More than 50 years ago, Justice Michael Musmanno, speaking for the Pennsylvania Supreme Court, eloquently expounded on the importance of the right to privacy in the Commonwealth of Pennsylvania:
The greatest joy that can be experienced by mortal man is to feel himself master of his fate,—this in small as well as in big things. Of all the precious privileges and prerogatives in the crown of happiness which every American citizen has the right to wear, none shines with greater luster and imparts more innate satisfaction and soulful contentment to the wearer than the golden, diamond-studded right to be let alone. Everything else in comparison is dross and sawdust.
Commonwealth v. John Murray, 223 A.2d 102, 109 (Pa. 1966).
On June 18, 2020, the Pennsylvania Supreme Court took another trip into the often murky swamp of privacy rights. In Easton Area School District v. Miller, 2020 WL 3281099 (Pa. June 18, 2020), the court addressed the sometimes difficult intersection of a state open records law and the Family Educational Rights and Privacy Act (FERPA). In Miller, a local news reporter filed a request under the Pennsylvania Right-to-Know Law with the Easton Area School District (the District) seeking production of a school bus video. That video depicted an elementary school teacher who, according to the reporter, "had roughly physically disciplined a child on a school bus outside of the school." Id. The reporter, utilizing the Pennsylvania Right-to-Know Law, specifically sought a copy of the surveillance video from the school bus security camera capturing the incident.
Under Pennsylvania's open records law – the Right-to-Know Law or RTKL – public educational institutions are required to provide access to public records in accordance with its provisions. 65 P.S. § 67.302(a). A "public record" is defined as, inter alia, "[a] record ... of ... a local agency that[ ] ... (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." 65 P.S. § 67.102. Under the RTKL, a record in the possession of a governmental entity is presumed to be a public record unless, inter alia, the record is exempt from disclosure under Section 708, Id. at § 67.305(a)(1), or the record is exempt from disclosure under any other federal or state law or regulation. Id. at § 67.305(a)(3). Importantly, the governmental entity has the burden of proving that a record is exempt from public access "by a preponderance of the evidence," Id. at§ 67.708(a)(1), which is "tantamount to a 'more likely than not' inquiry." Miller, 2020 WL 3281099 (Pa. June 18, 2020).
The District denied the request on the grounds that it was exempt from disclosure under FERPA as an "education record." The Pennsylvania Office of Open Records (OOR), the state agency charged with review of RTKL denials, disagreed and ordered the school bus surveillance video released. The District appealed the matter to the Court of Common Pleas (Pennsylvania's general trial-level court), and then to the Commonwealth Court (Pennsylvania's intermediate appellate court for civil actions where a state or local governmental agency is a party), both of which upheld the OOR's determination. The Pennsylvania Supreme Court granted review to consider whether the lower court erred in determining that the requested video, which depicted children on a school bus during the day, was an education record subject to disclosure under FERPA, which is a complicated and challenging law to interpret for elementary, secondary and postsecondary educational institutions.
While the Miller case was fascinating on many levels, its relevance for higher education institutions is the portion in which the Pennsylvania Supreme Court focused its discussion on whether the record sought was in fact an "education record" under FERPA, which is often a challenging definition for educational institutions to apply to their own records, particularly where there are few physical "records" or files at many institutions.
Generally speaking, FERPA restricts the disclosure of such "personally identifiable education records," 20 U.S.C. § 1232g(b)(1), with only few exceptions. For example, if the information at issue is considered directory information or it is sought through a court order or subpoena, the consent requirements differ. See 20 U.S.C. § 1232g(b)(2). As defined within FERPA's regulations, "personally identifiable information" includes "information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty[.]" 34 C.F.R. § 99.3 (definition of "personally identifiable information" at (f)). The court accepted the term "educational record" as meaning "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). With specific regard to videos, the court deferred to the U.S. Department of Education's (USDOE) guidance which notes that in determining whether a video is an education record, the reviewing body should consider whether the video depicts an activity that resulted in the school taking disciplinary action, or shows a student "getting injured, attacked, victimized, ill, or having a health emergency," or the audio or visual content contains personally identifiable information contained in a student's education record. 20 U.S.C. § 1232g(a)(4)(A).
