232 A.3d 716
Pa.2020Background
- On Feb. 21, 2017, Rudy Miller (The Express Times) requested a school-bus surveillance video from Easton Area School District under the RTKL concerning an alleged physical discipline incident.
- The District refused, citing RTKL §708(b)(1)(i) and FERPA — arguing the video is an education record containing personally identifiable student information and its release risks loss of federal funds.
- The OOR ordered disclosure, concluding the video was not an education record; the common pleas court agreed. The Commonwealth Court affirmed, holding the video was not directly related to students and thus not an education record.
- The Supreme Court granted review, deciding the video is an education record as to the student who is the subject of the interaction, but FERPA permits disclosure if personally identifiable information is removed.
- The Court held the District failed to prove disclosure would result in loss of federal funds (it did not show a “policy or practice” of impermissible releases) and directed disclosure of the video only after redacting students’ identifiable images; it also discussed constitutional informational-privacy balancing (PSEA).
Issues
| Issue | Plaintiff's Argument (Miller) | Defendant's Argument (District) | Held |
|---|---|---|---|
| Whether the bus surveillance video is an "education record" under FERPA | Video is tangential to students, relates to teacher conduct and is not part of a maintained student education file | Video is directly related to a student (depicts an interaction/investigation) and is maintained by the school | The video is an education record as to the student who is the subject of the interaction (FERPA applies to students’ identifiable images) |
| Whether FERPA/RTKL §708(b)(1)(i) exempts the video from RTKL disclosure because release would cause loss of federal funds | No; FERPA penalty applies only where an agency has a "policy or practice" of impermissible releases, not for a single compelled disclosure | Yes; disclosure of video containing personally identifiable student information would risk loss of federal funds | District failed to meet burden to show disclosure would cause funding loss (no evidence of forbidden "policy or practice"); exemption not established; redaction required instead |
| Whether RTKL excludes FERPA-protected material from disclosure under §102/§305(a)(3) | RTKL presumption of public access should control; requester seeks video for reporting, not to identify students | FERPA exempts personally identifiable student information from public disclosure | Students’ personally identifiable images are exempt under FERPA (and thus RTKL §305(a)(3)), but the video itself must be disclosed after redacting/de-identifying students’ images |
| Whether constitutional informational-privacy (PSEA) balancing and third‑party notice apply | Requester argued balancing was out of scope and disclaimed interest in students’ identities | District contended privacy interests require a balancing test before disclosure | Agency must consider PSEA balancing and provide protections for third parties; here Requester disclaimed interest in identities so redaction sufficed; Court urged better procedures for third‑party notice |
Key Cases Cited
- Pennsylvania State Education Ass'n v. Commonwealth, Dep't of Cmty. & Econ. Dev., 148 A.3d 142 (Pa. 2016) (recognizes constitutional informational-privacy right and requires balancing against public interest)
- City of Harrisburg v. Prince, 219 A.3d 602 (Pa. 2019) (agencies must provide notice/opportunity to be heard and perform PSEA balancing when third‑party privacy implicated)
- Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143 (Pa. 2017) (agencies should perform PSEA balancing when disclosing personal information)
- Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426 (2002) (FERPA "maintained by" concept reflects institutional records kept by agency custodians)
- Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Ohio 2004) (distinguishing records directly related to students from those primarily about teachers)
- Easton Area Sch. Dist. v. Miller, 191 A.3d 75 (Pa. Cmwlth. 2018) (Commonwealth Court decision below analyzing whether the video was an education record)
- Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017) (RTKL exceptions construed narrowly; rules for statutory construction)
- Popowsky v. Pa. Pub. Util. Comm'n, 937 A.2d 1040 (Pa. 2007) (describing agency's preponderance-of-the-evidence burden)