f,fl

IrT 'I'HE SUPREME COITRT OF OHIO

S^'AT'E ex reL DAVID QUOLKE

Relator-Appellee;

V.

S'UPREME COUXT CASE NO. 2013m1809

CL'YAIIOGA COL-NT^ ^OU-RT OFAPPEALS, ElColiTH DISTE.ICT CASENC).CA 13 099733

STRONGSVILLE CITY SCHOOT.DISTRICT BOARD OF ED^^,^CA.TION, etaI,,

Res^on^ents-Appellants.

RELATOR-A-P^^LL.^E QUOLKE'S MERIT BRIEF

Susannah Muskovitz (0011 45°^)CONISEL OF RECORDWilliam E. Froehlich (0087857)Muskovitz & Lemmerbrock, LLCThe BF Keith Buil.^,^ng1621 Euclid Avenue, Suite 1750C1eveland, Ohio 44115Phone: (216) 621 -2020Fax: (216) 621-•3200muskovit^@ml1aborecr^^^^ehfach@m1laYsor.com

Couns^ljbr Relator-4^^el1ev,David Quolke

APR % 5^,, % i : i.

APR 2 9 2014 S .: p Gsi iyF i:,, :i..,.%:i E 'si4i:<,

CI^ER^ OF COURTSUPREME COURT OF C

TABLE OF CONTENTS

TABLE OF CONTE NITS ..e.e.e.e.e.e.e.,.,.,.,.o.o.o.. ......... .................."."."."."...".......,." .,.,.."..",.,.,.,.,.,.,., ^

TABLE OF AlJ'1 HORl"1"Y ...........................................................................e.e.,...o....."."....."...".",", iii

1" STATEMENT OF FACTS ............................ ..........................................e....,.,.,.,.,....e.e.e.,.,.o.o l

A, Respondents' Repeated Refusal toProvi^e Relator Quolke with the Requested

Public Records . ....,.,.",","," ........................a..e.e.e.a.e.e.a.,...,.,.,...,.,.,...,.....a.,."."."...,.,...,..................... 1

B. The Credentials of A3l Ohio Teachers are Available for the Pubiic'd Review ................".".6

11. ARGUMENT "................................................................................... .".....,.,.,.,.,................."." ^

A. Relator Quolke's Response to AssBgrame.it of Error Number 1A Relator has

Standing in a Writ of Mandamus Clagni w3ien a Public Records Request is filed via

Legal Counsel . ..... ...... ........"."."..,.,.e...e.e......,.,.,.,.,.,.,..e.e.a.e.e"e"e.e.e.e.e."e"e....,.,.....e",.,.a.o."."..............

B. Relator Quolke's Response to Assignment of Error Number 2: The Eighth

.1:3istriet Correctly Dete^°rriined that the Names of the Protected Teachers are Public

^^cords, ,.,",.,..,.e.." ........................................................................................"."..."............,.,...,.,.12

I. Under R.C. 149e43(A)(1)(v)4 the Constitutional Right of I^iivacy does not

Prevent the Disclosure of the Names sgl`t:he Protected ^eachers . ...........a.e..,...,.,....o.o.".".".".".l2

a. Limited. Evidence Suggest^^^g a 1-1andful of Protected Teachers were

A.1le^ed1v Threatened During Eirnploynwnt: with, a Public 1^;mp1o;;er is

Insufficient to Tnvoke the Co7istitutional Riglit of Privacy to Eleva.te the

Rights of the Protected Teachers Above the Rights of all Other Ohio

Teachers . ....... ........... ............ ........... ..".".... .,.,...... ......................... ",".".,,.......a...................14

i. Based on a Federal Legislative Sclger^^ and an Expectatioii of Privacy,

all Public 'Employee SSNs-not m-erely the SSNs of a few Allegedly

a'"hreutened lj'^mgloyees-are Excluded frorr. Public Diselosta;re ......... ....................... .".l5

ii. The Protected Teachers worked with Children on behalf of a Public

Employer and are nots`lnherently vulnerable.' ' ...... .........................."e.e.e.,.,.,.o.o."."..... ..,17

iii. The Alleged Facts Proffered in the lnstwit Matter Pale i-n Companisor^ to

the LifenThrea.tenin,^ Facts in Keller, Kallstrom and Craig a^id T'Fierel`ore

1

the Constitutional Right of Privacy does not Prevent the Release of the

Protected Teachers' I^ai-nes..... .o ......................................................e.,.o.a.o.a.a.a.a..o........19

b. Foreign Law Does aiot Prohibit the Release of the Protected Teachers'

Names o .... .......................................................................................................................a.e.22

i. Contrary to Respondents' Claim, the First Amendment Rights of Exotic

Dancers do not Prevent the Release of the lDrotected Teachers' Narnes........................2fs

ii. FOIA and other Foreign Public Records Laws do not Paevenk the

Release of the #'rotected '1`eachers' Names ..a.e.e.e.a.e.e.a.a.a.a.a.e.a.e.o ..................................28

'?. The Eightli District did not Err in Reviewing the Totality of the Facts aigd

Cir^um. stances as they Existed at the Time of its Decisioiz . .................... e...e.o.o.o.o.o.o.o.o.........3l

C. Relator Quolke's Response to Assignment of Error Number 3- In Accord with

LongmEstablished Precedent, a Relator Providing Evidence they have ActuallyPai.el

or are Oblitated to Pay their Attomeys is Entitled to Attomey Fees . a.e.e. .......................... ..... 3?

111. CONCLUS1W .......e.o.o.o.o.o.o...o.a ................................................................................... 40

CEWFlF1CA'1'E OF SERVICE ..................................................................................................... 41

APPENDIX

Staongsville City School District Administrative Guideline 8310A ___ Public

Records ...........e.e.e.e.e.e.a.e.o.o.....o...o.o .......................................................................Al to A19

R.C. 3319.39 .......................... ......e.e.e.e.e.e.e.e.o.o.o.o.o....................................... ................... A20 to A23

R.C. 3319.391 .................... ........... ..............e.e.e.a.e.e.e.e.....e.o.o...,...................................... A24 to A 25

5 USC 552 ................................. ...........................................e.e.e.e.e.e.e...o.o.o.o....................A26 to A36

ii

TABLE OF AUTHORITY

CASES

Barber v. Overton, 496 F,3d 449 (6t1Z. Cir.2007) . ..............................................................22, 24, 25

Coleman v. Martin, 63 F.App'x 791 (6th Cir.2003) ......................................................................24

Deja vu of'lVashville, Inc. v. Metro. Govt. af'Nashville and Davidson Cty., 274

F.3d 377 (6th Cir.2001) .............................................................................................................27

Dept. of'Air°Frarce v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ..........................29

Dream Palace v. Cty. ofMar-icapa, 3851«'.3d 990 (9th Cir. 2003) ..........................................27, 28

E. Cleveland Firefighters, x^FF Local 500 v. E. Cleveland, 8th Dist. Cuyahoga

No. 590855, 2007-Ohio-1447 ......................................................................................

Evans v. Dept. raf'Transp,, 446 F.2d 821 (5th t3%r,1971) ..................................................

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohioa710$, 821 N,E.2d 564 ............

Jackson -v, Nelson, W.D. Mich. No. 1:13-CV-827, 2013 WL 6076891 (Nov. 19,

.,...39

.....31

,.,.,13

2013) ...........................................................................................................:..............................23

Kallstrom v. Columbus, 136 F.3d 1055 (6th Cir.1998) ...............................................19, 20, 21, 23

Kish v. Akron, 109 Ohio St.3d 162, 2006-(3hio-1244, 846 N.E.2d 811 ........................................13

Lambert v. Hartman, 517 F.3d 433 (6th Cir.2008) ........................................................................23

Lee v. Columbus, 636 F.3d 245 (6th Cir.2011) ........................................................................23, 24

News-Journal Co, v. Billingsley, 6 Del. J. t3orp.1.. 343 (1980) ....................................................31

Parma v. Parma Firefighters Assn., Local 639, 8th Dist. Cuyahoga No. 99263,

2013-Ohi®-291 8 ...........................................................................................................

Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-C)hio-3279, 951 N.E.2d

782 ................................................................................................................................

State ex re1. Barb v. Ctcyahoga t1'ty, Juiy Commr., 124 Ohio St.3d 238, 2010-

Clhi®-120, 921 N.E.2d 236 ................... ........................................................................

State ex. re1. Beacon Journal Publishing C;o, v, Akron, 104 Obin St3d 399, 2004-

lJhio-6557, 819 N.E.2d 1087 .......................................................................................

State ex rel. Beacon Journal Publishing Co. v. Akron, 70 Ohio St.3d 605, 640

N.E.2d 164 (1994) ........................................................................................................

State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-

.,.,.,.,.,39

....9

9, 11

.37, 38

........ 15, 16

Ohi®-7117, 781N.E.2d 1S0 .......................................................................................................26

iii

State ex rcl. Berger v. McMonragle, 6Ohia St.3d 28, 451 N.E.2d 225 (1983) ..............................12

,State, ex rp1.. Besser v. Ohio State Usaiv- 87 Ohao St3d 535^ 721 N.E.2d 1044

(2000) ........................................o.o.o.....,.,.,.,.,.,.,.,.,.........,.....,...,...,.,......................................37, 38

State cx rcl. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 2{112-C)hio-1999,

969 N.E.2d 243 ...

State cx a°cl. Cincinnati Enquirer v. ,lorxcs-Kcllcy, 118 Ohio St.3d 81, 2009-Ohio-

1770, 886 N.E.2d 206

State ex rel. Corkgumcr News Serv., Inc. v. Wcrthingt€^n City Bd. of Edn., 97 Ohio

.2a, 24, 34

.,., passim

St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82 ................................................................................13

State cx rcl. DiFranco v. S. Euclid, Slip Opinion No. 2014-O6.io-53$ .........................................37

State cx rcl. Freedom Communications, Inc. v. Elida Community Fire Co., 82

Ohio St.3d 578, 697N.E,2d 210 (1998) .... ................................................................................15

State ex rel. Ciczrznett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 685

N.E.2d 1223 (1997) ....................................................................................................................13

State cx rel. Gilliam v. Cuyahoga Cty. Court ®y' Cammon Pleas, 8th Dist,

Cuyahoga No. 79791, 1997 WL 72135 (Feb. 20, 1997) ............................................................32

State ex r°cl. Kcllcr v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) ..................................15, 19

State cx rel. Lucas Ct^r. Bd. ^a,^'Co^tmr. v. Ohio Environmental Protection Agency,

88 Ohio St.3d 166, 724 N.E.2d 411 (2000) ...............................................................................12

State cx rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-4Jhio-

5995, 940 N.E.2d 1280 ..............................................................................................................32

State ex rcl. McCleary v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144 (2000) .................

State ex rcl.Mor-cland v. Dayton, 67 Ohio St.3d 129, 616 N.E.2d 234 (1993) ....................

State eac rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131

Ohio St.3d 149, 2012-C3hi®- 115, 962 N.E.2d 297 ............................................................

State ex rel. Plain .laccalerPzelilishira^ Co. v. Geauga Cty. Court oj'G'ommcn Pleas,

Juvenile Div., 90 Ohio St.3d 79, 734 N.E.2d 1214 (2000) ....................................

State ex rel. Portage Lakes Edn. Assn., OEAl14t^'.^ v. State Emp. Relations Bd., 95

. passim

.........34

...37, 38

.........1 8

Ohio St.3d 533, 2002mOhiom2839, 769 N.E.2d 853 ...................................................................32

State ex rel. Pressley v. Industrial Commission, 11 Ohio St.2d 141, 228 N.E.2d

631 (1967) .................................................................................................... 31, 32

1V

State ex ret: Rodriguez v. Boyle, 8th Dist. Cuyahoga No. 378729, 2006-Ob1o-3494

State ex re1. Russell v. 7homas, 85 Ohio St.3d 1488, 703 N.E.2€1121 5 (1999) ........

State ex rel. Sliman v. Lanndale Police Dept., 8th Dist. Cuyahoga No. 71865, 1997

NVL 7213 0 (Feb. 20 ,1997) ...................................................................................State ex re1. Souffrance v. Doe, 132 Ohio St.3d 38, 2012-OWo-1906, 968 N.E.2d

.32

.37

,.,32

477 ..............................................................................................................................................33

State ex reL Steckman v. Jackson, i^ Obio St3d 420, 639N,E,2d 83 (1994) ................................9

State ^.^ rel, Thom€zs v. Ohio State Univ., 71 Ohio St.3d 245, 643 N.E,2d 126

(1994) .......................... .,.,21

State ex rel'. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 732 N.E.2d

960(2000) ......................... .,.,.o .....................13

State ex r€:l. RRI1S T1^ Inc. v. Dues, 101 Ohio St.3d 406, 2004-Olago-1497, 805

N.E.2d 1116 ........................ ............................................... passam

Strothers v. Norton, 131 Ohio St.3d 359, 2012nOhiom1007, 965 N.E.2d 282 .................................9

Summe v. Kenton C'ty. C'1^rk's Office, 604 F.3d 257 (6th Cir.2010) .. ..............o............................2.4

Texas Dept. of P'ub. Safety v. Cox Texas Newspapers, LLC, 343) S.W.3d 112 (Tex.

2011) ......................................................................................................................

7'imes Mirror Co. v. Superior Court, 53 Cal.3d 1325, 283 Ca1.^ptr. 893, 813 P.2d

240(1993) ..e.e .......................................................o.o...........................,.o.,..........

Vedder v. Warrensville Hts., 8th Dist. Cuyahoga No. 59€1855, 20€12-Ohio-5567

Pl'alson v. CoIdzns, 5 171 F.3d 421 (6th C1r,2008) ....................................................

Wurzelbacher v. Jones-Kelley, 675 F.3d 580 (6t13. Cir.2012) ................................

,.,.,.,.,.30

....29,30

,.........39

.,.,...0..23

,.,.,.,.,.23

v

STATUTES

5 U.S.C. 552(b)(6) ....:................................................................................................................29

R.C. 149.43(A)(1)(h) ... ..................................................................................................................30

R.C. 149.43(A)(1)(v) .....................................................................................................................14

R.C. 149.43(A)(7) ..........................................................................................................................22

R.C. 149.43(A)(7)(f) ......................................................................................................................19

R.C. 149.43(A)(8) ..........................................................................................................................17

R.C. 149.43 (B) .................................................................................................................................9

R.C. 149.43 (B)(4) ............................................................................................................................9

R.C. 149.43(B)(5) ... .........................................................................................................................9

R.C. 149.43 (C)(1) . ..................................................................................................................... 8,10

R.C. 149.43(C)(2)(li) ................................................................................................ .37.....................

R.C. 3319.39(A)(1) ..........................................................................................................................6

R.C. 3319.391(A) .............................................................................................................................6

ADMINISTRATIVE DECISIONs

2006 Ohio Atty.Gen.Ops. No. 2006-038 ........................................................................................9

LEGIsLATIvE ACTS

Am.Sub. S.B. No. 78, Section 1, 148 Ohio Laws, Part 111, 6119 ..................................................19

Sub. H.B. 539, Section 1, 148 Olilo 1_,aws,1'art IV, 8623 .............................................................17

S^CHOOL, BOARD POLICY

District Administrative Guid.cline 8310A ..................................................................................6, 17

vi

I. S`^ATEiMEN"I" OF FACTS

The instant matter stems from Relator David Quolke's simple requests askiiig

Strongsville City School Disti-ict ("District") Si.aperintendent John Krupinski, District Board

President David Frazee and District Treasurer I)ehopa.h. I-1errmann (co11ectgvelg---inc1ud1ng the

D1strict-----4"Respondents'") to provide the names of teachxers and substitute teachers employed

w1th the District from March. 4, 2013 to the present. (Quolke Supp. p.4-15).' Respondents

consistently refuse to provide the requested public records. Instead, Respondents invented the

term "temporary replacement teachers." Respondents place temporary replacement teac1iers on a

pedestal c1aim:lig only temporary replacernent teachers enjoy increased rights------abs3ve and

beyond the rights of every other Ohio teacher-stich that they are exer-apt from the Ohio Public

Records Act.

A. RE5PONDENTS' REPEATED REFUSALTO Prt.OVIDE RELATOR QUO][,KE. WITH T^^E

ItEQLJESTED PUBiaIc I$Ecom3s.

The Disffict ^^nploys approximately three-hundred eighty-five (385) teachers to serve

approx1inate1y 6,200 students at ten (10) school 1S-u11dangs. (Dist. Supp. p.1 ). On Fehruary 21,

2013, the Strongsvii,e Education Association ("SEA") gave ten (10) days notice of SEA's intent

to strike. (Dist. Supp. 1Z.1-2). On March. 3, 2013, at a pta1s1ic location (tlie City of Strongsville's

City Council Chambers) the District began hiring public employees to work as substitute

teachers (1iereiiiafter the "protected teachers") in the event the SEA comxraenced a strbke. (Dist.

Supp. p. 2, 8-9). On March 4, 2013, SEA conre.-ienced a strike. (Dist. Supp. p.2). Subsequently

tlhe protected teachers began working in the District, tea.^^^ing the District's 6,200 students.

1 Relator Quolke's S€x^^^^^^ent is cited "Quolke Supp. p.- "ss Respondents' Supplement is cited"Dist. Supp. p._,a; Respondents' Appendix i s cited "Dist. A-_"; Relator Quolke's Appeiidix iscited "Quolke A ".

1

Between March 4, 2013 and April 4, 2013 three-hundred seventy-two (372) protected. teachers

worked in the Respor3.derit D1stT1ct. (QuoLke Supp.p.24 fi 8; 2 1).

On March 5, 2013, pursuant to R.C. 1,49.43 and at Rehator Quolke's direction and

request, attorneys ^^^^nnala Muskovitz aiad William Froehlich (collectively hereinafter

"Muskovitz") sent correspondence to Respondent Kr€xpiiiski, Respoiident Frazee and Respondent

Ilerrmann each requesting various public records, 1ricludAng the names, home addresses,

telepliorie nunilserss employee €dentificatl^^i numbers and payroll inforrnation for all "teachers or

substitute teachers employed with the Respondent Iaistfl-let fi-om March 4, 2013 to the laresent.A'

(Quolke Sizpp, p.4-9). Lacking any response-and again at Relator Quolke's dlrectlon u-----on

March 20, 2013, Musko-vritz seiit similar requests to the Respondeiitfi. (Quolke Suppo p.10-15).

On April 3.. 2013, aga1y} lacking any responsa., Relator Q^aolke conunenced this ae.tlon, filir^C,,,, a

verified complaint for a wiit of mandamus with the Eight District Court of Appeals.

On April 4, 2013, Respondent Herrmann sent correspondence to Relator Quolke

responding in part to Relator Quolke's public records requests. (Quolke Supp. p.2, 9 9; 18-21).

Respondeiit 1-1errmanii refused to provide the names of all teachers aiid substitute teachers

employed with the District ly.s-om March 4, 2013 to April 4, 2013. Instead, Respondent Herrm. ann

provided public records coi.-itabiing lyd=orna.t1on for three-hundred seventy-two (372) egnployees,

13tat redacted the names ol'the teacherse (Quolke Supp. p.2, T 9; 21). In an e1Tort to shield the

protected teachers from dlsela^sure under the Ohio Public Records Act, Resposident Herrmann

invented the term "temporary replacement teachers," (Quolke Supp. p.18-20), thereby creating

an imaginary distinction between teachers wl^o worked during the District's strike and all other

Ohio teachers. 'r lge rxatmes of all Ohio teachers are public records under the Ohio Publlc Records

2

Act: Respoiidents seek to elevate the rights o-il"some teachers -Mho worked during tlie Dlstrietys

strike.

Based on Respondent Hemnaflifli's responsey Relator Quolke twice ainended lifl^ verified

cor^-iplaint thereby ^iaffowing the issue presented to the Eighth District as follows: whether the

naanes ssx all teachers and substitute teachers employed with the District between M-eirelv. 4, 2013

and the present (the protected teachers) are public records. Relator Quolke's Secc^^id Amended

Complaint was filed on May 10, 2013---nearly six (6) weeks z^erRelator Quolke was identified

as the party requesting the names of the protected teachers.

Respondents have repeatedly cla^ied that the protected teachers' constitutional right of

}^fivacy is greater than all other Ohio teachers' constitutional right of privacy simply because the

protected teachers worked during the labor strike. I:n. support of their claims Respondents cite

several events which allegedly took place during the labor strike. However, tl?e cited eveiits only

implicate a handful of ^inp1oyces-----nat all thr^e-hundre1 ^eventy-twsa (372) protected teachers.

Respondents allege that on March 3, 20 1:3, citizens were observed "claanta^^jeerin,^ and

cursing" while prospective teachers applied to work with the District. (Dist. Supp. p.2). As

reported to Cleveland.c^om, Strorsgsville Police Chief Jirt. Kobak stated the citizens v%ho at€onded

this event ..,wer^ ^omlalgaiit with all police orders." (Dist. Supp. p.9).

Respondents claim that on March 7, 2013, "after the identities of some ot the [substitr jte]

teachers 1^^canie known . . . slgr^s were distributed . . . where tlg,ese . . . teachers lived." (Dist.

Supp. p.3). Itespa^^^ents do not clalin or provide any evideagce that the distribution of signs is a

crime.

'Wl.t^out any :lixst-hansl knowledge, Respondents allege tliat on March 7, 2013, S1:;A.

member Chris Koval drove recklessly and nearly collided with a van transporting protected

3

teachers. (Dist. Supp. p.3). Respondents fail to provide -,Lny evidence that lW. Koval was

convicted of reckless operation of a motor vehicle or any other crayne, A Strongsville police

reporv------fi1e€t with this Court by the Respondents in support of their brief-i^entifies^ several

Vlctims and witnesses whicli Respondent Krupinski ltlerAi^^s as the protected teachers involved

in this lraczdent; Karen Soreiisegi, Janis Koch, Katlyn Zenczak, Bridget Novak, ^iidget Montana,

Patrica Grant, Patrick Barclay and Taryn Greene.2 (Dist. Supp. p.3, 19a25). '1'he Strongsville

police report #'tiAher ideritii'ies these protected teachers' hor^e addresses, dates of birth and phone

numbers, along with other personal identifying information, (Dist. Supp. p.19-25, 7g''m88).

