CENTRAL DAUPHIN SCHOOL DISTRICT, Appellant v. VALERIE HAWKINS, FOX 43 NEWS AND THE COMMONWEALTH OF PENNSYLVANIA, OFFICE OF OPEN RECORDS, Appellees
No. 88 MAP 2021
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
December 21, 2022
[J-25-2022]
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
Appeal from the Order of the Commonwealth Court at No. 1154 CD 2017 dated April 22, 2021 Affirming the Order of the Dauphin County Court of Common Pleas, Civil Division, at No. 2016-CV-4401-MP dated August 1, 2017. ARGUED: April 12, 2022
JUSTICE DOUGHERTY DECIDED: December 21, 2022
In our plurality resolution of Easton Area School District v. Miller, 232 A.3d 716 (Pa. 2020) (Easton Area II), we determined a school district did not meet its burden to prove a bus surveillance video, requested pursuant to the Right-to-Know Law (RTKL),
Background
On February 23, 2016, Valerie Hawkins, on behalf of Fox 43 News (collectively, Requester), submitted a RTKL request to Central Dauphin School District (the District), seeking a copy of school bus surveillance video from one week prior, which captured an incident between a 17-year-old member of a District high school basketball team (the student), and a parent of another player (the adult), who allegedly grabbed the student‘s wrist during their interaction. The incident occurred in a parking lot outside the high school‘s gymnasium, while the players and school staff were boarding the school bus following a basketball game. The adult involved received, and subsequently opposed, a summary citation for harassment related to the incident. Requester attached a copy of the citation notice from the magisterial district court record to the record request; the notice identified the adult and student by name as the defendant and victim, respectively. On March 24, 2016, Karen McConnell, the District‘s open records officer (ORO McConnell), denied the request for access to the video, explaining it was an education record containing “personally identifiable information directly related to a student or students,” which, according to the District, protected the video from release under FERPA, and consequently precluded its disclosure under the RTKL as well. Final Response of District to Valerie Hawkins dated 3/24/2016.
Initially, the ensuing litigation over Hawkins‘s record request proceeded along a trajectory nearly identical to the appeal of a similar RTKL request made to Easton Area School District one year later, by Express Times reporter Rudy Miller, who sought bus surveillance footage depicting a teacher‘s alleged rough discipline of an elementary school student. See Easton Area II, 232 A.3d at 719-21. In each case, the requester appealed to the Office of Open Records (OOR) challenging the basis of the district‘s denial, and pursuant to its procedural guidelines, the OOR invited parties to supplement the record while directing the districts to notify third parties whose confidential information was contained within the requested records of the opportunity to participate in the appeal.1
law defines as “those records, files, documents, and other materials which []contain information directly related to a student” and “are maintained by an educational agency or institution or by a person acting for such agency or institution.”
The districts in both cases also relied on the RTKL‘s broader exclusion of records exempt under other state or federal laws as provided by
district failed to meet its burden to prove a relevant RTKL exemption applied because it had not demonstrated the video qualified as an education record warranting any protection under FERPA — either because it was not related to a student‘s academic performance (as determined by the OOR and trial courts), or because it was only tangentially, as opposed to directly, related to a student. See In re Hawkins v. Cent. Dauphin Sch. Dist., No. AP 2016-0583, 2016 WL 2986981, at *2-3 (Pa. Off. Open Rec., issued May 19, 2016); Cent. Dauphin Sch. Dist. v. Hawkins, No. 2016-CV-4401-MP, at 8-12 (C.P. Dauphin County filed Aug. 1, 2017) (unpublished memorandum); Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1014 (Pa. Cmwlth. 2018) (Central Dauphin I), vacated and remanded, 238 A.3d 337 (Pa. 2020) (per curiam); see also Easton Area Sch. Dist. v. Miller, 191 A.3d 75, 80-83 (Pa. Cmwlth. 2018) (Easton Area I); Easton Area II, 232 A.3d at 725-26. The videos were not viewed in camera at any level in either case.
