The S.D. of Philadelphia v. J. Calefati & the Philadelphia Inquirer ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The School District of Philadelphia, :
Appellant :
:
v. :
:
Jessica Calefati and the : No. 1285 C.D. 2020
Philadelphia Inquirer : Submitted: December 16, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 12, 2022
The School District of Philadelphia (District) appeals from the
Philadelphia County Common Pleas Court’s (trial court) November 19, 2020 order
that denied the District’s appeal from the Office of Open Records’ (OOR) Final
Determination, affirmed the OOR’s Final Determination, and directed the District to
produce the requested data with student identifiers redacted and in CSV 2 format or
other machine readable or electronic format as maintained by the District. The
District presents two issues for this Court’s review: (1) whether the trial court erred
by ordering the District to provide student-level attendance reports with student
identifiers redacted when the District is incapable of generating the requested reports
without direct student identifiers because the entirety of the attendance report is
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
CSV is a delimited text file that can be opened with Microsoft Excel. See
https://support.office.com/en-us/article/Import-or-export-text-txt-or-csv-files-5250ac4c-663c-
47ce-937b-339e391393ba (last visited January 11, 2022).
exempt from disclosure under the Family Educational Rights and Privacy Act
(FERPA);3 and (2) whether the trial court erred by ordering the District to release
personally identifiable information contained in individual student-level attendance
reports in contradiction with the United States (U.S.) Department of Education
Guidance on FERPA finding that redaction alone does not sufficiently de-identify
student-level data. After review, this Court affirms.
On June 13, 2019, the Philadelphia Inquirer and Jessica Calefati, a
former newspaper reporter (collectively, Requesters), submitted to the District the
following three Right-to-Know Law (RTKL)4 requests (Requests), seeking:
Attendance Period Count Reports for all [D]istrict schools
for the following school years: 2012-2013, 2013-2014,
2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-
2019. Please provide a separate report for each term.
Each report should be grouped by period and include all
grades. Each report should include all student[s] with
student names redacted. Each report should include the
statuses of absent, tardy and early release and include all
excuse codes. Each report should include school name
and school code.
If possible, please provide the aggregated data contained
in these reports in CSV format.
Reproduced Record (R.R.) at 1 (emphasis omitted).5
Attendance Period Count Reports for all [D]istrict schools
for the following school years: 2012-2013, 2013-2014,
3
20 U.S.C. § 1232g (relating to family educational and privacy rights).
4
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
5
The District’s Reproduced Record fails to comply with the Pennsylvania Rules of
Appellate Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be
numbered separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by
a small a, thus 1a, 2a, 3a, etc.”). The District failed to include the small “a” with its record page
numbers. However, for consistency of reference, the citations herein are as reflected in the
Reproduced Record.
2
2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-
2019.
Each report should be grouped by period and include all
grades. Each report should include the statuses of absent,
tardy and early release and include all excuse codes. Each
report should include school name and school code.
All data should be summarized at the school level for the
full school year.
If possible, please provide the aggregated data contained
in these reports in CSV format.
R.R. at 2 (emphasis omitted).
[Average Daily Attendance (]ADA[)] and [Average Daily
Membership (]ADM[)] Detail Reports for all [D]istrict
schools for the following school years: 2012-2013, 2013-
2014, 2014-2015, 2015-2016, 2016-2017, 2017-2018,
2018-2019.
Please redact student names from the “detail” portion of
each report. Each report should include school name and
school code.
If possible, please provide the aggregated data contained
in these reports in CSV format.
R.R. at 3 (emphasis omitted).
On July 23, 2019, the District denied Requesters’ Requests. On August
1, 2019, Requesters appealed to the OOR. During the proceedings before the OOR,
the District asserted for the first time that the attendance information Requesters
sought was exempt from disclosure under FERPA.