Again, without anytzrsthand knowledge, lt.espc+iislera.ts allege thet on March 14, 2013, a

citizen yelled "scab" at a replacement teacher while driving d^ivn the highwaya '1'hereafter, an

object was allegedly thrown "through" tlie protected teaclier`^ car. (Dist. Supp, la.3), Neither the

Strongsville police report nor the media corroborate that someone yelled "scab" at the protected

teacher. (Dist. Supp. p.27-31). Respondents 1`fail to provide any evidence that the protected

teacher was allegedly targeted because she worked for the Respondent District during the strike.

Nor do Respondents provide any direct evidence that the alleged danYa^e was caused by anything

more than typical highway debris.

Finally, Respondents claim that a ^^cunty vehicle was damaged dwing the District's

strike. (Dist. Saappe p.4). None of the protected teachers are directly connected to t-lus event.

Respondents fail to provide ^^-ty evidence-beyond mere speculation-that tl^e alleged property

damage was becatise of"tl`ie ®lstr-let's strike.

2 All documents fi1^d with the Supreme Coura are public records. S.Ct.Prac.R, 3.12(A)o "1^eresponsibility for redacting personal identifying lnl'onnation rests solely with the attorneys andparties wlio file the documents." S,Ct.Pra_c.R, '3.1.2(B)(1)0

4

In total Respondents' ^Nid.ence arnount^ to concems ah(3^ut the legal exercise of First

Amend.ment r1ghts; minor property damage; alleged reckless driving; and.9 highway d.ehris. The

c1ted events ident1^v a handful of protected teachers who were allegedly threa.tened. or were the

alleged victims of 1te:sponderitfi' unsuh^tartt1a^ed allegations. ^-at Respondents do not seek to

protect tbe. handU of teachers 1flivolved in the above-described events (Respondent Krupanski's

own affidavit and accompanying police reports 1dentify most o1'the teachers 1nvolved. in these

incidents by nanie). Instead, they seek to use these limited events to exempt a.11 protected

teachers from the Ohio Public Records Act. Respondents fail to provide any evidence that

hundres1s of t.ha pro^^cted teachers were aalegedly threatened d.tising the D:stric-14-I"s strike or

warrant a Wgher level of protection.

Fur.them.^^re, unll;:^e the protected. teachers, SEA members have actually sustained

property damage as a direct result of the strike. As explained in Respondents' own evidence,

^^^era.l SEA teachers' cars were egged and keyed, and several tires were slashed. (Dist. Supp.

p.31). Nonetheless, Respondents did not attempt to protect SEA member names from public

exposure. lnstoad, Respondents divide the ter.n "teachei}° based on aii imaginary d1st1nction;

wheth^r the zeach^^ worked during a labor strike. Teachers who did not teach dur.^g the strike

are not protected; Respondents only attempt to protect the identity of those teachers ^v -ho worked.

during the Dls^-ict's strike.

On August 21, 2013, the IE;',ighth District 1ssued its decision holding that the ^aines s^f the

protected teachers are public records. (Dist. A-15 to A-27)e The Eighth District stated its

decision was "narrow" atid only accounted for "the facts and clrcu^^^tan^^s as they exist . . .

^eve-ral months after the s€rike.°" (Dist. A-23 to A-24, ^ 12). Ca^cuni.ng in Judgment only,

Jud^e. Mc^^n-nack wrote "When a public entity in Ohio operates solely as a result of the assent

5

of its citizens tliraugh the p€sralarlv adopted tariglble support of its school levies, then any

pretext that the entity can operate as if exempt from repoitlng its business to the public is

noiiexistent.e" (D1st, A-25, ^ 18). Judge 1^cCofl-inac.^ concluded that the Respondents were

"required to respond iiot only by explicit Ohio law but more importantly by the fact that we are

an inherently open society." (Dist. A-25, ^ 18). On October 7, 2013, the Eighth District issued

its fmal J€^uma.l Entry and Opinion wherein it awarded Relator Quolke attorney fees in the

a..^^unto1' $7,972.50. (Dist. Am5toA-13). On November 15, 2013, Respondents filed a Notice

of Appeal with this Court. (Dist. Am1 to A-3),

B. THE CREDENTIALS oF Ai.i, ^tijt3 TEACHERS ARE AVAILABLE ^'£BR THE

PUBLIC's RE'^^EW9

Any applicant who applies for apos1tlon wltli a public school district or wlio applies for

wi initial teaching certificate or the reneNval of a teaching certificate must complete a criminal

records c1iec1:. R.C. 3319.39(.rk)(1); R.C. 3319.391(A), The Ohio Department o1' Education.

("ODE") rnairitains the Connected Ohio Records for Educators ("CORE") system in order to

track"all aspects of educator licensing" in the state of Ohio. (Quolke Supp. p.25). The CORE

system is piib1ac1y a.va.al.alale 3 througli the ODE webs3te and serves as a mechanism for reviewing

educator application status, credential information, EMIS (Education Management :1nforrnatlon

System) a.ssi^^iit data, background check 1^lormatlon and disciplinary l^onnation. (Quolke

Supp, p.25). I,IkewIse, the Distaict's ovvn int^rpal policies der-nanci the maintenance of all

teacher a.ndsubstitute teacher records for amlnimum of 1^^ur (4) years. (Quolke A5WA6).

All Ohio educators' license, background check and disciplinary infonnation is publicly

available on ODE's CORE database. Relator Quolke's licensure information, backgro3in€1 check

3 One media source recently complied teacher discipline database using Ol:)E"s CORE website.WKYC, Find a Teacher, Feb. 18, 2014, http:;;www.wkgre,coml'stoi-yln^Nvs,'educatlon'`teaclier-discflpline/2014/02/1$/sea.a°cb.--t^nd-my-teacb.er/5586831/ (accessedA1sr1l 25, 2014).

6

and disciplinary intormatic^n appears after a sinipl^ ^eare1i on the CORE database for the last

name "Quolke." (Quolke Supp. p.2, 110, 35-42). Likewise, the protected teachers' ll^en^ure,

bacl£:growid check and disciplinary inf€^^inatiorf is available on the CORE database. However,

neither Relator Quolke, the parents of children e-ilrolled in the Respondent District, nor anyone

else, can access the information without the teachers' names.

Clesreland:com reported that on March 3, 2013, Megan R. Paris applied to work as a

teacher witli the District. (Quolke Supp. p. 43-44). A search for Me,^^^^ Paris on ODE's CORE

database4 reveals she was issued a long term substitute teaching license on March 12, 2013; was

subject to a background check on March 4, 2013; and, has no disciplinary record. (Quolke Supp.

p. 45s51).

In connection with Respoiident Krupinski's affidavit, Respondents filed a. Strongsville

police report identifying eight (8) victims and witness related to Mr. Koval's alleged reckless

driving: Karen Sorensen, J-cm-is Koch, Katlyn Zenczak, Bridget Novak, BridgetMonta.sa; Pato-ea

Grcnnt5 Patrick Barclay and Taryn Greene,5 (Dist. Su^ap. ^.30 1.9-25)o '^`I^e Strongsville police

report furtber identifies the protected teachers' home addresses, dates of birth and phone

giutnbers, along with. other personal identifyigig information. (Dast. Supp. p. 19-250 79m88).

Ka.tly.-Li Zera^zalc is one of the three-hundred. seveaxty6two (372) protected replac-ent

teachers identified by ^^^^ondeiits. (Dist. Supp. p.3, 19-25). Siiaee her name was identified in

this case, a simple search for her r^anne in ODE's CORE dat^base 6 reveals that she was issued a

4 See Ohio Department of Education, ODE CORE Eda¢cat€ar l'^^^de.Home.Educe-.¢tor &arch,I;,ittps:ff--oreprodint. ode.state.ob.usfcore2. 3fode. core.Edaxcatorl'rofile.UVEd.ucatssrSearch.as,sx(accessed April 25, 2014)1.5 All d^cunients filed with the Supreme Court are public records. S.Ct.Prac.R. 3.12(A). "Theresponsibility for redacting personal identifying ia^i-brmation rests solely with the attomeys andparties who file the documents." SoCtYrac.R. 3.12I(B)(1 ).6 See VUpra fh.4.

7

one year sliort term substitute license on March 125 2013; conducted two (2) ba^^^^^unrl checks

on March 6, 2013; and has no disciplinary record. Likewise, Respondents' evidence identifies

,lang.s Koch as one of the threemhundred seventy-t€.^%o (3721 protected teachers. A simple search

for Janis Koch on ODE's COR1=; database7 reVeals that she has been issued several licenses and

ceartl^cates, including a five (5) year professional license issued on M^^ch 26, 2010; conducted a

background check on March 3, 2013; andv has flio disciplinary record.

However, and as will beskaown, wifillout the requested p-abllc records, neither Mr. Quolke

nor the parents of students ensolled in tlYe Respondent :C3is-t-riet can seek the same infomgatlon for

hundreds of protected teachers Respondents seek to protect.

U. ARGUMENT

A. RELATOR QUOL&^s.E'S RES:N'Ol'^SE '&'kB .AsSIGNME?`vT OF ERROR NIJM^ER lt A

RELATOR HAS ^.^. TANDIN^'^ IN A WRI'r OF MAP01IDAv.°^.1:S CLAIM WHEN A PUBLIC

RECORDS REQUEST IS FILED vIA LEGAL COUNSEL.

Any "person allegedly [] aggrieved" by the failure of a public cflititv to respond to a

public records request may com^knence a a^^and^ius action to obtal-n the requested public record,9.

R.C. 149,43(C)(1). Relator Quo1k-c expressly states that he authorized Muskovitz to file public

records requests wl.tb, the Respondents on March 5, 2013. (Quo1ke Supp. p.15 15). Relator

Quolke expressly states that he authorized Muskovitz to file public records requests witli the

Respondents on March 20, 2013. (Quolke Supp. p.1, 17). Muskovitz requested public records

as authorized by Relator Quolke on March 5 and 20, 2013. (Quolke Supp, p.l ^ 5, 7; 4-13).

Indeed, Relator Quolke was aggrieved by the Respondents' falls 7re to produce the requested

public records.

' See id.

8

The Tia^e of a person requesting public records iieed iio¢ be disclosed pm-suant to C)liirs`s

Public Records Act:

L?n1ess specifically required or authorized by state or federal law or inaccordance with division (B) of this section, no public office or personresponsible for public records may limit or condition the avaA?abAl1ty ofpublic records by requ1ri^^g disclosure of the requester's identity or theintended use of the requested public record. Any requirement that therequester disclose the requestor°s identity or the intended use of therequested public ^^corci constitutes a denial of the request.

R.C. 149,43(B)(4). A custodian of public records may not "limit or condition the availability of

public records by requiring disclosure of the requester's 1dent1ty." R.C. 149.43(B)(4).

Both the identity of the requester and the intended use of the public records are irrelevant.

"Public affices are obligated to honor public record requests regardless of the requester's reasons

for or objectives in requesting the records" because allowing "a person's request to 1Se within the

purview o#'t^^ public office would invite recalcitrance and would not proinote the purpose of the

act," Strothers v. i"Vorton$ 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d. 282, ^ 19 (emphasis

original); Rhodes v. A'ew Phgla:^^^phia, 129 Ohio St3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶

21; State ^^ ^eL Steckman v. Jackson, 70 Ohio St.3d 420, 428, 639 N.E.2d 83 (1994). "A

person's stattis as a designee" is not normally an issue in a public records case. State ax ^eL

Barb v. Cuyahoga Cty. .dury Commr., 124 Ohio St.3d. 238, 201O-Ohio-120, 92 1 N.E.2d 236, T 1.

"Any person" may request public ^^^^rds.$ R.C. 149,43(B). A ptib11c office may as1C for

the requester's identity or may inquire about the intended use of the requested public records,

only after disclosing that the requester may decline to provide the requester's identity or the

intended use of the record. R.C. 149.43(B)(5)o No provision of the OlZi^ Public Records Act

stands for the proposition that an unidentified public records requestor is not "allegedly

8 Indeed. an individual need not be an Ohio resident or a United States citizen to make a publicrecords request. 2006 Obio Atty.^'xen.Ops. No. 2006y038.

9

aggrieved by the failure of a public office" to malre the requested public records available. See

R.C. 149.43(C)(1).

Relator Q=olke is aggrieved by the District's failure to provide the requested public

records. Relator Quolke was first id.entified as the public records request.e.^ in the iiistaiit action

when his ori^^ial complaint was filed or. April 4, 2013-almost six (6) weeks prior to the lill^^g

of Relator Qiaolke"s sacarisl apiended complaint. Relator Quolke could have been a parent of a

student enrolled in the Respondent DistTict or a farmer in west^m O1i1o-hls identity is both

irrelevant and unnecessary to provide therequested public records,

Respondents' claim that only ldentified iii€lavld,uals may ^onunen^^ public records

litigation violates both the text s.xr.d the spirit of R.C. Chapter 149.43. Because R.C. 149.43(B)(4)

a,llows unidentified individuals to file public records requests, (B)(4) must allow the sai-ne

individual to reveal hhnsell` only u1^on fil:irig a mandainus claim. Requhi^g disclosure of the

identity of ^public records requestor would diminish the spirit, if not the letter of the law. (Dist.

A-21,^ 9).

Moreover, R.esponder-tts' attempt to extend the Elghth Dfstrict"s declsioii in State ex rel.

Finnerty v. Strongsville, is woefully misplaced. hi Firara^^ty several prison inmates ^nad.^ public

records requests for inl`omiatlon related to hornicitle cases. The Eighth District Court of Appeals

hold that an older version of the Ohio Public Records Act4 1) lg-nposed no duty for a public

records custodian to send public records by mail; and, 2) the records requesters failed to spec,ifv

a representative to inspect the resluested docaamegits. Stat^ ^r reL Finnera^: v. Custodian of

Records, St^^^gsville Police Department, 96 Ohio App. 56% 570-572, 645 N.E.2d. 780 (8th Dist.

9 R.C. 149.43 currently allows persons to request that responsive records be dellvered by mail,R.C. 149.43(B)(6-7); and alows incarcerated persons to l^.spect public records relating to acriminal prosecution if a judge detemiines ``tbe lnl'^rfnatlon sought in the public record isnecessary to support what appears to be ajusticiable claim." R.C. 149,43(B)(8).

10

1994). Because of problems facing incarcerated persons, the Eighth District Court of Appeals

has stated a properly appointed d^^^^^^^^ may review public records on behalf of incarcerated

persons. .1d. at 573. '1'1^^^ Court recently stated R.C. 149.43 "provides an exception in which

incarcerated persons and the purpose for which, t^ey seek records relating to a € aimiiial

investigation or prosecution are dispositive." Barb ^ 1. Because Relator Quoike is not

incarcerated, Finnerty and the Public Record Act's exception for incarcerated persons are

inapplicable.

Assuming €ar^^endo Fa^^^erty applies to the instant matter (which it does not), .F'in.^^rtv

does not prohibit Relator Quolke from commencing the instant action. First, unlike the relator in

Fanner{v, Relator Quolke did not request records related to crimiaiaI lnvest^gati€^iis or

prosecution. Second, Relator Quolke's designees and the scope of their authority (to obta.g-n the

names of tne protected teachers) were clearly identified ir. both the March 5 and March 20, 2013

public records requests. Finnerty requires that an andlvi€1ual Nvho requests public records must

clearly identify the scope of the designee's alithoraty. Finnerty at 573-574. In the iiistant matter,

Attorneys Froehlach and Muskovi1z, were clearly identified 1n, Relator Quolke's public records

requests. Moreover the scope of their authontyF in pertinent part, was clearly limited to the

names of all teachers and substitute teachers employed with the Distnicto '1'hlxd-----4as the Eighth

District held amexad^ents to R.C. 149.43(B), specifically (B)(7) and (B)(8), have rendered

.,^^nnerty obsolete. (Dist. A-21, ¶ 10).

Relator Quolke was "allegedly aggrieved" by Respondeiits' failLire to produce the

requested replacement teacher names and has standing in the i.nstarit wiit o1'mandamr^^ ^laAm.,

11

B. RELA7'OI3. QUOI.KESS RI;SPON5E 'ro A5sIGNMEN'I' OF ERI'€oR NIJMBEII. 2: THE,

EIGHTH DISTRICT CORRECTLY DETERMINED THAT THE NAN#ES OF °II^^

PROTECTED TEACHERS ARE PUBLIc R^cORDS.

Mandamus is the appropriate rernedy to compel compliance with the Ohio Public

Records Act. State ex f°el. Cincinnati Etaqu^^^r v. J6nes6Kellgy, 118 Obio St.3d. 81, 2009LOhioy

1770, 886 N.E.2d 206, T 5. in a typical mandamus claim a relator must establish 1) relator

possesses a clear legal riglit to the requested relief; 2) respondeiits possess a clear legal duty to

peB•foa-in the requested act, and.4 3) relator possesses no plain ard adequate remedy in the ordinary

course of the law. See State ex a^eL Berger v. dVcMonagl€;, 6 Ohio St.3d 28, 451 N.E.2d 225

(1983)). However, in a mandamus cls.iira 1'or the request of public records a relator "need not

establish the lack of an altemative, adequate legal remedy in order to be entitled to the wrat.ay

State ^^eL Lucas Cta.Bd. of Commr. v. Ohio Environmental Protection Agency, 88 Ohio St.3d.

166, 171, 724 N.E.2d 411 (2000).

The Eighth District Court of Appeals correctly ordered Respondents to release the nanies

of the protected teacherse (Dist. AR21p ^ 13). In stating that it would not determine whether the

:r^questes^ ^iames were p-u1^lic records during the District's labor strike, the 1;ight6. District

properly based its decision on the facts and circumstances at the time of its decision. As

discussed herein, this Court should ^^'rm the Eighth Dasti•ict's Decision: 1) under R.C.

1.49A3(.A.)(1)(v)S the constitutzonal nght; of privacy does not prevent the na-aies of t1he protected

teachers from disclosure; and, 2) a court may analyze the facts and circumstances at the time it

issues its decision in determining kvhetner reqtiested d^^w-nents are ptiblic records.

Ia Under R.C. 149.43 A 1 &J the Corastit:utionat ^ ^^ of Fr^vac does notPrevent the Disclosure of the Names of the Frote0ed Teachers.

The ^tirpose of the Ohio Public Records Act is to "expose government activity to public

scrutiny, ^Arhgch is absolutely essential to the proper worl^^nc, of a democracy." State ex r°ed.

12

Gaarir^^^t Satellite Info. X^twork, Inc. v. lsetro, 80 Ohio St.3d 261, 685 N.Eo2€1 1223 (1997). 'rhe

Act ensures "governmental functions are not caiitl.uctecl behind a shroud of secrecy." State ex

x°eL ^'A^'PN v. Ohio ^ta^e Univ., 132 Ohio St.3€l. 212, 2012LLOh1o-2690, 970 N.E.2€l. 939,1140. The

Ohio 1'ublic Records Act mList be construed "liberally to effectuate broad access, any doubt is

resolved in favor of disclosure of public recordsoy" Gilbert v. Summit Cty., 104 Ohio St.3d 660,

2004-Ohio-d 1 08P 821 7V.E.2€1 564, T 7; see also Kish iP. Akron, 109 OMo St.3€l. 162, 2006-Ohio-

1244, 846 N.l:s.2€l. 811,19; State ex r•el. lYWl€zee v. ;^^^^^ ^^^^ Bd. of Ohio, 89 Ohio St3d. 43 1,

732 N.E.2d 960 (2000); ^^^nn^tt at 261.

Only the General Assembly has the authority to adopt exceptions to the Ohio Public

ReeGr•ds Act. State ^x reL Consumer News Serv., Inc. v. Worthington City Bd. of .^'az., 97 Ohio

St.3d 58, 2002-Ohi€3-5311 P 't'116 N.E.2d 82, ^, 37. Exemptions are "°purposel'iill^ rare." (Dlst. AT

25 to A-26, $ 18, J. McCormack, concurring in judgment). A. public records custodian bears the

burden to establish that requested records "fa1l squarely" within an exceptioii. alones--Kel1eyy,

pparagraph two of the syllabus. Respondents fail to meet their burden.

Respondents attenipt to create a new protected class of teachers which-unlike every

other teacher in Ohio----are 1i-amune from the Ohio Public Records Act:e No exernptlon exists

which prevents tlle disclosure of the name of any Ohio teacher-regular, substitute or

"temporary fl•eplacemeiit." Likewise, no Ohio or 1"€^^^ign case law exists which prevents the

disclosure of the iiames of the protected teachers. Furthertnore, as will be shown, Respondents'

position is both overbroad (it c-ipplies to hundreds of protected teachers who have not allegedly

been threatened) and anderylncluslve (it does not apply to regLilar tea€>hieas who sustained

pr€3pert-y €laniage during the District's stTike or to regular teachers who are tl^^eatenel duritig the

work day). Nonetheless, Respondents beg this Cowl to tam a blind eye to transparency and

13

open government in order to invent a ^ekv constitutional right of privacy which prevents the

disclosure of the protected teachers' names under the umbrella of R.C. 149.43 )(A)(1)(v)•

If this Co^urt holds the coiistl€utzoraal right ol'privacy prevents the release Ql'th.e protected

teachers' nai-nes, no parent would be able to determine who was teacti1ng their child during a

labor strike. In addition, any public official will be able to deny a public records request simply

by claiming the release of records would create a threat of hann. Soon public records custodians

will regularly reject requests for puhl°ac records by simply alleging their release could increase

the risk of physical hann. Such a decision would danger otisl^ expand the crsnstltutional right of

privacy ifl, the context R.C. Chapter 4117 and se-verely limit the transparency of Ohio's political

subdivisions.

