Right to Know Law; Family Educational Rights and Privacy Act; Disclosure of Redacted School Bus Surveillance Video
Hawkins v. Central Dauphin School Dist., 253 A.3d 820 (Pa. Cmwlth. 2021), allocatur granted Nov. 21, 2021, appeal docket 88 MAP 2021
This case arises from a Right to Know law (RTKL) request by Valerie Hawkins, a journalist at Fox43, asking the Central Dauphin School District to disclose a school bus surveillance video capturing an altercation between a high school student and a school principal’s wife. The school district denied the request claiming the video was exempt from disclosure under the Family Educational Rights and Privacy Act (FERPA) and that the school district lacked the technology to blur the students’ faces such that the video could be released in redacted form.
Section 102 of the RTKL defines a “public record,” in part, as a record that “is not exempt from being disclosed under any other Federal … law or regulation.” 65 P.S. § 67.102. Section 305(a)(3) of the RTKL provides that a record in the possession of a local agency is presumed to be a public record unless, inter alia, “the record is exempt from disclosure under any other Federal … law or regulation.” 65 P.S. § 67.305(a)(3). FERPA is a federal law that protects “personally identifiable information” contained in “education records” from disclosure and financially penalizes school districts “which [have] a policy or practice of permitting the release of education records … of students without the written consent of their parents.” 20 U.S.C. § 1232g(b)(1). Regulations implementing FERPA define “education records” as those records that are “[d]irectly related to a student” and “[m]aintained by an educational agency or institution or by a party acting for the agency or institution.” 34 C.F.R. 99.3.
Hawkins appealed the school district’s denial to the Office of Open Records (OOR), which directed release of the unredacted video based on its determination that only those records relating to student academics are “education records” under FERPA and therefore, because the video was not part of the student’s permanent academic file, the video was not an “education record” under FERPA. The school district appealed to the Court of Common Pleas of Dauphin County, which affirmed OOR’s determination that the video was not an “education record” under FERPA because the district failed to establish that the video contained information depicting a student’s academic or educational performance. The trial court further observed that while the school district presented testimony that it “did not have the capability to blur out individual students (N.T. at 14), it is not impossible to do so. There are several video editing software and/or programs that would allow for portion of a video recording to be blurred, i.e., student faces and identifying information.” Slip op. at 22, citing trial court op. at 10, (emphasis added by Commonwealth Court). The school district appealed to Commonwealth Court, which affirmed common pleas’ decision that the bus video in question was not an “education record” for purposes of FERPA’s privacy protections. The school district appealed by allowance to the Pennsylvania Supreme Court, which remanded the case to Commonwealth Court for further consideration consistent with the Supreme Court’s opinion in Easton Area School District v. Miller, 232 A.3d 716 (Pa. 2020) (partial plurality) (Easton II).
Supreme Court’s Decision in Easton II
In Easton II, the Supreme Court found a surveillance video from a school bus security camera capturing an incident with a student was subject to disclosure under the RTKL, despite its status as an education record provided that the student’s personally identifiable information was redacted before the video was released. Commonwealth Court summarized the relevant portion of Easton II as follows:
The Supreme Court concluded that the video, which was generated and possessed by the district and depicted a student on a school bus interacting with a school teacher in the presence of other students, was a record both “maintained” by the school and “directly related” to the student who was the subject of the interaction, and was therefore an “education record” of that student within the meaning of FERPA. Id. However, this did not end the Supreme Court’s inquiry.
The Supreme Court next observed that, even though the video is deemed an “education record,” it could nevertheless still be released under FERPA as a “public record” in redacted form. Id. “FERPA regulations do allow schools to release education records or information without consent when the records have been ‘de-identified,’ that is, when all personally identifiable information has been removed.” Id. at 729-30 (citing 34 C.F.R. § 99.31(b)(1)). The Supreme Court observed that redaction of the students’ identities in the video would eliminate the potential privacy harm which the FERPA prohibition seeks to prevent and would eliminate the need for parental consent as well. Id. The Supreme Court held that once redacted, the video would not run afoul of FERPA’s coverage and thus would remove any argument that the video was not a public record and would further eliminate 65 P.S. § 67.305(a)(3) as a basis for exemption, as it no longer would be exempt under Federal law or regulation. Id. at 731.
The Supreme Court further recognized that its holding in this regard was consistent with the provisions of the RTKL requiring redaction when a public record contains both information subject to disclosure and information not subject to release.
Furthermore, the RTKL specifically provides, where a record contains information which is subject to access along with information which is not subject to access and the two cannot be physically separated, “the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the information which is subject to access.” [Section 706 of the RTKL,] 65 P.S. § 67.706. Thus, insofar as the video itself is a public record subject to disclosure under the RTKL but contains the images of school students which are not subject to disclosure, which, in our view, it is and does, the [d]istrict is obligated to redact [the] students’ images by, for example, blurring or darkening portions of the video revealing the students’ identities, and to subsequently provide access to the redacted video.
Applying these precepts, the Supreme Court concluded this Court did not err in ordering disclosure of the requested video (albeit based on an entirely different rationale) and directed that the district may release the video, despite its status as an education record, provided that the students’ personally identifiable information was redacted before the video was released. Id. at 734.
Slip op. at 13-15 (footnotes omitted). While a majority of the Justices agreed that although the video was an education record under FERPA, it should be released; the Easton II decision did not carry a majority with respect to its requirement that the school district redact the video. Justices Dougherty, Todd and Donohue joined the part of the opinion that required the redacted video be disclosed. Chief Justice Saylor joined by Justice Mundy and Justice Baer joined by Justice Wecht authored concurring and dissenting opinions concluding that the video should be released in unredacted form because the redaction question was not before the Supreme Court and declined to join that part of the decision.
Hawkins Commonwealth Court Decision on Remand
On remand, Commonwealth Court modified its reasoning to conform to the rationale of Easton II and held that while the video was an education record under FERPA, the video was subject to disclosure in redacted form (i.e., with students’ faces blurred). Based on Easton II, Commonwealth Court concluded that the video was an “education record” because the video was (1) “directly related” to the student because it shows the student involved in an altercation with a parent, and this warranted preservation of the video for purposes of disciplining the student, and (2) the video is “maintained” by the School District in a single location and as part of its permanent records. However, the court observed that not all “education records” are automatically protected from disclosure under FERPA; specifically, “FERPA regulations allow schools to release ‘education records’ or information without consent when all personally identifiable information has been removed.” Slip op. at 20, citing 34 C.F.R. § 99.31(b)(1) (“An educational agency … may release the records or information without the consent required by [section] 99.30 … after the removal of all personally identifiable information.”)(emphasis in original). Thus, the court reasoned that redaction of the students’ identities eliminates the potential privacy harm and need for parental consent under FERPA, “removes any argument that the video is a public record and exempt under Federal law or regulation, and thus removes any argument by the School District that it is exempt under 65 P.S. § 67.305(a).” Slip op. at 20. Commonwealth Court refused the school district’s suggestion that it should not follow Easton II because the Supreme Court did not reach a majority regarding the disclosure of a video that is capable of being redacted, explaining:
Only three Justices opined it was “clear from the regulations promulgated pursuant to FERPA [that] even an education record ordinarily protected from disclosure … may be disclosed without consent if the student’s personally identifiable information has been removed.” Easton II, 232 A.3d at 730 (citation omitted). The remaining Justices opined that the redaction question was not before the Court and they declined to join that part of the decision. Id. at 731, 735-37. Regardless of whether the issue was properly before the Supreme Court, the School District has advanced nothing to suggest that the Supreme Court’s plurality’s analysis of the substantive merits of the issue was incorrect.
Slip op. at n. 14.
Commonwealth Court disagreed with the School District’s argument that, even if the video was redacted to blur the identity of the involved student, the student’s identity would be obvious from public news coverage and court filings such that the reacted video would not satisfy FERPA, explaining:
We find the argument to be somewhat circular. As the Supreme Court observed in Easton II, the purpose of the protective provisions of FERPA is to allow access by parents to the student records and to provide a measure of privacy in those records. Easton II, 232 A.3d at 724. If, as the School District alleges, the student involved has already been publicly identified, both in a public hearing and in the press along with the adult involved, then withholding the video would not serve the purposes of protecting the privacy of the student under FERPA. It is thus a stretch on the part of the School District to argue that the video would be exempt from disclosure under FERPA for the reason that the identity of the student is already known.
Slip op. at 21. Moreover, notwithstanding the school district’s argument that it lacked the technological capabilities to redact the video, Commonwealth Court refused to disturb common pleas’ finding based on testimony presented by the school district that “redaction was ‘not impossible.’” Slip op. at 23.
The school district filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, which granted allocatur limited to the following issue:
Whether the Commonwealth Court committed reversible error by ordering disclosure and mandating redaction of a student education record that is exempt from public access under state and federal law – specifically, FERPA and Section[s] 102 and 305(a) of the Pennsylvania Right-to-Know Law?
For more information, contact Kevin McKeon or Dennis Whitaker.