Videos as Potential Public Records Continue to be an Issue Faced by the Courts

The Commonwealth Court recently affirmed an earlier Dauphin County Common Pleas decision ordering a school district to release a school bus video which captured an altercation between a student athlete and an adult. The decision, penned by President Judge Hannah Leavitt, found no merit to the arguments raised by the school district against release of the video. The decision arose out of a request filed February 23, 2016, by Fox 43 News to the Central Dauphin School District for a copy of a bus video. The video captured the altercation between a member of the girl’s high school varsity basketball team and a female adult. The situation began just outside the entrance door to the bus in the school parking lot and continued onto the bus. A camera mounted just above the driver captured the relevant video.

After an initial denial by the district, Fox 43 appealed to the Office of Open Records (“OOR”) which ultimately ordered the release of the video. Judge William Tully, of the Dauphin County Court of Common Pleas, affirmed the decision of the OOR after an evidentiary hearing.

On appeal to the Commonwealth Court, the district relied upon two arguments:

1) the record was exempt under the provisions of the Family Educational Rights and Privacy Act (FERPA) as an “education record”, and

2) the record was exempt as a non-criminal investigation record.

In examining prior federal and state case law concerning what constitutes an “education record” under FERPA, the court observed that a document must “directly relate to a student” and be “maintained by the school.” The court upheld the findings of fact of the trial court below and found that the district failed to satisfy either requirement. With regard to the non-criminal investigation exemption, the court was equally unpersuaded. The Commonwealth Court again found based on the record that even though the district claimed that the video was used as part of its review for potential disciplinary action against the student or others, the mere fact that the video had some connection to a non-criminal investigation does not automatically exempt it under that exception. The court observed that the district had failed to show how the video related to the “non-criminal investigation.” The district did not explain how the video even related to the discipline it allegedly imposed. In fact, the district presented no evidence as to the video except that it was “reviewed.”

The court distinguished two of its prior decisions, California Borough v. Rothey[1], and Port Authority of Allegheny County v. Towne[2]. The court noted that the Towne decision involved the exemption of a county port authority bus video. The evidence produced there showed, however, that the sole purpose of the creation of and use of the video was to investigate accidents. In the Rothey decision, the court noted how the video, from the area of a police department holding cell, had been used as direct evidence involved in the criminal and non-criminal investigations of the actions of an officer with a detainee. The court found these situations distinguishable based particularly upon the lack of similar evidence produced by the district as to the use and purpose of this video.

As illustrated above, the courts continue to wrestle with unique fact patterns involving videos as public records. As Judge Leavitt observed in this decision, citing to the Supreme Court’s decision in Pennsylvania State Police v. Grove[3] (Grove II), “each claim that a record is exempt as relating to an investigation must be decided on its unique facts.”

These decisions involving videos further demonstrate the need to carefully review the circumstances under how the video is created and how it is subsequently used by the agency involved. Additionally, it underscores the importance of developing a proper factual record when a video is involved, as the criminal/non-criminal investigation exemption will often arise with regard to videos.

The court continues to be faced with making decisions regarding videos as public records. On January 8, 2019, the Commonwealth Court issued a decision penned by Judge Covey, Borough of Pottstown v. Shanicqua Suber-Aponte[4]. In that case, the requester had asked for a copy of police video footage regarding her being brought into the Borough police department. This case had been stayed pending the court’s decision in the Rothey case. The court ultimately reversed the Montgomery County Common Pleas trial court decision exempting the video on various grounds and vacated the trial court’s order remanding it for further proceedings to determine whether the exemptions claimed of personal security, public safety, building security, and criminal and non-criminal investigation were well-founded. This decision, along with those discussed above, underscore the need for a clear factual record when seeking the release of video footage under the Right-to-Know Law.

[1]California Borough v. Rothey, 185 A.3d 456 (Pa. Commw. 2018).

[2] Port Authority of Allegheny County v. Towne, 174 A.3d 1167 (Pa. Commw. 2017).

[3] Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017).

[4] Borough of Pottstown v. Suber-Aponte, No. 478 C.D. 2017, 2019 WL 122160 (Pa. Commw. Jan. 8, 2019).

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