Sherry v. Radnor Township School District
2011 Pa. Commw. LEXIS 156
| Pa. Commw. Ct. | 2011Background
- Sherry petitioned for review of the District's denial of a RTKL request for de-identified Honor Code records for 2007-2008 and 2008-2009.
- District denied relying on RTKL section 708(b)(17) noncriminal investigation exemption and FERPA 20 U.S.C. § 1232g under RTKL 65 P.S. § 67.305(a)(3).
- OOR requested additional information; District submitted affidavits from the high school principal and a teacher; Sherry objected to inconsistencies between affidavits and District materials.
- OOR denied the appeal; trial court denied Sherry's petition for review and her request for in camera inspection and depositions of the affiants; court found records exempt and FERPA precluded disclosure.
- On appeal, court held there is no RTKL right to discovery or a hearing in RTKL actions; affidavits may be used; records exempt under 708(b)(17) and FERPA; affirmed trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to depose RTKL affiants | Sherry sought depots/cross-examination of affiants. | RTKL does not guarantee discovery or due process rights; no right to a hearing. | No right to deposition or hearing; affidavits properly relied upon. |
| Application of 708(b)(17) noncriminal investigation exemption | Records are routine and not tied to a noncriminal investigation. | Records relate to a noncriminal investigation into Honor Code violations and fall within the exemption. | Records exempt under 708(b)(17). |
| FERPA preclusion of disclosure | De-identified reports could be released without compromising privacy. | De-identified reports still contain information that could identify students; FERPA precludes disclosure. | Disclosure precluded by FERPA and RTKL § 305(a)(3). |
| Propriety of relying on affidavits to sustain exemption | Affidavits may be inconsistent and require testing. | RTKL allows testimonial affidavits; time constraints justify their use. | Affidavits properly relied upon; no error in excluding testing or cross-examination. |
| RTKL burden of proof and deference to agency determinations | District failed to prove exemptions; OOR erred in final determination. | District met burden by showing noncriminal investigation and FERPA exemptions; OOR correct. | Burden satisfied; exemptions valid; trial court affirmed. |
Key Cases Cited
- Prison Legal News v. Office of Open Records, 992 A.2d 942 (Pa.Cmwlth.2010) (RTKL does not require discovery or due process)
- Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010) (court may supplement record or remand; no automatic hearing right)
- Mitchell v. Office of Open Records, 997 A.2d 1262 (Pa.Cmwlth.2010) (testimonial affidavits can support exemptions)
- Department of Health v. Office of Open Records, 4 A.3d 803 (Pa.Cmwlth.2010) (limits on agency authority; official duties framework for exemptions)
- Pennsylvania State Police v. Office of Open Records, 5 A.3d 473 (Pa.Cmwlth.2010) (incident reports may be exempt; FERPA-type concerns in exemptions)
- Legal Capital v. Medical Professional Liability Catastrophe Loss Fund, 702 A.2d 869 (Pa.Cmwlth.1997) (routine agency duties do not defeat RTKL exemptions; noncriminal investigation scope clarified)