Central Dauphin SD, Aplt. v. Hawkins, V.

[J-25-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
CENTRAL DAUPHIN SCHOOL DISTRICT, : No. 88 MAP 2021
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 1154
: CD 2017 dated April 22, 2021
v. : Affirming the Order of the Dauphin
: County Court of Common Pleas,
: Civil Division, at No. 2016-CV-4401-
VALERIE HAWKINS, FOX 43 NEWS AND : MP dated August 1, 2017.
THE COMMONWEALTH OF :
PENNSYLVANIA, OFFICE OF OPEN : ARGUED: April 12, 2022
RECORDS, :
:
Appellees :
OPINION
JUSTICE DOUGHERTY DECIDED: December 21, 2022
In our plurality resolution of Easton Area School District v. Miller, 232 A.3d 716(Pa. 2020) (Easton Area II), we determined a school district did not meet its burden to
prove a bus surveillance video, requested pursuant to the Right-to-Know Law (RTKL), 65
P.S. §§67.101-67.3104, was exempt from disclosure by operation of the Family
Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g. We instructed the
district to redact students’ images and release the video to the requester. On the heels
of this decision, we granted discretionary review to consider whether the Commonwealth
Court erred when it applied the plurality’s analysis under similar circumstances, and
ordered redaction and disclosure of the school bus surveillance video it determined to be
an education record subject to FERPA. For the reasons that follow, we affirm the court’s
order, and direct the school district to reasonably redact the students’ personally
identifiable information and release the video.
Background
On February 23, 2016, Valerie Hawkins, on behalf of Fox 43 News (collectively,
Requester), submitted a RTKL request to Central Dauphin School District (the District),
seeking a copy of school bus surveillance video from one week prior, which captured an
incident between a 17-year-old member of a District high school basketball team (the
student), and a parent of another player (the adult), who allegedly grabbed the student’s
wrist during their interaction. The incident occurred in a parking lot outside the high
school’s gymnasium, while the players and school staff were boarding the school bus
following a basketball game. The adult involved received, and subsequently opposed, a
summary citation for harassment related to the incident. Requester attached a copy of
the citation notice from the magisterial district court record to the record request; the
notice identified the adult and student by name as the defendant and victim, respectively.
On March 24, 2016, Karen McConnell, the District’s open records officer (ORO
McConnell), denied the request for access to the video, explaining it was an education
record containing “personally identifiable information directly related to a student or
students,” which, according to the District, protected the video from release under
FERPA, and consequently precluded its disclosure under the RTKL as well. Final
Response of District to Valerie Hawkins dated 3/24/2016.
Initially, the ensuing litigation over Hawkins’s record request proceeded along a
trajectory nearly identical to the appeal of a similar RTKL request made to Easton Area
School District one year later, by Express Times reporter Rudy Miller, who sought bus
surveillance footage depicting a teacher’s alleged rough discipline of an elementary
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school student. See Easton Area II, 232 A.3d at 719-21. In each case, the requester
appealed to the Office of Open Records (OOR) challenging the basis of the district’s
denial, and pursuant to its procedural guidelines, the OOR invited parties to supplement
the record while directing the districts to notify third parties whose confidential information
was contained within the requested records of the opportunity to participate in the
appeal. 1 See Official Notice of Appeal to OOR, No. AP 2016-0583, 3/25/2016, at 1-2;
Easton Area II, 232 A.3d at 719; see also PA. OFFICE OF OPEN RECORDS, Procedural
Guidelines, Rev. 9/29/2015, at 8-9. 2 Each of the districts supplemented the record with
an affidavit from its open records officer indicating, inter alia, the requested bus
surveillance video was evidence in a pending district investigation or disciplinary matter,
and disclosure of the video would enable the students in it to be identified. See Affidavit
of ORO McConnell, 3/31/2016; Easton Area II, 232 A.3d at 719-20. To the OOR (which
ordered disclosure of the video in each case) and common pleas courts (which denied
the districts’ requests to vacate the orders), the districts argued the bus surveillance
videos were “education records” protected from disclosure by FERPA, which the federal
1 Specifically, the OOR Notice states:
Agency Must Notify Third Parties: If records affect a legal or security interest of an
employee of the agency; contain confidential, proprietary or trademarked records of a
person or business entity; or are held by a contractor or vendor, the agency must notify
such parties of this appeal immediately and provide proof of that notice to the OOR
within seven (7) business days from the date on this letter. Such notice must be made
by (1) providing a copy of all documents included with this letter; and (2) advising that
interested persons may request to participate in this appeal (see 65 P.S. § 67.1101(c)).