On September 6, 2019, the OOR concluded that the requested records
were not exempt under FERPA, and directed the District to disclose the records to
Requesters. On October 4, 2019, the District appealed to the trial court. The trial
court held a hearing on November 19, 2020, after which it denied the District’s
3
appeal and directed the District to disclose the requested records. The District
appealed to this Court.6, 7
Initially, Section 1232g(b) of FERPA provides, in relevant part:
Release of education records; parental consent
requirement; exceptions; compliance with judicial
orders and subpoenas; audit and evaluation of
federally-supported education programs;
recordkeeping
(1) 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 to any
individual, agency, or organization, other than to the
following--
....
(2) No funds shall be made available under any applicable
program to any educational agency or institution which
has a policy or practice of releasing, or providing access
to, any personally identifiable information in education
6
This Court’s “review of a trial court’s order in a[n] RTKL dispute is
‘limited to determining whether findings of fact are supported by
competent evidence or whether the trial court committed an error of
law, or an abuse of discretion in reaching its decision.’” Butler Area
Sch. Dist. v. Pennsylvanians for Union Reform, 172 A.3d 1173,
1178 n.7 (Pa. Cmwlth. 2017) (quoting Kaplin v. Lower Merion
Twp., 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011)). “The scope of
review for a question of law under the [RTKL] is plenary.” SWB
Yankees LLC v. Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth.
2010) (quoting Stein v. Plymouth Twp., 994 A.2d 1179, 1181 n.4
(Pa. Cmwlth. 2010), aff’d, . . . 45 A.3d 1029 ([Pa.] 2012)).
Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 178 n.8 (Pa. Cmwlth. 2019).
7
The Pennsylvania School Boards Association and the Pittsburgh School District filed
amicus curiae briefs in support of the District, and the Pennsylvania NewsMedia Association, the
Reporters Committee for Freedom of the Press, and seven media organizations filed an amicus
curiae brief in support of Requesters.
4
records other than directory information,[8] or as is
permitted under paragraph (1) of this subsection, unless--
(A) there is written consent from the student’s parents
specifying records to be released, the reasons for such
release, and to whom, and with a copy of the records to be
released to the student’s parents and the student if desired
by the parents, or
(B) except as provided in paragraph (1)(J), such
information is furnished in compliance with judicial order,
or pursuant to any lawfully issued subpoena, upon
condition that parents and the students are notified of all
such orders or subpoenas in advance of the compliance
therewith by the educational institution or agency[.]
20 U.S.C. § 1232g(b) (italic emphasis added). Section 1232g(a)(4)(A) specifies:
For the purposes of this section, the term “education
records” means, except as may be provided otherwise in
subparagraph (B), 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 District first argues that it is unable to generate a report of
individual student-level data without including personally identifiable information
in the report. The District contends that, under the plain language of Section 705 of
the RTKL, 65 P.S. § 67.705, an agency is not required to create or format a record
8
[T]he term “directory information” relating to a student includes the
following: the student’s name, address, telephone listing, date and
place of birth, major field of study, participation in officially
recognized activities and sports, weight and height of members of
athletic teams, dates of attendance, degrees and awards received,
and the most recent previous educational agency or institution
attended by the student.
20 U.S.C. § 1232g(a)(5).
5
in a manner specified by a requester but, rather, an agency need only provide the
information in the manner in which it currently exists.9 Requesters rejoin that neither
extraction of information from a database, nor redaction of non-public information
from a public record constitutes the creation of a record.
Section 705 of the RTKL provides: “When responding to a request for
access, an agency shall not be required to create a record which does not currently
exist or to compile, maintain, format or organize a record in a manner in which the
agency does not currently compile, maintain, format or organize the record.” 65 P.S.
§ 67.705. However, Section 706 of the RTKL clarifies:
If an agency determines that a public record . . . contains
information which is subject to access as well as
information which is not subject to access, the agency’s
response shall grant access to the information which is
subject to access and deny access to the information which
is not subject to access. If the information which is not
subject to access is an integral part of the public record . . .
and cannot be 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. The agency
may not deny access to the record if the information
which is not subject to access is able to be redacted. . . .
