Over the last few months, there have been some developments in the law that school entities who are considering, or are currently, audiotaping on school buses need to take into consideration before deciding if this is a good idea. First, the requirements for what notice must be provided before recording has changed. Second, the recordings might be considered public records that have to be produced under the Right to Know Law, at least occurring to the Office of Open Records.
New Notice Requirements for Bus Audio Recording
On June 23, 2016, Governor Wolf signed into law Senate Bill 1077, which revises what is commonly referred to as Pennsylvania’s Wiretap Law. The revisions change the notice requirements with respect to what school entities must do if they are going to conduct audio-recording on school buses.
Under the prior law, if school entities wanted to have audio recording on buses without possibly running afoul of the Wiretap Law, there were three things the school entity needed to do. The revised law alters one of those requirements and adds a fourth. The new law will go into effect on August 22, 2016, just prior to the start of the 2016-17 school year for most districts.
Here is a list of the notice requirements:
First, under the new and the old law, the school board must adopt a policy that authorizes the audio recording of students for security and disciplinary purposes.
Second, the requirement that school districts send a written notice of the policy to student’s homes has now been removed. Instead, there must be a notice of the policy in the student handbooks and “in any other publication of the school entity that sets forth the comprehensive rules, procedures and standards of conduct for the school entity”
Third, under the new and the old law, there must be a notice on the bus itself that states that students may be audiotaped. This notice must be clearly visible.
Lastly, a new requirement has been adding requiring districts to post a notice of the policy discussed above on the school entity’s publicly-accessible internet website.
Right To Know Issues
The May 19, 2016 decision of the Office of Open Records (OOR) in Hawkins v. Central Dauphin School District, OOR Dkt. AP 2016-0583, ruled that bus videos are public records and at least implies audio recordings might be as well.
In Hawkins, a local news reporter sent a Right to Know request for a copy of a video from a District school bus which the reporter believed would show an adult grabbing a 17-year-old student by the wrist. The District denied the request, stating that the video is protected from disclosure under the Federal Educational Rights and Privacy Act (“FERPA”). The district relied on the Right to Know Law exemption that prohibits from public disclosure if the disclosure of the information would result in the loss of Federal or State funds to the agency. FERPA prohibits schools from releasing educational records without parental consent; the sanction for doing so is a loss of federal funding. Because release of the video would allow the Requester to identify the student, the District believed the video was exempt from disclosure and that its disclosure would violate FERPA.
The OOR reviewed some cases that discuss the scope of FERPA protections. Although none of the cases are binding on the state or federal courts of Pennsylvania, and none of them directly addressed the release of videos of students, OOR concluded that FERPA is to be narrowly construed to protect only academic records. As a result, OOR directed the school district to release the videotape to the news reporter finding the exception asserted by the district did not apply. In addition, while not at issue in the OOR decision, it is expected that OOR would reach a similar conclusion on the issue of audio recordings on buses.
The decision is currently on appeal, but until the appellate courts review and reverse this decision, it appears school districts will need to be aware that such recordings may be public records subject to production in response to Right to Know Requests, and the possible conflict this creates with a District’s obligations under FERPA.
Bottom Line for Schools
In sum, audio recording on school buses is an area full of potential legal concerns that school districts need to consider. School districts will want to review these new notice requirements and ensure, if they wish to have audio recording on school buses, that they procedures in place to ensure compliance with the four requirements in the new law.
Until issues of their status as public records are clarified by the courts, schools are encouraged to consult with their solicitors or an education attorney from KingSpry before deciding how to answer an RTK request for bus video or audiotapes.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