Official Notice of Appeal to OOR, No. AP 2016-0583, 3/25/2016, at 2 (emphasis in
original). Under the OOR’s procedural guidelines, agencies are also required to notify
and provide an opportunity to object to implicated third parties in response to the initial
request. See OFFICE OF OPEN RECORDS, Procedural Guidelines, Rev. 9/29/2015, at 2-3.
As was the case in Easton Area II, there is no indication in the record Central Dauphin
School District provided or attempted such notice at either stage in this case. See Easton
Area II, 232 A.3d at 732.
2 https://www.openrecords.pa.gov/Documents/Appeals/2015-10-
01_Procedural_Guidelines.pdf.
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law defines as “those records, files, documents, and other materials which []contain
information directly related to a student” and “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). In relation to FERPA, and in addition to other asserted exceptions from
public disclosure enumerated under Subsection 708(b) of the RTKL, each district claimed
the RTKL’s loss-of-funds exception applied, see 65 P.S. §67.708(b)(1)(i), exempting from
access a record which, if disclosed, “would result in the loss of Federal or State funds by
an agency or the Commonwealth[.]” 3
The districts in both cases also relied on the RTKL’s broader exclusion of records
exempt under other state or federal laws as provided by Sections 102 (defining “public
record” as one that is not privileged nor exempt under Section 708 or “any other Federal
or State law or regulation or judicial order or decree”), and Subsection 305(a) (presuming
a record of an agency is public unless exempt under, inter alia, “any other Federal or
State law or regulation or judicial order or decree”), id. §§67.102, 67.305(a)(3). See
District’s Notice of Appeal and Petition for Review, 6/9/2016 at 3-4, 12 n.3, citing 65 P.S.
§§67.102, 67.305(a), 67.708(b)(1)(i); Easton Area II, 232 A.3d at 720. 4 In both cases, at
all three levels of review preceding this Court’s consideration, the tribunals below granted
the news media’s request for disclosure of the bus surveillance video, concluding the
3 In the present case, the District also asserted the video fell within an enumerated
exception under 65 P.S. §67.708(b)(17), as part of a noncriminal investigation; this claim
was disposed of below and is not raised or implicated herein. See Cent. Dauphin Sch.
Dist. v. Hawkins, 199 A.3d 1005, 1016-20 (Pa. Cmwlth. 2018) (Central Dauphin I),
vacated and remanded on other grounds, 238 A.3d 337 (Pa. 2020) (per curiam).
4 The Easton Area district’s bases for denial most consistently focused on exceptions
enumerated under RTKL Subsection 708(b), and, as explained further infra, only a
plurality of this Court viewed the broader definition and presumption provisions as
implicated therein. See Easton Area II, 232 A.3d at 734-35 (Saylor, C.J., concurring and
dissenting), 736-38 (Baer, J. concurring and dissenting). In this case, the District explicitly
raised and argued Sections 102 and 305 categorically precluded disclosure of FERPA-
protected education records to the OOR and to the trial court.
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district failed to meet its burden to prove a relevant RTKL exemption applied because it
had not demonstrated the video qualified as an education record warranting any
protection under FERPA — either because it was not related to a student’s academic
performance (as determined by the OOR and trial courts), or because it was only
tangentially, as opposed to directly, related to a student. See In re Hawkins v. Cent.
Dauphin Sch. Dist., No. AP 2016-0583, 2016 WL 2986981, at *2-3 (Pa. Off. Open Rec.,
issued May 19, 2016); Cent. Dauphin Sch. Dist. v. Hawkins, No. 2016-CV-4401-MP, at
8-12 (C.P. Dauphin County filed Aug. 1, 2017) (unpublished memorandum); Cent.
Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1014 (Pa. Cmwlth. 2018) (Central
Dauphin I), vacated and remanded, 238 A.3d 337 (Pa. 2020) (per curiam); see also
Easton Area Sch. Dist. v. Miller, 191 A.3d 75, 80-83 (Pa. Cmwlth. 2018) (Easton Area I);
Easton Area II, 232 A.3d at 725-26. The videos were not viewed in camera at any level
in either case.
The particular circumstances of Central Dauphin’s case unfold primarily by way of
District ORO McConnell’s sworn affidavit submitted to the OOR and complementary
testimony before the court of common pleas. The affidavit stated, inter alia: the video
recording is maintained by the District and “is an ‘education record’ under FERPA which
requires the [District] to keep the record confidential”; the students’ personally identifiable
information cannot be redacted from the video “because [the District] does not have the
technological ability to redact the video recording[,]” however, “even if the [District] had
the technological ability . . . the subject of the video recording[] ha[s] been covered on
multiple occasions in the news media” which “identify the students in the recording as
members of the [school’s] basketball team[,]”and “[t]herefore . . . the students’ identities
w[ould] still be known to the Requester”; in addition, the District “may be financially
penalized through loss of [f]ederal funds if it permits the release [of] records protected by
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FERPA such as the video recording”; and, the video was being used in the District’s
official probe into the incident. Affidavit of ORO McConnell, 3/31/2016.
To the trial court, ORO McConnell testified in her role as the District’s assistant
superintendent for finance and administrative operations, which she indicated also
included responsibilities for discipline of students and staff, and oversight of bus
transportation, and she was personally involved in the investigation of the incident in this
matter. See N.T., 3/30/2017 at 6-7, 10. McConnell explained each of the school’s buses
included two cameras mounted above the driver’s head, one facing the back of the bus
and one facing the door, and each ran continuously on a loop once the driver turned on
the ignition, capturing high-resolution digital video and saving it to a hard drive over older
footage; the hard drive recorded over itself approximately every two weeks. See id. at 7-
8, 28. This video footage is reviewed by District personnel only “if there is a problem[,]”
such as a disciplinary or safety issue, in which case a request for the footage is typically
made by a principal to the District’s transportation director. Id. at 7-9. Upon such a
request, the bus camera’s hard drive is removed, and the relevant segment of footage is
extracted and saved on a separate drive. See id. at 7-9, 38-39. Asked if she “kn[e]w
whether or not the [D]istrict has the ability to redact or pixelate or do anything to obscure
the images of students on any individual video recording[,]” ORO McConnell responded,
“[w]e do not have the capability of doing that.” Id. at 14. In this instance, approximately
ten minutes of relevant footage from each bus camera was pulled in response to concerns
communicated by students’ parents. See id. at 29. The District extracted and reviewed
the footage as part of its investigation of those concerns, in a weeks-long process
involving interviews of students, staff, and parents, which resulted in discipline of one staff
member and at least one student. See id. at 10-11, 40-42. Each of the students in the
video can be identified by the images of their faces as well as the jersey numbers on their
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gear. See id. at 8, 11-12, 41. A shorter, approximately one-minute-long segment of the
footage was also shown in a separate court hearing regarding the citation of the adult
involved in the incident, who was not a member of the school staff. See id. at 43-44, 49-
51.
