PA Dept. of Ed. v. A. Wing ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Department :
of Education, :
Petitioner :
:
v. :
:
Allen Wing, : No. 146 C.D. 2020
Respondent : Submitted: July 2, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 23, 2021
The Pennsylvania Department of Education (Department) petitions for
review of a Final Determination issued by the Office of Open Records (OOR) on
January 15, 2020. The OOR granted an appeal by Allen Wing (Requester)1 from the
Department’s denial of a request for information under the Right-to-Know Law2
(RTKL) and directed the Department to provide the requested documents. Upon
review, we reverse.
1
We note that Requester did not submit any brief in response to the Department’s brief
before this Court.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
I. Background
In October 2019, Requester submitted an information request (Request)
to the Department under the RTKL seeking “PVAAS (Pennsylvania Value Added
Assessment System) scores for all Algebra I [] teachers at the following Philadelphia
Public High Schools [H.S.]: Lankenau H.S., Philadelphia Learning Academy, South
Constitution H.S., Benjamin Franklin H.S., Parkway Center City H.S. and North
East [H.S.]” Reproduced Record (R.R.) 36a. The Department denied the Request.
R.R. 38a.
Upon Requester’s appeal to the OOR, the Department argued the
requested information was exempt from disclosure under the RTKL and the Public
School Code of 19493 (School Code) and protected by the right to privacy
guaranteed under the Pennsylvania Constitution. R.R. 24a-30a. The OOR granted
the appeal and issued a Final Determination ordering the Department to provide all
documents responsive to the Request. R.R. 70a. The Department then petitioned
for review in this Court.4
II. Discussion
In its Final Determination, the OOR reasoned that PVAAS scores
measure only students’ progress. R.R. 66a. Therefore, they are not teacher job
performance ratings and are not exempt from disclosure under the RTKL or the
School Code. R.R. 67a. In seeking review of the Final Determination, the
Department argues that, contrary to the OOR’s conclusion, PVAAS scores are a
3
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.
4
“On appeal from [the] OOR in RTKL cases, this Court’s standard of review is de novo,
and our scope of review is plenary.” Off. of Gen. Couns. v. Bumsted, 247 A.3d 71, 76 n.7 (Pa.
Cmwlth. 2021) (citing Bowling v. Off. of Open Recs., 990 A.2d 813 (Pa. Cmwlth. 2010), aff’d, 75
A.3d 453, 477 (Pa. 2013)).
2
factor in public school teachers’ performance ratings, which ratings are exempt from
disclosure under the RTKL and the School Code and shielded by the Pennsylvania
Constitution. We agree with the Department that the RTKL precludes disclosure of
the requested information.
Under the RTKL, information in the possession of a public agency is
presumed to be public information subject to disclosure; Section 701(a) of the RTKL
generally renders accessible a public record, “[u]nless otherwise provided by law.”
65 P.S. § 67.701(a). The agency resisting disclosure of information bears the burden
of demonstrating an exemption from disclosure requirements by a preponderance of
the evidence. Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1).
Section 708(b)(7)(ii) of the RTKL exempts from the general rule a
“performance rating or review” of a public employee. 65 P.S. § 67.708(b)(7)(ii).
Accordingly, if PVAAS scores constitute public school teachers’ performance
ratings, the RTKL shields those scores from disclosure to Requester.
Section 1123(b)(ii) of the School Code requires that measurement of
students’ performance must comprise 50% of a public school teacher’s overall
performance effectiveness rating. 24 P.S. § 11-1123(b)(ii). More specifically, 15%
of the overall public school teacher rating must consist of “building-level data,”
including, but not limited to, “[s]tudent performance on assessments” and
“[PVAAS] data made available to the Department under [S]ection 221.”5 24
5
Section 221(a)(1) of the School Code requires the Department of Education (Department)
to “make available on its publicly accessible Internet website . . . (1) Value-added assessment
system data for the school district level and the school level . . . .” Added by the Act of November
17, 2010, P.L. 996, 24 P.S. § 2-221(a)(1). Notably, Section 221 does not require disclosure of
either subject-level or individual teacher-level PVAAS data. See id. In fact, the relevant
Department regulation in effect during the period covered by the Request required only that school
districts report to the Department “the aggregate results of all classroom teacher evaluations.”
Former 22 Pa. Code § 19.1(V)(b) (emphasis added). Section 19.1 of Chapter 22 is currently
reserved as of March 31, 2021.
3
P.S. § 11-1123(b)(1)(ii)(A)(I) & (II). PVAAS data, along with related analyses and
reports, “offer valuable information for focused program improvement . . . .” 22 Pa.
Code § 403.3(d)(1)(iii). However, PVAAS data provided to a school district by the
Department is not simply plugged into a teacher’s rating form. Rather, during the
period relevant to the Request, the school district used a regulatory conversion table
to assign a rating to the teacher on a scale of zero to three, “based on a rolling average
of available assessment data during the most recent three consecutive school years.”
Former 22 Pa. Code § 19.1(IV)(b)(2)(iv) & (vi). If a rolling three-year average of
PVAAS data scores corresponding to a particular teacher was not available, other
data could be used. Former 22 Pa. Code § 19.1(IV)(b)(2)(ix).
In addition, the OOR quoted in its Final Determination, and apparently
credited, the affidavit of the Department’s witness, stating that “[a] PVAAS rating
score is one of the several performance ratings received by an educator and included
in his or her performance evaluation.” R.R. 65a (quoting Department affidavit)
(emphasis added). Similarly, the OOR apparently credited the Department’s
attestation that “[t]he PVAAS rating score of an individual teacher is one measure
of the teacher’s performance.” Id. (emphasis added). Indeed, the Request itself
implicitly acknowledged that the records at issue related to teachers’ performances,
not merely students’ performances, in that the Request expressly requested PVAAS
scores “for all Algebra I [] teachers” at the listed schools. R.R. 36a (emphasis
added).
Accordingly, based upon the applicable statutory and regulatory
provisions and credited attestations, we conclude PVAAS scores are part of public
school teachers’ performance ratings. That the PVAAS scores calculated for
individual teachers may be derived from calculations based on student assessments
4
does not undermine our conclusion that the scores, as calculated by each school
district, constitute performance ratings; they are expressly included as part of the
teacher effectiveness rating form prescribed by the Department, and student
assessment information expressly makes up 50% of teachers’ effectiveness ratings.
As such, PVAAS scores necessarily constitute “performance rating[s] or review[s]”
under 65 P.S. § 67.708(b)(7)(ii). Accordingly, they are not subject to disclosure
under the RTKL. The OOR erred by determining otherwise.
Having found that the RTKL exempts the requested documents from
disclosure, we need not consider whether they would be shielded from disclosure by
the School Code. Further, in light of our disposition of this matter on statutory
grounds, we need not reach the Department’s constitutional arguments. See Dep’t
of Conservation & Nat. Res. v. Off. of Open Recs., 1 A.3d 929, 936 (Pa. Cmwlth.
2010) (“whenever possible, a court should refrain from deciding constitutional
issues when it can resolve a dispute on a statutory basis”) (citing Pottstown Sch. Dist.
v. Hill Sch., 786 A.2d 312 (Pa. Cmwlth. 2001)).
III. Conclusion
Based on the foregoing discussion, we conclude the information sought
in the Request is not subject to disclosure under the RTKL. Therefore, the OOR’s
Final Determination is reversed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Department :
of Education, :
Petitioner :
:
v. :
:
Allen Wing, : No. 146 C.D. 2020
Respondent :
ORDER
AND NOW, this 23rd day of August, 2021, the Final Determination of
the Office of Open Records dated January 15, 2020 is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge