Harrisburg, PA and Pittsburgh, PA
Legal Intelligencer
(by Casey Alan Coyle, Anna Jewart and Anna Hosack)
In December 2022, the Pennsylvania Supreme Court issued its opinion in Central Dauphin School District v. Hawkins, 286 A.3d 726 (Pa. 2022), the latest in a line of cases considering the intersection of the federal Family Educational Rights and Privacy Act, 20 U.S.C. §1232g (“FERPA”), and the Pennsylvania Right-to-Know Law, 65 P.S. §§67.101-67.3104 (“RTKL”). The majority held that, while the school bus surveillance video at issue constituted an “education record” under FERPA, the school district was nonetheless required to release the video under the RTKL, following redaction of students’ personally identifiable information (“PII”). Hawkins has clear implications regarding the treatment of school surveillance videos under FERPA and the RTKL. However, Hawkins raises several questions, including whether a non-public record can “become” public through redaction, and therefore, be subject to disclosure under the RTKL.
RTKL
The RTKL is the state open records law. It requires state and local government agencies, including public school districts, to provide access to “public records’ upon request, subject to certain exceptions. The statute broadly defines a “public record” as a record of a Commonwealth or local agency that is not exempt under one of 30 enumerated exemptions, not protected by a privilege, and “not exempt from being disclosed under any other Federal of State law or regulation or judicial order or decree.” A record in the possession of an agency is presumed to be a public record unless, inter alia, “the record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree.” The RKTL also contains a disclaimer: “Nothing in this act shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” Notably, the RTKL includes a provision mandating redaction of exempt information, Section 706. Critically, however, Section 706 does not apply to all records, but only those determined to be a “public record,” “legislative record,” or “financial record.”
FERPA
FERPA is a privacy statute for student education records. An “education record” is defined as those records files, documents, and other materials which: (1) contain information “[d]irectly related to a student;” and (2) are “[m]aintained by an educational agency or institution or by a person acting for such agency or institution.” FERPA serves the dual purpose of ensuring parents and students have access to education records, while protecting student and parent privacy by prohibiting disclosure of students records without consent. FERPA achieves these objectives by conditioning federal funding to public school districts and other educational agencies or institutions upon compliance with its regulations. FERPA makes education records exempt from disclosure, subject to limited exceptions. One such exception is parental consent. Another is where the educational agency or institution, in its discretion, elects to release a record after the removal of all PII, “provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable.”
Hawkins
Hawkins involved a school bus video. The video shows an incident occurring primarily between a student and a parent of another student while surrounded by other students on a school bus located on school district property. After receiving reports of the incident, the district conducted an investigation that resulted in disciplinary action against both students and staff. No parental consent for the release of the video was ever provided.
A Commonwealth Court panel held the video did not constitute an “education record” under FERPA, and thus, was subject to disclosure under the RTKL. The Pennsylvania Supreme Court subsequently issued its opinion in Easton Area School District v. Miller, 232 A.3d 716 (Pa. 2020), holding that a school bus video—factually analogous to the one in Hawkins—qualified as an education record under FERPA. The plurality opinion in Easton Area also discussed the issue of redaction but did not reach a majority on the issue.
In the wake of that ruling, the Supreme Court vacated the order in Hawkins and remanded for additional proceedings consistent with Easton Area. On remand, a Commonwealth Court panel affirmed the trial court on different grounds: although the video constituted an “education record” under FERPA, it was still subject to disclosure under the RKTL because “redacting students’ images removes any argument that the video is a public record and exempt under Federal law or regulation, and thus removes any argument by the [s]chool [d]istrict that it is exempt under [the RTKL.]”
The Supreme Court affirmed on further review. The majority held education records in a school district’s possession are presumed public and the district has the burden to prove the record is exempt by a preponderance of the evidence. The majority also held that the video in question is an education record, but that education records are not categorically exempt from disclosure under the RTKL. Rather, only a students’ PII within an education record is exempt. The majority further held the district did not meet its burden of proving it lacked the capacity to redact the video. Finally, while acknowledging that FERPA’s regulations define PII to include “[i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates,” the majority held that it “lack[ed] sufficient context to reverse the fourth consecutive directive to disclose the video” in reliance on that provision.
Justice Mundy authored a concurring and dissenting opinion. While agreeing with various of the majority’s conclusions, including that the video is an education record under FERPA, Justice Mundy disagreed with the majority’s “creation of a presumption that school districts have the ability to redact students’ personal identifiable information from video, imposing the costs of such redaction on districts, and its apparent diminishment of students’ privacy interest in their educational records.”
Unanswered Questions
While likely intended to resolve the uncertainty created by the plurality opinion in Easton Area, Hawkins arguably has created more questions than answers for school solicitors and other RTKL practitioners. They include, but are not limited to, the following:
- Burden of proof: The majority opined in a footnote that, to satisfy its burden of providing records are exempt under the RTKL, the district “must do more than baldly state it lacks the ability to redact them.” However, the district had not only submitted an affidavit attesting that it lacked the technological capability to redact the video, but also offered testimony to the same and the requester offered no contrary evidence. If unrefuted testimony is not sufficient to satisfy an agency’s burden of proof, then what is? Is Justice Mundy correct that the majority “essentially creates a presumption that school districts will never be able to meet their burden to show they lack the ability to redact the video, or any other media, to remove identifiable student information?”
- In camera review: Along these same lines, the majority ordered redaction of the video in Hawkins even though neither the Office of Open Records, common pleas court, Commonwealth Court, nor the Supreme Court reviewed the video, in camera, to determine whether redaction could remove all PII from the recording. What role, if any, does in camera review play to assess the feasibility of redaction of a record following Hawkins?
- Discretion: The majority found that “it is clear Section 706 of the RTKL mandates agencies . . . to redact exempt information and does not give them discretion in this regard.” But FERPA’s regulations state the opposite. The regulations vest an educational agency or institution with the discretion to release an education record upon de-identification only following a “reasonable determination that a student’s identify is not personally identifiable.” The district in Hawkins never made such a determination. To the contrary, it asserted that de-identification was not feasible because, even in redacted from, the requester and the public would know exactly which student’s face has been redacted from the video. Is a “reasonable determination” from a district that “a student’s identity is not personally identifiable” a requirement for disclosure of an education record under the RTKL? Or does the RKTL supersede FERPA in this regard? And if the latter is true, how can that be reconciled with the disclaimer set forth in Section 306 of the RTKL?
- Loss-of-federal-funding exception: Easton Area involved the loss-of-funding exception to disclosure under the RTKL. The plurality determined that, to implicate this exception, an agency must establish that it has a “policy or practice” of “releasing,” “permitting the release of,” or “providing access to” protected education records or personally identifiable information, adding that such language “necessary denotes repeated or systematic violations of student privacy, as opposed to singular or exceptional instances.” By mandating the disclosure of education records in redacted form, did Hawkins establish a statewide policy or practice of providing access to education records to implicate this exception? If not, what more is required to trigger the same with respect to education records?
- Scope of holding: At minimum, education records are now subject to a right of access, via redaction, under the RTKL. Arguably, however, the rationale of Hawkins extends to all non-public, exempt records of a Commonwealth or local agency. How will future courts interpret Hawkins? Will they limit the holding to the context of education records? Or will courts follow Hawkins’ lead and determine that only certain information within a record—as opposed to the record itself—is non-public, thus triggering redaction under Section 706 to entire categories of records previously considered non-public?
Given these unanswered questions, school districts and other Commonwealth and local agencies should proceed cautiously when addressing RTKL requests until the subsidiary issues raised by Hawkins are resolved.
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Casey Alan Coyle is a shareholder at Babst Calland Clements and Zomnir, P.C. and Co-Chair of the firm’s Appellate Practice Group. He is also a former law clerk to Chief Justice Emeritus Thomas G. Saylor of the Pennsylvania Supreme Court. He represented Central Dauphin School District in its appeal to the Pennsylvania Supreme Court in Hawkins. Contact him at 267-939-5832 or ccoyle@babstcalland.com.
Anna S. Jewart is an associate at the firm and focuses her practice on land use and general municipal law. Contact her at 412-253-8806 or ajewart@babstcalland.com.
Anna R. Hosack is an associate at the firm and focuses her practice primarily on municipal and land use law. Contact her at 412-394-5406 or ahosack@babstcalland.com.
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Reprinted with permission from the April 20, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved.
