Created
by a law enforcement unit; (ii) Created for a law enforcement purpose; and
(iii) Maintained by the law enforcement unit.” Here as the special master stated in the
3 In the Report and Recommendation (R&R), the special master characterized the disputed records as
falling into two categories:
[T]he records remaining in dispute fall into two categories:
1. "[R]ecords regarding the named student that were shared with a former Title IX
coordinator by a Lieutenant with the UC Police Department,"
and,
2. "records relat[ing] to an investigative case file created by the former Title IX coordinator
relating to a 'backlash' over the same student receiving a 'triumph cord' at his graduation
ceremony."
(R&R, 4.)
Case No. 2020-00144PQ -5- DECISION & ENTRY
R&R, “The pleadings, the affidavits of Lieutenant David H.Brinker, and review of the
records filed under seal demonstrate that officers of the UCPD gathered and compiled a
file of other-agency incident reports for law enforcement purposes.” (R&R, 9.) Thus, the
requested records fall within the definition of a law enforcement record under FERPA.
And, since the records should be construed as law enforcement records, any
suggestion by UC that the records should be construed as “education records” is not
supported under the plain language of 20 U.S.1232(g)(4)(B)(ii) (providing that the term
“education records” does not include “records maintained by a law enforcement unit of
the educational agency or institution that were created by that law enforcement unit for
the purpose of law enforcement”).
{¶13} Additionally, 34 C.F.R. 99.8(d) provides: “The Act neither requires nor
prohibits the disclosure by an educational agency or institution of its law enforcement
unit records.” (Emphasis added.) Since the requested records should be construed as
law enforcement records, it follows that under the Ohio Public Records Act the
requested records do not constitute records the release of which is prohibited by federal
law. See R.C. 149.43(A)(1)(v) (providing that a “public record” does not mean records
the release of which is prohibited by state or federal law). And it further follows that UC
has not met its burden to show that the requested records fall squarely within an
exception under R.C. 149.43. See State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118
Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus (holding
that exceptions to disclosure under the Public Records Act, R.C. 149.43, “are strictly
construed against the public-records custodian, and the custodian has the burden to
establish the applicability of an exception. A custodian does not meet this burden if it
has not proven that the requested records fall squarely within the exception”).
{¶14} Moreover, the court is not persuaded by UC’s contention in its second
objection that the Enquirer’s Request No. 2 was prohibited under FERPA or that the
Enquirer’s request was overbroad, vague, and lacked clarity.
Case No. 2020-00144PQ -6- DECISION & ENTRY
{¶15} The court determines that UC’s objections should be overruled.
III. Conclusion
{¶16} The court OVERRULES UC’s objections to the special master’s R&R of
September 17, 2020. The court adopts the special master’s R&R. The court ORDERS
UC to forthwith provide the Enquirer with unredacted copies of the UCPD records filed
under seal and to forthwith provide the Enquirer with all “public files (including but not
necessarily limited to: personal notes, written communications, interview transcripts,
etc.) [of] the investigative case created by Andrea Goldblum on 2/13/19 regarding
William Houston and backlash that followed his reception of a triumph cord due to his
criminal history in late January-early February 2019” that have not already been
released. (R&R, 15-16.) The Enquirer is entitled to recover from UC the amount of the
filing fee of twenty-five dollars and any other costs associated with the action that are
incurred by the Enquirer, but the Enquirer is not entitled to recover attorney fees.
Judgment is rendered in favor of the Enquirer. Court costs are assessed against UC.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.
PATRICK M. MCGRATH
Judge
Filed October 13, 2020
Sent to S.C. Reporter 11/13/20