Right to Know Law; Disclosure of School Bus Surveillance Video under Family Educational Rights and Privacy Act

Easton Area Sch. Dist. v. Miller, 191 A.3d 75 (Pa. Cmwlth. 2018), allocatur granted Feb. 4, 2019, appeal docket 13 MAP 2019

This case arises from a Right to Know Law (RTKL) request submitted by Rudy Miller, on behalf of The Express Times (Requester), to the Easton Area School District seeking a copy of a school bus surveillance video of an incident involving a bus driver roughly disciplining a child on the school bus in front of Paxinosa Elementary School.

The School District denied the request claiming the video was exempt under Section 708(b)(1)(i) of the RTKL, which exempts from disclosure “[a] record, the disclosure of which would result in the loss of Federal or State funds by an agency or the Commonwealth[.]”

Requester appealed the School District’s denial to the Office of Open Records (OOR). Before the OOR, the School District contended that disclosure of the video would violate the federal Family Educational Rights and Privacy Act (Privacy Act), 20 U.S.C. § 1232g, and would result in a loss of federal funding. Specifically, Section 1232g(b)(1) of the Privacy Act provides:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents….

In its Final Determination, OOR held that the Section 708(b)(1)(i) exemption was inapplicable because the video was not an “education record” under Section 1232g(a)(4)(A) of the Privacy Act, which defines “education records” as “those records, files, documents, and other materials which – (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A).

The School District appealed to the trial court, which agreed with the OOR that the video recording is not an “education record” for purposes of the federal Privacy Act. In so holding, the trial court relied on Rome City School District Disciplinary Hearing v. Grifasi, 10 Misc.3d 1034, 806 N.Y.S.2d 381 (2005) in which a New York trial court determined that images captured by a school district video camera of students involved in an altercation along with bystanders was not an educational record protected by the Privacy Act. The court explained:

[The Privacy Act] is intended to protect records relating to an individual student’s performance. [It] is not meant to apply to records, such as the videotape in question which was recorded to maintain the physical security and safety of the school building and which does not pertain to the educational performance of the students captured on this tape….

Slip Op. at 4 (quoting Grifasi, 806 N.Y.S.2d. at 383).

Relying on the Grifasi analysis, the trial court concluded that because the video sought by Requester did not concern any student’s academic performance, it was not an educational record. Therefore, disclosure of the school bus video would not jeopardize the School District’s federal funding under the Privacy Act to support exemption of the record under Section 708(b)(1)(i) of the RTKL.

The School District appealed to Commonwealth Court, arguing the school bus video satisfies this definition of “education record” because it contains personally identifiable information about the students on the school bus, depicts children on a school bus during the school day, and is maintained by the School District. The School District further argued that the trial court erred in holding that the Privacy Act protects only those records that relate to a student’s academic performance. Requester countered that Congress did not intend the Privacy Act to cover “all records pertaining to a school’s activities” and should be narrowly construed. Slip Op. at 9.

Applying the rules of statutory interpretation, Commonwealth Court found that while the Privacy Act “does not require an educational record to be related to a student’s academic performance, it does require the information to be ‘directly related to a student.’” Slip Op. at 10.  Here, Commonwealth Court found that while the video captured images of the students who were on the bus, it is “not directly relevant to those students,” it is “directly relevant to the teacher’s performance, who roughly disciplined a child.” Id.  Noting the existence of several federal court decisions that held that a video recording that concerns a teacher, not a student, is not an “education record” under the Privacy Act, Commonwealth Court concluded that the video recording requested here was not an educational record as it is “’directly related’ to the teacher disciplining a student and is only ‘tangentially related’ to the students on the bus.” Slip Op. at 11. Therefore, because the video is not an “education record” for purposes of the Privacy Act, Commonwealth Court affirmed the trial court’s conclusion that disclosure of the video will not subject the School District to a loss of federal funding, and the School District thus failed to prove that the video is exempt from disclosure under Section 708(b)(1)(i) of the RTKL.

The Supreme Court of Pennsylvania granted allocatur, limited to the following issue:

Whether the Commonwealth Court erred as a matter of law in determining that the requested video, which depicts children on a school bus during the school day, is not exempt from disclosure under the Family Educational Rights and Privacy Act.