EASTON AREA SCHOOL DISTRICT, Appellant v. RUDY MILLER AND THE EXPRESS TIMES, Appellees
No. 13 MAP 2019
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: June 18, 2020
JUSTICE DOUGHERTY
[J-75-2019]; SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.; ARGUED: September 12, 2019
Appeal from the Order of the Commonwealth Court at No. 1897 CD 2017 dated July 20, 2018 Affirming the Order of the Northampton County Court of Common Pleas, Civil Division, at No. C-0048-CV-2017-5558 dated December 1, 2017, exited December 5, 2017.
Justice Dougherty delivers the Opinion of the Court with respect to Parts I, II, and III(A)(2), and announces the judgment of the Court. The opinion is joined in full by Justices Todd and Donohue. Justices Baer and Wecht join Part III(A)(2), and join the mandate to the extent it requires disclosure of the subject video, albeit they would favor disclosure in an unredacted form. Chief Justice Saylor and Justice Mundy join Part III(B) to the extent it determines the subject video was an education record. Chief Justice Saylor and Justice Mundy join the mandate to the extent it precludes disclosure of information that could reveal the identities of the students in the video.
JUSTICE DOUGHERTY
We granted discretionary review to consider whether the Commonwealth Court erred in determining a school bus surveillance video sought in a request for public records pursuant to the Right-to-Know Law (RTKL),
I. Background
On February 21, 2017, Rudy Miller, on behalf of The Express Times (collectively, Requester), submitted a RTKL request to the District. Therein, Requester sought information in connection with an incident involving an elementary school teacher who, according to Requester, had roughly physically disciplined a child on a school bus outside of the school. See Letter of Rudy Miller to the District dated 2/21/2017. Relevant to this appeal, Requester specifically sought a copy of the surveillance video from the school bus security camera capturing the incident. Id. The District denied the request for the video, stating, in part, the video was exempt from disclosure under Subsection 708(b)(1)(i) of the RTKL, which exempts from public record access a record whose disclosure would result in the loss of federal or state funds by an agency. Right-to-Know Response dated 3/29/2017;
Requester appealed the District‘s denial to the Office of Open Records (OOR), challenging the District‘s decision to withhold the video, and further indicating the identity of the disciplined student was immaterial to the request. See Letter of Rudy Miller to the OOR dated 4/4/2017. According to the OOR, in addition to inviting the parties to supplement the record, it directed the District to notify any third parties of their right to participate in the appeal. In the matter of Miller v. Easton Area Sch. Dist., No. AP 2017-0615, 2017 WL 2313147, at *2 (Pa. Off. Open Rec., filed May 24, 2017). The video itself is not in the certified record, and there is no indication the OOR viewed it.
The District submitted a supplemental response claiming, in pertinent part, it was entitled to application of the exemption set forth in
as well as a state investigation into the teacher‘s misconduct; and (3) “[d]isclosure of the video ... []will enable anyone viewing it to identify all students depicted in the video.” Attestation of John Castrovinci, 4/18/2017, at ¶¶ 4, 7, 9-10.
On May 24, 2017, the OOR issued a final determination granting Requester‘s appeal to the extent that it sought disclosure of the video. Aptly, the OOR observed, “[r]ecords in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree.” In the matter of Miller, 2017 WL 2313147, at *3, citing
The District then appealed to the court of common pleas. In addition to arguing the video met the RTKL
In a unanimous published opinion, a three-judge panel of the Commonwealth Court affirmed the common pleas court‘s
The panel explained that, here, the requested video was only “tangentially related” to the students on the bus and instead “directly related” to the teacher disciplining a student. Id. at 82 (relying upon, inter alia, Ellis v. Cleveland Municipal Sch. Dist., 309 F. Supp. 2d 1019, 1022 (N.D. Ohio 2004) (explaining that, “[w]hile it is clear that Congress made no content-based judgments with regard to its education records definition, it is equally clear that Congress did not intend FERPA to cover records directly related to teachers and only tangentially related to students” (internal citation and quotation omitted))).
