The definition of “record” set forth in Section 102 of the Right-to-Know Law (RTKL) makes it clear that a record, and thus, a public record may exist in many forms, including video recordings.  Such a record was at the center of a recent Supreme Court decision, Easton Area School District v. Miller and The Express Times, decided June 18, 2020.  The case involved a request by a reporter for The Express Times for a copy of a video recording of an encounter on an occupied school bus involving a teacher and an elementary school student.

The District denied the request contending that the video involved a student and was thus an ‘education record’ under the Family Educational Rights and Privacy Act (FERPA).  The District further contended that to release an education record in violation of FERPA would result in a threatened loss of federal funding.  The paper appealed to the Office of Open Records (OOR) who ordered the release of the recording.  The OOR found that the video was not an education record under FERPA, and its release would thus not result in any loss of federal funds under Section 708(b)(1)(i).  The District appealed to the Court of Common Pleas which affirmed the OOR’s determination for similar reasons.  An appeal by the District to the Commonwealth Court followed.

In affirming the trial court, the Commonwealth Court found that the video did not ‘directly relate’ to a student and did not, therefore, meet the definition of an education record under FERPA.  Since it was not an education record, its release could not result in a loss of federal funds, and the trial court’s decision was affirmed.  The Supreme Court granted discretionary review on the issue of whether the video was exempt from disclosure under FERPA.

Justice Dougherty, writing for a fractured Court, stressed that, under the RTKL, the agency has the burden of proving a record is exempt, and that any claimed exemption must be narrowly construed.  He observed that the OOR and the courts below had concluded that the video was not an education record under FERPA and had ended their analysis there, finding its release could not result in a loss of federal funding and the District’s basis for exemption unsupported.  He further stated, however, that whether the video qualifies as an education record does not end the inquiry on whether it is subject to release under the RTKL.  The exemption claimed by the District under 708(b)(1)(i) further requires proof that its release would result in a loss of federal funding.  The Court agreed the District failed to meet this burden and the exemption did not apply.

To run afoul of FERPA’s prohibition against releasing education records, the law requires that 1) the agency involved is receiving or eligible to receive federal funding, 2) the agency has a policy or practice of releasing or allowing the release of prohibited records or protected information contained therein, and 3) that the release was done without parental consent or in the absence of a judicial order or lawful subpoena.  Although the Court accepted that the District was eligible to receive federal funding, it found that the District had failed to present any evidence of a ‘practice or procedure’ of releasing education records that would subject it to punishment by federal authorities, funding or otherwise.  As an aside, the opinion noted that, upon proper notice to parents under FERPA, the trial court and Commonwealth decision would likely be the type of ‘judicial order’ permitting disclosure even under FERPA.  Thus, the District had failed to prove the applicability of the 708(b)(1)(i) exemption.

Justices Wecht and Baer joined in this part of the opinion in their concurring and dissenting opinion and further found there was no legal basis to require the redaction of the students’ images. They dissented to the extent the Majority required the PSEA balancing test as they felt such analysis was outside the scope of the narrow issue upon which the Court had granted review.  Their opinion does not directly address the issue of whether the video was or was not an education record, but considering their joinder in the failure to meet the exemption burden, it appears to be implicitly stated.

Finding, however, that the District failed to meet its burden under 708(b)(1)(i) did not end the Majority’s analysis.  Justice Dougherty went on to review whether, even though the record was not exempt as claimed by the District, was it still not a “public record” under Section 305(a)?  The Court posited that this analysis follows as Section 305(a) provides the presumption of openness of records in the possession of a local agency, like the District, does not apply if the record is exempt under “other federal …law or regulation.”  The Court then engaged in a detailed analysis of FERPA and its relevant regulations, particularly as they may apply to photos or videos.  The Court observed that they, like other education records, must ‘directly relate’ to a student.  The Court also observed that the law does allow the release of education records with parental consent or if identifying information is removed from the record itself.

The opinion rejects the Commonwealth Court’s analysis that the video was more related to the teacher involved than the student and thus not directly related to the student.  The Court also accepts, without any analysis, the second prong of the education record requirement that it be ‘maintained’ by the District.  The Court merely states in a footnote, that the District could not be expected to produce a record it did not maintain, therefore, it ‘declined to engage’ in Requester’s argument that the video was not maintained as required by FERPA.  Thus, the video was an education record.

The opinion then goes on to hold that, although the video fits the definition of an education record, it may still be released by the District without fear of retribution under FERPA, even without parental consent, if the student’s “personally identifiable information” is removed.  This can be accomplished by redaction of the student images, under Section 706, and therefore the video would not be exempt under federal law and not be subject to Section 305(a)(3).  Interestingly, the Court refuses to address who should pay for such redaction.  Of course, this presupposes there would be a cost.  Even if there is, would this be an expense ‘necessarily incurred’ by the District and thus chargeable to the Requester under Section 1307(g)?

The Court concludes its opinion by addressing another issue not directly within the ambit of the issue upon which it granted review.  The Court discusses the “students’ interests.”   The decision then takes the opportunity to introduce its privacy interests and balancing test holding in its PSEA case.  The Court determines that the images of the minor students on the bus would reveal certain private information about them, e.g. clothing, behaviors, disabilities, and geographic location.

Such information constitutes ‘informational privacy’ of the students under Pennsylvania Constitutional analysis, thus a balancing must be done between this privacy interest and the public’s need for the information.  The Court found this argument had not been waived by the District failing to raise it before the Commonwealth Court as the right was that of the students and not the District, and it could not waive the rights of a third party.  The opinion observes that there is nothing in the record to show the students or their parents were notified of the request and afforded the opportunity to voice their position or that the District had adequately advocated those interests as well.  The students and their parents must be afforded adequate notice and an opportunity to advocate those interests, and the agency involved must balance those interests against the public’s right to acquire the record in question before disclosure.  The Court concludes its decision by lamenting the lack of clear guidance, either from the Legislature by statute or from the OOR by regulation, providing clearer guidance on how third-party rights are protected and balanced when necessary.  The Court noted, however, this point was moot regarding this video because the Requester here had indicated he had no interest in the students’ identities and with redactions of their images, the video could be released.

Chief Justice Saylor filed a concurring and dissenting opinion in which Justice Mundy joined.  Although they concurred in the finding that the video was an education record, they expressed concern over the Majority’s requirement of demonstrating a ‘practice or procedure’ of releasing such records to support the exemption.  They stated that requiring such would make it almost impossible for an agency to prove the exemption in the context of a ‘single’ request, and they would hold that a single request could support this element in the proper context.  They dissented from the Majority in ordering redactions and allowing release of the video as this issue was not before the Court, and they would reverse the holding of the Commonwealth Court ordering release.

So, what are the takeaways from this holding?  It appears the Court has taken a broad and somewhat loose view of what constitutes an education record under FERPA.  This will likely result in Districts asserting FERPA as an issue in RTK requests more often.  The Court has also, however, made it more difficult for District’s to support the exemption since it is unlikely they could support a claimed loss of federal funding from such a request.  The notice and balancing test layers will make it more time consuming and will generate additional issues along the way.  Furthermore, the numerous concurrences and dissents demonstrate there is no solid majority on these issues.  There are also other appeals pending before the Court on similar video issues that were held pending this decision.  It will be interesting to see how the Court handles those, or if it remands to the Commonwealth Court for review in light of this decision.  Like so many RTK issues, even after a decision by the Commonwealth’s highest court, many questions remain for both agencies and requesters.