This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond
On June 18, 2020, a divided Pennsylvania Supreme Court held that a school bus surveillance video was not exempt from disclosure under the RTKL in Easton Area School District v. Rudy Miller and The Express Times, Docket No. 13 MAP 2019. Although the Supreme Court majority agreed with Commonwealth Court that the video must be disclosed, it held that constitutional privacy concerns require application of a balancing test and redaction of recognizable images of students before disclosure. (For additional research on this topic, consider an OOR decision highlighted on these pages in a different case that also addressed issues that arise in connection with the RTKL when a bus video is requested.)
Did Commonwealth Court err as a matter of law in concluding that a school bus surveillance video was not exempt from disclosure under RTKL solely because it is an “education record” for purposes of Section 1232g of the federal Family Educational Rights and Privacy Act (“FERPA”)? The Supreme Court answered this question in the negative.
A reporter for The Express Times requested a copy of a school bus security camera video from Easton Area School District (“Easton”) under the RKTL. The video showed an elementary school teacher “roughly physically disciplin[ing] a child.” Slip op. at 2. Easton denied the request pursuant to RTKL Subsection 708 (b)(1)(i), which exempts from disclosure public records that, if produced, would result in a loss of federal or state funds by an agency, a result dictated by FERPA’s protection from disclosure of a student’s “education record” without parental consent.
OOR found that the video was not an “education record” as defined by FERPA, and ordered its production. Easton appealed to the Court of Common Pleas, which agreed with OOR and affirmed.
A unanimous Commonwealth Court panel affirmed the Court of Common Pleas, noting that a record does not need to relate solely to academic performance to be an “education record” under FERPA. However, Commonwealth Court held that the record needed to be “directly related to a student” to be an “educational record,” and the video was only “tangentially related” to the students depicted. This “directly related” determination is content-specific and must be made on a case-by-case basis. Slip op. at 6.
The Majority Ruling:
Before the Supreme Court, Easton argued that the video is an “education record” under FERPA because it contains “personally identifiable information,” about a student. “Personally identifiable information” is defined as “information … 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.” Slip op. at 6. Since, under FERPA, an education record may be disclosed only with parental consent, Easton maintained that the video is not a “public record” under the RTKL and is thus exempt from disclosure.
The Express Times argued that the video was a presumptively public record and that Easton failed to establish that the RTKL exempts the video from production. It is the “policy or practice” of producing information such as that contained in the surveillance video that is proscribed by FERPA and would result in the loss of federal funding, and Easton never proved that it had such a practice or policy.
The majority agreed with Easton that the surveillance video is an “education record.” It also agreed with The Express Times that Easton had to prove, and failed to prove, that the RTKL’s exemption for records whose disclosure would cause it to lose federal funds applied. But the majority was not satisfied with simply upholding Commonwealth Court, partly because it considered the video to contain “personally identifiable information” that directly relates to a student, not just to a teacher, and partly because it concluded that constitutional rights were implicated by the RKTL request at issue.
The majority observed that “personally identifiable information” is protected under the Pennsylvania Constitution, and may not be produced even if the record in which it appears is otherwise subject to production under the RKTL, Slip op. at 27 (citing Pennsylvania State Educational Ass’n v. Commonwealth, 637 Pa. 337, 148 A. 3d 142 (2016)). Both FERPA and the RTKL provide that a record containing both disclosable information and protected information may be disclosed if the protected information is redacted before disclosure.
Thus, the majority held that an agency asked to disclose a public record under RTKL must first apply a constitutional balancing test “to determine whether the right of informational privacy outweighs the public’s interest in dissemination,” slip op. at 26-27. Such considerations “may necessitate redaction of personal information not otherwise permissible under the RKTL.” Slip op. at 27. Consequently, Commonwealth Court was affirmed, with instructions orders to redact the students’ “personally identifiable information” before disclosure.
Concurring and Dissenting Opinions:
In an opinion which Justice Mundy joined, Chief Justice Saylor agreed that the video at issue is an “education record,” but otherwise disagreed with the majority’s ruling. The majority’s rationale raises the possibility that every refusal to produce an “education record” would be sufficient to support an RTKL Subsection 708 (b)(1)(i) exemption because even a single refusal could be deemed sufficient to establish a “policy or practice” of refusal to produce, making the RTKL exclusionary language meaningless. Thus, he would have reversed Commonwealth Court’s order.
In an opinion which Justice Wecht joined, Justice Baer agreed that Commonwealth Court should be affirmed, but concluded that the privacy issue was not before the Court. He would not have required redaction or discussed any balancing test.
The Supreme Court now requires agencies to apply a constitutional balancing test whenever a RTKL disclosure request directed to the agency implicates an individual’s privacy rights. It remains to be seen whether the extra burden this ruling imposes on agencies will result in changes to the RTKL.