The Commonwealth Court additionally reasoned that its interpretation of FERPA was consistent with guidance from the United States Department of Education providing, “[i]n the context of photos and videos, determining if a visual representation of a student is directly related to a student (rather than just incidentally related to him or her) is often context-specific” and that certain types of photos and videos should be examined “on a case by case basis to determine if they directly relate to any of the students depicted therein.” Id., quoting FAQs on Photos and Videos under FERPA, U.S. DEPARTMENT OF EDUCATION, https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa (last visited April 20, 2020) (emphasis in original) (“USDOE FAQs on Photos and Videos under FERPA“). The panel observed, “[s]tated otherwise, a video does not become an educational record simply because it captures images of students who are bystanders at an event recorded on video. It is only an educational record with respect to a student in the video for whom the video may have consequences.” Id. (citation omitted).
Based on the foregoing, the Commonwealth Court held, because the video did not constitute an education record under FERPA, its disclosure would not subject the District to a loss of federal funding. Id. at 82-83. The Commonwealth Court thus concluded the common pleas court did not err in holding the District failed to prove that the video was exempt from disclosure under
We accepted discretionary review of this matter to address the following issue, as stated by the District: “Whether the Commonwealth Court erred as a matter of law in determining that the requested video, which depicts children on a school bus during the school day, is not exempt from disclosure under [FERPA].” Easton Area Sch. Dist. v. Miller, 201 A.3d 721 (Pa. 2019) (per curiam). As this issue presents a question of law, our standard of
II. Arguments
The District maintains the video is an education record exempt from unconsented-to disclosure under FERPA, it is thereby not a “public record” as defined by the RTKL, and thus it is exempt from disclosure under the RTKL. District‘s Brief at 4-5, citing
In support of the District‘s arguments in this regard, the Pennsylvania State Education Association5 provided an amicus curiae brief arguing the video is a student record protected from disclosure under FERPA, noting the federal statute‘s primary goal is protecting student and parent privacy rights by prohibiting disclosure of student records without consent. Amicus Brief at 5, citing 120 CONG. REC. 39,862 (1974) (Joint Statement in Explanation of Buckley/Pell Amendment). Amicus draws the Court‘s attention to guidance and administrative decisions from the U.S. Department of Education (USDOE) relating to when a video depicting students should (and should not) be considered a protected education record under FERPA. Referring to the same USDOE guidance document as the Commonwealth Court, Amicus indicates the school entity may consider
a video maintained by the school as directly
The District additionally claims an analysis must be conducted “to determine whether the right to privacy in the educational setting is outweighed by the public‘s interest in the release of information[,]” that the Commonwealth Court failed to conduct this balancing test, and that the balance of the interests here should weigh against public disclosure. District‘s Brief at 5, 12-14, citing, inter alia, Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017) (explaining the balancing test set forth in Pennsylvania State Educ. Ass‘n v. Commonwealth, Dep‘t of Cmty. & Econ. Dev., 148 A.3d 142 (Pa. 2016) (“PSEA“), “is applicable to all government disclosures of personal information“).
Requester observes, under the RTKL, the District is an agency whose records are presumed public, and contends the District did not meet its burden to establish by a preponderance of the evidence that the video was exempt from disclosure under FERPA, primarily because the text of FERPA indicates funding is only withheld where an educational agency has a “policy or practice” of granting access to student information in education records, as opposed to an isolated incident pursuant to a court order granting an open record request as here. Requester‘s Brief at 3-5, 11, citing
(agency‘s burden to prove record not public is preponderance of the evidence) and
Finally, Requester asserts the District‘s arguments regarding students’ privacy rights are outside of the scope of the appeal. Requester‘s Brief at 12. Requester underscores it requested the video “for purposes of investigating allegations of an incident involving a teacher and an unidentified student on a school bus[, and d]isclosure of the [v]ideo is not sought for purposes of identifying the student or any other student that was on the bus at the time.” Requester‘s Brief at 16.