Applying the standard for an education record as set forth under federal law and as interpreted by the USDOE, the court rejected the notion that the "recorded interaction involving a teacher's conduct directly relate[d] solely to the teacher, and [was] only 'tangentially related' to the student." Instead, the court pointed out that the student is the subject of some interaction with a teacher that warranted preservation of the video for an official purpose, whether the student is receiving discipline, or is the victim of some misconduct, or is one party in an innocuous interaction that was nevertheless part of an official inquiry, the video is as "directly related" to the student as much as it is related to the teacher. The video recording, then, which is generated and possessed by the school and depicts a school student on a school bus interacting with a school teacher in the presence of other students, is a record both maintained by the school and directly related to, at the very least, the student who is the subject of the interaction, and is therefore an education record of that student within the meaning of FERPA. 20 U.S.C. § 1232g(a)(4)(A). In the end, the court ordered the video to be produced, with the faces of the students involve redacted.
While there are many distinctions between this case and the situations in which colleges and universities typically find themselves, it may have added importance and relevance in the current environment where educational institutions are recording many more events to continue serving and engaging with their communities during a global pandemic. That is, in the current climate, while many colleges and universities are likely not recording bus trips, as in Miller, they are recording more remote classes and virtual events, in which misconduct such as verbal harassment or racially insensitive remarks may occur. If misconduct that is alleged to have occurred in these virtual spaces is being recorded, it would be too easy to declare that the footage in question is not the sort of "file or record" that would typically be considered covered by FERPA. That is a logical conclusion because no one is arguing that every class recording is automatically part of an individual's education record.
However, if there is a resulting disciplinary process, that may change the analysis and thrust the captured content into the spotlight through a student request, the demands of attorneys for those students, or even third parties such as the news reporter who made the request in Miller. Thus, the Miller decision is both instructive and cautionary insofar as it offers insight into how schools should analyze such FERPA requests in the context of student discipline. Specifically, Miller held that a record (in this case a school bus video) that had nothing to do with any student's academic performance, was nevertheless an educational record, as defined by FERPA. This also reaffirms the broad definitions of FERPA held by many in the higher education community who have long considered that any record, document, photo, video, etc., that depicts conduct that has or could give rise to an investigative response or disciplinary action could also be an education record under FERPA. (Notably, the court in Miller did take significant pains to discuss the efforts to protect the privacy of the other students in such videos by redacting images and the like.)
It remains critical for colleges and universities to revisit their internal policies regarding what documents they consider "education records" for FERPA purposes, how they retain such documents, and how they will make decisions in a consistent and principled manner regarding how and when they will deny FERPA requests, whether requested by a student or a third party. In the case of public colleges and universities, such institutions must also weigh the privacy interests protected by FERPA against state open records laws, which presume that records held by governmental entities are subject to disclosure, absent an applicable exemption (private schools are generally not subject to state open records laws). Further, the case makes very clear that atypical records may suddenly be transitioned into FERPA-protected records once a disciplinary process commences.
In its closing paragraphs, the Pennsylvania Supreme Court reminds institutions of the factors that they must consider in weighing the privacy of students or others who happen to be present in a video record against the public's right-to-know and the general interest in open government. The court noted that "the agency responsible for disseminating a public record should perform the balancing test, though the test may also be subsumed within a legislative pronouncement or decision of court." Miller, 2020 WL 3281099 (Pa. June 18, 2020). The court's calling out the need for Pennsylvania governmental agencies to conduct some sort of analysis of the privacy interests of third parties clearly reflects that the court expects that agencies will consider them. However, in this case as well as in prior decisions cited by the court, the court stops short of explicitly requiring it as a necessary element of RTKL procedure, rather kicking the issue to the political branches of government to work out.
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