R.C. 149.43(A)(1)(v) protects "records the release of which is prohibited by state or

federal law," including the constitutional rlg.ht of privacy. State e.^ reL WBMS TG; Inc. v. Dues,

101 Oliio St3d 406, 2004-Oh1o-1497, 805 N.E.2d 1116, ^ 41. The constitutional right of

privacy does 7is3t protect the nwnes of teachers worl^^g, with ^b-ildren in the classroom under any

circumstance. As will be showi), applicable Ohio case laikY interpreting the coiistitutlonal a-1g1^t of

privacy does not prevent t1-ic release of the requested names. Furthermore, pursuant to foreign

case law, the rlgbz ol'lsyiwacy does not prevent the release of the requested nameso

a. Lim^^^^ ^^^^ence ,^^ fesfin - a yand a^ ^ ^^^^^^^d Teachers were... fi -- -Alle. edi ^"reat^.^e^' .^1uE^^ ^'pEla^ o^e,^t with €^ Pr^b^'xc ^"M^1a^ ve.^ isIrasufficient to I^^^^^^ the Constatutiranal R.y.^ht of Priv,a^^ eo Elevate the-Re h^s of the Protectet^ Teachers Above the R hts ^s all 0^ker Ohio

1'^^chers.

In order to establish the corstitLati^^ial right of privacy prevents the release of public

records, a party must introduce "evidence establlshlii^ the same l^ig^. potential for victimization

that courts ha%Ie relied on to exempt Sssclai Security raumbers,," bspersonal lnl`amiatic^^i about

14

undercover officers" and personal information about children from disclosure. State ex reL

WBNS TV, Inc. at 1] 42: see State ex rel. Freedom Communications, Iaac, v. Elida Commutaiiy Fire

Co., 82 Ohio St.3d 578, 581-82, 697 N.E.2d 210 (1998); see, e.g., State ex rel. Beacon Journal

Publishin,g Co. v. A,ka•€an, 70 Ohio St.3d 605, 612, 640 N.E.2d 164 (1994) (discussing social

security numbers); State ex re1. Keller v. Cox, 85 Ohio St.3d 279, 282, 707 N.E.2d 931 (1999)

(discussing information in police officer personnel files); State ex rel. d^cCZeary v. Roberts, 88

Ohio St3d 365, 370-371, '1725 N.E.2d 1144 (2000) (discussing the inherent vulnerability of

children), Respondents have not previously shown and cannot now show a high potential for

victimization.

i. €,^d onaFederal I e^i,^^r^,^i^"e Sc^^eme €znd ara 1-r^gn a'Privuc?s-al1 .izublzclan le-v^^ S' SNs-not m^^eN Me diYhLeI€atenedEp^plo-ees ----- -e€reExclu4,^dj&om Publi€, Dd^^^loosure.

Holdi-ng the constitutional right of privacy 1-brbids the disclosure of public employee

SSNs, this Court explained "that the liil;h potential for fraud and victimization caused by the

lincb.ecked release of . . . einployee SSNs outweighs the minimal information about

goveF•timental processes gained tb.rotigh the release of the SSNs." Beacon Journal at 612. In

rea-ching its decision this ^ourt. reviewed 3.) whether "einp3oyees have a legitimate expectation of

privacy in tlieir SSNs"; and., 2) wliethes privacy interests outweighed the benefits of disclosure.

Id: ^;t 608. State einployees ha-ve a legitimate expect"Itzon of pa-ivacy involving the use of SSNs

due "to the federal legislative scheme" regulating the use of SSNs and the public perception that

SSNs sb.otild not be publiely available. Id, at 609; WBATS TV at T 43. Tllis Court noted that a

news reporter obtained Vice President 1^^^^ ^uayle's SSN in order to show "even the Vice

1Dresislent . . . is easy pickings for somebody with prying eyes" and discussed a inuyiicipal

employee whose ^^^ was maliciously used to obtain university transcripts, open. lines o:L' credit

15

an.^ pay attr^^ey fees. Beacon Journal at 611, SSNs provide "little useful itiformatl€^n about the

organization" of government while the release of SSNs "could allow an inquirer to discover the

intimate, laerso^ial details of each . . . enilsl^yee's life, which are completely lrrele-vant to the

operations ofgovernr^ent." Id. The uracS^^^^ed release ol'puhl:c empx^y-ve SSNs is "perhaps the

ultirnate invasion of one's prlvacy.Y" Id. at 611m612o

Respondents do not provide evidence that each protected teacber who w^,^rk-ed during the

District's strike was threatened. Although three-hundred seventyLLtwo (3,112) protected teachers

worked during the District's strike, ltespoaidents only provide evidence tha.t a, har±dffil of teachers

were all^^edly threatened. Respondents ask this Court to adopt ^over-broad rule which

prevents the release of all protected teachers' ris.rries even if only some protected teacliers were

actually threatened. The constitutional right of privacy cannot apply to those w1^c were not

allegedly threatened.

Mor^over, Respors.dents' position is under-inclusive. Beacon Journal prevents state

political subdivisions frssrn releasing any employee's SSN. Respondents do not seek to prevent

the release r^aines of all teachers.A---or ^^^en all teachers -who are allegedly threatened. Instead,

Respondents only want to elevate the rights of teachers who worked during the Dast.ricVs strike.

Respondents' evidence is insufficient to €tivoke the ^onstitutlorflal riglit of privacy

pursuant to Beacon Jouy-nal. hi Beacon Journal, employees had a legitimate expectation of

privacy in SSNs bocause of a federal legislative scheme and public perceptlon. No federal or

state scheme exists which elevates the rights of the protected teachers such ¢,^^.at their names are

exempt from. the Ohio Public Records Act. Furthegflnore, unlike SSNs, nanies alone ^amot be

used to open bank accounts, establish llgies of credit or request college transcriptso They caii,

however, be used to access ODE's CO1^.. database wlalch contains licensure, '^ack&Tssuncl check.

16

and disciplinary information. (Quolke Supp. p.2, ¶ 10; 25). ]Cn addition, the Respondent

District's own Administrative Guidelines demand substitutc records be maintaincd. (Quolke A5-

A{}.

The record is devoid of any evidence wherein the protected teachers were promised

anonymity. Indeed, the protected teachers voluntarily worked for a public employer, applied for

employment at a public location and, in some cases, volunteered their cwr namcs to the press.

in fact, the 13istdct has already provided several names-along with hormc addresses and

telephone numbers-of iiidividuals who Relator Kr^^inski identified as protected teachers.

(Dist. Supp. p.I9-25)e1g The protected teachers' expectation of privacy must be minimal.

'1'hc release of the protected teachers' names does not create any additional lsctc*^gial for

fraud or victiinizatiorf. To the contriiry, the protected teachers' names allow the public to

scrutinize whether teachers who worked d-uring a strike were properly licensed or complctcd

required background checks.

ii. i"he if'r^te.cted Teac^^ers u€^^^^d -with C'hi^^ren e^^ Lc.hai ^ a Publz^Lm^^-ove€° ^^^^l are not "inherentlj^ vut^erable. «

In 1a^cC^^ary, this Cowt concluded that personal identifying information regarding

children ^vho use a iiluriicipality's recreational facilities is not a "record" as defined by R.C.

149.011(^) and therefore "cannot be a `public record' as that term is contemplated by R.C,

149.43(A)(1),"" McCleag, 88 Oliic St.3d at 370, 725 N.E.2d 1144. 1n dict^l-2 this Court

10 7."hc following individuals are identified as witnesses aird victims in a police report datedMarch 7, 2013: Karcti Sorensen, Janis Koch, Katlyn Zcncza.lc, Bridget Novak, Bridgct Montana,Patrica Grant, Patrick Barclay and Taryn Greene. (Dist. Supp. p.1.9m25).11 Mciiths after this Court's decision i-Ai. McCleary, the OMo General Asscrrila].y added"in:tcrrnaticr, pcrta,iiiang to the recreational activities of a person under the a9c of eighteen" to thelist of records exempt ^'^ern discics-Larc. See Sub, H.B, 539, Section 1, 148 Ohio Laws, Part IV,8623. Notably, the Ohio General Assembly did not protect the release of the n€ante.s of persons^idcr the age of eighteen (18). See R.C. 149.43(A)(8).

17

explained "even if we were to conclude that the reqtaested 1^^fog-mation is a 'record,' " the

disclosure of children's inforinat±on is no different than "information prolillsited from disclosure

in Keller and Keala'strom." } Id. at 371. Because of "the inherent vuliierab€llty of children, release

of personal lnl"orrnat.1on of this nature creates an unacceptable risk that a child. ^oLild be

victimized. We cannot in good conscience take that chaitce.75 Id. at 372. The safet1r of children

44no matter how atteiiuated, cannot be di^^ounte€l."" Id. at 371.

The alleged threats against the protected teaclaers are insufficient to invoke the

constitutional right of privacy discussed in dicta an .^^cCleag. ?^cC^earg niakes gio distinction

between protected and unprotected children: McClear#y protects all chi1dr^^^ who attend the

recreation facilities of a public entity. Respondents inappropriately divide teachm into two (2)

classes: 1) teachers who teach Ohio's children dur1.z^g a labor strike; and, 2) all other teachers.

As stated, Res1sondeiits proposed i•ule would be both over-broad and under-1nclusave.

Children are inherently more vulnerable than the smO class of teacliers Respondents

^^ek- to protect. The public has a right to know wl^o worl^s with children in Oldo's public

education system, pal-tlcularly during a strike. M^Clea.ry protects vulnerable ch.ildren-1t does

not prevent the release of the protected teachers' names.

12 This Court has recod :tized ^cCleary's discussion of the c®nstlttit1€^nal right ol°prlvacv is dicta.Jones-Ket'1'e^.x" 118 Ohio St.3d 81, 2008-Ohao-1 770, 886 N.E.2d 206, ¶ 42e13 Likewise, discussing the juvenile court system this Court bas stated "traditional notions ofsecrecy aiid confidentiality should be re-exam1raed and relaxed to promote l.^aublic confidence inthe Duverile] c®urt's work. The public has a right to know how courts deal with childreii andfamilies." State ex. ^e.L Plaari Dealer Publishing Co. v. Geauga Cty. Court qf Cominon Pleas,Juvenile Div., 90 Ohio St.3d '13, 84, 734 N.E.2d 1214 (2000).

18

W. ^e Alxeod Fa^%^ ^atcF c^Ysd Cz•ai fandih^^^^^^°^ oa° Prevent theR&easL€af the

hi Keller, an assistant public defender r^quasted county slieriff detective Paul Reece's

personnel and dlscsplin&-;r files :-n order to prepare for a forthcoming crin-tina1 trial. Keller, 85

Ohio St.3d at 280, 707 N.E.2d. 931. This Court summarily determined that the constitutional

right of privacy prevents the release of "police officers' files that contain the names of the

officers' children, spouses, parents, ha^^ie addresses, telephone numbers, beneficiaries, medical

lnfa^natflon and the like" because such records "should not be available to a defendant who

might use the ln^'s^r^.ati€^^. to achieve nefarious e^.ds.7g^^= 15 Id. at 282 (citl^.g Kai'ksta°ram v.

Coiurxz.isus, 136 F.3d. 1055, 1063 (6th Cir.1998)). In Kallstrcm, a public employer released the

personal inl'annatgon (including addresses, phone numbers and driver's license gnfomiatloil as

well as t^^ names, addresses and phone numbers of aarnily menibers) of undercover police

officers who testified against members of a local ga..^g in support of a drag conspiracy case.

^^listr°am at 1059. 1n lioldlng police officer personal information is protected by the

constitutional right of privacy, the United. States Court of Appeals for the Sixth Circuit

dete.nnlned. 1) police officers lua^e a right to be free from wxjustlfied intrusions on personal

security, I€l. at 1062; and, 2) "the interests served by allowing public access to agency records

14 Ln Keller this Court also adopted a "good segise" rule. Keller at 282. This Court hassubsequently abs.ndoned, the "good sense" rule. og€snes-Kel'Iey, 118 Ohio St3d. 81, 2008-Oh1o-17/a0, 886 N.E.2d. 206, at paragraph three of the syllabus.fs As in McCi^ary, months after this Court's d.ecasio^^ in Keller, the Ohio General Assemblyresponded, adding "peace officer familial aDd residential information" to the list of records^xenipt from disclosure. See Am.Sub. S.B. No. 78, Section 1, 148 Ohio Laws, Part 111, 6119.Again, the Ohio General Assembly did not protect the release of the names of peace officers,See R.C. 149.43(A)(7)(f).

19

rises to the level of a compelling state interest" but the release of police officer personal

inl'omiat€on "does not narrowly serve these interests." Id. at 1065.

More recently, this Court held that the names of police offers injured in a shootout witYi

the Iron Horsemen, a "nationwide outlaw motorcycle gang," were protected from disclosure

based on the constitutional right of privacy. State ^^ reL Cincinnati Enquirer v. Craig, 132 Ohio

St.3d. 68, 2012yOMo-1999, 969 N.E.2€1 243, 2 & 23e Tension between the Cliiclnnati police

€1epartynent and the Iron Horsemei' was elevated when a rival "outlaw anotorcycl^ gaiig"

attempted to establlsl-i a rival base in Cincinnati. In a shootout between i€^urteen. 04) police

officers and several gang members, two (2) police officers were severely wounsied and the xron.

Horsemen's "national enforcer" was killed. Id. at 3-4. Citing Kallstrom, this Couit explained

officers have a fwidament^ constitutional iiiterest in ^^^^entin^ therelease of private information when disclosure would create a sulgstan, tl.alrisk of serious bodily harm, and possibly even death, 'from a perceivedlikely th^eat,' so any such disclosure by the state shcstil€1 be measured bystrict ^crat13lly.

Id. at ^( 14. In evaluating the threat of harm this Court explained the citv "introduced credible

evidence of a perceived likely threat that the Iron Horsemen . . 0would retaliate against the

wounded officers for killing the gang's national enforcer" as supported by the "historical

knowledge of the ^irc-arnssta-nces, past instwices of threats . . . and confidential infs^nnatior.

€;onfirraing the threat aga1€ist officers." Id. at T 20. Fwther5 no evidence was introduced to

support the claim that the re€ia€;tlon of the nanies of poilce officers "blocked any meaningful

review of . o . 1nforirg,ation.y" Id. at 14. Cratg did not protect the names oi"poli^e officers who

were not directly iiivolved in the deadly shootout.

The a1leged tbreats against the protected teachers are insufficient to invoke the

constitutioiial right of privacy discussed i-n Keller, Ka.l'lstrom and Craig. In Kallstrom, the Sixth

20

Circuit protected the personal infomiatson of speczf-ic police officers becaGtse "anonymity is

essential to the safety of undercover officers investigating a gang-related drug conspiracy,

especially where the gang has demonstrated a lsropenslt-y 1`or vi.ol.ence.54 Kalistrom at 1067. ln.

the instant rnatter, the tlu°ee-1^undres^ seventy-two (3112) protected teachers did not testi-Ify in a

drug conspiracy case, work as ukidercover police officers or partake in a viol^iit shootout. 1_TnUe

Keller, Kalistrom and Craig the threat of physical violence against the protected teachers is

nearly nonexistent. Unlike Craig, the lxon l-lors^^en ^ave not tlireatened to seek revenge

against the protected teachers 1`ox killing their national enforcer. To the contrary, sll^cussla^^ one

event Respondents cite in their attempt to invoke the constitutional right of privacy, Strongsville

Police Chief Kobak stated citizens and picketers "were compliant with all police orders."16

(Dist. A-9).

As further evidence of Respondents' attempt to arbitrarily elevate the r1glits of the

protected teachers above the rights of all other C9b1o teachers, Respondents fail to consider

threats ^cFainst the District's everyday teachers. Respondents fail to consider that the unprotected

teachers sustained property dam, a^e during the strike: several SEA teachers' cars were egged aild

keyed and several tires were slashed. (Dist. A-3 1).

As in Kallstrom, a corcapelli-ng state i-nterest is served thr^^igh the release of the requested

records: the public has the oppoatwiity to review who was working with thousands of Ohio

children. However uii11ke K'allstrgm, the Respondents' position is not narrowly tailored to serve

the staWs lnterest. The requested records will allow the pubIlc------including Relator Quolk^ and

16 As^^urn1^g arguendo some criminal coiisiuct t0ok place, this Court has held "criminal conductshould be punlsYied by crirrianal sanctions" or, in the alternative, the Court has stated the GeneralAssembly should consider amending the Ohio Revised Code. Stat.; ex rel. Thomav v, Ohio Statel;r^iv.,7l OMo St.3d 245, 249, 643 N.E.2d 126 (1994),

21

parents of students enrolled in the Respondent District-to determine who was teaching Oliio

children in the Respondent District.

Respondetits' beg this Court to protect public employee names-information which was

only protected in. Craig following a shootout with a dangerous gang. Ind^ed, t^^e Ohio Revised

Code does not protect the naanes of peace officers. R.C. 149.43(A)(7). Relator Quolke has not

requested personal informatl€^^ (addresses, SSNs or the names of f^. ^rxi1y members); Relator

Quolke has only requested the name of protected teachers. Adverse to Craig, Respondents

position has "blocked any meaningful review" of who was teaching the District's students during

the strike.

None of Respondents' claims meet t.he "high poteiitlal for fraud arld victimization"

discussed ln.Beac€3n alourraal, McClearv, Keller, Kallstrrm or Craig. The alleged threats against

the protected teachers are de minimus when ^^inpared to the threats in Keller, K€allstroa^ and.

CYaiaa Unlike SSNs, no statutory scheme prevents the release of the protected teachers' names.

Nor (lo the p-rsstectei teachers have an elevated expectation of privacy. Fw-themioreg Craig

protects the rights of cHsiron-not adults warki-ng with children in public schools.

The r,onstitutional right of privacy does not p^^verit the release of the protected teachers'

fl3i es.

b. FoELygnLaw.Does P€€at Prohibil Me Release €^^^ the Pre?tected 7'e9iehervrN€ang, es.

hi the LTriitecl States ^o-urt of Appeals fo-r the Sixth Circuit the constitutional right of

privacy is "bl-fu^cat.esl, a^icludiiig not only the right to be free of state iiiterfer^^^e w1^^^^i making

decisions of important and intimate personal matters, b-ut also the right to avoid state disclosure

of highly personal matters." Barber v. Overton, 496 F.3d 449, 455 (6th Cir.2007); see Lambert

22

v. Harta^r.anq 517 Fa3d 433, 440 (;6th Cir.2008). 'l"lse 11^^tant matter addresses the latter rigls.t----the

right of informational privacy.

'1'he right of flnl'oms.ational privacy is limited to d`flnterest.s, that implicate a f^^dar^^ental

liberty interest." Wurzelbacher v. Jca^^es--Kel1ey4 675 F.3d 580, 585^586 (6th Cir.2012) (citing

Laatiberty 51°? RM at 440). A party seeking to establish that irflforrnaklon is constitutionally

protected r^^slo, "demonstrate that the iyiterest at stake relates to those personal rights that can be

deemed fijndamer^tal or implicit in the concept of ordered liberty.'S Id. (citing Lanabert at 440)4

Lee v. Columbus, 636 F.3d 245, 260 (6th Clr.201 1)). If a "fundamental right is, identified" the

Sixth Circuit balances "tls.d government's interest in disseminating the infiorrsaation. against the

individual's interest in keeping die information private" to determine w^^ther the lnfora;iation is

protected from disclosure. Lee at 260 (citing Kallstrom, 136 F.3d at 106R, Respond ets caiiii€st

establish a ftindai-nental liberty interest; nor does a balancing test favor protection of the

requested records.

^li# of privacy does not "encompass a general rl^^ to nondisclosureThe constitutional rlv

of pr^vate irafor^nation.'P Lee at 260 (citing I8rilscan v. ColZins, 517 Fo3d 421, 429 (6th Czre2il08)).

Indeed, the Sixth Circuit has only protected records from disclosure in two (2) cases: 1) in

Ka.1lstrcam; and, 2) where the information related was of a per^^-nal, sexual and humiliating

nature. Id. (citations and quotations omitted). The Federal District Court for the Western

District of Nllchigan recently pointed out that the Sixth Circuit laas repeatedly rejected "claims

asserting a constitutional right to nondisclosure of personal inl'ormation." Jackyon v. AWson}

W.D.':°vlicb . No. 1.13-^CV-827s 2013 WL, 6076891 (^Tov. 19, 2013).

The Sixth Circuit has repeatedly refused to hold individuals laa:^e a fundamental llbeity

interest which protects the dz'sclo,&ur^ of medical recordse Lee at 261; see also C€3^ernan v.

23

Martin, 63 F.App'x 791q 793 (6th Cir.2003) (}io1ding thf, disclosure €31"mental health records to a

parole board does not violate the right of informational privacy); Sr^^^e v. Kenton Co;. C;lerk-`s

Office, 604 RM 257, 27&--oil (6th Cir.20113) (holding the release of niedi€:al records in response

to a public records request does implicate the constitLitional riglat of informational privacy). For

example, a rule wliieh requires wi eBnployee to provide their iramediat-I stipervis€^^ a medical.

note describing the "nature of the ilines.s" upon returning from sick leave "Fd-oes not implicate the

preservation of life and personal security interests reccsgnized in Kai'lstrom, or the interest in

shielding sexuality and choices about sex." Lee at 261.

Likewise, the Sixth Circuit has held that the release of prison guard SSNs and birth dates

"was not sensitive enough" to warrant the protection of the coiistitutiona1 right of informational

privacy." Overton, 496 F.3d at 456, :[n Overton, the plag-ntii`l`s claimed that ^^^s and ^irth-

dates„ when in the hands of prison inmates implicated the infaFmationa1 right of privacy un(i.er

Kr^llstrom. Id. at 455. In denying the Plaintiffs' claim, the Sixth Circuit reasoned

while th^.^e . . . can be tio doubt that plaintiffs have a danger€stis job, theirrelationship to the prisoners is not de^`^^.ed by the clear animosity apparentin Ka^^^^rom where the plaintiffs had gone utidereover, infiltrated a violentgang, and testified against them at tria1. . . . The relationship here is ^.otsufficiently analogous.

Id.

The requested public records do not give i°ise to the i^^^rrnational right of privacy as

articulated by the Sixth C i^cuit. Respondents cannot establish a fundamental liberty interest in

the protected teachers' names. "Scary though it may be, the diligent miscreant wl^^o wishes to

exact vengeance cail locate a person with limited inf-onnation" by following an individual in their

17 In distinguishing Overton t:Fiis Court has noted "the corrections officers' names and generalwhereabouts were already knodvn to the prisoners requesting en1°omia.t^on." Craig, 132 OhioSt.3d 68, 2012-ohio-1999, 72, 969 N.E.2d 243, 248.

