The decision, comprised of a plurality opinion and concurring and dissenting opinions, was issued on June 18 and notes that student images contained in school surveillance videos are exempt from disclosure to the public.
The decision stems from a 2017 request of a local newspaper for a bus videotape that depicted students upon arrival to school. The newspaper’s interest in the video focused on an interaction between a staff member and a student.
The District denied the request in reliance on Right To Know (RTK) provisions that exempt from disclosure records related to personnel matters and records the disclosure of which is prohibited by any other law and that would result in a loss of funding. The District referenced the prohibition in the federal Family Educational Rights and Privacy Act (“FERPA”) against releasing records containing personally identifiable student information.
The Office of Open Records determined that none of the exemptions were applicable and specifically held that the bus video was not an education record protected under FERPA. The Northampton County Court of Common Pleas and the Commonwealth Court each affirmed that decision.
The Pennsylvania Supreme Court granted the District’s petition for appeal on the sole question of whether the videotape could be considered an education record protected by FERPA. The RTK law does not specifically mention FERPA. The FERPA exception falls under the broader wording of “a record the disclosure of which: (i) would result in the loss of Federal or State funds by an agency of the Commonwealth.”
Ultimately the Court held that the video was a FERPA record, but could be disclosed if identifiable information was removed.
However, the bulk of each decision wrestled with concerns about protecting student privacy in an era where requests for school videotapes are common. The Court accepted the District’s argument that a balancing test must be conducted to determine whether the right to privacy in the educational setting is outweighed by the public interest in the release of information.
In so doing, the Court noted:
“Undisputedly, the video here “reflect[s] an interaction between [a teacher] and a student” which became the subject of an investigation, and which was included in an inquiry regarding potential discipline for the teacher. .. Furthermore, the videographic images of students on a school bus would allow a reasonable person in the school community viewing the video to identify the students with reasonable certainty; thus, the video contains personally identifiable information regarding each of the school students visible therein.
“The overlooked yet implausible ramification of the Commonwealth Court’s decision is its potential to subject any school surveillance to disclosure, without parental consent, to any resident of the Commonwealth who makes a request pursuant to the RTKL. In the case of a school bus surveillance video, such a disclosure could reveal the identity of minor-aged students; their clothing, behaviors, or disabilities; the specific bus they take; and the geographical location where they exit the bus.
“In addition to obvious safety concerns, such a disclosure also necessarily implicates the students’ right to informational privacy — that is, “the right of the individual to control access to, or the dissemination of, personal information about himself or herself” — which the Court has explicitly held must be considered and balanced against the public interest when individuals who are not themselves a party to the request for access appear in the content of records subject to public disclosure under the RTKL.”
This decision is consistent with the other recent decisions regarding RTKL that highlight the right to informational privacy guaranteed by the Pennsylvania Constitution, and that the right may not be violated unless outweighed by a public interest favoring disclosure.
Bottom Line for Schools
This decision presents an unusual case in which each party believes it has obtained a victory. The Court directed the School District to release the videotape. However, the Court also determined that videotapes can be education records under FERPA.
Further, the Court’s discussion of the significant privacy concerns implicated by such requests provide a basis for Districts to ensure that reasonable expectations of privacy in the educational setting are preserved. How and what needs to be redacted to avoid unauthorized release of identifiable information requires case by case analysis that must be conducted by the District.
If you have a Right To Know Law question, please contact your legal counsel or one of the attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.