Yet another legal dispute involving access to public records, in this case the education and juvenile law enforcement records of Connor Betts, appears to have reached an impasse.

Betts was killed by police on August 4 shortly after opening fire on a group that included his sister in a Dayton, Ohio entertainment district. She was one of nine people killed in the shooting spree and many others were wounded.

At the risk of belaboring this issue, and acknowledging that my knowledge of laws relating to expungement is limited, I find the Bellbrook-Sugarcreek Local Schools' Family Educational Rights and Privacy Act (FERPA)arguments for nondisclosure of Betts's disciplinary records legally indefensible.

As noted in this article, and discussed at some length in a recent post, the federal agency charged with interpretation and enforcement of FERPA has given a green light to disclosure of education records — a term very broadly construed to include disciplinary records — of a deceased "eligible student."

https://www.facebook.com/419650175248377/posts/494687304411330?s=184659…

An "eligible student" is one who is 18 years old or older. Privacy rights in education records pass from the parents to the eligible student when he or she reaches 18. And, under common law, a dead person has no privacy rights.

I dealt with the referenced federal agency — the Family Policy Compliance Office of the US Department of Education — on many occasions while employed as an assistant attorney general. That office is *not* inclined to cavalierly recognize that FERPA protections do not exist. I cannot recall a single conversation with one of the office's staff that did not end with an assertion of FERPA's application and an admonition against disclosure.

The statutory language in FERPA does not explicitly or implicitly extend privacy protection to education records of deceased students who are 18 years old or older. The Heath Insurance Privacy and Accountability Act (HIPAA), on the other hand, expressly recognizes the privacy rights of decedents in their "protected health information." Lawmakers' purposely chose to leave the door ajar in FERPA.

https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/health-inf…

Access advocates argue that the "community and the country at large deserve to know why this tragedy happened, what might have led to it, and what may be done to prevent future tragedies."

School officials maintain that the protections offered by the Ohio law governing access to education records — aptly named the Ohio Student Privacy Law — is broader than FERPA's protection but point to no specific language in the state law to support their position.

They maintain that the law requires "clear consent" from the student or parent, noting that they have not received consent from either. Betts is unlikely to assert his former privacy rights or give consent for disclosure from the grave. And his parents possess no privacy rights to assert or waive on his behalf under FERPA.

It's roughly equivalent to the story former Hezbollah hostage Terry Anderson told about his five year quest for records relating to the US government's efforts to secure his release during his six-plus year captivity. The Department of Justice advised Anderson that if he could obtain signed releases from his abductors consenting to disclosure of the records, the records would be released to him.

Like Betts and his parents, Anderson's abductors possessed no privacy rights to assert or waive. And, not to be flippant, but the school system has about as much chance of securing clear consent from Betts as Anderson had in securing clear consent from his abductors.

Since first posting about this recent mass shooting, and commenting on the Jefferson County Public Schools' policy on disclosure of education records of deceased eligible students, I've learned that the district has no fixed policy but analyzes requests on a case by case basis.

Let's fervently hope that we never have to test that approach to the legal question under tragic and utterly unacceptable facts such as those presented in Ohio.