Easton Area Sch. Dist. v. Miller

232 A.3d 716

EASTON AREA SCHOOL DISTRICT, Appellant

v.Rudy MILLER and the Express Times, Appellees

No. 13 MAP 2019

Supreme Court of Pennsylvania.

Argued: September 12, 2019

Decided: June 18, 2020

OPINION

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), 65 P.S. §§ 67.101 - 67.3104,¹ is not exempt from disclosure under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. Although our rationale departs from the analysis of the Commonwealth Court, we affirm the court's order, with instructions to redact students' images from the video prior to disclosure.

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; 65 P.S. § 67.708(b)(1)(i).

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 Subsection 708(b)(1)(i) of the RTKL because the video constituted an education record under FERPA and its release would place the District at risk of losing federal funding pursuant to that Act. See District Letter dated 4/18/17. In support of this position, the District cited Subsections 1232g(b)(1)-(2) of FERPA, infra at pages 12-13, which generally provide for the withholding of federal funding to educational agencies or institutions that have a policy or practice of releasing education records and personally identifiable information contained in those records unless certain conditions are present. See id . at 2-3, citing 20 U.S.C. § 1232g(b). Relying upon the definitions of "education record" and "personally identifiable information" as used in FERPA, the District contended the video was an education record because it enabled all viewers to identify the students depicted in it.² The District also attached an attestation of John Castrovinci, the District's Open Records Officer (ORO), to its supplemental response. Therein, the ORO stated: (1) "[a] video exists that would reflect an interaction between [a teacher] and a student within the range of dates set forth in the request;" (2) the video was being used as evidence in a pending disciplinary action against the teacher 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 65 P.S. § 67.305. Then, relying on case law from other jurisdictions, the OOR opined that only those records relating to student academics are education records under FERPA. Id . at *4-5. The OOR reasoned that, while the requested video "purportedly depicts the individual student" involved in the incident at issue, there was no evidence that it was part of the student's permanent academic file. Id . at *5-6. The OOR thus concluded the video was not an education record under FERPA and, consequently, its disclosure would not threaten the loss of federal funding to the District. Id . at *6, n.2. Accordingly, the OOR held that the District failed to meet its burden of proof to withhold the video under Subsection 708(b)(1)(i) of the RTKL, and it ordered the District to disclose the video within thirty days. Id .

The District then appealed to the court of common pleas. In addition to arguing the video met the RTKL Subsection 708(b)(1)(i) exception for loss of FERPA funds, the District further asserted that because the video was an educational record exempt from disclosure under FERPA, it was also exempt from disclosure under the RTKL Subsection 305(a), which provides the public presumption of agency records does not apply if, inter alia , a Section 708 exception applies, or, if "the record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree." District's Brief in Support Appeal and Petition for Review of Decision of the OOR at 3-5, citing 65 P.S. § 67.305(a). The court agreed with the OOR's determination the video was not an education record under FERPA because the District failed to establish that the video contained information regarding the depicted student's academic or educational performance. The court held disclosure of the video would not jeopardize federal funding rendering it exempt under Subsection 708(b)(1)(i) of the RTKL, and thus ordered disclosure of the video to Requester.³ Easton Area School District v. Miller and the Express Times, No. C-48-CV-2017-5558, unpublished order at 2-3 (C.P. Northampton County filed Dec. 1, 2017). Thereafter, the District appealed to the Commonwealth Court.

In a unanimous published opinion, a three-judge panel of the Commonwealth Court affirmed the common pleas court's order.⁴ Easton Area Sch. Dist. v. Miller , 191 A.3d 75 (Pa. Cmwlth. 2018). Contrary to the rationale of the lower tribunals, the Commonwealth Court reasoned that FERPA did not require an education record to be related exclusively to a student's academic performance. Id. at 81. Nonetheless, the panel emphasized that the statute required the information to be "directly related to a student[.]" Id. (referring to FERPA's definition of "education record," supra at page 719 n.2).

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 Subsection 708(b)(1)(i) of the RTKL. Id . at 83.

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 review is de novo, and our scope of review is plenary. Pennsylvania State Police v. Grove , 640 Pa. 1, 161 A.3d 877, 887 (2017).

II. Arguments

The District maintains the video is an...