Cent. Dauphin Sch. Dist. v. Hawkins

286 A.3d 726

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

Supreme Court of Pennsylvania.

Argued: April 12, 2022

Decided: December 21, 2022

Stuart Lee Knade, Esq., Pennsylvania School Boards Association, Linda J. Randby, Esq., for Amicus Curiae Pennsylvania School Boards Association.

Paula Knudsen Burke, Esq., Amici Curiae Pennsylvania NewsMedia Association, Reporters Committee for Freedom of the Press.

Melissa Bevan Melewsky, Esq., Pennsylvania NewsMedia Association, for Amicus Curiae Pennsylvania NewsMedia Association.

Chad A. Rutkowski, Esq., Baker & Hostetler LLP, for Amici Curiae The Brechner Center for Freedom of Information, Student Press Law Center, National Freedom of Information Coalition, Society of Professional Journalists.

Michael McAuliffe Miller, Esq., Tricia Snyder Springer, Esq., Eckert Seamans Cherin & Mellott, LLC, for Appellant.

Kyle E. Applegate, Esq., Office of Open Records, for Appellee Office of Open Records.

Joshua D. Bonn, Esq., Craig James Staudenmaier, Esq., Nauman, Smith, Shissler & Hall, LLP, for Appellees Valerie Hawkins, Fox 43 News.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE DOUGHERTY

In our plurality resolution of Easton Area School District v. Miller , 659 Pa. 606, 232 A.3d 716 (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), 65 P.S. §§ 67.101 - 67.3104, was exempt from disclosure by operation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. We instructed the district to redact students’ images and release the video to the requester. On the heels of this decision, we granted discretionary review to consider whether the Commonwealth Court erred when it applied the plurality's analysis under similar circumstances, and ordered redaction and disclosure of the school bus surveillance video it determined to be an education record subject to FERPA. For the reasons that follow, we affirm the court's order, and direct the school district to reasonably redact the students’ personally identifiable information and release the video.

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

See Official Notice of Appeal to OOR, No. AP 2016-0583, 3/25/2016, at 1-2; Easton Area II , 232 A.3d at 719 ; see also PA. OFFICE OF OPEN RECORDS , Procedural Guidelines, Rev. 9/29/2015, at 8-9.² Each of the districts supplemented the record with an affidavit from its open records officer indicating, inter alia , the requested bus surveillance video was evidence in a pending district investigation or disciplinary matter, and disclosure of the video would enable the students in it to be identified. See Affidavit of ORO McConnell, 3/31/2016; Easton Area II , 232 A.3d at 719-20. To the OOR (which ordered disclosure of the video in each case) and common pleas courts (which denied the districts’ requests to vacate the orders), the districts argued the bus surveillance videos were "education records" protected from disclosure by FERPA, which the federal 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." 20 U.S.C. § 1232g(a)(4)(A). In relation to FERPA, and in addition to other asserted exceptions from public disclosure enumerated under Subsection 708(b) of the RTKL, each district claimed the RTKL's loss-of-funds exception applied, see 65 P.S. § 67.708(b)(1)(i), exempting from access a record which, if disclosed, "would result in the loss of Federal or State funds by an agency or the Commonwealth[.]"³

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 Sections 102 (defining "public record" as one that is not privileged nor exempt under Section 708 or "any other Federal or State law or regulation or judicial order or decree"), and Subsection 305(a) (presuming a record of an agency is public unless exempt under, inter alia , "any other Federal or State law or regulation or judicial order or decree"), id. §§ 67.102, 67.305(a)(3). See District's Notice of Appeal and Petition for Review, 6/9/2016 at 3-4, 12 n.3, citing 65 P.S. §§ 67.102, 67.305(a), 67.708(b)(1)(i) ; Easton Area II , 232 A.3d at 720.⁴ In both cases, at all three levels of review preceding this Court's consideration, the tribunals below granted the news media's request for disclosure of the bus surveillance video, concluding the 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...