W. Chester Univ. of Pa. v. Rodriguez

216 A.3d 503

WEST CHESTER UNIVERSITY OF PENNSYLVANIA, Petitioner

v.Adrian RODRIGUEZ, Respondent

No. 1078 C.D. 2018

Commonwealth Court of Pennsylvania.

Submitted: February 22, 2019

Filed: July 24, 2019

Joseph M. Miller, University Legal Counsel, Harrisburg, for petitioner.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE BROBSON

West Chester University of Pennsylvania (the University) petitions for review of the July 12, 2018 final determination (Final Determination) of the Pennsylvania Office of Open Records (OOR) under the Right-to-Know Law (RTKL).¹ In the Final Determination, the OOR granted the appeal of Adrian Rodriguez (Respondent)² and directed the University to provide Respondent with all responsive records pursuant to Respondent's RTKL request. For the reasons that follow, we will vacate the Final Determination and remand this matter to the OOR for further proceedings.

I. BACKGROUND

On January 17, 2018, Respondent filed a RTKL request with the University seeking the following records:

[E]mails from the Office of Student Conduct from [January 1, 2017] to [January 17, 2018] from Christina Brenner, Shelly Siedzikowski, and Dawn Welch that pertain to:

- Adrian Rodriguez, [student]ID # ...^[3]

- Office of Student Conduct Case ID # ...

- Computer Science Club

... [E]mails from the Computer Science department from [January 1, 2017] to [January 17, 2018] from Dr. Richard Burns, Dr. James Fabrey, and Dr. Si Chen pertaining to:

- Adrian Rodriguez, SID # ...

- Office of Student Conduct Case ID # ...

- Computer Science Club

(Reproduced Record (R.R.) at 10a.) On February 23, 2018, the University provided 50 pages of the requested emails to Respondent and denied access to the remaining responsive emails. In its accompanying response, the University claimed that the emails it did not provide—totaling approximately 500 pages—are exempt from RTKL disclosure because they are protected by the statute commonly known as the Family Educational Rights and Privacy Act (FERPA).⁴ The University's response also informed Respondent that, with respect to the withheld records, it would consider the RTKL request as a request to review Respondent's own education records pursuant to FERPA.

Respondent appealed the University's action to the OOR on March 5, 2018. In mid-April of 2018, during the appeal proceeding, the University provided Respondent with the remaining pages of responsive records it had withheld, after partially or wholly redacting some of those pages to remove personally identifiable information (PII) of students other than Respondent.⁵ In its submission of argument to the OOR, the University claimed that it provided the second set of pages pursuant to FERPA (and not the RTKL), which should render moot Respondent's appeal to the OOR. The University also argued that any responsive records beyond the first 50 pages provided to Respondent are education records under FERPA and are, therefore, exempt from disclosure under the RTKL. In the Final Determination granting Respondent's appeal, the OOR concluded that the approximately 500 pages of emails the University had initially withheld are not education records under FERPA because the records are (1) not academic records, and (2) not kept in the central, permanent file of any student. Accordingly, the OOR, considering the University's position that the records are protected under the RTKL as a result of their status as education records under FERPA, concluded that the records are not exempt from disclosure under the RTKL. The OOR directed the University to provide them to Respondent, and the University petitioned this Court for review.

II. ISSUES

On appeal,⁶ the University argues that the OOR erred in determining that the requested records are not education records under FERPA. Specifically, the University asserts that the OOR erred in concluding that: (1) the records are not education records because they do not directly relate to a student, and (2) the records are not education records because they are not maintained in the permanent file of any University student. The University claims that the records in question both directly relate to students and are maintained by the University, making them education records that are exempt from RTKL disclosure. The University also argues that, even if the records are not protected by FERPA, the OOR cannot order their disclosure without first following procedures required to protect student privacy interests in the requested records under the Pennsylvania Constitution.

III. DISCUSSION

A. RTKL and FERPA

Section 708(b)(1)(i) of the RTKL, 65 P.S. § 67.708(b)(1)(i), provides:

(b) Exceptions.— Except as provided in subsections (c) and (d), 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 ....

Section 1232g(b)(1) of FERPA, 20 U.S.C. § 1232g(b)(1), is also relevant to our analysis and provides, in part:

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 ...) of students without ... written consent ....

(Emphasis added.) For records which are responsive to a RTKL request but are withheld pursuant to a statutory exception to disclosure, Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), requires a Commonwealth agency to prove the elements of the statutory exception by a preponderance of the evidence. Here, the University argues that the 500 pages it initially withheld are exempt from RTKL access pursuant to Section 708(b)(1)(i) of the RTKL because they are education records under FERPA, the unauthorized disclosure of which would endanger the University's receipt of federal funding.

Section 1232g(b)(1) of FERPA protects "education records" and "personally identifiable information contained [in education records]." FERPA defines "education records" as records that (1) "contain information directly related to a student," and (2) are "maintained by an educational agency or institution." 20 U.S.C. § 1232g(a)(4)(A). Both components of this definition are at issue in this case.

In order to contain information directly related to a student, a record need not concern any particular subject matter, such as academics or discipline. See Easton Area Sch. Dist. v. Miller , 191 A.3d 75, 81-82 (Pa. Cmwlth. 2018) ("Congress made no content-based judgments with regard to its ‘education records’ definition." (quoting Ellis v. Cleveland Mun. Sch. Dist. , 309 F. Supp. 2d 1019, 1022 (N.D. Ohio 2004) )), appeal granted , 201 A.3d 721 (Pa. 2019). The agency must establish that the information in the record relates directly, as opposed to tangentially or incidentally, to a student. Cent. Dauphin Sch. Dist. v. Hawkins , 199 A.3d 1005, 1013-14 (Pa. Cmwlth. 2018) ( Central Dauphin ). For example, in cases involving surveillance videos that captured images of students, we have held that the videos did not directly relate to students because students were shown only incidentally in the videos, which were ultimately used in proceedings against teachers or parents and not shown to have implications for the students depicted. See id. ; Easton Area , 191 A.3d at 82. Contrary to the University's apparent position, it is not enough that the requested records "involve a disciplinary matter," "involve students' activities," "pertain to ... individual students," or contain "students' names and other information.^{[7 ]}" (Br. of Petitioner at 11-17 (emphasis added).) Rather, the institution must show that the record contains information related directly (not incidentally) to a student.

Records directly relating to students must also be "maintained by" an educational institution in order to constitute education records. Courts have interpreted this statutory provision to require more than bare possession by the institution. In Owasso Independent School District No. I-011 v. Falvo , 534 U.S. 426, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002), the United States Supreme Court held that assignments graded by students in the classroom were not maintained by the educational institution because they were not treated like typical education records kept in a central file with restricted, monitored access. In so concluding, the Court reasoned:

FERPA requires "a record" of access for each pupil. This single record must be kept "with the education records." This suggests Congress contemplated that education records would be kept in one place with a single record of access. By describing a "school official" and "his assistants" as the personnel responsible for the custody of the records, FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.

Owasso , 534 U.S. at 434–35, 122 S.Ct. 934 (quoting 20 U.S.C. § 1232g(b)(4)(A) ).

This Court has held that the reasoning in Owasso applies regardless of the medium of the record at issue:

While Owasso concerned student papers ..., the Supreme Court's interpretation of what constitutes "maintenance" of an education record is binding in every context. The Supreme Court explained that because the school did not have a maintenance protocol for peer-reviewed student papers, this supported its conclusion that these papers were not education records.

Central Dauphin , 199 A.3d at 1015. In Central Dauphin , we emphasized that FERPA requires institutions to follow certain maintenance procedures for education records (as opposed to records in general), including logging requests for access. Id. We then concluded that the school bus surveillance video at issue in that case was not maintained by the institution because the school district had no systematic...