65 P.S. § 67.706 (emphasis added).
The Pennsylvania Supreme Court addressed the interplay between
Sections 705 and 706 of the RTKL in Pennsylvania State Police v. Grove, 161 A.3d
877 (Pa. 2017), wherein it explained:
[T]his issue involves the application and interplay of
Sections 705 and 706 of the RTKL, which simultaneously
9
The District cites Feldman v. Pennsylvania Commission on Crime & Delinquency, 208
A.3d 167 (Pa. Cmwlth. 2019), to support its position. However, Feldman involved requests for an
agency to produce records in a different format than that maintained by the agency. The Feldman
Court held that, where an agency showed requested information existed in three different charts,
it was not required to combine data into a single report. Accordingly, Feldman is inapposite.
6
prohibit the creation of “new records” while expressly
requiring the release of redacted versions of agency
records that contain both public and non-public
information. In determining whether a court may order the
redaction of certain portions of [requested records]
without improperly resulting in the creation of a new
record, we consider relevant principles of statutory
construction. It is central to our analysis that “[e]very
statute shall be construed, if possible, to give effect to all
its provisions.” [Section 1921(a) of the Statutory
Construction Act of 1972 (SCA),] 1 Pa.C.S. § 1921(a).
Further, in ascertaining the intent of a statute, we presume
“the General Assembly does not intend a result that is
absurd, impossible of execution or unreasonable.”
[Section 1922(1) of the SCA,] 1 Pa.C.S. § 1922(1). We
further presume “the General Assembly intends the entire
statute to be effective and certain.” 1 Pa.C.S. § 1922(2).
Construing Sections 705 and 706 of the RTKL with these
principles in mind, while also giving effect to both statutes
as we must, it is without question redaction of
[requested records] under Section 706 [of the RTKL]
to protect exempt material does not result in the
creation of a new record in violation of Section 705 [of
the RTKL]. Adoption of [an] argument to the contrary
would render Section 706 [of the RTKL] in derogation of
the express principles of the [SCA], as it would result in
the prohibition of redaction of otherwise publicly
accessible records, and render public information exempt
from disclosure.
Grove, 161 A.3d at 897 (emphasis added). Accordingly, because redacting
identifiable information does not constitute the creation of a record, the District’s
argument is without merit.
The District next asserts that records that are wholly exempt from
disclosure under FERPA need not be redacted and released. The District contends
that, since the requested student-level attendance reports are education records under
FERPA, a federal law, the presumption under Section 305 of the RTKL, 65 P.S. §
67.305, that agency records are public does not apply, and Section 306 of the RTKL,
65 P.S. § 67.306, requires deference to FERPA’s privacy mandates. The District
7
declares that, pursuant to FERPA regulations, the District may release only directory
information without consent. See 34 C.F.R. § 99.31(b)(1). FERPA regulations
generally define “directory information” as “information contained in an education
record of a student that would not generally be considered harmful or an invasion of
privacy if disclosed.” 34 C.F.R. § 99.3. “Directory information” includes “dates of
attendance.” Id. The District emphasizes that FERPA regulations expressly exclude
from the definition of “directory information” the “specific daily records of a
student’s attendance at an educational agency or institution.” Id.Requesters rejoin that the District’s argument improperly attempts to
relieve the District of its burden under Section 708(b)(1) of the RTKL, 65 P.S. §
67.708(b)(1), to prove a record is exempt from public disclosure.10 Moreover,
Requesters retort that the Pennsylvania Supreme Court in Easton Area School
District v. Miller, 232 A.3d 716 (Pa. 2020), a plurality opinion, addressed and
rejected the District’s exact argument. Requesters maintain that this Court has
subsequently adopted the Easton Court’s holding that FERPA does not categorically
bar public disclosure of education records. See Cent. Dauphin Sch. Dist. v. Hawkins,
253 A.3d 820, 834 (Pa. Cmwlth.), appeal granted (Pa. No. 287 MAL 2021, filed
Nov. 30, 2021).
Section 305(a) of the RTKL provides:
A record in the possession of a Commonwealth agency or
local agency shall be presumed to be a public record. The
presumption shall not apply if:
(1) the record is exempt under [S]ection 708 [of the
RTKL];
(2) the record is protected by a privilege; or
10
The District does not argue to this Court that the exemption under Section 708(b)(1) of
the RTKL applies herein.
