Commonwealth Court Opens Door for Increased Notice Requirements under the Pennsylvania Right-To-Know Law
The Commonwealth Court may have added a new hurdle to the efficacy of Pennsylvania’s Right-To-Know Law (“RTKL”). In July 2019, the Commonwealth Court remanded a case back to the Office of Open Records (“OOR”) involving disclosure of emails held by West Chester University of Pennsylvania (“WCU”).[1] A student of WCU requested emails pertaining to an Office of Student Conduct Case in which he was involved. In response, the University provided only 50 pages of emails and withheld approximately 500 pages of emails that the University argued are exempt as educational records under the Family Educational Rights and Privacy Act (“FERPA”).
The requester appealed the University’s decision to the OOR and subsequently the University provided the requester with the remaining emails after “partially or wholly redacting some of the pages to remove personally identifiable information of students other than [Requester].” The OOR determined the 500 pages of emails were not educational records as defined by FERPA because the emails were not academic records kept in the permanent, central file of a student.
On appeal to the Commonwealth Court, the University argued that the emails are indeed educational records. Alternatively, even if the emails are deemed to not fall under the protections of FERPA, the OOR must follow procedures required to protect student privacy interests protected under the Pennsylvania Constitution before requiring disclosure under the RTKL.
The interplay between FERPA and the RTKL arises because the RTKL provides an exemption from access by a requester for any records which, if disclosed, would result in the loss of Federal or State funds by an agency. Under FERPA, an educational agency shall not receive any funds if the agency has a policy or practice of permitting the release of education records of students without written consent. FERPA defines education records as records that “contain information directly related to a student” and are “maintained by an educational agency or institution.”
After discussion of the relevant case law, the Commonwealth Court concluded that to meet the standards of FERPA, education records must be related directly—not incidentally—to a student and those records must be maintained in a way that requires procedures for access to records, including logging requests for access.
The Pennsylvania Supreme Court has already determined that under Pennsylvania’s constitutional guarantee of privacy, certain identifiers such as social security numbers, telephone numbers, and home addresses implicate privacy interests.[2] When a right to privacy is implicated in Pennsylvania, “a balancing test [is] required to determine whether the right to privacy outweigh[s] the public’s interest in dissemination.” Turning to the issue of constitutional privacy protections provided by Article 1, Section 1 of the Pennsylvania Constitution, the University argued that the OOR should have performed a balancing test to weigh the public interest in disclosure against privacy interests of students whose information is found in the emails. Courts have frequently relied on public agencies holding information to assert the privacy interest of third parties as a basis to exempt documents from disclosure under the RTKL without requiring that those third parties be informed of any pending appeal involving their constitutional rights.
In remanding the instant case back to the OOR, the Commonwealth Court encouraged the University to develop its constitutional privacy concerns. The Commonwealth Court also issued an express reminder that to “the extent this matter involves direct, third-party interests in nondisclosure of the requested records, it may be appropriate for the OOR to require notice to parties so interested and allow their participation pursuant to Section 1101(c)(2) of the RTKL.”
What does this case mean for the future of the RTKL? This requirement on remand will likely slow down the public’s access to information and further prolong an already drawn out process. Specifically, in the case of West Chester University, it is unknown how many of the 500 redacted emails contain protected information under the Pennsylvania Constitution, but requiring notice to possibly hundreds of third parties whose privacy rights may be implicated is a significant burden on the RTKL process.
[1] West Chester University of Pennsylvania v. Rodriguez, 216 A.3d 503 (Pa. Commw. 2019).
[2] Pa. State Education Ass’n v. Commw., 148 A.3d 142 (Pa. 2016).