III. Discussion
To the extent the relevant provisions of the RTKL are not clear and unambiguous, this Court must engage in statutory construction to resolve the dispute before us; the Statutory Construction Act,
Under Pennsylvania‘s RTKL, local agencies, such as school districts, are required to provide access to public records in accordance with its provisions.
of the evidence,”
FERPA, together with its regulations,
The central aspect of the District‘s argument for withholding the video has been its claim disclosure of the video would result in the District‘s loss of federal funds pursuant to FERPA, thereby meeting the criteria for the RTKL exception found in
A. RTKL Subsection 708(b)(1)(i)
The exemption set forth in Subsection 708(b)(1)(i) of the RTKL provides:
(b) Exceptions.—Except as provided in subsections (c) and (d),8 the following are exempt from access by a requester under this act: (1) A record, the disclosure of which: (i) would result in the loss of Federal or State funds by an agency or the Commonwealth[.]
In accordance with this provision of the RTKL, the District had the burden to prove by a preponderance of the evidence that disclosure of the requested video would result in the loss of federal funding under FERPA, as it claims. The tribunals
However, a conclusion that the video qualifies as an education record under FERPA does not necessarily render the video exempt from disclosure under
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information,9 as
defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than [those listed in subsections (A)-(L), which are not at issue in the case sub judice].
No funds shall be made available . . . to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records unless--
(A) there is written consent from the student‘s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student‘s parents and the student if desired by the parents, or
(B) . . . such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency . . . .10
Thus, pursuant to FERPA as applied with regard to the RTKL, the District
applicable program to any educational agency or institution ....“);
1. Federal funding eligibility
Regarding the District‘s federal funding eligibility, our review of the record in this matter reveals the District has not alleged it is an educational agency or institution that currently receives or is eligible to receive funding through any applicable program that would be lost through a violation of FERPA; nor does the certified record disclose support for this requirement. As the burden is on the educational agency to prove its entitlement to an exemption set forth in
2. FERPA “policy or practice”
Nevertheless, as highlighted by the Requester in its brief to this Court, neither does anything in the record suggest the District has a “policy or practice” regarding the release of or access to information covered by FERPA — where such language necessarily denotes repeated or systematic violations of student privacy, as opposed to singular or exceptional instances — nor has the District claimed that disclosure of the single requested video at issue herein, either of its own volition or at the direction of OOR or the courts, would qualify as a “policy or practice” as contemplated by
B. RTKL Section 102 and Subsection 305(a)(3)
Local agency records which are exempt from disclosure under other state or federal laws or regulations are, in turn, excluded from the RTKL‘s definition of “public record,” and are exempt from disclosure under the RTKL.
Our review of FERPA reveals the federal law provides a right to inspect education records to parents and eligible students only, and requires parental consent to release information unless certain specified conditions are present such as, inter alia, transfer to subsequent schools, financial aid processing, request by authorities within a juvenile justice system, research, or a judicial order or lawfully issued subpoena. See
interpreted the scope of “educational records” more broadly or more narrowly within the context of individual cases, the statute‘s text defines the term as “those records, files, documents, and other materials which-- (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.”
With specific regard to videos, which may contain the images and personally identifiable information of multiple students (as the District alleges is the case here), USDOE guidance is instructive as to whether the record is “directly related” to the students therein, and therefore an education record (so long as it is also
- The educational agency or institution uses the photo or video for disciplinary action (or other official purposes) involving the student (including the victim of any such disciplinary incident);
- The photo or video contains a depiction of an activity:
- that resulted in an educational agency or institution‘s use of the photo or video for disciplinary action (or other official purposes) involving a student (or, if disciplinary action is pending or has not yet been taken, that would reasonably result in use of the photo or video for disciplinary action involving a student); . . .
- that shows a student getting injured, attacked, victimized, ill, or having a health emergency; . . . or
- The audio or visual content of the photo or video otherwise contains personally identifiable information contained in a student‘s education record.
USDOE FAQs on Photos and Videos under FERPA.
The guidance document further provides that “[a] photo or video should not be considered directly related to a student in the absence of these factors and if the student‘s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.” Id. In addition, the USDOE guidance provides a list of examples of videos considered education records, specifically stating “[a] school surveillance video showing two students fighting in a hallway, used as part of a disciplinary action, is directly related to the students fighting.” Id. Incorporating its administrative determination in Letter to Wachter, the guidance further indicates school surveillance video depicting an altercation, in that case a hazing incident, is an education record directly related to both the perpetrators and the victims. Id. citing Letter to Wachter at 4 (USDOE Office of the Chief Privacy Officer, Dec. 7, 2017). Regarding requests for access to videos depicting the images of multiple students, and providing access to such video — to the student or subject student‘s parent — the guidance instructs, “[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 the parent or eligible student with access.” Id.
Furthermore, even in the limited set of prescribed circumstances where education records may be disclosed without consent, FERPA provides, “personal information shall only be transferred to a third party on the condition that such party will not permit any other party to have access to such information without the written consent of the parents of the student” and, in the case of organizations conducting research, information
containing personal identification of students or parents must be destroyed following its use. Id. at
Here, to avail itself of an exemption from disclosure under RTKL Subsection 305(a)(3), the District had the burden of proving the school bus surveillance video was exempt from disclosure to a public record requester under FERPA, which requires a context-specific (i.e., fact-sensitive) assessment constrained by competing obligations to maintain student confidentiality alongside public transparency, notwithstanding its own interests.
Undisputedly, the video here “reflect[s] an interaction between [a teacher] and a student” which became the subject of an investigation, and which was included in an inquiry regarding potential discipline for the teacher. See Attestation of John Castrovinci, 4/18/2017, at ¶¶ 4-7. Furthermore, the videographic images of students on a school bus would allow a reasonable person in the school community viewing the video to identify the students with reasonable certainty; thus, the video contains personally identifiable information regarding each of the school students visible therein. See
In light of the USDOE guidance, we reject the notion espoused by the Commonwealth Court that such a recorded interaction involving a teacher‘s conduct directly relates solely to the teacher, and is only “tangentially related” to the student. As the student is the subject of some interaction with a teacher that warranted preservation of the video for an official purpose, whether the student is receiving discipline, or is the victim of some misconduct, or is one party in an innocuous interaction that was nevertheless part of an official inquiry, the video is as “directly related” to the student as much as it is related to the teacher. The video recording, then, which is generated and possessed by the school and depicts a school student on a school bus interacting with a school teacher in the presence of other students, is a record both maintained by the school and directly related to, at the very least, the student who is the subject of the interaction, and is therefore an education record of that student within the meaning of FERPA.14
However, as is clear from the regulations promulgated pursuant to FERPA, even an education record ordinarily protected from disclosure to all but an eligible student or her parent may be disclosed without consent if the student‘s personally identifiable information has been removed. See
required to redact those portions of the video relating to the other students. See USDOE FAQs on Photos and Videos under FERPA.
Accordingly, a FERPA-compliant educational institution must not release the
Furthermore, the RTKL specifically provides, where a record contains information which is subject to access along with information which is not subject to access and the two cannot be physically 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 video revealing the students’ identities, and to subsequently provide access to the redacted video.15
C. Students’ Interests
The overlooked yet implausible ramification of the Commonwealth Court‘s decision below is its potential to subject any school surveillance to disclosure, without parental consent, to any resident of the Commonwealth who makes a request pursuant to the RTKL. In the case of a school bus surveillance video, such a disclosure could reveal the identity of minor students; their clothing, behaviors, or disabilities; the specific bus they take; and the geographical location where they exit the bus. 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. PSEA, 148 A.3d at 150, 158 (holding the right to informational privacy is guaranteed by the Pennsylvania Constitution, and may not be violated unless outweighed by a public interest favoring disclosure); Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017) (same; directing agency possessing public record to conduct PSEA balancing test prior to disclosure of any personal information); City of Harrisburg v. Prince, 219 A.3d 602, 618-19 (Pa. 2019) (donors listed in public financial record, who had not been notified of right to object to disclosure of their personal information during pendency of litigation,
notice and opportunity to be heard, and agency disclosing record must perform balancing test prior to disclosure).
Requester urges us not to address the students’ privacy interests, asserting the District‘s argument the Commonwealth Court erred by not conducting a balancing test is beyond the scope of the question accepted for review. Had the District been the party whose privacy rights were allegedly violated, we would indeed be constrained to apply principles of waiver on this point. However, the present factual scenario, in which the privacy rights of third party individuals are implicated in RTKL requests, but no party to the RTKL litigation bears the responsibility to advocate for them, leaves legitimate privacy rights insufficiently protected.
This circumstance is not unique to this case. In PSEA, we observed in detail the significant administrative hurdles and extensive litigation history — including three appeals to this Court — faced by third-party public school employees who simply raised a claim for some form of redress from an OOR decision allowing public disclosure of a school district record containing their home addresses.16 148 A.3d at 144-48. Here, though the OOR directed the District to notify any third parties of their ability to participate in the appeal pursuant to RTKL
officer prior to hearing and entry of order). Furthermore, while other avenues likely exist that might also serve to protect students’ sensitive information — such as other RTKL exceptions,17 or requests for guidance from the USDOE‘s Family Policy Compliance Office and/or Student Privacy Policy Office — here, the District‘s misplaced focus on
The informational privacy rights of public school students and their parents — who are not afforded a choice about whether children go to school, how they travel there, or whether they are subject to videotaping by the school — are particularly and palpably vulnerable to violation both in the present case and within the context of right-to-know requests in general. For this reason, we have addressed the students’ informational privacy interests pursuant to PSEA.
As indicated supra, in PSEA, this Court examined Pennsylvania‘s constitutional
right of informational privacy outweighs the public‘s interest in dissemination. PSEA, 148 A.3d at 144. It is the obligation of the agency disseminating the requested record to perform the balancing test, unless legislative pronouncements or prior decisions of Pennsylvania courts have already done so. Reese, 173 A.3d at 1159; Prince, 219 A.3d at 619. Pursuant to a PSEA balancing test, constitutional considerations may necessitate redaction of personal information not otherwise permissible under the RTKL. Reese, 173 A.3d at 1159.
Accordingly, though we have established the video itself is a public record subject to disclosure, it remains the obligation of the District to balance the students’ and their parents’ interests in controlling access to and dissemination of the children‘s images in the video against the public‘s interest in dissemination of those images, and to redact the video as necessary to protect those informational privacy interests. Because Requester here expressly disclaims any public interest in disclosure of the identities of the students depicted in the video,18 the District need not weigh any further; it can effectuate access to the requested record without violating the children‘s informational privacy rights by redacting their images in the video.
Lastly, we note this constitutional balancing test is a common law principle and not a statutory requirement, but is frequently implicated within RTKL record requests and litigation. As discussed supra, subsequent to PSEA, the agency responsible for disseminating a public record should perform the balancing test, though the test may also be subsumed within a legislative pronouncement or decision of court. See, e.g., Prince, 219 A.3d at 619. As is evident from a review of Reese, Prince, and the present case, there appears to remain some confusion regarding how and when such balancing should occur, who must be notified of a right to object to disclosure of personal information, and
under what circumstances courts should perform a balancing test in the absence of one taking place below. See also, e.g., District‘s Brief at 5, 12-14 (arguing Commonwealth Court erred by not performing balancing test); Governor‘s Office of Admin. v. Campbell, 202 A.3d 890, 893-94 (Pa. Cmwlth. 2019) (en banc) (presuming authority to perform PSEA balancing test on appeal rather than remand in interest of judicial economy). Ideally, when third parties’ informational privacy interests are implicated by record requests, the agency will have received all relevant information from interested parties and performed such balancing as necessary on its initial review. Yet, until such processes are clearly established, it appears likely that third parties’ informational privacy rights will remain merely incidental to right-to-know litigation, and protected only insofar as they are adequately raised by the agency or identified and addressed by the courts. We recognize the establishment of such procedures is a task within the legislative bailiwick, and we therefore urge the General
IV. Conclusion
For the foregoing reasons, we conclude the District did not demonstrate it would lose federal funding as a result of disclosing the video, and therefore, under the present circumstances, we hold the District may not avail itself of the exception to disclosure found in RTKL
Justices Todd and Donohue join the opinion.
Justices Baer and Wecht join Part III(A)(2), and join the
Chief Justice Saylor and Justice Mundy join Part III(B) to the extent it determines the subject video was an educational record, and join the mandate to the extent it precludes disclosure of information that could reveal the identities of the students in the video.
Chief Justice Saylor files a concurring and dissenting opinion in which Justice Mundy joins.
Justice Baer files a concurring and dissenting opinion in which Justice Wecht joins.