8
(3) the record is exempt from disclosure under any other
[f]ederal or [s]tate law or regulation or judicial order or
decree.
65 P.S. § 67.305(a). Section 306 of the RTKL states: “Nothing in this act shall
supersede or modify the public or nonpublic nature of a record or document
established in [f]ederal or [s]tate law, regulation or judicial order or decree.” 65 P.S.
§ 67.306. Pursuant to Section 708(b) of the RTKL, “the following are exempt from
access by a requester under th[e] [RTKL]: (1) A record, the disclosure of which: (i)
would result in the loss of [f]ederal or [s]tate funds by an agency or the
Commonwealth[.]” 65 P.S. § 67.708(b).
The Easton Court explained:
[T]o avail itself of an exemption from disclosure under
RTKL Subsection 305(a)(3), the District had the burden of
proving the [requested records were] exempt from
disclosure to a public record requester under FERPA,
which requires a context-specific (i.e., fact-sensitive)
assessment constrained by competing obligations to
maintain student confidentiality alongside public
transparency, notwithstanding its own interests.
Easton, 232 A.3d at 730 (italics omitted).
Section 93.31(b)(1) of FERPA’s Regulations provides:
De-identified records and information. An educational
agency or institution, or a party that has received
education records or information from education records
under this part, may release the records or information
without the consent required by [Section] 99.30 [of
FERPA’s Regulations] after the removal of all
personally identifiable information provided that the
educational agency or institution or other party has made
a reasonable determination that a student’s identity is not
personally identifiable, whether through single or multiple
releases, and taking into account other reasonably
available information.
34 C.F.R. § 99.31(b)(1) (emphasis added). The Easton Court clarified:
9
[A]s is clear from the regulations promulgated pursuant to
FERPA, even an education record ordinarily protected
from disclosure to all but an eligible student or her parent
may be disclosed without consent if the student’s
personally identifiable information has been removed. See
34 C.F.R. § 99.31(b)(1).
Easton, 232 A.3d at 730.
Accordingly, a FERPA-compliant educational institution
must not release the students’ personally identifiable
information . . . to the extent the students are reasonably
identifiable - to anyone other than the parent or eligible
student, absent one of the conditions listed under [Section
132g(b)(1) of] FERPA . . . (which do not include release
of information to the press or a to [sic] public records
requester), without proper consent, or a judicial order or
subpoena. Yet, that same institution may release the
[requested records], despite [their] status as [] education
record[s], once the students’ identifiable [information]
ha[s] been redacted. We therefore conclude: [the
requested records] are exempt from disclosure under
FERPA and its regulations, and are thereby excluded
from the RTKL’s disclosure requirements pertaining
to public records; however, insofar as the [requested
records] can be redacted to remove their personally
identifiably information, the [requested records are]
not exempt, and [they] therefore must be disclosed. See
[Section 102 of the RTKL,] 65 P.S. §§ 67.102,
67.305(a)(3).
Easton, 232 A.3d at 730-31. For the foregoing reasons, the District’s argument fails.
Alternatively, the District argues that, even if the student-level daily
attendance records are not wholly exempt from public access, the trial court erred as
a matter of law when it ordered the District to provide the requested data with student
identifiers redacted. The District asserts that simple redaction does not sufficiently
de-identify student-level daily attendance records, and an agency is not required to
create a new record in order to de-identify information. The District contends that
10
the redacted requested records would still include personally identifiable
information as defined in FERPA’s Regulations.11
Section 99.3 of FERPA’s Regulations defines “[p]ersonally
[i]dentifiable [i]nformation” to include but not be limited to inter alia “[o]ther
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 (italic and bold emphasis added). The
District’s argument that the requested records in combination with other records
would allow a reasonable person in the school community to identify the student
with reasonable certainty only makes sense if the person in the school community
has personal knowledge. Thus, if the person already has personal knowledge, “then
withholding the [requested records] would not serve the purposes of protecting the
privacy of the student under FERPA.” Hawkins, 253 A.3d at 834. Accordingly, the
District’s alternative argument also lacks merit.