The particular circumstances of Central Dauphin‘s case unfold primarily by way of District ORO McConnell‘s sworn affidavit submitted to the OOR and complementary testimony before the court of common pleas. The affidavit stated, inter alia: the video recording is maintained by the District and “is an ‘education record’ under FERPA which requires the [District] to keep the record confidential“; the students’ personally identifiable information cannot be redacted from the video “because [the District] does not have the technological ability to redact the video recording[,]” however, “even if the [District] had the technological ability . . . the subject of the video recording[] ha[s] been covered on multiple occasions in the news media” which “identify the students in the recording as members of the [school‘s] basketball team[,]“and “[t]herefore . . . the students’ identities w[ould] still be known to the Requester“; in addition, the District “may be financially penalized through loss of [f]ederal funds if it permits the release [of] records protected by FERPA such as the video recording“; and, the video was being used in the District‘s official probe into the incident. Affidavit of ORO McConnell, 3/31/2016.
To the trial court, ORO McConnell testified in her role as the District‘s assistant superintendent for finance and administrative operations, which she indicated also included responsibilities for discipline of students and staff, and oversight of bus transportation, and she was personally involved in the investigation of the incident in this matter. See N.T., 3/30/2017 at 6-7, 10. McConnell explained each of the school‘s buses included two cameras mounted above the driver‘s head, one facing the back of the bus and one facing the door, and each ran continuously on a loop once the driver turned on the ignition, capturing high-resolution digital video and saving it to a hard drive over older footage; the hard drive recorded over itself approximately every two weeks. See id. at 7-8, 28. This video footage is reviewed by District personnel only “if there is a problem[,]” such as a disciplinary or safety issue, in which case a request for the footage is typically made by a principal to the District‘s transportation director. Id. at 7-9. Upon such a request, the bus camera‘s hard drive is removed, and the relevant segment of footage is extracted and saved on a separate drive. See id. at 7-9, 38-39. Asked if she “kn[e]w whether or not the [D]istrict has the ability to redact or pixelate or do anything to obscure the images of students on any individual video recording[,]” ORO McConnell responded, “[w]e do not have the capability of doing
On cross-examination, ORO McConnell testified, because her role was in operations and finance, she was “very rarely” involved in disciplinary matters and could not think of any others in which she had participated; she also did not have knowledge of how students’ disciplinary records were maintained, but the footage of this incident was maintained in a safe in her office as the open records officer, not because of any role she played in the investigation. Id. at 40-44; see id. at 13. When asked if the news media had reported the name of the student after the involved-adult‘s hearing on the citation, McConnell responded, “I honestly don‘t know the answer to that[,]” and further explained it was not just a matter of recollection, but that she did not know because she does not read or watch the news. Id. at 34. When asked if she later became aware the news had released the student‘s name, she stated, “I‘m going to have to take your word for it. I don‘t know that[,]” and again replied she does not read or watch the news. Id. at 36. The only other evidence offered by Requester was a news article published by PennLive regarding the hearing and dismissal of the adult‘s harassment citation resulting from the incident, which identified the student by name as the complainant who testified in support of the charge. See id. at 52; PennLive article dated 5/25/2016, Hawkins-Fox Cmwlth. Ct. Brief at Exhibit 1.
In support of its decision to order disclosure of the record, the trial court noted inconsistencies in ORO McConnell‘s statements, and found her testimony regarding personal involvement in the matter not credible; with regard to redaction, the court observed, “[a]lthough Ms. McConnell testified that the District did not have the capability to blur out individual students . . . it is not impossible to do so.” Central Dauphin Sch. Dist., No. 2016-CV-4401-MP, at 10 (internal citation omitted); see id. at 15. Ultimately, the court concluded the District failed to meet its burden to demonstrate the school bus video recording was an education record “exempt from disclosure under FERPA, or any of the enumerated exceptions outlined in
the relevant legal principles, among them the plurality-supported conclusion the Easton Area District‘s bus surveillance video was both an education record under FERPA and subject to disclosure under the RTKL following redaction of the students’ images, which differed substantially from the Easton Area I panel‘s resolution of the matter. See Easton Area II, 232 A.3d at 734 (stating the plurality conclusion and mandate), 734-36 (Saylor, C.J., concurring and dissenting), 736-38 (Baer, J. concurring and dissenting); Easton Area I, 191 A.3d at 82. Consequently, upon the District‘s petition for allowance of appeal with regard to Central Dauphin I, we vacated the panel‘s order to disclose the video and remanded the matter back to the Commonwealth Court for proceedings consistent with our decision in Easton Area II, limited to whether the panel erred when it determined the Central Dauphin District‘s school bus surveillance video was not an education record under FERPA. See Central Dauphin, 238 A.3d 337 (Pa. 2020) (per curiam).
Easton Area II
Though our resolution of Easton Area II recently addressed whether release of bus surveillance video was precluded under FERPA, the Court‘s variegated responses thereon stemmed from the Easton Area District‘s tailoring of its position within the context of the loss-of-funds exception under
The Easton Area II plurality additionally viewed the RTKL‘s express exemptions under
As to whether the bus surveillance video could be “directly related” to the students therein, and therefore an education record subject to FERPA, the Easton Area II Court considered U.S. Department of Education (USDOE) guidance explaining a “context-specific” and “case by case basis examination” would demonstrate a direct relationship if, inter alia, the school uses or would reasonably use video of the incident depicted for disciplinary action, or other official purposes involving the students, including any participants in an altercation and the victim of any incident. Id. at 729. The same USDOE guidance further instructs that, prior to releasing an education record of multiple students to the parent of any one student, “‘[i]f the educational agency or institution can reasonably redact or segregate out the portions of the video directly related to other students, without destroying the meaning of the record, then the educational agency or institution would be required to do so‘” prior to providing access. Id., quoting FAQs on Photos and Videos under FERPA, U.S. DEP‘T OF EDUC., https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa (last visited December 14, 2022). Accordingly, because the disciplined
As the endcap to its analysis, the Easton Area II plurality observed, despite the laudable purpose of our open records law, its scarce consideration of the informational privacy rights of third parties implicated in government-maintained records was particularly problematic within the context of a request for surveillance video of school children, yet the responsibility for balancing those interests remains diffused. Although the agencies bear the obligation to perform such balancing in the first instance, and the constitutional considerations in play might necessitate redactions not otherwise permissible under the RTKL‘s provisions, the record requestor in Easton Area II had specifically disclaimed any interest in the identities of the students; thus we perceived no
need to remand the case for further balancing, and ordered the district to redact and release the bus surveillance video. See id. at 731-34.
Central Dauphin II
Returning to the present case on remand after Easton Area II, the Commonwealth Court, following supplemental briefing, again affirmed the trial court, and ordered redaction of the students’ personally identifiable information from the video and disclosure, under a revised analysis, departing from the limitations it placed on the scope of an “education record” in Easton Area I. See Central Dauphin Sch. Dist. v. Hawkins, 253 A.3d 820, 823-24 (Pa. Cmwlth. 2021) (Central Dauphin II). The Central Dauphin II panel mirrored the Easton Area II analysis in nearly all respects. First, the video depicted a student engaged in an altercation with an adult, and was preserved for disciplinary purposes relating to at least one student and one staff member, therefore it was directly related to a student, and second, the District did not dispute it maintained the video, which ORO McConnell kept locked in her office; thus the panel determined the video constituted an education record under FERPA‘s definition. See id. at 830-31.
Turning to
The District appealed the Commonwealth Court‘s decision, and we granted allowance of appeal to examine whether, in light of our Easton Area II decision and the multiple opinions of this Court expressed therein, the Commonwealth Court “committed reversible error by ordering disclosure and mandating redaction of a student education record that is exempt from public access under state and federal law — specifically, FERPA and
Arguments
The District
Foremost, the District argues the redaction provision set forth in
record subject to disclosure under the RTKL. If a record is not exempt from disclosure, but contains information that is not subject to access, the agency may discharge its duty by providing redacted records [under Section 706]. Conversely, if a record is exempt from disclosure under the RTKL and thus is not a public record, it need not be redacted in accordance with
The District maintains this view is entirely consistent with the Easton Area II plurality decision, which did not foreclose the exemption of bus surveillance video under other law or other circumstances, much less require its disclosure. See id. at 39-40, quoting Easton Area II, 232 A.3d at 737 (Baer, J., concurring in part) (“[T]he [Easton Area] District failed to present a developed claim that it is entitled to withhold the video or any component thereof from disclosure on the discrete bases of
Assuming, arguendo,
information which is not subject to access is able to be redacted.“) (emphasis provided by District). The District first asserts “unrefuted record evidence shows that the District lacks the technological capability to redact the video,” and notes, under the RTKL, an affidavit based upon the personal knowledge of an agency‘s representative is sufficient to meet the preponderance of the evidence standard; in this case, the District observes, Requester had the opportunity to cross-examine the affiant regarding redaction but did not, and no other evidence in the record supports a contrary finding regarding the District‘s technological capabilities. Id. at 41-45. Notwithstanding its purported lack of redaction capacity, the District also argues the only exception for which FERPA allows the unconsented release of an education record still mandates “‘the removal of all personally identifiable information‘” and disclosure only after the institution “‘has made a reasonable determination that a student‘s identity is not personally identifiable[.]‘” Id. at 47, quoting
Lastly, referring to the Easton Area decisions, the District argues “‘[w]hat‘s past is prologue[,]‘” and where the Easton Area II plurality identified the potential dangers of disclosing school surveillance videos via public record requests in light of students’ and families’ lack of control in the matter, the Court here should perform a balancing test with regard to the students’ informational privacy rights. Id. at 54-57, quoting WILLIAM SHAKESPEARE, THE TEMPEST, act II, scene i, line 253, and citing, inter alia, Easton Area II, 232 A.3d at 731 (“In addition to obvious safety concerns, such a disclosure also necessarily implicates the students’ right to informational privacy — that is, the right of the individual to control access to, or the dissemination of, personal information about himself or herself ― which this Court has explicitly held must be considered and balanced against the public interest when individuals who are not themselves a party to the request for access appear in the content of records subject to public disclosure under the RTKL.“) (quotation marks omitted); Pa. State Educ. Ass‘n v. Com., Dep‘t of Cmty. & Econ. Dev., 148 A.3d 142, 158 (Pa. 2016) (PSEA II) (requiring agencies to balance constitutional privacy rights of third parties implicated in public record requests). However, rather than allowing disclosure of a redacted video to a requester who expressly disclaims interest in the identities of the students, as was the case in Easton Area II, the District argues the Court in this case should conclude the video cannot be released, even in redacted form, to this Requester, who knows the identity of the student to whom the education record is directly related, and has only disclaimed interest in the identity of the “‘non-involved‘” students, a fact the panel erroneously relied upon to the exclusion of the involved student‘s privacy interest. See id. at 55-56, quoting Central Dauphin II, 253 A.3d at 833 (“‘[Requester] has indicated that it has no interest in the identity of the other ‘non-involved’ third-party students[,] it is unnecessary for the School District to conduct the balancing test[.]‘“).
Requester
Requester agrees, under FERPA and in accord with the Easton Area II lead opinion‘s analysis, the video is an education record. Requester argues, however, just like any other record of an agency, an education record is presumed to be a public record under the RTKL unless the agency meets its preponderance burden to prove otherwise. See Appellees’ Brief at 6, citing Bowling v. Off. of Open Recs., 75 A.3d 453, 457 (Pa. 2013);
the Commonwealth“). Requester observes a majority of justices in Easton Area II, which included the plurality, agreed the bus surveillance video was an education record, and yet the plurality still held those records were not categorically exempt under
Requester contends the present case is a “perfect example” of why education records should not be categorically exempt from disclosure, as the bus surveillance video does fit the broad definition of an education record, but it contains no confidential information. Id. at 12-13. According to Requester, the District did not meet its burden to show the video contained protected information, could be used to discover the students’ identities, or could not be redacted, but instead merely asserted that individuals who already knew the students
Discussion
School districts are local agencies subject to the RTKL‘s public record access provisions required to provide access to public records in accordance with its provisions. See Easton Area II, 232 A.3d at 724;
FERPA, together with its regulations,
In this instance, the District has not met its burden to show the video, by virtue of being an education record, is exempt from disclosure under
The District aptly notes, however, under
[I]t is not at all clear from the government‘s affidavit why it cannot segregate
the portions of the record that do not [invade privacy]. . . . The government further does not explain why it cannot by use of such techniques as blurring out faces, either in the video itself or in screenshots, eliminate unwarranted invasions of privacy. The same teenagers who regale each other with screenshots are commonly known to revise those missives by such techniques as inserting cat faces over the visages of humans. While we do not necessarily advocate that specific technique, we do hold that the government is required to explain why the possibility of some similar method of segregability is unavailable if it is to claim the protection of the exemption.
Central Dauphin II, 253 A.3d at 835, quoting Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 587 (D.C. Cir. 2020). Similarly, we note the trial court determined, despite ORO McConnell‘s testimony to the contrary, “the capability to blur out individual students . . . is not impossible” and we will not disturb that finding. Cent. Dauphin Sch. Dist. v. Hawkins,
No. 2016-CV-4401-MP, at 10 (C.P. Dauphin County filed Aug. 1, 2017) ; see Central Dauphin II, 253 A.3d at 835.12
Under FERPA regulations, students’ “[p]ersonally identifiable information,” which we affirmatively view as exempt from disclosure under FERPA, “includes, but is not limited to” the student‘s and family members’ names; student‘s social security number; other direct or indirect identifiers; and, as the District relies upon here:
(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.
circumstances might warrant reliance on this provision to preclude the press or others from accessing records
In addition, as indicated supra at note 1, there is no suggestion in the record that the District complied with its obligation to notify the students and their parents of the record request, its disposition or its appeal. Where the District advances an argument the record depicts an incident so highly-publicized that no amount of redaction can de-identify the video and thus a greater degree of privacy must be afforded, the absence of any third parties, or some certification of notice to them as directed by the OOR, is
perplexing. Moreover, we have said it is the responsibility of the agency, here the District, to balance students’ informational privacy rights, by implementing required redactions, in the first instance, and addressing those constitutional considerations before the factfinder when challenged; our mechanism for addressing failures in this regard is merely to remand. See Easton Area II, 232 A.3d at 732-733, citing City of Harrisburg v. Prince, 219 A.3d 602, 618-19 (Pa. 2019); Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017); PSEA II, 148 A.3d at 144. Here, however, we perceive no remaining reasonable expectation of a heightened privacy protection from disclosure of this school bus surveillance video which would warrant that result. Litigation does not progress in a vacuum, and six years later, even the youngest of the Central Dauphin basketball players will turn twenty years old this year. Whatever privacy interest may still exist in a redacted video six years after the incident was highly publicized can only be speculated now. The District‘s obligation at this juncture is to redact the video to the extent it deems necessary to reasonably remove the students’ personally identifiable information.15
For the foregoing reasons, we conclude the Commonwealth Court did not err when it applied the analysis articulated in Easton Area II and ordered the mandatory redaction and disclosure of a school bus surveillance video it determined to be an education record subject to FERPA. Accordingly, we affirm the order of the Commonwealth Court, with instructions to the District to reasonably redact the students’ personally identifiable information prior to disclosure.
Chief Justice Todd and Justices Donohue and Wecht join the opinion.
Justice Mundy files a concurring and dissenting opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
Justice Brobson did not participate in the consideration or decision of this matter.
Notes
Official Notice of Appeal to OOR, No. AP 2016-0583, 3/25/2016, at 2 (emphasis in original). Under the OOR‘s procedural guidelines, agencies are also required to notify and provide an opportunity to object to implicated third parties in response to the initial request. See OFFICE OF OPEN RECORDS, Procedural Guidelines, Rev. 9/29/2015, at 2-3. As was the case in Easton Area II, 232 A.3d at 732, there is no indication in the record Central Dauphin School District provided or attempted such notice at either stage in this case. See Easton Area II, 232 A.3d at 732.Agency Must Notify Third Parties: If records affect a legal or security interest of an employee of the agency; contain confidential, proprietary or trademarked records of a person or business entity; or are held by a contractor or vendor, the agency must notify such parties of this appeal immediately and provide proof of that notice to the OOR within seven (7) business days from the date on this letter. Such notice must be made by (1) providing a copy of all documents included with this letter; and (2) advising that interested persons may request to participate in this appeal (see
65 P.S. § 67.1101(c) ).
If an agency determines that a public record, legislative record or financial record contains information which is subject to access as well as information which is not subject to access, the agency‘s response shall grant access to the information which is subject to access and deny access to the information which is not subject to access. If the information which is not subject to access is an integral part of the public record, legislative record or financial record and cannot be separated, the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the information which is subject to access. The agency may not deny access to the record if the information which is not subject to access is able to be redacted. Information which an agency redacts in accordance with this subsection shall be deemed a denial under Chapter 9.