24

car or placing several telephone calls. Id. at 456. Only a handful of the tiiaee-1ran€lred seventyY

two (3112) protected. teachers were subject to the allegations cited by Respondents. No evidence

was produced that all replacement teachers were t^+ reatened or harmed dunng the District's

strike. Respondents divisively plead for an over-broad and under-1nc1us1ve rule which exempts

the protected. teachers from the Ohio Public Records Act.

1n C_h^ ^ton prison guards were unable to establish a fundamental liberty interest in 'Cheir

SSNs and birthdates even though they performed a dangerous job. UrflUe Kal1st,rom the Overton

employees did not go undercover, infiltrate a violent gang or testify against gang members at a

trial. Unlike the employees in Overton, the protected teachers did not work with dangerous

prisoners on a daily basis. The protected teachers' actions do not iise to the level off'those in

Overton and are not remotely similar to tl-te police officers' actions in Ka1lstromo Relators cannot

estdbl1sh the protected teachers have a fundamental liberty interest in their names.

Assuming arguendo that aftindar.^enta1 liberty interest can be established (which it

cannot), the public's interest in releasing the protected nwr4es greatllv outve1g:hs the interest ifla

keeping the information private. When chlldrer: are involved the public interest is heightened.

This Court has explained "traditional notloras of secrecy and confildentiality should be rew

exam€r^^d and relaxed to promote public ^^^ifitlence" when public entities work witli families

and cli€1glren. State ex. a°eL Plain Dealer Publishing Co. v. Geau,^a Cty. ^;'oua-t of Common Pleas,

,.^^^^enal'e.a'_3iu., 90 Ohio St.3d 79, 85, 734 ^a.1,E.2a1 121 (2000). Indeed, the safety of children "no

matter how attenuated, caiinot be discounted." feCt'^ary, 88 Ohio St.3d at 371, 725 N.E.2d

1144,

The publlcPs right to know is strong xvhere the requested information "sheds light on the

azencyss performance of its statutory duties.'s Id. at 368. Record requests should only be derz1ed

25

if t^^y " 'reveal little or ii€athlng about an agency°s owi conduct' ,9 and "would do nothing to

further the purposes of the Act,4' Id. (iiiternal citation omitted); Sts^^^ ex r€;l. Beacon Journal

Publishing Co. v. Bond, 98 Ohio St. 3 )d 146, 2002-Ohio-7117, 781 N.E.2d 180 , 11. To date

Respondents have refused to state wlio taught 6,200 children for several weeks during fne

District's strike. Relator Quolke's request sheds llglit on the District's performance of statutory

duties by reveall^^g,"7^o was responsible for teaclalrg the Dl:s alct's students. If Relator Quolke's

request is denied neltlier Relator Quolke nor parents of children enrolled in the Strongsville

Schools will be able to cleteringn^ who was working witli the Respondeiit District's students

during the District's strike. The public has been denl.ed: the opportunity to review whether the

protected teachers are properly credentialed, passed background checks or have a disciplinary

record. T.1x4.s is the essence of the public's right to know. Furtl^errnore, as discussed at length

(see supra Part I:I(B)(1)(a)(i))z the protected teachers' privacy interest is minimal and is no

different than the privacy interest of all other Ohio teachers.

The Slxth. Circuit's ir^^on-natloaial privacy jurisprudeFice does not discourage the release

of the requested public records. To avoid disclosure, Respondents ignore tlhis line of case law.

Instead Respondents rely on case law 1) where political subdivisions attempt to regulate activity

protected by the First Amendment; and, 2) which ligterprets foreign public l^forTnat^on statutes,

Botli of s-ets of ^urislaradence are 1nappli&ble; Ikespondents' co-rresponding arguments are

misplaced.

i. Cx nt-arz trs RLgaons^eWs' CIaim, ilge frn^tExotec Darjcvrs elo raot PrevNSnt ihe R^leasc< €at'the Protect€;d Tertiche;rs^IVzaraes.

Respondents inaccurately claim that the ^^quested narnes r^ protected based on Ninth

and Sixth Circuits decisions holding the names of exotic dancers are protected from public

26

records requests under the First ArrF.en.dment, See Deja vu of Nashville, Inc. v. Metro. Govt. of

Nashville and Davidson Cty., 274 F.3d 3 77 (6th. Cir.20131)P Dream Palace v. Cty. of Maricopa,

385 F.3d 990 (9th Cir. 2003). ln. Deja vu, a local government enacted an ordinance r^q-uiring

adult entertainment estahllshmeigts to file the name and adetress of all einployees in order to

maintazn, a license; in Dream Palace, Maricopa County enacted a similar ordinance. Because

nude dancing "falls withaii the outer ambit of the First Amendment's protection," the Sixth and

Ninth Circuits analyzed whether public disclosure of the names of exotic dancers "unduly

gnipalr[ed] the exercise of First Amendrnent rights." D^j'.^ v^i at 391; Dream Palace at 998. As

such, the Sixtli Circuit reviewed-pertinent to the lnstant xn.atter^wh.ether l) the interest

furtlie,ed a substantial gr^^e-rnment interest; 2) the interest was unrelated to the suppression of

speech; and, 3) the regulation posed i-nore than an. "incidental burden on, First Amendment

1'reedrams that is no greater than is essential to further the govemment interest." Deja vu at 392

(intemal citations omitted).

InDqla vu, the plaintiffs presented evidence that they were "stalked, harassed and injured

by customers" such tllat they were afraid to make public tltelr name and address for engaging in

protected speech. Id. at 394-395. The Slxth. Circuit applied Kallstr°orn to hold that a municipal

statute could require aduft entertainment venues to disclose the names of employees so l^^ig as

employees' personal infs^-rmation was exempt from disclosure. .Fd. at 395; see Dream Palace at

1111 2 (discussing Deja vu).

Not only was the standard of review in Deja vu fundaanentally distinct from the Sixth

Circuit's lill'^i-inational privacy standard (as discussed supra Part 11(13)(1)(b)), but the facts of

Deja vu and D€°eani I'€zlat,°e are woefully adverse to the instant matter. Foremost, the protected

teachers worked for a public employer, applied to work for the District at a public place

27

(Strongsville City Hall), and worked with chilsl.^en on a daily basis. The employees in Deja vu

an€1Dreatn Palace worked for private employers wliase clients did not include children. The

public's riglit to kr^^w who works with children in the public education system far exceeds the

public's right to know who exercises First Amendment rights at private businesses.

Teachers hti^e no -ori^^cy rights a^^gardiflig their licensure, disciplinary and background

check information: it is all posted on ODE's ^^RF, database. (Quolke Supp, p,25). Amy person

wltli intemet access can search for David Quolke or a protected teaclier (but only if the protected

teacher's name is ava1la'ol.e). As the Nxiith District stated, the First A^e-nctmeiit does i-tot pe.rmit

the state to force private e:^.^loyees to choose between

applying for a permit to en.gage :n. protected. expression in circumstanceswhere they expose themselves to unwelcome i^arassinent ^om aggressivesuitors and ovex-zealous opponents of such activity or . . cb.oosing alot toengage in such activity out of concem for their personal safety.

Dream IDal€ace at 1012 (internal citations omitted) (emphasis original). '1"eacliang in a public

school system is not a choice proteuted by the First Ainend^ent. T he Ohio Public Records Act

does not force the protected teachers to clgoose between disclosure and a .^i-rst A--a:€endment right.

All, teachers------regular, substitute, replacement and protected-choose to work in Olilo's public

school system. The First Ar^^^endment does not prevent the release of the narnes ol'tla.e protected

teachers or any other Ohio teacher.

Respondents' reliance on 1'cderal case law protecting First Amendment rights is

misplaced.

^t. FOM apid ot1^^r Po^^ivz Publ€c ^^cords ^aws do notPn^^ent t^^e&1ease oL t^e Protect^^ ^eachQrs'Aarnes.

Respondents clte foreign case law to suggest 1'orea^^i c^wts have deternzlned the

constitutional right of privacy protects certain records from disclosure. However, none of the

28

cases cited by the Respondents hold that the constitutional right qfp^ivac)1 protects reooxxis from

dflsclosuroa Instead, the cited cases rely on the Freedom azfi^formatlon Act (`sFOiA5' ),1~O:1A-liko

state statutes and other provisions in foreign public records statutos.

FOIA exemptlou six (6) allows federal agencies to witliliold informa.tlon coizta.lned in

"personnel . . . aixsi sirraglar files the disclosure of which would constitute a clearly unwarranted

liivasion of personal prlvacy.32 5 U.S.C . 552(b)(6). The United States Sup.ronie Court has stated

this limitation balances an individual's right of la.rflvaev and the public9s right to know. Dept. of

Air Force v. Rose, 425 U.S. 352, 3712--373, 96 S.Ct. 1592, 48 L.EdId 11 (1976) This Court has

held that FOIA "is inapplicable to state aizencles. . e. Ohio did not adopt a similar ' clearly

unwarranted invasion of privacy' ^xcqptlon to its Public Records Act," and therefore, "a

judicially created personal-privacy exception could not be justified." KIB<:^ TV, 101 Ohio St3d

406, 2004-Ohlo-1497, 805 N.E.2d 1116, ^ 35; see Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-

1770, 886 N.E.2d 206, at paragraph three of the syllabus (reftislug to adopt a "good sense" rule)a

Respondents ask this Court to impost a FOIA-style rule under which ali teachers who work

during a st.-riko would be exempt fi-om the disclosure requirements of the Ohio Public Records

Act.

Because the Ohio Public Records Act does not contalo, a "correspondence" exemption or

a:1=O:1A-la"ke public ieiterest exemptlon; Respondents' reliance on Times Idiaror is misplaoa In

Times Mirror Co. v. Superior Court, the Supreme Court of Calafo^ia interpreted the Calgfomia

public records statute, not the constitutional right to prlvacy. Times Mirror Co. v. Superior

Court, 53 Calo3d 1325, 13-38, 283 Cal.Rptr. 893, 813 P.2d 240 (1993). The Califoriiia Court

reviewed whether the governor's personal calendars and schedules were exempt from the

California public records act pursuant to a "correspondence exemptiori'y as well as a FOIAmlike

29

94pu:blac interest exemption." `I'1^^ Court held the requested documents dvere exenipt from

diselos^^^ pursuant to Callfomaa's FOIA-1ike public interest exemption. Id. at 1347. The Ohio

Public Records Act does not include a sii:^la.r "public interest" ex.^mpt1on.

Likewise, because the Ohio Public Records Act does not inc1ude a "substantial threat of

physical hat-in exemption," Respondents' reliance on 7exas Dept. of I'iab. Saf^^a v. Cox Tews

Nj6v,sIs€apers: LLC is misplaced. In Cox, the Texas Supreme Court held that i^idi-vi€iua1s have a

right to be free from. physical hatin in peart because the Texas Public 1n1°omiation Act contained

an exemption preventing disclosure of information posing a "substantial threat of physical

1^^rm." TTexas Dept. o±f.Pub. Saf^ty v. Cox T'^xas New5papers: LLC, 343 S.W.3d 112, 116 & fn.

11 (Tex. 2011). Texas's tmlqa^^ exemption is neither binding nor 1Sers^.asive.

Itespofl^dents cite I^yde v. City of Columbia to claifln that records should be protected if

their release threatens the personal safety of the victim of a crxm. e. The victim ln.HyrI^ was not

merely harassed or intimidated, she was abducted, kidnapped and "terrorized on seven different

^^cas^ons.'' Hyde v. City oj` C€^lumbia, 637 S.W.2d 251, 253 (1982), TheI^vde court reviewed

the plaflntlff s claim alleging the state negl1gegitly released records in t1ie context of the Missouri

public records statute. In doing so, the catart reviewed the 1egas1at1Ve i-ntent as well as the evil the

legislat-Lire soug1xt to r^^in^dy. Ido at 262e ^^eacha^g a decision 1arotect1iig the ^iame of the

victim the court did not establish a constitutional right of privacy, Ysut held the victim's right of

personal security outweighed the public's right to know. .id. at 269. As stated, the Ohio Public

Records act does not ^erin1t a FOIA-like balancing act. "aNS T1; 1€11 Ohio St.3d 406, 2004--

Obao41497q 805 N.E.2d 1116, 135. As such, I-yde is inapplicable.

Finally, the Ohio Public Records Act precludes "confidential law enforcement

investigatory records" from disclosure. R.C. 149.43(A)(1)(h). 'Fo date Respondents have not

30

raised this provision,'s However, Respondents cite two (2) frsrci, cases which stand for the

proposition that confidential investigation records are exempt from disclosurc. hi Evans iP. Dept.

of Transp., the United States Court of Appeals for the Fifth Circuit hcid in part that FOIA

protected a document which was part of an "investigatory file[] compiled Lcr law enforcement

purposes." Evans v. Dept. of 7ranspo p 446 F.2d 821, 824 (5th Cir. 1971 ). ^ixnilarly; in NewsT

.dourtia^ Company v. Billingsley, the Delaware Court of Chanceiy held a set of requested

documents was exempt from disclosure pursuant to 'thc investigatory file pr^Ndsiora of the

Delaware Public Records Act. NevvsaJournal Co. v. Billingsley, 6 Del. J. Corp. L. 343, 344-345

(1980). Neither casc stands for the proposition flzat the names of the protected teachers are

exempt from disclosure pursuant to the constitutioaial right of privacy.

Assuming arg-v€;^ido that this Court elected to balance the public's right to know with the

protected teachers' rights of privacy (which pursuant to WBNS YVat ^ 35, this Court should not),

the public's right to know would prcvail over the Respondents' privacy conccrn.s. Foreign law

cited by Respondents does not implicate the constitutio^.al right of privacy. FLrffiermorc, the

application of aFODk-likc balancing test dcm arids the release of the requested records. (See

supra Part 11(13)(l)(a)(i))e If this Court applies a FOIAmlikc balancing test it mil-st be applied to

all teachers-not merely teachers involved in a sttikce

2. The Eidth District did not Err in Rg1f2wjR t:hLe Totalat . of the Facts a^:d.Circumstances as th^ ^ Existe.d at the Time of its Decision.

This Coug-t has long held that an appellate court "must exercise sound, legal and judicial

discretion based upon all the facts and circumstances in the individual case and the justice to be

done" in determining whether to grant a writ of mandamus. Str^ti., ex re1. Pressley v. Industrial

Commission; 11 Ohio St.2d 141, 228 N.E.2d 63 1g paragraph two of the syllabus (1967). An.

^g For good reason. R.C. 149.43(A)(1)(h) is inapplicable.

31

appellate court must "take into consideration the -facts aiid circuinstanc:es existing at the time it

€letera-niraes whether to issue a pr^en-ilatory writo" Pressley at 162; State ex r°el. Mahqjtan v. State

^^^d. Bd, of Ohio, 127 Ohio St.3d 4971, 2010-Ohio-5995, 940 N.E.2d 1280, ^ 63; ^^^te-, C'x rel.

^ortage, Lakes Edn. Assn., O^'.^4liV^'.,^ v. State Emp, Relations Bd., 95 Olia€s St. id 533, 2002-

Ohio-2839, 769 N.1v,.2d. 853, ^ 54.

Vv'hen issuln^ decisions regarding a ple^. for writ of ^.^d^,usy the Eighth District ^;o€^.,.^t

of Appeals has 1ong-conside-red the facts and circumstances at the time the decision is issa^ed.

See, e.g., State ex rel. Rodriguez v. Boyle, 8th Dist. Cuyahoga N€s, 378729, 2006-Ohio-3494, ^ 6;

State ex reL Gilliam v. C`i.€yahoga Cty. Court of Comtnorz Pleas, 8th Dist. Cuyahoga No. 79791,

1997 WL 7213 5, at *I (Feb, 20, 1997); State ex rel. Slatnan v. .^^nndale Police Dept., 8th Dist.

Cuyahoga N€a. 71865, 1997 Wl:, 72130 (Feb. 20, 1997).

The Eighth District correctly €ietemii.ne€i that the names of the protected teachers are now

public records months after conclusion of the District's strike. (Dist. A-23, ^ 13 2). But the ^iglith

Disttict r€:fused to conclude whether or not the requested r?ames were public records while the

District's strike was ongoing. Because it has not-and cannot------ p€ovlde any evi€1^iice that a

single protected teacher has been allegedly threatened since the concluslon of the District's

strike,19 Respondents inappropriately ask this Court to abandon its loiigyliei d "fact and

circumstances" test. Respondents claim that before fssaxiixg a writ of mandariius the Eighth

District must determine whetlier the requested records were public records at the time

Resporldeaits elected to deny the records reqtiest. Respondents' legal assertions and factual

assumptions are boldly inaccurate.

19 Respondents' most recent allegations dated March 2013. (Dist. A-23, ^. 12).

32

Respondents do not ask this CotieL to review everv teacher's right of -prlvacys

Respondents only ask this Court to review the protected teacliersy right to privacy. Moreover,

Respondents inappropriately make the over-broad claim that evl€l.er^^e allegedly iinpllcatlng the

privacy rights of a handful of teachers laivokes the constitutional rl.wrt of prlva.cy for three-

hundred seventy-two (372) protected teachers. Respondents' claim is siniultaneously over-broad

and ura€ier-lncluslve.

Moreover, Respondents appear to iflTespoiislbly ask- this Court to set -ap the framework for

a casesbym.casu staxd€iard for determining wbether the constitutional right of privacy prevents the

release of public records. Such a frai-^ew€srk would set dangerous precedent which would allow

any public official to claim the right of privacy protects public records if they believe some-

however specious-threat of harm ¢xists. This C€^^^it n;ust again reject a case-by-case standard.

See WBNS TV, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 NeEe2d 1116, 135 (rejecting a FOTAa

ll.ke balaiiclng test)R see Jranes-Kelley, 118 Ohio St.3d 81, 20084Ohflo-1770, 886 N.Eo2sl 206, at

paragraph three of the syllabus (rejecting a "good sense" r€ale).

Respondents clanim well-established case law protects certain records -from disclosure

even a-fter the passage of tlme. 'Whal.e such a rule is established in specific circumstances, it is

well-established due to statutory de^'aa^:ations-not judicial activism. For example, in Scaa^^' an

the relator requested records related to fortner school students. 'Mis Court determined that

records created when individuals were students are not subject to disclosure based on the text of

the Family Ed^^cational Rights and Privacy Act as well as guidance frorfli the Uglite€l States

Department of Education. State ex x^eL Souffrance v. Doe, 132 Ohio St.3d 38, 2012-Ohi.o-1906,

968 N.1:a.2€l. 477, ^( 2. Likewise, this CoLieL refused to place conditions on t^^ ^e-neral

Assembly's definition ol' "confidential law enforcement investigatory records" because "the

33

General Assembly ratlier than this ^^uri, has the responsibzkgtv to place si-ich conditions on this

exemption." State ex reL -M^^el^nd v. Dayton, 67 Ohio St.3d 129, 131, 616 N.EM 234 (1993).

R.C. 149.43(A)(a)(g) protects "Confidential law eji1`orcement iravesti9atory rec€.^rd[s]" ffrom

disclosure pai.rsuarflt to the Ohio Public Records Act. Because the General Asserflibly has defined

confidential law enl`orcemeiit records to include "the identity of a suspect who has not been

charged," it isu-----as Respondents claam ........---- "well settled that the naanes of suspects w.ho are iiot

charged witli an offense are" exempt 1'rorn release under the Ohio Public Records Act. lra€1eed,

the statute "€1ocs not limit the exemption to 'current' suspects af s.eq€atre an active, ongoing

investigation. Nor does iCne statute express the concept that the passage of time or tl-ie lack of

follow-up prosecution erodes that statutory protection." Moreland at 130s l. 3l.. Respondents'

reliatice on So^^^^^^ and Moreland is misplaced.

Respondents' argument again relies on a tortured interpretation of Keller, .^allstr^^m and

Craig. Respondeiits allege "records either were or were not public records based on the threat of

harm to the subjects at the tinie that the public entity denied the req€aest." Of course in Keller

and Craig, this C€a-urt protected certain police officer personal infoaination because the police

officers were involved in a dangerous event (e.g., tm€lercover police work, a shootout) which put

the police officer's lives-and the lives of their f"amily mem- berfi at risk. hi this matter, like

Keller and Craig, an intervening event has changed the traditional -t'act pattem. However, €mlike

this Court's rule in Keller and C'ratg, Respondents' proposed rule is overnbroad. Respondents

claim alleged threats against ^hand1ul of protected teachers prevent the release of all pxoteGtecl

teachers' names. Craag did not prevent the release of all police of-Ficers' ^ames--it only

prevented the release of officers' names who were involved in a deadly shootout with the Iron

HorseBnen. Craig, 132 Ohio St.3d 68, 201260h;tio-1999s 969 N.E.2d 243, ^, 2 & 23.

34

Respondents' pcsiticei begs the following question: what event triggered the

constitutional right ol`privacytYacrcby invoking the protection of R.C. 149.43(.k)(1)(v)? At what

point is Relator Quollkc------^r a ga.rcixt with a student enrollcd in the Respondent District-

prevented from discovering who is working witla. childrcn. in the Respondent School system?

Respondents' position prevents parents and all other Ohloaiis from reviewing the liccilsurc and

disciplinary data of the protccted teachers. Moreover, as will be shown, Respondents position is

d)-fficult" if not impossible to adnini.stcre

On Fcbr.aai•y 21, 2013, SEA gave tbc Respondent District notice of its tntc.-It to strike.

Given the st-pkc wa..^ imminent, were the n^..,,cs of the teachers about to go on strike exempt from

the Olii^ Public Records act based on the constitutional right of privacy`3

On March 3, 2013, citizm:s exercised their First Amendment rights outside tbc piiblsc

facility where the protected tcachers applied to work for the Dastricte Respondents claim the

protected teachers were "scared" by the citizens' alleged chantff-ng, and alleged use of ^^of-mity.

Yet as reported in the media, the catia;.ciis "were compliant with all police orders." (Dist. Supp.

p.9). Respondents fail to claim s.riy additional incidents occurred pi-icr to Relator Qaaolkc's

March. 5, 2013 public records request. At tlic time o-i'this Relator Quolke's -rirst ptiblac records

request Respondents could not show t^tat the constitutional right of privacy protected the

protected teachers' n^i-ncs. Clearly the public's interest in dctcnni^^^^g, who was ^.^orl^^^g with

c,Hd.rcn in the Respondexit District dcflnands the release of the rcquc stcd. records.

Respondents claim that on. March 7, 2013, an SEA meinbcr allegedly "cut off a van

transporting" the protccted. teachers. Likewise, Rcspo-nd.ents allege that on iMarch 13, 2013, a

temporary replacement teacher claims "a car pulled up next to her, yelled `scab,' and threw an

object at licr windshield, brcaki^ig the glass." Is citbcr of these alleged incidents (in isolation or

35

conjunction) involving a haaidful of protected teachers sufficient to trigger the constitutional right

of privacy that trumps the public's right to know who is teaching Ohio's children? No, neither

incident corrapares to the lifeLLthreatefliin^ incidents at issue in Craig, Keller or Kallstrom.

Furenerrfliore, the Respondent District's argument is both over-broad and uiidernflriclusiveo

On March 22, 2013, Respondents al}ege that a security vehicle was damaged. Certainly

this allegation does not suppart the protected teachers' constitutional rignt of privacy. The

protected teachers' did not suffer ajiv harm and were not subject to any threats as a result o1'this

incidente

B^.sad on the Respondents' position, what event triggered tne protected tea€:l:ers'

constitutional right of privacy? Certainly the protected teachers did not enjoy coiistitutaonal

protection at the time ofR^lator Quolke's first public records request (March 5, 2013). Wgtliout

citation or support Respondents conveniently propose their own tlme-frarne (the time the public

records request was denied) for dete.r-nin^g whether the requested records constitute public

records. Respondents' se1f-ser^ing date would allow public eiitities to wait for an intervening

event to deny a public records requests.

Respondents appear to suagest that the constitutional right of privacy prevents the

disclosure of any teacher's nar^^ who works rlLiring a strike. Indeed, Respondents' cssnstitutioraai

privacy claims appear to be a proxy to prevent the release o1'the names of all teachers who work

dxariixg a stril4.e regardless of whetlier the teachers are actually threatened or actuallv suffer any

harm. '1`lflis Court ^riust again refuse to ado-pt a iudicia11yyoreated exemption to the Ohio Public

Records Act. See Jones-.,^elley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at

paragraph three o1'th^ syllabus; 1FB1^'.^' TV, 101 Ohio Ste3d 406, 2004-Ohio-14973 805 N.E.2d

36

1116, 35. If Reslaondents' position is adopted, parents will be prohibited from detennining

who teaches their elail¢lren during a strike.

'1'he Eig:litli District did ^iot err in reviewing the facts and circunistances at tl-ic time the

writ of mandamus was issued. This Court should iiot disturb the Eighth District's decisioii,

C. REIA`T'OR QI;OIaKi:'s RESPONSE ':'o ASSIGNMEN'.C OF ERROR NI3molH',II. 39 IN

AccoRD wn'II LONG-ESTABLISHED PRECEDENT, A RELATOR PI`3.OVID:ING

EvI^EN^E THEY SIAvE ACTUALLY PAlliB OIEI. ARE OBLIGATED TO PAY THEIR

ATTORNEYS IS EN'Ti'I'I.EI31'I'9 ATTORNEY FEk S,.

Pursuant to the 2007 amendmeiits to the Ohio Public Records Act, if a "court renders a

^udgm-erxt that orders the public office or the person responsible for the public record to comply

with division (B) of this section, the court inqy award reasonable attorney's fees . . . ." State e,^

re-1'. DiFranco ve S. Euclid, Slip Opinion Noo 2014-Ohio-538, T 31 (citing R.C. 149.43(C)(2)(b)),

Based on its review of R.C. 149.43(C)(2)(b)5 the Eigbtli District Court of Appeals held the names

of teachers and substitute teachers are a "type of record that is necessary to have open to the

public to allow the public to eval€iate its gover^ent.4' (Dist. A-1 1, T, 8). `l'l:?e Respondents do

not directly dispute that the requested public records are necessary for the public to evaluate its

^ovemmento Instead, the Respondents protest the Eiglit Dissrict's award of $7,972.50 in attorney

foeso (Dist. _A,-11, T 12).

This Court has long-held attorney fees are or^^y recoverable in a man€3a.anus action where

tee; are "actua.lly paid" or relators "are obligated to pay for their att®rneys.i4 St^^te ex rel. Russell

v. 7",^€atncr.s, 85 Ohio St.3d 1488, 1488, 709 N.E.2d 1215 (1999); see also State ex reL O`,^^^ea &

Assocs. Co., L.P.A. v. Ctayahoga Metro. Hous. Auth., 131 Ohio St.3cl. 149, 2€112-Ohio-115, 362

N.E.2d 297, T 45; State ex r°el. Beacon Jourtaal Publishing Co. v. -4krora, 104 Ohio St.3d 399,

2004-C3biQm6557; 819 N.E.2d 1087, 62 (hereinafter "Beacon Joa.crpia1 (2004)"); State ex. ^eL

Besser v. Ohio State Univ., 87 Ohio St.3d 535; 542, 721 N.E.2c1. 1044 (2000).

37

This Court has denied attoriiey fees to relators represented by in-house col^..^.sel;

represented by a partner at the relator's law fimi; and, represented by the relator's spouse. In

Besser, this ^ouit refused to award attorney fees to the relator because she was sepreseiited by

her husbar^d and there was no evidence or argument that the relator paid or was obligated to pay

her husband for his legal services. Besser at 542. In OS,l^ea the relator was a law fimi

represented by its principal attorney. This Court overtume€1 the Eighth District's decision

awarding a:ttom^y fees because the relator law firs^i failed to introduce any evidence that it paid

or was obligated to pay atto-.u^y fees to its principal attomey fcir representing the firm. O'Shea,

at 145. Likewise, in Beacon Journal (2004), the "vast majority of the requested fees related to

the work [perl'ora^ed] by the Beacon Journal's in-house caunsel," Beacon Journal (2004) at

52, This Court refused to award attorney fees because there was "no evidence or suggestion that

the Beacon Joumal either paid or was obligated to pay its in-house counsel attomev fees i-n

addition to her regular salary and benefits" for work on the public records llfigati€sn. Id. at62.

The record clearl v reflects Relator Quolke "actually paid or is obligated to pay attorr^^y

fees" to Muskovitz & Lemmerbrock, LLC for representation in the instant matter. Ms.

°^uskov€tz's swom affidavit provides s'a, time sheet which lists fees charged to Mr. Quolke

related to the instant matter.7° (Quolke Supp. p.72-75). The evidence provided meets tlhs

Court's s`actually paid or obligated to pay" standard. Moreover, no evidence shows that Ms.

Muskovitz is in-house c€s-unsel. Ms. Muskovitz's affidavit describes rates for `'legal sei-vice for

David Quolke," ncyt CTLJ. (Quolke Suppe p.72, 16} 8). No fui•ther inquiry is necessary. This

Courl, should not alter its staflislard. for awarding attamey fees. Ttie Eighth District's award of

attor^^^y fees should be ^on^n-ned.

38

Without evidence, Respondents claini tl^e Cleveland '^eacliers Union ("CTU") is

responsible for paying attomey fees incurred in the instant litlaatlon. Relator Quolke is President

of C'I'U and C'TIT has a longstanding relat=onsb.lp with Ms. Muskovitz and ^l^zskovlt^ &

Lerxmerbr€sck, LLC. However, Relator Quolke filed the instant -matter in his personal

^^pacity ------not on behalf of CTU. Moreover, Ms. Muskovitz is not CTU's "in b€ste^e counsel.`,

Ms. Musl;ovitz regularly represents CTU as well as law en-foreement officers, fi^afighters,

paramedics and educetors throughout Ohio in matters related to collective bar^^^^ing wgd pubil^

emplownent. (Dist. Supp. p. 133); See, also, Pc^^ma v. Parma Firefighters Assn., Local 639, 8th

Dist. Cuyahoga I®toe 99263, 2013LL0h,-ioa2918 (listing Maxs:^ovlt.^ as Local 639's counsel); E.

Cleveland F, ia^ej1ght€;rs, I.-IFF Local 500 v. K Clevel€and, 8th Dist. Cuyahoga No. 5 908 5 5, 200i -

Ohlo-1447 (listing Muskovitz as Local 500's counsel); Vedder v. Warrensville Hts., 8tl^. Dist.

Cuyalioga No. 590855, 2042LL0hioa5567 (listing Muskovitz as Plaintiff Vedder's counsel).

Simply because Ci'U uses Ms. Muskovitz's legal services, Ms. iMusl€ovltx is not per se cTu s

in-house counsel.

Respar€lents ask this court to peer into the attorney-client relationship between Mr.

Quolke and Muskovitz & Lemmerbrock, l•_,LC" as well as CTU ('whzch is not a party to the

instant matter) in order to dete-rrnine who is supporting, the instant litigation. Such an inquiry is

unnecessary aflid would threaten the a.ttofldiey-client relationship. 'I'b.e facts in the record

demonstrate Relator Quolke is responsible for paying att€;mey fees in the instant matter. Relator

Quolke-like any ot,..er litigant-may seek financial support to pay for ongoing litigation from

pa-l-vate citizens, private businesses or ^on-proflit entities. As stated, Relator Quolke is

^^spop-slble for fees paid in the instant matter.

39

'nils Court sho€ild not alter its "actually paid or obligated to pay" standard. As

demonstrated, Relator Quo1ke has actually paid or is obligated to pay attorney fees to Muskovitz

& Lemmerbrock, LLC. The Eighth District's decision awardan^ att^^i^ey fees must be affirmed.

111a CONCLUSION

Relator Quolke has standing in the instant mandwnus claim. The Eighth District Court of

Appe,.ds properly determined that the names o¢' the protected teachers are not exempt from the

Ohio Public Records Act pursuant to R.C. 149.43(A)(1)^^) and the constitutioflial right of

privacy. Moreover the Egght1t District properly awarded Rlelator Quolke attorney fees.

This Court should affirm the Eighth District's declsion..

Respectfully Submitted,

j4VWFSu.sannah Muskovitz (00l 145?)COTJNTSEL OF RECORDWilliam E. Froehlich (0087857).Muskovitz & Lernmerlrrock, LLC'r^^ BF Keltli Btaildlng1 621 Euclid Avenue, Suite 1750Cleveland, Ohio 44115Phone: (216) 621-2020Fax: (216) 621-3200muskovitz@mllalpor. c€^in^'^°oehl °ach^mllabor. com

Ccaunsel, fcar Relator-,4ppellee,David Qaialke

40

CERTIFICATE OF SER'VICE

I hereby cerfil^ed that a copy of the foregoing Relator-Appellee Quolke"s Merit Brief and

the a^^ompaiiying Appendix were served upon the following vla, regular IJ,S. mail. this 28;h day

of April, 2014:

Christian M. Williams (00639£0)CO'UNSEL OF RECORD^^^queae T. WaNh ^0088065^Pepple & WaggonerCrowr. Centre Building5005 Rockside Road, Suite 260Clave 3andg Oliso 44131Ph-one: (216) 520-0088Fax: (216) 520-0044ew1€llaxnsc,Xpepple-waggc^^^^^^om

,pepple-waggoner.cc^mjwalsk(&

Counselfor Respondents-Appellants,a5'^^^ng.rval^e Cii^% School Dava~zctBoard of Education, SuperintendentJohn Krupa^skz', Prasade.^^ DavidF-razee and Ta^ea:^ ^^^^ DeborahHerrinann

Susannah -MuskGvatz (0011457)COI_NSli'L OF iREC^RDWilliaxn E.1"roehlich (0087857)

41

RELATOR QTT^^KE'S

APPENDIX

Strongsville City SchooI DIstrIctAdmlnl^tratIve Guldelwnes

8310A w PUBLIC RECORDS

The School Distr€ct`s public records are ava1able for public inspection and/or copying in accordance withState law.

Designat^^^ of Officers

The Treasurer shall be the District Records Officer (DRO).

Deflnitions

"p°ublic record" includes any document, device, or item, regardless of physical form or characteristic,including an electronic record, created or received by or coming under the jurisdiction of the Board or itsemployees, which serves to document the organization, functions, policies, decisions, procedures,operations, or other activities of the District.

"Public record" does not mean any of the following: medical records; documents containing geneticinformation; trial preparation records; confidential law enforcement investigatory records; and otherrecords the release of which is prohibited by State or Federal law, including, but not limited to, studentpersonally identifiable information and student directory information when the student's parents haveaffirmatively withdrawn consent for release of it in writing.

"Electronic record" includes any record having been created, generated, sent, communicated, received,or stored by electronic means.

"Redaction" means obscuring or deleting any information that is exempt from public inspection or copyingfrom an item that otherwise meets the definition of a "public record."

Location and Time

Public records are to be available for inspection during regular business hours, with the exception ofpublished holidays. The District shall organize and maintain public records in a manner such that they arepromptly made available for inspection or copyir€g. "Prompt" and "reasoriable'° take into account thevolume of records requested, the proximity of the location where the records are stored, and thenecessity for any legal review of the records requested. No record shall be removed from such @ocation. Amember of the staff must be present throughout the inspection and copying of such record.

While personnel files contain public records, some specific information and;or records contained in suchfiles may be confidential and not subject to disclosure (see AG 8320).

Procedures

The following procedures shall be followed in connection with requests to inspect and secure copies ofSchool District's public records:

Al

A. Requests to inspect and9or obtain ^op€es of pub€tc records shall be submitted to the Treasurer.A public records request must at least identify the records requested with sufficient clarity toallow the District to €dentify, retrieve, and review the records. If it is not clear what records arebeing sought, the DRO shall contact the requester for clarification.<11

B. €rad€v€dua€s requesting. to inspect and/or obtain copies of public records do not have to putrecords requests in writing and do not have to provide his/her identity or the intended use ofthe requested public record(s).

The District may ask that the requester's identity and reason the information is sought be in writing. TheDistrict, however, must first inform the requester that such disclosure is not mandatory, unless the requestis for student directory information. The District must also inform the requester that providing suchinformation in writing enhances the District's ability to identify, locate, and6or deliver the records sought.The District may ask that records requests be put in writing, but must also not€fy the requester that it is notmandatory to do so.

Each request shall be evaluated for an estimated length of time required to gather the records. Routinerequest for records should be satisfied immediately if feasible to do so. Routine requests include, but arenot limited to, meeting minutes (both draft and final form), budgets, salary information, forms andapplications, personnel roster, etc. If fewer than twenty (20) pages of copy are requested or if the recordsare readily available in an electronic format that can be e-ma€led or downloaded easily, these should bemade as quickly as equipment allows.

All requests for public records must either be satisfied (as above) or be acknowedged in writing Py theDRO promptly following the District's receipt of the request. If the request for records was in writing, theacknowledgement shall also be in writing.

If a request is deemed significantly beyond "routine" (such as seeking a large volume/number of copies orrequiring extensive research), ttie acknowledgement may include the following:

A. an estimated number of business days necessary to sat€sfy the request

B. an estimated cost if copies are requested

C. any items within the request that may be exempt from disclosure and the reason for suchexemption, including legal authority

With respect to public records that are determined to be available, the Treasurer will direct the requesterto the place where the requested records may be inspected and will arrange for the preparation andcertification of copies Lipon ter;der of any required fee.

Any+den€af of public records requested must include an explanation, including legal authority. If portions ofa record are public and portions are exempt, the exempt portions are to be redacted and the restreleased. If there are redactions, each redaction must be accompanied by a supporting explanation,including legal authority.

With respect to records that are determined not to be available, the Treasurer will notify the requester ofsame, noting the reason for unavailability on the request form ff one is submitted, and return one (1) copy

A 2

of the form to the rettuestar. The Treasurer shall also notify the requester of the estimated time necessaryto process and fuItlll the request, make arrangements with the requester for dellvery of the requestedrecords, and arrange a method of communication between the requester and the School District in theevent that further information is needed by the District to fulfill the request.

Fees

Upon. request, copies of pubI€d records will be provided at the actual cost of making copies.

A person who requests a copy of a public record may choose to have that record sent to him/her byUnited States mail or by other means of delivery or transmission provided the person making the requestpays in advance for said record as well as the costs for postage and maIllng s^pplles.

Electr^^^^ ^^^^

Documents in electronic mail format are records as defined by the Ohio Revised Code when their contentrelates to the business of the District (i.e., they serve to document the organization, functions, policies,decisions, procedures, operations, or other activities of the District). E-mait shall be treated in the samefashion as records in other formats and shall follow the same retention schedule.

Records in private e-mail accounts are subject to disclosure ff their content relates to public business, andall employees or representatives of the District are responsible for retaining e-aYaa31s that meet thedefinition of public records and copying them to their District e-mail account(s) and'9or to the recordscustodian.

The records custodian shall treat such e-mail/records from private accounts as records of the District.These records shall be filed appropriately, retained in accordance with the established schedules, andmade available for inspection and copying in accordance with the Public Re.cords Act.

Private e-mail, electronic documents, and documents ("private records") that do not serve to documentthe DIs#rlct's organization, functions, policies, decisions, procedures, operations or other activities are notpublic records. Although private records do not fall under Policy 83€ i3 - "Public Records" or this guideline,they may fall under Policy § .315 - "Iriformatlon Management" or AG 8315- "Litigation Hold Procedure."

F^^^^NTION OF RECORDS

The District Records Commission is responsible for developing the District's "Schedule of RecordsRetention and Disposition - t°orm RC-2," which must be approved by the Ohio Historical Society and theState Auditor. Subsequent revisions to the RC-2 I"orm must also be approved using this same process.Only in conformance with the approved "Schedule of Records Retention and Disposition - Form RC-2"may the District's Records Commission review applications for the disposal of obsolete records utlilzlngthe "Certificate of Disposal Form RC-3."

To facilitate the €tevelopment, tjpdat3ng andlor revision of the Schedule of Records Retention andDisposition, and in reviewing requests for disposal of obsolete records, the District Records Commissionshall utilize the following guidelines recommended by the State Auditor's office.

SCHEDULE OF RECORDS RETENTION AND DISPOSITION

Record T#i#e and C3^crip#ion RetsrstFon Period

A 3

BOARD RECORDS

Minutes

Aaedio Tapes

B!ue Prints, Plana, Maps

Deedw, Easemen3s, Eweaue^'

Board Policy Books and Other Adopted Poiicles

Administrative RegulaYions

Court Decisions

Cdaims and Lftigat"son

Elect6Qna

Re€urd C9isposai Forms (Ri;-3)

Bargaining Agreements

Budget Policy Fifes

WQ31cer`s Compensation Claims

Bank DepositM Agreements

Record Ti1ie and Description

BtSARD REC£3RDS (cont'd)

Organiz.ation Reports

Pea'rnar+ent

2 Years

PsrmanenY

Permanent

I Year After SupercedeG

1 Year After Sutserceded

^ermar,ent

Permanent

10 Y'ee¢s

10 Years

10 Years After trxpiratian

5 Years

10 Years After Financial Payment Made

4 Years After Completion

Retention Period

2 Yeam*

A4

Bsaard Meeting Notes

Agendas

Adopted Courses of Study

Adopted Special Education Programs

Adopted Specia€ Programs

Employees Files

(Employment App€ications, Resumes, Contran:€s6Sa€aryNotices, Evaluations, Personnel Actions, AbsenceCertification, Transcripts And Any Other Documents Which,Become Part of the File.)

Certified Active Employees

Classified Act€ve Employees

Cerii acated Inactive Employees

Record Title and Descript€on

BOARD RECORDS (cont'd)

Classified Inactive Employees

Civil Rights, Civil Serv€ces, and C€scipl€nary Reports

Retiremetvt iw^^ers

suhsti'?ute Records

Employee Contracts

Professional Conference Applications

1 Year

'6 Cs€endar Yeae "'

Unt€€ Superseded

Un#ii Srapemez€ed

Until Su, emeded

Permanent

Perrnanent

persnanenrtrw

Reterotinn Period

Fermanerat".

;seFSnanent-

Perre9anent -

25 Years

4 Years After Termination From Employment

2 Years 46

A5

i,rre$ufarErrapitayee GsanRractu (SrabxtaMes, etc.)

Uraernpltsyeeaent Ciaims

Unempi®yment

Applications (Not Hired)

Schedszles of Err+p3opees

Student Hefper ApplEcatiarss

Teacher Pemz+rsneE Reports ( Intemal)

1-9lmrraigratFon Verifc.atign Forms

Job Description

Record Titie and Description

STUDENT RECORDS

Student Record 6=sa€ders

Enrsa€irrsenfflift,dr"awai

I:B€armat6Qn

Grades,'l'ranscr3pts

Activities Record

R.ttendartce Records

€e3siiwFduai 3'ebi ResuEts

Standardized

CoerEpetencytProficiency

Aptitude

Iritervention Recorda.

Foreign Exchange Records

Sus,pensior±llEwxpulaiesrFa

Home S^hoo3ed Student Records

4 Years After Contract i:xpires

5 Years

5 Yeam

2 Years"

F€sca3 Year PPus 2 yeam

2 Yeam

FiscaS Year Pfus 1 Year

°E`erPn3esati®n of Emp:oyrren; Plus 1 Year

Retain sarEYii asapereeded or o§asaje3.e

ReterEtion Peraca€1

PerrnanerRt""

A6

Of#iCe Record Card (€f-g)

Cosmetoirsgy Records (Vncaat?onai)

i•ieaith.+'MoAdcai Records

Visuai Screeriir+g

Hearing Screening

€tt3munizatiota Records

Discipline Records

Letters to Parents

Office Disc€p€€ne

Psychological Rewrds (Restricted)

Ch€id AkuWNegiect

Referral Letters

Teacher Grade BoaPs1Redords

Record "i'itie and Description

STUDENT RECORDS (contd)

Pre-School Screening Profiles

Age And Schoo€ing Records (Work Pertnits)

AccidetFt Reports

iradividua€ Education Plan (IEP)

Free/Reduced Price Lunch Application

Emergency in#tertrFation

Court orders on guardianship or parental

Ped7Yik7tBentxsa

Pemre9anent""

7'(ears APser t;raduat€atE

1 Year After Student i_apym:^ School

Pertt3anerat'°°`

7 4'ears After Graduation

3 y^^rs-

Retettion Penod

3 Year^

3 yeats

5 Years Provided No Ae€€on Pending

Permanent

4 Years

Until Superoeded

Until Superseded

A7

rightslrespans€tai€€t€es

BU€t.D€ND RECORDS

Tornado and Fim. Dri11Recor€^s

Bu€€d:ng Health InspeEot€ans

Student Activity Records

taa}v=€n For^ne

Pav-OEft Forms

Account Forms/District

BEadgE?# I'arcns

Requisitions

Purchase Cirders

Ticket Sale R€a pzrorts

Rer„e€pWCJzposits Slips

I:§udgetlAppropr€at€on Records

ReqEaaait€onsIPa.trchase Orders

Textbook Inventar€es

Supplies Inventory

Student Handbooks

Record R it€e and Description

AI'3M€N€S'Ti°,7`€VE RECORDS

School Calendars

Repair, installation, and Maintenance Records

Prevailing Wage Records

A 8

I Yeaar"

2 °fears°

2 Years-

4'tears`^

4 Years-

ti'} Years-

Unti€ SEaperEoea1W

Until SEapnrcedet€

Until Supomeded

Retention Period

^ Yeam

4 Years°

d'^^ars,,,

Rertaii int4rrn2tioin (Use of Faci€3t€€ss)

111ork C3rdem

Environmental Repee¢xsAnd Data. (asbestos, etc.)

Vandaftm Reports

Student Act€uity Purpose Clauses

Sales POtent€a€ E=•onns (Student Activities)

Bids and Specia;ca&ons (Unsucceseu€)

Bids and SpeceFacatpons (Successful)

Record Title and Description

ADMINISTRATIVE RECORDS (cant'd)

Contractor Files

(Resolutions, Additions, Drasw€nqs, etc.)

Preventive Maintenance Repaafs

WarTentyt£5uarantee

Plant and Equipment invent®ry

'fezctb®®kJWorCbo®k Inventory

Supplies Inventory

Record Title and Descript€€rn

4 Y^ars-

4 YeArs4"

4 Years-

4 Y^^rs"

4Yea¢s"4

4 Y^ars"Q

1 Y'eaCsa

4 Years After Completion of Prq;nct<o-

Retention Period

Until Psajs:a:t Complete,

if No ,Act,ion Pend€ng°

Fasca€ Year Plus 2 Year

i ate1Warrant of Equipment

Until Su,perceded"

Unti€ Supemeded°"

Until Supercededk5

Retent€on Periad

A 9

SPECIAL EDUCATION RECORDS

Spari,11 Edu^,^tson

'd"utor?ng Repurts

Ind€vidseai Educational Plan (IEP)

E'sycha€ag€ca€ Records (fdestreed)

TRANSPORTA1"9ON RECORDS

Driver Physical

Fuel Cesnsu¢espt€®n Data

Tr^^spoftt€on Records

Eaeid'Tr€p For?ns and Volunteer [3river'Esarms

Accident Reports

Vehicle Registration

Vehicle License

Driver CeFtiF€c-st€ons

Record Tk€e a nd Description

TRANSPORTATION RECORDS (cont'd)

Supplies enventory

Vehicle Defect Report

FOOD SE•RME RECORDS

10 Years

Perrnanent

Pee3raarEerat^^^

2 Yeam After'Tea; es€rat:es¢s

4 Years'"F

4'Pe&W°

EismE Year Plus 2 Years

3 Years Provided No Action Pending

EwiYe otVeh€c€e

1 Year After Te¢mireefl,ory

1 Year After Termination

Retention Period

Until ;superceded °

Lffe of Vehicle

A14

Food SeN€ce Records

Menus

Food Production

Milk Sold

Students Served

Lunchroom Records

Cast3 ^egWer Tapes

Cashs`er`s Daily Repoft

Lunchroom Reports (Free and Reduced)

Inventories

Lunchroom Licsnse

Record Title and Description

FINANCIAL RECORDS

Annual Financial Reports

Appropriation Ledgers

Budge, Ledgers

Revenue Ledgers

Vendor Listing

Check Register

Purchase Order Listing

Invoice List

Account Reports

Financial Summary

Detail Reports

Activity Fund Cash Journal and Ledger

Bond Register

4 Years°"

4 Years°•

4 Years-

Until Supcrceded°

1 Year After Expiration

Retention Period

5 °#`eam-

a yearsa,

2Q Yeam After issue Exp€ima

All

Sooullties

Investment Ledger

Foundation Distribution

Tax Settlements (Sem€-Annuai) and Advances

Budgets (Annual)

Insurance Policies

Record 'I-€#€a and Description

FINANCIAL RECORDS (cont'd)

Contracts

Bonds and Coszpons

Accounts Payable Ledgers

Acmant Receivable Ledgers

Budget Work Papers

Vouchers, €nvoires and Purchase Orders

State Program Files

Aux. Services, DPPF,

Adult Vocational

Excess Lottery, Date

Pmcess€ng, Public/Private Grants, etc.

Federal Program Files

Title €, €I, €€€, IV-B

IV-C, & VI-B;

Pennanent"

b Years-

5 Years,A

1* Years After Exgiratian Provided All

Claims Settled

Retention Period

15 Years A°ter Fxpirat€on

Until Redeemed-

" 5 Yeass"

5 Yenrsa#

5 Yaa-s,"

10 Years°

10 `^eaes °Y

10 Yeazs"

A12

Chapter 1, 2,

Drug Free, etc.

Trsvc3 Expenses Vbuchem

Tax dRntic pation Notes

(Records BorxoMng Against Future Tax Co€€ect3ons)

Record T€t€e and Description

F€NANCiA€. RECORDS (cont'd)

S,ate Reimbursement Settlement Sheets

Unemployment Claims

Employee Bonds, Board Member Bonds

Cer3ificato of Estimated i3esour^s

Appropriation Resolutions

Tax Appointrnents (Semi-annual)

Camre;eci Checks and Bank Settlements

Pub€€cation Notice

Tuition Fees and Payrnents

School Finance (S.K)

Monthiy Statements

Investment Records (May Include Endiv€dua€

Record of Investments, Bank Confirmation, Wire

Transfers, Copy of CD, etc.)

Travel Expense Reports

10 Yeart-

10 Yemrs°`

Retention Period

5 years""

6 Yeus

5 Years

16 Years After Expiration

5 Years

5 Years

4 Years-

4 Years"

4 Y'ears%°

4 Years"

4 Years-

10 Yoarr"

A13

State SaEes Tax Re,^ods

3^ecort! Title and Qetiar3p>3an

Fd NA>NC@AL RECORDS (coei`d)

Student Activity Fund (F'av-ins, Pay-Outs,

ReceEgts/CSepssl4s, Reports)

Check Registers

Deposit S#Eps+rwash Procft

Bids and SpecMcallons

(Unsurx^ssful)

Bids and Specii'miians

(Successful)

Receip4 Books

Extra Trip Records

Monthly Financial Reports

Accounting Data

Service Contracts

State Subsidy Reports

fippl3catfon for Driver Education,

Student Transprartafiora,

Special Education, etc.

Delivery/Packing Slips

Requisitions

4'€ears45

Re1ention Period

4 Years-

4 "Pears"

4 Years-

1 year-

4 Years After Completion of Projecf°"

4 Years-

4 Years'"

4 Yaa¢s"

41'a;ass

4Years"°

3 b^^rs-

1 Yeae°*

1 Year'°

A14

Racord T€t€a and Description

PA`s°ROt.L REC£?RpS

Pay.ro€€ Ledgers

B€-Waak€y Payro€1

Reports, Qua€tae€y

Fayro€€ Reports

Earn€nga Registers

By Staff Ma€nbar

By Calendar Year

Monthly Payroll Reports

Leave Usage Anc€ Accumulation,

Retirement Saru€oe, efo.

Bureau of Employment

Senrioa Quartariy Reports

'b+l+'-2°a, ;Oy-4'a (Employer Copy)

Federal Income Tax

(Quarterly/Annual)

Ohio Income Tax

(Monthly/Annual)

City Income I'ax

(Monthly/Annual)

School €nwma TaK

(Monthly/Annual)

Payroll Reports

Reports Used for

Each Payroll -- Cornpufar Generated

RetarEt€on Per€od

Parenanant"°'

Per ;ianant°°b

Parnaanane-

7 Yeam

6 Years and Curzant"'

6 Years and Currant^*

6 Years and Currant °

6 Years And Currant '

& Years and Cunrant-

d Yaars"

A15

Record Titie and C9escription

PAYROLL Rt~CARDS (aont'd)

Payroll Update Listing

Payroll CairufatEons

State Teachers System

And School Employees

Retirement System Waiwers

State Employees

Retirement System

(SERS)

Sieate Teachers

Retirement System (S7`PS) Repar€ ,

Annuity Reports

&enefit pAEdem/Re,por4s

Employee Request andiox

Authorization For Leave Foams

(Sick, Vacation, is'ersonai, or Other Leave)

Deduction Repoits

Voluntary Payroll

DeductGons

Employee SJacatioedSic# Leave Records

Time Sheets

Record Tttle and Description

Retention 'iser'od

4 Y^rs-

41fears'`<

Resmanent°"°

4 Yeamsf

4 Years-

4 Years"°

d ^^^rs"

4 Years`

4 Yeam-

4 Yeanz-

6 °€ear^-

A 16

Retention t'eaiod

^AYROLL RECOR€3S (cant'd)

Omert€me e4raihorizai3san

Emp€oyee €nsuparce Bf€!s

Met3ica€

Dem#aI

Life

Nychadk Reg€slm

PayeDi€ Barnk Statement

Deduction Au3hor€zaY3on

REPORTS

State Arad€t Reporf„s

#59, #659 and #4502

#25 and #625

Schoo€ FBrcance

(S.F.) Reports --A€,nuaE

Spec€a€ Educa?iur

(S, E.) 9;epofts - Annup€

Vocat€rsn Etiucatisan

(V.E.) Reports - Annraa€

Ohio Cornmass Core Da&s

(OCCD) Repor¢s

Rewrd T€21e and C9escr3pt€on

6 Years

4 Year.o-c

4 Years-

4 Yeam-

31n4r€ Ssapereaded or EKnp€oyee Term3na4ee6

5 Yeam

6 Yeam

5 Xeara

5 ^^^m

'? Yeam

5 Years

5 Years

Retention Period

A17

REPORfifi (cocWVd)

Drivers Educz9aorE Repc,¢fs

Ohio Depsrkrrient of Education (ODE) Reports

GF+viB Rights Reports

TP3e IX Reports

SM-d & SM=2

(Annual and Quarterly)

State Minimum Standards

Personnel State Reports

(Currently SF-1, CS-1)

Worker`s Comp Wage

Reports (C. Auditor)

Bank Balance CartiricatEQn

(Co. Audator)

3'ransporFs4ion Repca¢fs

OTHER

Personne6 Directory

Employment Record

(By Grade and BuF€dirig)

School CsEsradem

Rerord Tf?ie and DL-scrig;ion

5 Years

5 Years

Perrraar:eny-

10 Yeam

10 yeass

10 Years

4 Yea:sr^

5 Yeam

5 Yeam

4 Yeeirs"

10 yeams

K^^^^^^^^^^^

5 ^^ars

Retention Period

AIB

O°tHER (eonYd)

Buiidirag, t3rsi6er,

Maintenanc€; Repoft

iir<ap3riyee Handbooks

2 Years

Until Supereeded

DirectESSes, Staradards, lPntii Superceded

d.Ae*ss for t.sac ai, State and Fedenal

GooremrnentaE Agenc3es

Jattendance Records

'After End 81FEscai Year

-r rt5vsded Asadited

"°"h9ard Copy maintMned for 6 Years, Then Microfilmed

^^^^ ^^^^, Ohio Histor^caW Society

Until Supemede+t

A19

3319.34 Criar£Enal records cbeck; d€s€gua&ificatirsn fror" employment, OH ST § 3319M

Ba1dwlra's Obao Revised Code Annotated

Title XXXIII. Education-LLLibsariea

Chapter 33xg. Schaols--Superxnten.dea3t; Teackcers; Exnpsloyees (Ref^ &.A--mos)Records and ^^^orts

R.C. § 3319-39

3319.39 Criminal records check; disqualification from employment

Effective: June 30, 2011Currenta.esa

(A)(1) Except as provided in dayisaor: (F)(2)(b) of seebnn 109.57 of the Revised Code, the appon,ritiiag or hiring officer ot'the

board of education of a school dist-act, the govemiffg hmd of an educational service center, or of a chartered nonpublic schazoll

shall request the superfn2end.eorL of the bureau of criminal ideaztifica.tion and xx►vesYagataon to conduct acrirrzinal recorda cS^^ckwith respect to any applicant who has applaed to the school d3s#ri^^;, educational service center, or school for empRa3^mexit in

any positson. Tne appointing or hiriazg officer shall request that the superintendent include information ftom the faderaa buacad

of investigation in the crh-nenal records chcck, unless all of the following apply to the applicant:

(a) The applicant is applying to be an instructor of adult education.

(b) The duties of the position for which the applicant is applying do not involve routine atateractaorf with a child or regular

responsibility for the care, custody, or control of a child or, if the d-aties do involve such, interaction or m pansibality, during anyperiod of tirzac in which 8tac a.ppiica.xaty if hirezi, has such interaction or responsibility, another ^niployee of the school district,educational service center, or chartered nonpublic school will be present in the same room with the child or, if outdoors, willbe within a t.hzrty-ysrd radius of the child or have visual contact with the child.

(c) The applicant presents proofth.at the applicant has been a resi€€ent ofthis statef€sr the five-year peraoa arxF.rrzediatelv prior to the

date upoai which the criminal records check is requested or provides evidence that wid.xin that t?ve-^ear period the superirzten.dent

has requested infam. a.ti©n about the applicant from the federal bureau of investigation in acr;minal records check.

(2) A person required by €tivisaor: (A)(1) of this section to request a criminal records check shall provide to each applicant a copyof the form prescribed pursuant to division (C)(1) of section 109.572 ofth.^ Revised Code, provide to each applicant a standard

xxnp:ression sheet to ob#aia^ fingerpaint irazpressions prescribed pursuant to division (C)(2) of section 109.572 of the Revised

Code, obtain the completed form and irnpressi4n sheet from each applicant, and forward the completed farrn and impression

sheet to the superintendent of the bureau of a;rin. anO identification and investigation at the time the perso9i mquests a criminal

records check pLrsuant to division (A)(1) o#'dx3^ ^ectian.

(3) An applicant who receives pursuant to division (A),(2) of this section a copy of the form prescribed pursuant to division

(C)(l ) of section 109.572 of the Revised Code and a copy of ar a. impression sheet prescribed pursuant to division (C)(2) of

that ^^efion and who is requested to complete the form and prsa-vide a set of fingerprint impressions shall complete the fnnn or

provide all the itiforr.aat3on necessary to complete the forrn and shall provide i:he Ampression sheeE with. the impressions of the

applicant's fingerprints. If an applicant, upon request, fas to provide the information ne^^,^sa¢y to complete the form or fails t€a

provide impressions of¢.h.e applicant's faigeaprints, the board €sfeduca#aon of aschoofl district, governing board of an educational

service center, or goveming authority of a chartered nonpublic school shall not employ that Pappiicant for any position.

___. _......_._..._.,___._..._,.....______......._..__..____.___._____.._...___...__._..____....__._._ ............................................................_______,....._.___......._.____.__.._..,......_....._,...$es.t @ 2014 Thomson Reuters. No clai3r to oraginal U.S. Governmen#Warks. 1

A20

3319.39 Criminal records check; d€squa#€^cataors from employment, Gf°§ ST § 3319.39

(4) Notwitb.standing any provision oxtb,i.s section to the contrary, an app€icasit who meets the conditions prescribed in divisions

(A)(l)(a) and (b) ax this sactioax and who, within the two-year period prior to the date of kpp€=cati.on, was the subject of a criminal

records check under this section prior to being hired for short-term employment with the school district, educational service

center, or chartered nonpublic school to which application is being made shafl not be requized to ur;dergo a criminal records

check prior to the applicant's rehiring by that d.istiict, service center, or scl^aoot.

^^^(^) Except as provided in rules adopted by the departrnent of education in accordance witb. €iiv7ision (E) of this secti€^n an. d.

&9 provided in division (B)(3) of this section, no board of education of a school district, no ^overiiing board of an educational

service center, and no governing authority of a chartered nonpublic school shall employ a person if ft-c person previously has

been convicted of or pleaded guilty to any of the following:

(a) A violation of section 2903.01, 2903,02, 2903.03, 29€€3,04, 2903.1 1, 2903.12R 2903.1 "3, 2903.16, 2903.2 1, 2903.34, 2905.01,

2945,02, 2905.05, 2907.02, 2907.0,3, 2907,04, 2907.05, 2907.06„ 2907.07, 29€37.€38, 29€€'7,09F 2907,.21„ 2907.22, 2907.23,

2907.25, 2907.31, 2907..32, 2907.321, 2907.322, 2907,323, 2911.01, 2911.02, 2911.11, 2911.12, 2919,12, 2919.22, 24M24P

2.919..25, 2923. i 2, 2923. ] 3, 2923. 161, 292S.02, 2925.03, 2.925,04, 2925.05, 2925oi€fa, or 3716.11 of the Revised Code, a violation

rof section 29€35.04 ofthe Revised Code a..s it existed prior to July i, 1996, a violation of section 2919.23 of the Revised Code that

would have been a violation o€'secd.oaz 290M4 of the Revised Code as it existed prior to Iiaiy 1, 1996, had the violation been

committed prior to that date, aviaaatign of section 2925.11 of the Rev€sed. Code that is not a minor drug possession offensc, or

felonious sexual penetration ir violation of former section 2907.12 of the Revised Code;

(b) A violation of an existing or i'onner law of this state, another state, or the United States that is substantt,al1y equ€ws.lebt to

any of the offerses or violations desciibed in division (13)(i)(a) of this section.

(2) A board, governing board of a,-i educational service center, or a govemin.g withority of a chartered nonpublic school may

employ a.aa applicant conditionally until the criminal records check required by this seefion is completed and the board or

gaqreming authority receives the results of the criminal records check. Iftb.e results oftb.e criminal r^cords- check indicate that,

pursuant to division (13)(1) of this section, the applicant does not qualify for employment, the board or goveming authority

shall release the applicant frozx: employtraente

(3) No €soard and no gtavemiatg autb.orif.gr of v. chartered nonpublic school shall employ a teacher who previously has been

convicted of or pleaded guilty to any of the offenses listed in section 3319.31 of the ^ev€sed. Code,

(C)(l) Each board and each ,^oveming afi^^ority of a cb.Wered nonpublic school shall pay to the burcaii of criminal identification

and investigadon the fee prescribed pursuant to division (C)(3) of section 109,5112 of the Revised Code for eacb, criminal records

cka^^^ conducted in accordance with that settion upon the request pursuant to division (A)(1) of this section o#'the appaintang

or hiring o.^°.^cer of the b,;ard or ^^^erninp authority.

(2) A board and the goveming at3t,hority of a cb.artued nonpublic school may charge an applicant a fee for the costs it inem

in obtaining a criminal records check arider this section. A fee charged -arder this division sbaii r-at "ceed the amount of fees

the board or goveming authority pays under divisior (C)(1) of this sectaon. If a fee is charged under this division, the board or

governing authority shall notify the applicant at the time of the ap€Slicant's initial application for employment of the arnount of

t?^e fee and that, unless the fee is paid, the bokrd or govemiiig authority will not consider the applicant for employment.

cO 2€714. ^"homsan Reuters. No --laim to original U.S. GcveYrimerit Works, 2

A21

3319.39 Crgm9na€ r^cords check; dasqua€€facat€on from employment, OH ST § 3319.39

(D) The report of any criminal records check conducted by t.hebureau of criminal ideratification and investigation in accor¢larZ^e

with section 109.572 of the Revised Code and pursuant to a request untfler division (A)(1) of this section is not a public record

for the purposes of section 149.43 of the Revised Code arEd shall not be made available to any permn other than the applicant

wlxz: is the subject of the Gsimina: records check or the applicant's representative, the board or govemYng audiarity requesting

the criminal records check or its represemative, and any court, hearing officer, or o?ber neeessaq individual involved in a case

dealing with the d,enza€ of employment to the applicant.

(E) The departrnent of education sb.-.ll adopt rules pursuant to Chapter 119, oftl^e Revised Code to implement this section,

including rules specEfying eircunistances under which the baard or goveraxizag authority may hire a person who has been

convicted of an caffeme listed in division (x )(1) or (3) of tt:is section 'bu^ who meets sf„mdar¢]s in regard to rehabilitation set

by the delsa.r^ent.

The department sUl amend role 3301--83-23 afthe Ohio Administrative Code that took effect Auglist 27, 2€109, and that

specifies the offenses tha: dissluaiify a person for employment as a school bLs or school van driver and establishes rehabilitat,on

standards for schesQ; bus and..school van drivers.

(F) Any person required by division (A){l) of this section to request a criminal records check shall ir^^orro each person, at the

time of the person's initial application for ern.lsloyment, of the reyyircraxent to provide a set of f^gerprn,nt impressions and It hat

acreminal records check is reqtiired to be conducted and satasfa&trsrilv completed in accordance with sect€o.-I 1 t39,51t 2 of the

Revised Code if the person comes under final for appointment or employment as a precondition to emplo?tment

for the school disHct, educational service center, or school for that position.

(G) As used in this section:

(1) "Applicant" mears a person who is under final consideration for appointment or employment in a position wvith a]Soa.rd

of education, governing board of an educational service center, or acha.rtered nonpublic school, except that "app€xcax.:f° does

not include a person ayrmdy employed by a board or chartered nonpublic school who is under consideration for adifferert

position with such board or scl;oc+l.

(2) "TeacheeM means a person holding an educator license or permit issued under section 3319.22 or 33€ 3.301 of the Revised

Code and teachers in a chartered nonpublic school.

(3) "Criminal records check" has the same meaning as in section 109,572 G;:f ttae Revised Code.

(4) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

(ff) If the board of education of a local school district adopts a reswlution requesting the ass3sLmce of the educational smxs,^

center in which the local district has territory in conducting criminal records ebecks of substitute teachers and substitutes for

adiex district employees under this sectiom the appointing or hiring officer of such educational smice center shall serve for

purposes of fis seeEion as the appointing or hiring officer of the local board in the case of hiring substitute teachers and other

subgiituW employees for the local district.

.:: P^exl Q 201^-Tl^arr^sor Reuters. No clal^r to origlnal U.S. Govern^se^^#'^^fcrr^^.

A22

3319.39 Crimiraai records check; disquaaaficatian from empioymerst, OM ST § 3319.39

CREDIT(S)(2011 H 153, ff 6-30-11; 2009 H 19, eff, 3-29-10; 2008 H 428, effi 9-12-08, 2007 H 190, eff. 11--14=07, 2007 S 97, eff.

7-1-07; 2004 S 2, eff. 6-9-04; 1996 S 230, eE 10-29-96; 1996 S 269, eff 7-1-96; 1996 11445, ef':. 9-3-95r 1995 S 2, eff.

7-1-96; 1995 H 223, eff. 11-15-95s 1995 H 117, eff:9-49-95; 1994 H 694, eff. 12-21-94; 2994 H 715, efF 7-22-94r 1993 S

38, eff, 10-29-93)

Notes of Decisions (8)

R,C. § 3319.39, Oil ST § 3319.39Curjrerat tIrfizu$hFi1^^ ^ ^^ 94 of the 130tli GA (20I3-2024).

End of IDacsriners'r 0 2014 TE:orns©r Reut:.r;a. No da'snia to eEiginai J.S. G-QUe.mmont'bYJarks.

Ae,%q @ 2014 Thomson Reuters. No u?aim to or€g;na€ U.S. GavernmentWorks. 4

A23

3319.391 Criminal records check for no¢s^^^ensed empi€eyeeffi,..., C39=^ ST § 3319.391

Baldwin's Ohic Revised Code AnrataLed

Title XXXII&. Education-Libraries

£"hapjex 3,1.9. Teac;he€'£; Employees (R-efs & Anmo6)

Records and Reports

I&C. § 33113^391

33€9•3q1 Cram%nal.recard^ check for nonlicez^^ed employees; disqt^^ificatioxs fi•ogra emp1o3ment

Effee'dve: Ja,nuany i, 2oxo

CmTentress

This section applies to any pbrsoii, hired by a school district, educational service cerx€er, or cha€' esed €ao-i^ublxG school in a'ly

position that does not require a "license" issued by the sta.t^ ^o&*-d ofeducati€an, as defmed in section 3319.31 af€he Revised

Code, and is not for the operation of a vehicle for p*l t^anspoitadon..

(A) For each person to whom this section applies who is hired on or after November 1.4, 2007, the employer shall request a

c¢ iEnina^ records check in accordance with section 3319.39 €af€he Revised Code and shall request a subsequent criminal records

check by the fiftta day of September every ^^ year thereafter. For each person to whom this division apphes who is hired prior

to November 14, 2007, the employer shall request a crimir-al records check by a date prescribed by the degartmwn€ ofed.ucadirn.

and shall reqEiest a subsequent criminal records check by the fifth day oa'Sep€ember every fifth year thereafter.

(B)(1) Each request for a criminal records check under this section shall be made to the superintendent of the bureau of criminal

izientificataon and investigation in the manner prescnbed in section 3319.39 of the Revised Code, except that if both af't^e

following conditions apply to the person subject to the records check, the employer shall request the superintendent only to

obtain any ^^irpinsl records that the federal bureau of investigation has aiz the person:

(a) The employer previously reTaested the superintendent to determine whether tbe bureau of cTimi-ia1 identification andinvestigation has any information, gathered pursuant to division (A) of section 109.57 of the Revised Code, on the pea•son in

s;onjunc€iQrt, with a criminal records check requested ut9dex section 3319.39 of the Revised Code ox under this section.

(b) The person presents proof that the person has been a resident of this state for the five-year pereod iipmedis€e1y prior to the

date upon which the person becomes subject to a criminal records check under this section.

(2) Upon Yeceflp€ of a request under division (B)(1) afthis section, the superintendent shall conduct the criminal records check in

accordance with section 109. 57.2 of the Revised f;ode as ifthe i^equest had been made under seed.4si 3319.39 of the Revised Code,

However, as specified in division (13)(2) of section 109.572 of the Revised Code, if the employer requests the saipeiiiitendent

only to obtain any criminal records that the federal bureau of investigation has on €be Derssron for wk^orn the request is made, thesuperintendent shall not conduct the review prescribed by division (13)(1) of that section.

(C) Any person who is the subject of a criminal records clie^k und.a this section ard has ^^en. convicted of or pleaded guilty

to any offense described in division (13)(1) of section 3319,39 of€ âi.e Revised Code shall not be hired or shall be released from

employment, as applicable, unless the person mecU the rehabilitation sta¢idards adopted by the department under division (E)

of that section.

,;;Next U2014 Th6msoEi Reuiers. No claim to a=iginal U.S. Government Works.

A24

3319.391 Cnm€na€ s^cords check foa xaonNicenseai employees„.,,y OH ST C 3319.399

CREDIT(S)(2009 H 1, eff. 1-1-10; 2008 H 428, eff. 9-12-08; 2007 H 190^ eff. l I-14-07)

Notes of Decisions (10)

R.C. § 3319.391, £3H ST § 3319.391Currex^t through Files I to 94 of the 130th GA (2013=2014).

EAF ad olf Document 0 2014 Thotsx, so:a idoutors. No 4fzim to original U.S. GovcrnincntWar(€s.

. Nex; @ 2014 Thomson ReLaters. No clairr to nrigina! U.S. Governmetit orks.

A25

5 usc 552

f&: This utaq[3'cza£ r.nr,s{;ilurinrs tr,>the u': s. Cods is r;asrre at gFs tf.;an. 4, 2012 yrez }et^r3:,5 rrw n:.taw,rcrs^s;I.as£cc :cec^defusc^JrinY.^zmX?.

TlTLE 5 a GOVERNMENT ORGAN1ZATli^N AND EMPLOYEESPART 1 - THE AGE'^^^^^ GENERALLY

CHAPTER 5 A ADM1N3STRA°TlVE PROCEDURESUSCHAPTER €1 -AC3MlNIS°#^RATfVE PROCEDURE

§ 552. Publlc information; agency rufess opingons, orders, recordsA and P;^^^^edir^^^

^^^ Each agency sl:a.ll make available to the public information as faIlowso

(1) Each agency shall separately state and c-,;rTentiy publish in the Federal Reglstff for thegufdaxce of the public-

(A) descriptions ufii:s central and field orgartl.xatxora and the established places at whach, theemployees (and in the case of a uniformed service, the members) from whom, and the methodswherehy, th^ ?ublsc mav obtain ^^^oTmatiorl, make submittaN or requcsts; or obtain decisions;(B) statements of the general course and method by which its ianct^^^s are charmeled anddetermined, including the nature and requirements of a1l fornai and informal proceduresavailable;

(C) -rilcs of procedure, descriptions of forms available or the places at wh:mh forrm may bechtalincd, and instructions as to the scope and contents of all papers, reports, or exarixina.tl.ons;

(D) salsstantave rules of general applicabglityr adopted as authorlzed by law, and statementsof general policy or linterpretati+^^^ of general applicability formulated and adopted by theagcncy, aaad(E) each amendment, rewision, or repeal o$"the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a person may r9Otin any manner be required to resort to, or be adversely affected by, ^mattcr required to be publxshedin the Fc€leral Register and not so publgsherl.. For the purpose of this paragraph, matter reasonablyavailable to the class of persons aiiected thereby is deemed published in the Federal Register whenincorporated by reference therein with the approval of the Director of the Federal Register.

(2) Each agency, in aceord2mce with published rules, shall make available for public inspectionand copying-

(A) final. opinions, including concurring and dissenting op^onsp as well as orders, made inthe a.djudicatioji of cases;(B) those statements of policy and interpretations which have h-len adopted by the agencyand are not published in the Federal Register;(C) administrative staff manuals and instructions to staff that affect a member of the public;

(D) cvples of a11 recordq, regardless of form or format, which have been released to anyperson under paragraph (3) and which, because of the nature of their subject matter, theagency deterriines have become or are likely to become the subject of suhsequent :reqaacstsfor substantiaRy the same records; and(E) ^^eneral andex of the records referred to under subparagraph (D);

unless the materials are promptly published and copies offered for saIe. For records created onor aftcr 'Novernber 1; 1996, wit^^dn one year affter such date, each agency shall make such recordsavailable, including by computer telecormunicatlarfs or, if carripr.rter teiccam-mun;cat^ons meanshave not been established by the agqncy, by other electronic means. To t"sie extent rcquirbd toprevent a clearly r^wwrars.ted irevasza^ of per^ona1 privacy, an ^^^^^y may delete identifyingdetails when it makes available or publishes an opinion, statement of polscy; interpretation, staffmanual, instruction, or copies of records referred to in subparagrkol}. (D). However, in each case the^astificatlon for the deletion shall be explained fall.y in writing, and the extent o:^such deletion shallbe indicated on the portion of the record which is made avaixabie or pthl:shcd, unless includingthat indication would harm an interest protected by th^ exemption in subsection (b) ,Mder whichthe deletion is ma.de, If technically feasible, the extent of the deletion sMl be indicated at the

_I z

A26

.3 tIsc 552

NB: TMr unuj^ciat cnmt3ilulio:e af'2he US. Cade ia eur7mP a.s Qf3r3r. 4. 2012 (sea?ett^:!l^sv c.tar^.rexasYl..ertr.`usr.qd^ffrsf^rir.:.^tnal).

place in the record where the deletion was made. Ear-h agency sMi also maintain and nxal^^available for public lnsperitoxa and copying current indexes providing idexi^tiPjing information for

the public &s to any matter issued, aslouted, or promulgated a-fter July 4, 1967, and ^^qulred bythis par;#.graph. to be made available or published. Ea,rh agency s1hall promptly publish, quarterlyor more ^ealu.entfly, and distribute (`oy sOr or otherwise) copies of each ^.^dex or supplementsfarreto unless it determines by order published in the Fed, ^ra-1 Register that the puhlicatlun wouldbe umec^^sary and imprdrtirahzr, in which case the agency shali n€sMethNless provide copies ofsazrh index on request at a cost not to exceed the direct cost of duplication. Earh agency shall makethe index referred to in subparagraph (E) available by computer telecommunications by December

31, 1999. A 1"in^ ^rd.er, apir-lon, statement o1'poliry, interpretation, or ^^^^manual or inMrtdonthat affects a member of the public may br relzed on,, usrd:, or cited as precedent by an agency

against a party other than an agency only if-

(i) it has been andexed and either made avalla,'ole or published as provided by thisparagraph; or

(H) the party has ^^iuaI and timely eiotlre of the terms thereof

(3) (A) Except with respect to the records made available under paraga•aphs (1) a-nd (^) of thissubsectirny and except as provided in subparagraph (E), each agency, up^n any request forrecords which

(i) reasonably describes such records and

(H) is made in accordance with published rules stating the time, place, fees (il`any): andprocedures to be followed, shall make the records promptly available to any p^on.

(B) In malki.ng any record available to a person. under fnis p^.^grziph} an agency shall providethe record in any form or fon-nat requested by the person if the record is readily reproducibleby the agency in that form or format Each agency shall make reasonable efforts to maintai¢aits records in forms or formats that are reproducible for puxp^^^^ of this section.

(C) 1n responding under this paragraph to a request for records, an agency shall makereasonable efforts to search for the records in electronic fomi or fcarmat, except when suchefforts would sgpi^"^rantly interfere with the operation of the agency's automated informationsystem.(D) For purposes of this p^graph„ the term "search" means to review, manually orby augo"matrad means, ^pen,r,y re-rords fasr the, purpose of locating tjinse sec:nr^s wlsie;h arCresponsive to a request.(E) An agency, or part of"an agency, that is an element r#`the lqxtell.lgrnre rrrtimunity (as thatterm is def=,,^.ed in sertiar, 3(4) ol"th^ National Secu-dty Act of 1947 (50 U.S.C. 401a (4))) shallnot make any record available under this pamg.raph. to--

(i) any govr^ent entity, other than a State, tenitory, commonwealth, or district of the^.^nited States, or any suhd.ivlsia^ ^ererl'; or(H) a representative of a government entity described in clause (i).

4(A) (Q In order to rany out the provisions of this section, each agency shall promulgate

regulations, pursuant to notice and receipt ol'publir comment, specifying the schedule offees applicable to the processing ol°i-rquests under this section and establishing proceduresand guidelines for determining when such fees should ^-- waived or reduced. Suchschedule sba1l conform to the guide13.nes 2Nhich shall be pzo^Y.algated, pursuant to noticeand receipt ofpulslzr comment, by the Director of the Office of Management and Budgetand whic^i shalb provide for a uniform schedule of fees for all a.ge-nrles.

(1.1.) Such agency regulations shall provide ^'^.t-

(1) fees shall be limited to reasonable standard charges for dorumrflt searclY,duplication, and review, when records are rrqDestrd for rommrrrial use;

y2=

A27

5 usc 552

NB: This srsa^rpeaal ccn^al¢Z^¢r o Fhs US. Ccde aa eun¢ns rrc o,f.Praz. 4, 21:12 (ceu nYY^:lI^n w.^zf .c¢rr.edl.edact cserrl¢ uss?przrC3lnzl).

(1I) fees sIaaR be limited to reasonable standard charges for document duplicationwhen records are not sought for con,.nercaal ;zsw and the request is made by aneducational or ncenco=ercial scgentixc t Astattu.taon, w'ose purpose is scholarly orscientific research; or a representative of ti^ news media; and

JR) for any request not described in (I) or (ID, fees eiia.tl be limited to reasonablestandard charges for document search and da;pp.cationa

In this clause, the term "a representative of the rstrws media" means any person orentity ^at gathers information of potential interest to ^^egment of the p-abzzc, usesits editorial skills to turn the raw materials into a distinct work, and dist-ibu#es thatwork to an audience. In this clau-se, tee tern "news" meatxs irZormation that is about

current events or that would be ^^cu-mnt interest !o the public. Examples of r^ews-nnedia

entitges are television or radio stations broadcasting to the pu'D1:.c at large and publishersof periodicals (but only if such entities qualify as disseminators of "aaews'r) who make

their products available for purchase by or subscription by or free distribution to the

general public. These exarnpfles are not aIy-inclusive. Moreover, as methods of news

delivery evolve (for example, the adoption oI'the eIectroriiG dissemination of newspapers

tI3rQi3gh telecommunications services), such alternative media shall be considered to be

rfews-media entities. A freeiaxxcejoumalast si'iaIl be regarded as worxing for a news-an.ed^^entity iI'tlx^ ^oumaIist can d^monstrate a solid basis for expecting publication throughthat entity, whether or not t^^joumalxst is actually employed by :,^^ e-ritity. A publication

contract wouid present a solid basis for such an expectation; the 'overnmen.t may also

consider tle past pubIication$.ecord of the requester in me^^^ such a determination.

(M) Documents shall be famished without any charge or at a charge reduced below thefees established -under clause (h) if disclosure oI't:^e in.1form. aGi^^ is in the public interestbecause it is likely to contribute significantly to public understanding of #ae operationsor activities of the government and is not primarily in the camrnervial interest of thereqaxpstea'.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search,duplication, or r^^^ew. Rmdew costs shall include ordy the direct costs incurred during theiniti.^^ examination of a document for the purposes of determining whether the doaum entsmust be dasclosed under this section and for the pwposes of wi.hhuld^g any portionsexempt from disclosure -und.er this sectg,on.. Review costs may not include any costsincurred i.n resolving issues of law or policy that may be raised in the course of processinga request under this section. No fee ms.^ ^^ charged by any agency under this section-

(1) iI'the costs of routine collection and processin, g of the fee are likely to equal orexceed the amount of d?e fee; or(1I) for any request described in clause (ii) (II) or (III) of t.^is subparagraph for thefirst 'wo hours of search. time or for the first one hundred pages of d-aplication.

(v) No agency may require advance payment of any fee unless the requester haspreviously failed to pay fees in a timely fasI±aon, or the agNrgcy has determined that thefee will exceed $250.

(vi) Nothing iia this subparagraph ^ba1^ supersede fees chargeable urider a statutespecifically providing for setting the level of fees for particular tyrpes of records,

(vii) In any actflofli by arequester regarding the waiver offees under this section, the court

shall determine the matter de ^ovo; Provided, Tnat the court's review nf4,he matter s -halIbe limited to the record before the agency.

(vii) An agency shall not assess search fees (or in the case of a requester d^sciibed underclause (ii)(II)F duplication fees) under this subparagraph iI'the agency fails to comply withany time limit under paragr~a.pl! (6), zfno un^suaa or exceptional circum stances za,s those

a ^T

A28

5 USC 552

?l.n": M, ur ^fflgtiaesi r.omPi3uJiVn e,r2ke. U.S. Cozte 4T cwrmne aa aj'Jan. 4, 2t112 f,ee 3z7^:h4a vriv.tak. a^^id.eu'u ^ts^ s efFir^sr ^r zrax. htnzP .

terms are defmcd Bor pmposes of pamgra.phs (6)(B) and (C), respectively) apply to theprocessing of the request.

(B) On complaint, the district court of the U-nited Statcs an the district in which thecQmplaina,n.^ resides, or has his principal place of ta^smem, or in which ^.±.e agency records aresztta.ted, or in the District of Columbia, has jurisdiction to erJohn the agency -froan withholdingagency records and to order the production of any agency records improperly withheld fromthe complainant. In such a case the court shall determine the matter de nove, and may examinethe contents of such agency records in camera to dete-mu^^ whether such records or any pan

thereof shall be widiheld under any of the exemptions set forth in subsection (b) ofthz^ ^ectiorx,and the burden is on the agency to sustain its action. In addition to any other matters to w^^cha cou-t accords s-tibstantia.i weight, a court shall accord substantial weight to an affidavit ofan agency ^oneeming the agency's determination as to technical feasibility under paragrkoh.(2)(C ) and ^^jbsect9r^v (b) and reproducibility under varagraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant shall ^e-rvc an answer orotherwise plead to any complaint made tmder this subsection watban d^tly da.yS after Servx^eupon the defendant of the pleading in which such complaint is made, unless the court otherwised^^cts for good cause shown.

C(D) Repealed. P.ab. L. 98--620, title IV, § 402(2), Nov. 8, 1984, 98 Stat. 3357]

(E) (a) The court may assess against the United States reasonable a€^^^^y fees andother lFtigatzon. costs reasonably incurred in any case under this section in which thecomplainant ha.s substantially prevailed.

(^^) For purposes of this subparagraph, a complainant has substantially prevailed if thecomplainant has ^btaLned relief through eather

(1) ajudicia,l order, or an enforceable w-ratten agreement or consent decree; or

(11) a voluntary or unilateral change in position by the agency, if the complainant'sclaim is not insi3bstantial.

(F) ^^) Whenever the court orders the production of any agency records improperly withheldfrom the complainant and assesses against the Ifxaited States reasonable attomey feesand other litigation costs, and the court additionally issues a vaxtten ^'ir^dxng itaat thecircumstances surrounding the withholding raise questions whether agency p^rsometacted arbitrarily or capriciously with respect to the withholding, the Special ^ounsel,shall promptly ini wa a.te a proceeding to determine whether disc3^linafl-y action is wmrantedagainst the officer or employee who was primarily responsible for the withhol.ding, TheSpecial Counsel, after investigation and consideration of the evidence submitted, shallsubmit his findings and r^^om;+nenda.t^ons t^ the administrative authority of the agen.cyconcerned and shall send copies of the findings and recommendations to the officer oremployee or his representative. The administrative authority shall take the correctiveaction that the Special Counsel recommends.

^^^^ The A^omey General shall-

^^^ notify the Special Counsel of each civil action described under the first sentenceof clause (a); and

(^^) annually ^^b.,nit a report to Congress on the niambe:e of such civil actions in thepreceding year.

(M) The Special Counsel shall annually submit a report to Congress on the actions takenby the Specia} Counsel under clause (i).

(G) In the event of noncompliance with the order of the court, the dist-iet court may punishfor contempt the responsible employee, and in the case afa uniformed service, the responsible

member.

-Qo

A 29

5 USC 552

aVu; V;is ur.affc;Ql con^ ifa#ora Qj trae U.3. Code 9s cnrrna as oj`,Jar. 4, 2012 ;sse htt^:ina^w.lotu.c^rranll.ecEu!u.rcr r1elus^pririt.Dctsaalf.

(5) Each agency havi-ng more th^D one member shall maantaan and make available fbr publicinspection a record of the final votes of each member in cvcry agency proceeding.

(6) (A) Eavh. agency, upon any request for raccrds made x,andcr paragraph (1), (2), or (3) of thissubsection, s.i'ieâ-----

(i.) detenninc within 20 days (ezrccpti.^.g Saturdays, Sn¢x^^days„ aand 'icgaI public holidays)after the receipt of any such request whether to comply with such. request and shallinmieda'wxiy notify the person making such request of s'uch determination and the reasonstherefor, and of the right of such person to appeal to the head of the agency any adversedetermination; and

,M) make a dcterz:dnaticn with respect to any appeal witbin twenty days (exceptingSaturdays, Sundays, and Icgai public holidays) after the receipt of'such appeai, If onappeal the denial of the rcque-st for records is in whole or in part upheld, the agencyshall notify the person rnakirgg such re-,pcst of the pravisyons forj=idicia, review of thatdetermination under paragrapii (4) of tWs subscc,icn.

The 20-day period under clause (i) shall co^^cncc on the date on which the request is &streceived by the appropriate component ci`t^^ agency, but in any event not later than ten daysafter the request is first received by any component of the agency that is dcsignated in theagency's regulations under this section to receive requests andcr this section. The 20-daypegiod shall not be tolled by the agency cxcept

(I) that the agency m. ay make one request to tiic requester for information and toll the20-d.ay period while it is awaiting such inf'aimat€on that it has reasonably requestedfiana the requester widcr this s;,c'dosaF or(H) if necessary to clarify wiffi the requester issues regarding fee assessment. ineither casc, the agency's receipt of the requester's response to the agency's requestfor ir.,forrraat;cra or clarification ends the toiling period.

(1) xn, unusual circumstances as spccifficd iin this subparagraph, the time Ii..-nits prescribedtn, either clause (i) or clause ^ii) of subparagraph (A) ranay iac wxtcndcd by written notice tothe racrscn. making such request setting £ortb the unusual circumstances for such extensionarLd the date cn. wh3cb a determination is expected to be dispatched. No such notice shallspccify a date that would result in a:i extension for more than ten working days, exceptas provide-d in clause (ii) of this s-abparagra.ph,

(H) With respect to a request for which a written rotice under clause (i) extends the timelimits prescribed under clause (i) of subpar^gnaph (A), the agency shall notify the personrrEaking the request if the request cannot be processed wifilin the time limit specified inthat clause and shall provide the person an opportunity to limit the scope of the .eeqtfcstso that it may be processed within that time iirrtit or an opport.L-nity to arrange with theagency an aftcrnatavc time i'ramc for processing the request or a modified request. Toaid the requester, each agency shall make available its FOIA Public Liaison, who shallassist in the resoilaticn ci"€ny disputes between the requester aud the agency. Refusal bythe person to reasonably mcdify the request or a.r,:a..xgc suci;. an a.itcms,tive time frameshall be considered as a factor in detcrmini^g whether cxcNr t;.onal circumstances existi`or peupc+ses of subparagraph (C).

(fli) As used in this subparagraph, 's-musual circumstances" means, but eDly to the extentreasonably necessary to the proper processing of the pathcul.sr rcqucsts-----

(1) the need to search for and collect the requested records ^om fletd fa.ciltitzcs orother establishments that are separate from the office processing the request;

(11) the need to search for, collect, and: appropriately examine a vclummaus amountof separate and distinct records which are demanded in a single requcst; or

^^-

A30

5 USC SS2

NB: 7"'nzs unaffrr.aai zrl-mpeta>aan of21fe US Cbde i, eunnxF x 'qfjarz. 4. 2012 lvex hF£s•; itvwvw,&zro .can^^ts'.edec ^^aredeiusr^n z^ai 3€ snij,

(IH) the need for consultation, which shall be conducted with &.11 practicable speed,witla another agency having a substantial interest in the determination of the reque.stor among two or more eoinponents of the agency having substantial subjdet6matder

interest therein.

(iv) Each agency may promulgate regul.ati€at^x^, pursuant to notice and receipt oz publicconnnent, providing for the aggregation of certain requests by the Sa,.-^a xequwstrsr, orby a. group of requestors acting in ean.cert4 if the agency reasonably believes that suchrequests actually constitute a single request, which would otherwise satisfy the unusualcircumstances specified in this subparagraph, and the requests involve crearly relatedrriatters. Multiple requests involving unrelated matters shall iiot be aggregated.

(c) (a) Any persorE making a recluest to any agency for rNeords- under p^agraph (1), (2),or (3) of this subsection sh.ailz be deemed to have exhausted his administrative remedieswzth. respect to such request if the agency fails to comply with the applicable time limitprovisiors of this paragraph. lfthe Government ean. show exceptional circumstances existand that the agency i-S exercising due diligence inresponding to the request, the courtmay retain jurisdiction and ailow the agency additional time to complete iws review ofthe records. Upon any determination by an. agency to comply wath .arequest for records,the records shall be made promptly available to Sueh person making such request. Anynotification of denial of any request for records under this subseefiora shall set forth theiiwnes and titles or positions e^ each lsersen responsible ;or the denaal of such request.(H) For purposes of this subparagraph, the term "exceptional circumstances" does notinclude a delay that resuats frasm a predie»aJle agency worldead of requests under thissection, uiiiess fle agency demonstrates reasonable pregress in reducing its backlog ofpending requests.(i^) Ref^sal by a person to reasosiibly modify the scope of a request or arrange analternative time frame for processing a request (or a modified request) under clause (h)after being given an oppormnity to do so by the agency to wliow- Lhe person made therequest shall be considered as a factor in determining wlxetber exceptional circumstancesexist for purposes aft^^ subparagraph.

(D) (l) Each agency may promulgate regulations, pursuant to notice and receipt of publiccomment, providing for multitraOA processing ol`requests for records based on the amountof work or time (or both) involved in processing requests.(il) Regulations under this Subparagraph m-ay provide a person making a request thatdoes D.ra. qualify for the fastest iLltxtra.ek. processing an opportunity to limit the scope ofthe request in order to qualify for faster proeessxng.

(iii) This subparagraph sha11 not be considered to affect the requirement undersubparagraph (C) to exercise due diligence.

(E) (a} Each agency shall pr.omulgate regulations, pursuant to notice and receipt el`publlecomment, prffividing for expedited processing ol"reqElests for reeords-

(1) in cases in which the person requesting the reeord:^ den onsirates a compellingneed; and

0.1) in other cases determined by the agencyo(gl) Notwithstanding clause (i), regulations under this subparagraph must en.sure----

(1) that a determination of whether to provide expedited processing shall be made,and notice of the determination sha11. be provided to the penon, making 4.he request,within 1€1 days after the date of the resluest4 and(H) expeditious consideration of administrative appeals of such determinations ofwhether to provide expedited processing.

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A 31

5 USC552

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(M) An agency shall process as soon as practicable any requ^st. for records towhich theagency has granted expedited processing under this subparagraph. Agency action to deny

or affirm denial of a reqaest for expedited processing pursuant to this subparagraph, andfailure by an agency to respond in a timely manner to such a request shall be :subjeci to

judicial review under paragraplx. (4), except ¢hat tla judicial review shall be based on the

record before the agency aj Gl^e time of the determination.

(iv) A district court of the United States shaU not have jurisdiction to review an agencydenial of expedited processing of a request for records after the agency has provided acasmp1e-te response to the r^quesr.(v) For purposes of this sdbparagrWh, the ter-m "compelling raead'y mesns-

(1) that a failure to obtain requested racards c-n an ^xpedl'Led basis under thisparagraph could reasonably be expected to pose an imm::r^ent ftes.t to the life orphysical safety of an iradi-,Muaiy or(11) wi.th. respect to a request made by a person pr'tmafily engaged in disseminatinginformation, urgency to infarin the public coneeming actual or atxeged FederalGavemment activity.

(vi) A demonstration of a compelling need by a person making a request for ezrpedqwdprocessing shal.,. be made by a statement ^^rfified by such person to be tme and correctto the best of such person's knowledge and belief

(F) In denying a reqyest for records, in whole or in part, an agency sl,±all make a reasonableeffort to estimate the volurne of any requested matter the pxo-Aslon of which is demied, and shalRprovide any such esfirnate to the person making the request, usdess providing such estimatewould harm. an interest pr€a^^ctrd by t1he exemption in subsection (b) pursuant to which thedenial is made.

(7) Each agency shall-(A) establish a systari to assign an individualzzad tracking number for each request receivedthat will take lrnger than ten days to process and provide to each person mal^sng a request thet-acking number assigned to the request; and(B) establish a telephone line or Internet senrl^e that provides lnfarmataon about the status ofa request to the person makiiig the request using the assigned tracking n^a..^ber, including-

(i) the date on wgiclt, the agency originally received the request; and.

(ii) an estimated date on wil-ich the agency wil.L complete action on the request.

(b) This section does not apply to matters that are------

(^) (A) specifically authorized under criteria established by an Executive order to be kept secretin the interest of national defense or foreign policy and

(B) are in fact properly class4fied pursuant to such'-Executive order;

(2) related solely to the lntemal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that

statute-----

(A) (i) requires that the matters be withheld ftom the public in such a manner as to leave nodiscretion on, the issue; or(H) esbabzishes particular cxlteria for wlthbol.ding or refers to particular types of mattersto be withheld; and

(0) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically citesto this paragrapb,

(4) trade secrets and com-merclal or fmancia.l 1n.farmatzon obtained from a person a^rd privileged

or confidential;

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A32

5 ulS'c 552

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(5) :iiter-agericy car intra-agenev memorandums or letters W,hs,ch would not be a.-iai3abie by la-a^v to

a pam other than an agency in iitt,gat;on with &,e agency;

(6) personnel and medical files and similar fd.es the disclom^ of which would constitute a cl.earl.yunwarranted inv^-lo^ of per^^ral privacy;

(7) r^corrds or ^.^.formatirsn compiled for law enloYcer^ent ^^a^ses, but only to the extent that theproduction of sueh law enforcement records or informatzort

(A) could reasonably be expected to anter.^^r.- ws'.^ ^nj'or^^^ent proceedings,

(B) wcFaxld deprive a person of a right to a fair triaP or an impartial adjudacat^or.,

(C) could reasonably be expected to constitute ar, tmwa..*ranted invasion of personal ^^vac}r,

(D) cau'id reasonably be expected to disclose the idez:.t^^ of a uon,.^den°ia.^ source, a-ucludi.^ga State, ^^cal., or fareign agency or rathordty or any private institution which h=rshedinformation on a confidemal basis, and, in the case of a record or information ca-,npiled bycriminal law enforcement authority in the Goaarse of a criminal investigation or by ar, agencyconducting a aawfa1.J national security intelligence investigation, information furnished by aconfidential ^ou-rce,(E) would disclose techniques and pro;,ediures for law enforcement investigations orprosecutions, or would disclose guidelines for law -enforcement investigations or prosecatiansif such disclosure could reasonably be e-xgected to risk circumvention of the law, or

(F) could reasonably be expected to endardger the life or physical safety of any andxvidual}

(8) contained L-a or r^leted to examination, operating, or condition reports pr^p&-ed by, on behalfof, or for the use of an agency responsible for the regulation or supervas^^^ of financiaI hsstitutions4

or(9) geological and geophysical information and data, including maps, coneerxting wells.

Any reasonably segregable po.rti^^ of a record shall be provided to any person requesting such recordafter deletion of the portions which are exempt under this siiosectian. The amount: of informationdeleted, and the ex.eireptaon under which the deletion is made, shall be indicated on the released portionof the record, unless including that indication would harm an interest protected by the exemption inthis subsection under wbich the deletion is made. If t^^lime^ly feasible, the amount of the iuformat^ondeleted, ar+_d the exemption under which the deletion is made, shall be ind,;cated at the place in therecord where such deletion is made.

^^^ (1) Whenever a request is made Wbnch involves access to records described in subsection (b)(7)(A)

and-(A) the investigation or proceeding involves a posszb^e violation of criminal law; and

(B) there is reason to believe thaw(1) the subject aftb.e investigation or proceeding is not a^^e of its pendency, and(R) discx^sur^ of the existence of the records coiild reasonabiy be expected to interferewith. enforcement proceedings,

the agency inay, during only such tinie as that circumstance continues, treat the records &q not

subject to the requirements a-l"this sectyo3n.

(2) W^enever irfasrmant records maintained by a criminal law enforcera^eA agency under an,informant's name or personal identifier are requested by a third party according to the informant'sname or personal identifier, the agency may t^eat the records as not subject to the requirements ofthis section urdess the informant's status as an inflbnrant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the FederalBureau of I€avestigation pesLaining to foreign intelligence or coantez;^xte:l'sgence, or int^mationaiterrorisrn, and the exister_ce of tbe records is classified information as provided in subsection (b)(1),the Bureau may, as long as the existence of the records remains classified infarm.ataola, treat therecords as not subject to the requirements 6f this section.

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A33

S USC 552

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(d) This section does not authorize witb.olding of information or limit the availability ofrec©rds to thepublic, except as specifically stated in this scctic+ri. This scciiQ^ ^^s nct authority to witbbcld informationfrom Congress.

(e) (1) On or before February I of each year, each aggnc^ shall subr.ut to the Attorney General of theUnited States a rcpss^ which shall cover the preceding fiscal year and wbuch shall i^.vlude---

(X) the munbcr of dctcrminafions made by the agency nut to comply wi{dg, requests for recordsmade to such agency under subsection (a) and the reasons for cacb. sucb dctcrminatic+n;

(13) (1) the number of appeals made by persons under subsection (a)(6), the result of suchappeals, and the reason for the action upon each appeal that results in a denial ofinforaxtationR andkii) a complete aist of all statutes that the agency resics upon to authorazc the agency towithhold '=s4frs^ation. under subsection (b)f3), the number of occasions on which eachstatute was relicd upon, a description of whether a. co=.zrt has upheld the decision of theagency to wubhoid information under each such, statute, a.nd 'a concise descr.iption of'thcscope of any bnformateon. wzth;^wld;

(C) the number of requests for records pending before the agency as of September 30 ofthe preceding year, and the median and average number of days that such requests had beenpending before the agency as o-f that date;(D) the number of requests for records received by the agency and the number of rcqucstswhich the agency processed;

(E) the median number of days taken by the agency to process di^'eresit types of requests,based on the date on which the requests wcrc received by the agency;(F) tlrc average number of days for the agency to respond to a request iacginnar^sg on the datenn wbacb the request was received by the agency, the median number of days for the agencyto respond to su.cb. requests, and the rangc in number of days for the agency to respond tosuch requests;(G) based on the number of business days ffiat have clapscd since each request was originally

received by the agcncy^

(1) the number of requests for records to which the agency has responded with adetermination within a period up to and including 20 days, and in 20-day increments upto and including 200 days;

(H) the number of requests ^'e^r records to which thhc agency has rc^^^lidcd with adetczriiinat^on within a period greater than 200 days and less than 301 days;

(W) the number of requests for records to which the agency b&9 r^spoildcd wifn adcterm. iixation within a ^etiod greater than 300 days and less than. 401 days; and

(iv) the ixuars.bcr of requests for records to which the agency has responded witli adetermination within a pexiad greater than 400 days;

(FI) the average number of days for the agency to provide the granted information bcginnieigon the date on which the request was originally filed, the niedian n.unibcr of days for the agencyto provide the granted information, and the range z^ number of days for the agency to provide

tb.c granted information;t

(1) the median and average number of days for the agency to respond to administrative appealsbased on the date on whicb, the appeals originally were received by the agency, the highestnumber of business days taken by the agency to respond to an administrative appeal, and tb.clowest number of business days taken by the agency to respond to an administrative appeal.;

(J) data on the 10 active requests with tnc earliest filing dates pending at each agency,including the amount of time that has elapsed si-ncc each request was originally rcccived by

the agency;

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A34

5 usc 552

^ettp.34vwv.Iraw.raasself.edufu^radQfassrF rta^Z.#PZat^.Ib'&: This ssncfficaaf r.orrzpi$atenn o3f £hs U.3. Code ls currarct ar af"Jeen. 4, 2012 (see

(K) data on the 10 active adrsas^^^stra.tive appeals with the earliest filing dates pending beforethe agency as of Sept:ember 30 of the preceding year, including the ^*d,mber of business days

that have e1apsed since the requests were originally received by the agency;

(L) the number of expedited review r^uests that are granted and denied, tl:e average

and r-qed.iarx number of days fer adjudicating expedited review requests, and the number

adjudicated within !b,e required 10 days;

(M) tne rxi=ber of fee waiv^:^ requests that are granted and dertied, and ^^e average and;rEedi.az±, number of days for 4udzeatang fee waiver deterrnin.ations„^the total amount of fees colleded by the agency for processing requests; and

(0) ti^e number of full-time staff of the agency d.e-vrsted to processing requests for recordsunder this seetiom and the total amount expezPded by the agency for processing such request&

(2) hiformabtian in each report submitted under paragrapl"i (1) slialibe expressed in ternis of eachprincipal component of the agency and for the agency overall.

(3) Each a.gmcy sball make each such aep^rt avazlp-b3e to the publse including by computerteleeommunications, or if computer teleMorin.arneatlons means have not beer. wstablished by theagency, by other electronic means. In addgtios, eaeli agency shall make thera~,^ statistical data usedin its repoits available electronically to the g-ablic uponzequeste(4) TIe Attorney General of.t^^ United SWes sb,aU make each report which has been made

available by electronic meas. as available at a sirgle exeetranle aeees:^ point. The Attoxrey Generalof tb.e United States shall notify the Cha;^..m and.=ki-agmincrlty menxber of tb.e Commgttee onGovernment Reform and Oversight of the House of Representatives a.nd the Chairna^.^ and rank>^gminority member of the Cetmnx L4ees on. Goverp-mental Affairs and the .iudiclasy of the Senate, nolater than Apriil i of the year in which eacb. such report is fissuWd, that sueh. reports are availible

by electronic rneane(5) The Attonaey GeY^.e,.al of the United States, in consultation with the Director of the Office of

Management and Budget, shall develop reparfin,g and performance guidelines in connec#irsn. withreports required by this subsection by October 1,1997, and may establ'asb. additional requirements

for such mports as the Attaxnuy General determines may be wefW.

(6) The Attomey Geiieral of'the United States shall submit an annual report on or before April 1 ofeach calendar year which shall include for tbe prlax calendar year a listing of the number of casesarising under this section, the exemption l^^velved in each case, the disposition of such case, arzdthe cost, fees, and penalties assessed under subparagrapbs (E), kT)y and (G) of subsection (a)(4).Such report shall also inciude a descrzlstlnn of the efforts undertaken by the Department of Justiceto encourage agency compliance with t:^zs section.

(f) For purposes of Us section, the ienn-----(1) "agency" as defiazed in section 551 (;.) aftb.ls title includes any executive department, niilitarydepartment, Government corporation, t^^^emment controlled corporation, or other vstabtYshment

in the executive branch of the Ga^^^rnmeri; (including tsie Exec-atlve Office of the Presider:t)„ or

any independent regulatory agency; and

(2) "record" and any other term used in this section in reference to i.nfexr.e.ation includes-

(A) any information that would bean agency record s-abject to 6,e requirements of this sectionwhen maintained by an agency in any foraraat, including an electronic format; and

(3) aixy information described under subp^grapl~ (A) tl•aat is ir.aintaAned for an agency by

an entity under Government contract, for the purposes of records management.

(g) The head ^-f ea7dh agency shall prepare and make pixblicly available upon request, reference material.or agufide ;or requesting reeords or ltiforsrxation from Lbe agency, subject to the exemptions in subseetgon

(b), ircluding-(fl) an index of all major information systems oft.h.e agency;(2) a description of major infannation and record locator systeins maintaz-aed by the agency; and

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A35

5 USC 552

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(3) a handbook for obtaining various 'Eypes and categories ofpublie rnforra-i.atiar. from the agency

pursuant to chapter 35 of title 44, and urdder'this section.

(h) (1) Vhere is established the Office of f^^vemment Trst_"rrmatgon ServF.ees, witbi.n the NationalArchives and Records Administration.

(2) The O^'fice of Government Information SeMee^ shall-(A) review policies and procedures of administrative agencies under this section;

(B) review ea^^phanee with this section by administrative ageneiesp and

(C) recommend policy changes to Congress and the President to improve the adrministraticsnof this secfien.

(3) T"ne Office of Government Information Services shafl offer med:.atioz;. services to resolvedisputes between persons making requests under this section and administrative agencies as anon-exele.sive a1temative to litigation and, at the diseretera of the Office, may issue advisory

opinions if mediation has not resolved the dispute.(a) The Guvemment Accountability Office shall conduct audits of administrative agencies on theimplementation oftlaxs section and issue reports deta-ii^^ the results of such audit&

(1) Eaeb, agency sha31 de^^gnate a Chief FOIA Officer who shall be a senior effiexal. of sueb agency(at the Assistant Secretary or equevale-nt level).

(k) The Chyef F^'3IA Officer of each agency shall, subject to the authority of the head of the agency-

(1) have ageney-wAde responsibility for efficient and appropriate compliance with this section;

(2) monitor implementatio-: of°this section tlra-ugheuttb.e agency and keep the head of the ageraeytthe chief 'tegal officer of the agency, and the Attorney General appropriately informed of theagency's performance in implementing this section;

(3) reeer^.~nend to the head efthe agency such adjustments to agency practices, policies, persennel,and furiding as may be necessary to improve its amplemer^teti.or- of this section.;

(4) -eview ara.d report to the Attorney General, through tie head of the agency, at such t¢nes andin such formats as the Attarraey General may direc;#; on the agency's perfo:rmatiee in implementingthis section;

(5) facilitate public understanding of t.b.e puspeases of the statutory exemptions of this sectionby including concise descriptions of the exemptions in both the agency's handbook issued undersubsection (g), and the agency's ^rmual report on this section, and by providing an overview, whereappropriate, of certain geraeral categories of agency records to which those exemptions apply; and

(6) designate one or more F®4T.^ Public Liaa^ons.

(1) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as s'uperviseryofficials to whom a requester under this section can raise eoneems about the service the requester hasreceived from the FOIA Requester Center, following an initial resportse from the FOIA RequesterCenter Staff FOIA Nblie Liaisons shall be responsible for assisting in reducing delkvs, increasingtransparency and understanding of the status of requests, and assisting in the resolution of dysputes.

(Pub. L. 89---^54, Sept, 6, 1966, 80 Stat 383; Pub. L. 90-23, § 1, Jime 5; 1967, 81 Stat. 54; Pub. L.93-502, §§ 1-3, Nov. 21, 1974, 88 Stat. 1561-1564; Pub. L. 94-409, § 5(b, Sept. 13, 1976, 90 Stat.1247, Pub. L. 95-454, title IX, § 906(a)(I 0), Oct. 13, 1978, 92 Stat. 1225; Pub. L. 98-620, title IV, §402(2)„ Nov. 8, 1984, 98 Stat. 3357; Pub. L. 99-570, title 1, §§ 1802R 1803, Oct. 27, 1986x 100 Stat.3207-48, 3207-49; Pub. L. 104-231, §§ 3-1I3 Oct. 2, 1996, 110 Stat. 3049---3054„ Pub. L. 107-30£, titleIII, § 3 12, Nov. 27, 2002} 116 Stat. 2390, Pub. L. R 10---175, § § 3, 4 (a)! 5: 6 (a)(1), (b)(1), 7 (a), 8-10 (a),12, Dec. 31, 2007, 121 Stat, 2 5 2 5-25 3 0; Pub. L. 1 11-8 3, title V, § 564(b), Oet, 2 8, 2009, 123 Stat. 2184.)

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