Finally, the District argues that Section 705 of the RTKL does not
require the District to create a new record in order to adequately de-identify student-
level attendance records, and cites to the U.S. Department of Education Privacy
Technical Assistance Center (Guidelines) as support for its position.12 The District
11
Requesters rejoin that the District is raising this “factual allegation[]” for the first time
on appeal and, therefore, it is waived. Requesters’ Br. at 16. Requesters cite McKelvey v.
Pennsylvania Department of Health, 255 A.3d 385 (Pa. 2021), to support their position. However,
the McKelvey Court specifically referred to withholding evidence and then supplementing the
record with new evidence at later stages of the proceedings. See id. Because Requesters do not
claim, and the District did not “withhold evidence, [and] then introduce new evidence” at the
appeal stage, the District did not waive this argument. McKelvey, 255 A.2d at 409. To the extent
Requesters contend the District cannot now rebut Requesters’ evidence before the trial court with
new allegations, this Court agrees, and has not considered any new information in this decision.
12
The U.S. Department of Education established the Privacy
Technical Assistance Center (PTAC) as a “one-stop” resource for
11
declares that, because providing fully de-identified information would require
creation of a new record, the District properly denied the Requests, and the OOR’s
Final Determination ordering release of partially de-identified individual student-
level data should be reversed. Requesters rejoin that those Guidelines provide that
“de-identification is considered successful when there is no reasonable basis to
believe that the remaining information in the records can be used to identify an
individual.” Data De-Identification: An Overview of Basic Terms
https://studentprivacy.ed.gov/sites/default/files/resource_document/file
data_deidentification_terms.pdf (last visited Dec. 17, 2021). The District, which has
the burden of proof, presented no evidence to establish how the requested student
attendance data, with student identifiers redacted, could be used to identify students.
After conducting an evidentiary hearing, the trial court concluded:
Given that [the District] was capable of making such
information publically [sic] available on its website in
redacted form for an instruction manual for teachers, staff,
and parents to access, it is unclear why the same
information could not be made readily available on a wider
basis for the general student population in a given school
district. Further, because a large portion of the
information sought had already been made readily
available by [the District] in the form of its instruction
manual for the [] District’s Master Schedule Attendance
Report System, it is also unclear as to why [the District]
education stakeholders to learn about data privacy, confidentiality,
and security practices related to student-level longitudinal data
systems. PTAC provides timely information and updated guidance
on privacy, confidentiality, and security practices through a variety
of resources, including training materials and opportunities to
receive direct assistance with privacy, security, and confidentiality
of longitudinal data systems.
Data De-Identification: An Overview of Basic Terms
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/data_deidentification_ter
ms.pdf (last visited January 11, 2022).
12
now claims it cannot produce virtually the same
information on a much wider student basis to meet the
needs [of] [Requesters’] RTKL [R]equest[s].
It should be noted that at the November 19, 2020[]
hearing, [the District] offered no direct rebuttal to the
exhibit produced by [Requesters] or explanation as to why
the student identifiers could not be redacted for
[Requesters] in the same manner as they had been redacted
in the sample attendance reports contained in [Requesters’
exhibit]. Given [the District’s] failure to adequately
explain how or why it could not produce the same
attendance reports with student identifiers redacted for
[Requesters], while at the same time making that exact
type of information for an instruction manual publically
[sic] available on its website, [the trial c]ourt was unable
[to] find [the District’s] claims [that] it was incapable of
generating the reports credible. As such, [the trial c]ourt
properly denied [the District’s] appeal and affirmed the
decision of the OOR.
R.R. at 32 (Trial Ct. Op. at 7). This Court sees no error in the trial court’s reasoning.
Accordingly, the District’s argument cannot stand.
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The School District of Philadelphia, :
Appellant :
:
v. :
:
Jessica Calefati and the : No. 1285 C.D. 2020
Philadelphia Inquirer :
ORDER
AND NOW, this 12th day of January, 2022, the Philadelphia County
Common Pleas Court’s November 19, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge