FERPA, the Right-to-Know Law and School Bus Videos
On April 22, the Commonwealth Court announced its decision involving a request by Fox 43 News for a school bus video from a local school district. The Court ultimately ordered that the video had to be released with certain redactions and that the Family Educational Rights and Privacy Act (FERPA) did not prevent its release. The decision is significant because it was the first appellate decision to address the interplay between the privacy protections of FERPA and the public disclosure requirements of the RTKL after an earlier decision of the Pennsylvania Supreme Court addressing this issue.
The Supreme Court decision involved the Easton Area School District and a school bus video which recorded an interaction between a teacher and an elementary school student. The Court in a plurality decision found the video was an education record under FERPA, but with appropriate redactions, was a public record and could be released to the reporter who requested it. Interestingly, although the Court required that student images be redacted from the video, it did not address how that was to be done or what party would be responsible for any cost associated with doing so.
The Commonwealth Court decision arose out of a request by Fox 43 for a copy of a school bus video showing an altercation between a member of the high school girls’ basketball team and an adult not employed by the district. Several facts made this situation different from the Easton Area case as this involved a high school student, did not concern any actions by a district employee and part of the altercation began outside the bus in a public parking lot but was picked up by a camera mounted over the driver which was focused on the door to the bus showing some of the outside area. Additionally, charges were filed against the adult resulting in a hearing before a Magisterial District Judge where part of the video was shown, and the identity of the high school student revealed.
In the Fox 43 case, the Commonwealth Court had earlier decided the video was not an education record and was not exempt from disclosure with certain redactions. The district petitioned for allowance of appeal which was granted but held in abeyance till the Supreme Court decided the Easton Area case. After Easton Area was decided, the Supreme Court remanded the Fox 43 case back to the Commonwealth Court with instructions to reconsider its holding in light of the Easton Area analysis.
The Commonwealth Court, after additional briefing and argument, again found that the video must be released with redactions of any student images. In an opinion authored by Judge McCullough, although the Court found that, in light of the Easton Area case the video was an education record under FERPA, employing additional analysis from the Easton Area decision, it held that with redactions which would remove the identity of students, the video no longer ran afoul of FERPA privacy protections and was a public record subject to release under the RTKL. The Court was also not persuaded that the loss of federal funds exemption claimed by the district. The Court observed that although no one challenged the district’s eligibility to receive federal funds, it further found that the district had failed to show that release of the video, particularly in redacted form, would result in a loss of any federal funding. The district also failed to show that the release of a video, in response to a court decision ordering same, would satisfy the ‘policy or practice’ stricture of FERPA to bring federal funding into question. The Court further held that with the redaction of student images, the video, even though an education record, was no longer violative of “any other Federal law …regulation…or judicial order” under Section 305(a). Finally, the Court found that the testimony of the district that it did not have the ability to redact the video not credible and stated that there are numerous methods available to do so today. The Court also observed that the trial court, which initially heard the case and ordered the video redacted and released, also did not find the district’s testimony credible.
Both the Easton Area and Fox 43 decisions highlight some continuing issues. First, it appears that almost any school record which pertains to a student in some way and is preserved by the district will be held to be an education record and thus protected by FERPA’s privacy provisions. Second, it appears equally true that it will be next to impossible for a district to sustain an exemption under 708(b)(1) (loss of federal funds) as there is simply no evidence of a district ever being penalized by a federal agency by loss of funds for a FERPA privacy violation. It will also be unlikely that the district will be engaged in a ‘practice or policy’ of violations.
Finally, the issue of redaction, especially to what lengths a district must go to perform the redaction and perhaps, more importantly, which party, if any must pay for any related cost? Is this an expense ‘necessarily incurred’ under Section 1307(g) which can be charged to the requester? With the wide availability of redaction software, e.g., YouTube, does the district need to incur any cost at all? These questions remain, as of yet, undecided. With the prevalence of digital recordings, these issues are sure to reach the courts, so stay tuned.