On cross-examination, ORO McConnell testified, because her role was in
operations and finance, she was “very rarely” involved in disciplinary matters and could
not think of any others in which she had participated; she also did not have knowledge of
how students’ disciplinary records were maintained, but the footage of this incident was
maintained in a safe in her office as the open records officer, not because of any role she
played in the investigation. Id. at 40-44; see id. at 13. When asked if the news media
had reported the name of the student after the involved-adult’s hearing on the citation,
McConnell responded, “I honestly don’t know the answer to that[,]” and further explained
it was not just a matter of recollection, but that she did not know because she does not
read or watch the news. Id. at 34. When asked if she later became aware the news had
released the student’s name, she stated, “I’m going to have to take your word for it. I
don’t know that[,]” and again replied she does not read or watch the news. Id. at 36. The
only other evidence offered by Requester was a news article published by PennLive
regarding the hearing and dismissal of the adult’s harassment citation resulting from the
incident, which identified the student by name as the complainant who testified in support
of the charge. See id. at 52; PennLive article dated 5/25/2016, Hawkins-Fox Cmwlth. Ct.
Brief at Exhibit 1.
In support of its decision to order disclosure of the record, the trial court noted
inconsistencies in ORO McConnell’s statements, and found her testimony regarding
personal involvement in the matter not credible; with regard to redaction, the court
observed, “[a]lthough Ms. McConnell testified that the District did not have the capability
[J-25-2022] - 7
to blur out individual students . . . it is not impossible to do so.” Central Dauphin Sch.
Dist., No. 2016-CV-4401-MP, at 10 (internal citation omitted); see id. at 15. Ultimately,
the court concluded the District failed to meet its burden to demonstrate the school bus
video recording was an education record “exempt from disclosure under FERPA, or any
of the enumerated exceptions outlined in Section 708 of the RTKL.” Id. at 16-17. As a
result, the court ruled the video was a public record pursuant to the RTKL, while noting
“in order to be disclosed, the student[s’] faces and identifying information must be blurred
out or redacted in accordance with 65 P.S. §67.706.” 5 Id. at 12.
The District filed an appeal, and a three-judge panel of the Commonwealth Court
affirmed and ordered disclosure of the video. See Central Dauphin I, 199 A.3d at 1020.
Notably, however, this initial Central Dauphin I decision was based on the intermediate
court’s newly-articulated analysis directing disclosure of the Easton Area District’s school
bus surveillance video, which was then pending review before this Court. See Easton
Area I, 191 A.3d at 82 (school bus video depicting teacher disciplining student was not
an “education record” protected by FERPA because it directly related to the teacher’s
performance, and was only tangentially related to student); Central Dauphin I, 199 A.3d
at 1013-14 (applying Easton Area I, school bus surveillance video depicting confrontation
between student and adult, for which the adult was cited, was not directly related to a
student and thus was not an education record invoking FERPA). Although a majority of
this Court affirmed the Easton Area I panel’s order to disclose the video, our disposition
on its appeal in Easton Area II expressed three diverging, non-majority interpretations of
5 In its subsequent statement in lieu of a Rule 1925(a) opinion, the trial court clarified it
had not reviewed the video and therefore could not say whether it contained any
identifying information; however, the court did not consider the players’ images, names,
and jersey numbers to be protected information because they appeared on the District’s
website and in game programs, and their presence during the incident was covered by
the media. See Cent. Dauphin Sch. Dist. v. Hawkins, No. 2016-CV-4401-MP (C.P.
Dauphin County filed Oct. 13, 2017) (statement in lieu of opinion).
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the relevant legal principles, among them the plurality-supported conclusion the Easton
Area District’s bus surveillance video was both an education record under FERPA and
subject to disclosure under the RTKL following redaction of the students’ images, which
differed substantially from the Easton Area I panel’s resolution of the matter. See Easton
Area II, 232 A.3d at 734 (stating the plurality conclusion and mandate), 734-36 (Saylor,
C.J., concurring and dissenting), 736-38 (Baer, J. concurring and dissenting); Easton
Area I, 191 A.3d at 82. Consequently, upon the District’s petition for allowance of appeal
with regard to Central Dauphin I, we vacated the panel’s order to disclose the video and
remanded the matter back to the Commonwealth Court for proceedings consistent with
our decision in Easton Area II, limited to whether the panel erred when it determined the
Central Dauphin District’s school bus surveillance video was not an education record
under FERPA. See Central Dauphin, 238 A.3d 337 (Pa. 2020) (per curiam).
Easton Area II
Though our resolution of Easton Area II recently addressed whether release of bus
surveillance video was precluded under FERPA, the Court’s variegated responses
thereon stemmed from the Easton Area District’s tailoring of its position within the context
of the loss-of-funds exception under RTKL Section 708(b)(1)(i), i.e., that disclosure of the
video would result in the loss of federal funds to the school or the Commonwealth.
Consequently, the central issue in our analysis was whether the district met its
preponderance of the evidence burden to meet that exception. See Easton Area II, 232
A.3d at 725. A five-justice majority of the Court agreed the district had not: we concluded
FERPA generally mandates federal funding “shall be made unavailable” to otherwise
eligible educational agencies having a “policy or practice” of releasing certain information
outside of the manner prescribed by federal law. Id. at 736 (Baer, J., concurring in part);
see 20 U.S.C. §1232g(b). And, because the district had not demonstrated any more than
[J-25-2022] - 9
the singular instance of potentially disclosing the identities of students on a surveillance
video during an alleged altercation, and FERPA further excuses otherwise noncompliant
disclosures which are compelled by judicial order, we held the district had not established
any contravention of FERPA to support how loss of funding could result. See id. at 725-
27 (plurality) (applying 65 P.S. §67.708(b)(1)(i) and 20 U.S.C. §1232g(b)(1), (b)(2)(A)-
(B)); id. at 736 (Baer, J., concurring in part).
The Easton Area II plurality additionally viewed the RTKL’s express exemptions
under Sections 102 and 305 — defining “public record” to exclude any record exempt
from disclosure by federal law or regulation, see 65 P.S. §67.102, and likewise excluding
such a record from the presumption a record possessed by an agency is public, see id.
§67.305(a)(3) — as foundational to whether ordering disclosure of the bus surveillance
video would release protected information in violation of our law, and therefore proceeded
to review the soundness of the preceding tribunals’ preclusion of the video from the ambit
of education records under FERPA. See id. at 725 & n.7, 728-31. This examination of
FERPA’s parameters identified key features of the protections afforded by an educational
institution’s compliance with the federal law: first, it provides a right of access to education
records for the parent and student only, and specifies a list of conditions under which an
identified student’s education records may be accessed without the parent’s or student’s
consent such as, for example, financial aid applications, see 20 U.S.C. §1232g(b)(1);
second, it restricts the release of “any personally identifiable information in education
records” to those specified conditions, except upon consent or in compliance with a
judicial order or subpoena so long as notice is provided, see id. §1232g(b)(2) (emphasis
added); and thus, as the federal law’s attending regulations recognize, institutions may
release education records to other parties, without consent, when the records have been
“de-identified,” that is, when all personally-identifiable information has been removed.
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Easton Area II, 232 A.3d at 728-30, citing 34 C.F.R. §99.31(b)(1) (educational agency
“may release the records or information without the consent required . . . provided that
the educational agency or institution or other party has made a reasonable determination
that a student’s identity is not personally identifiable”). The plurality reasoned students’
images in the video would constitute personally identifiable information under the
definition provided in the regulations, which 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[.]’” Id. at 728, quoting 34
CFR §99.3.
As to whether the bus surveillance video could be “directly related” to the students
therein, and therefore an education record subject to FERPA, the Easton Area II Court
considered U.S. Department of Education (USDOE) guidance explaining a “context-
specific” and “case by case basis examination” would demonstrate a direct relationship
if, inter alia, the school uses or would reasonably use video of the incident depicted for
disciplinary action, or other official purposes involving the students, including any
participants in an altercation and the victim of any incident. Id. at 729. The same USDOE
guidance further instructs that, prior to releasing an education record of multiple students
to the parent of any one student, “‘[i]f the educational agency or institution can reasonably
redact or segregate out the portions of the video directly related to other students, without
destroying the meaning of the record, then the educational agency or institution would be
required to do so’” prior to providing access. Id., quoting FAQs on Photos and Videos
under FERPA, U.S. DEP’T OF EDUC., https://studentprivacy.ed.gov/faq/faqs-photos-and-
videos-under-ferpa (last visited December 14, 2022). Accordingly, because the
disciplined student in the Easton Area District’s video was “the subject of some interaction
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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,” we reached a
majority-supported view that the video was as “directly related” to the student as it was to
the adult, and was therefore an education record of that student within the meaning of
FERPA. 6 Id. at 730; see id. at 735 (Saylor, C.J., concurring in part) (agreeing the video
is an education record). 7
As the endcap to its analysis, the Easton Area II plurality observed, despite the
laudable purpose of our open records law, its scarce consideration of the informational
privacy rights of third parties implicated in government-maintained records was
particularly problematic within the context of a request for surveillance video of school
children, yet the responsibility for balancing those interests remains diffused. Although
the agencies bear the obligation to perform such balancing in the first instance, and the
constitutional considerations in play might necessitate redactions not otherwise
permissible under the RTKL’s provisions, the record requestor in Easton Area II had
specifically disclaimed any interest in the identities of the students; thus we perceived no
6With respect to the requirement an education record be “maintained by an educational
agency or institution,” we declined to engage with the Easton Requester’s contrary
argument given the district did not dispute it maintained the video “and, in any event, it is
difficult to fathom how the [d]istrict would furnish disclosure of a record it did not
maintain[.]” Easton Area II, 232 A.3d at 730 n.14 (plurality).
7 Four justices did not consider further analysis, or any discussion of redaction, to be
within the scope of the issue before the Court at that juncture, and only a plurality joined
the lead opinion’s conclusion — holding the students’ personally identifiable information,
i.e., their images in the video, were protected from disclosure under FERPA and thereby
exempt under the RTKL, but a student’s de-identified education record, i.e., the video
itself, was not exempt and therefore must be redacted. See Easton Area II at 731, citing
65 P.S. §67.706 (where a record contains information subject to access along with
information not subject to access and the two cannot be physically 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”).
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need to remand the case for further balancing, and ordered the district to redact and
release the bus surveillance video. See id. at 731-34.
Central Dauphin II
Returning to the present case on remand after Easton Area II, the Commonwealth
Court, following supplemental briefing, again affirmed the trial court, and ordered
redaction of the students’ personally identifiable information from the video and
disclosure, under a revised analysis, departing from the limitations it placed on the scope
of an “education record” in Easton Area I. See Central Dauphin Sch. Dist. v. Hawkins,
253 A.3d 820, 823-24 (Pa. Cmwlth. 2021) (Central Dauphin II). The Central Dauphin II
panel mirrored the Easton Area II analysis in nearly all respects. First, the video depicted
a student engaged in an altercation with an adult, and was preserved for disciplinary
purposes relating to at least one student and one staff member, therefore it was directly
related to a student, and second, the District did not dispute it maintained the video, which
ORO McConnell kept locked in her office; thus the panel determined the video constituted
an education record under FERPA’s definition. See id. at 830-31. With regard to the
RTKL’s loss-of-funds exception under Section 708(b)(1)(i), the panel likewise concluded
the District did not meet the burden delineated by the majority in Easton Area II, as it
failed to demonstrate how a court-ordered disclosure of an education record would be
considered a “policy or practice” of providing unlawful access to protected information, in
a manner sufficient to trigger a loss of funds under FERPA and thus warrant exemption
from disclosure under the RTKL. See id. at 832-33.
Turning to RTKL Sections 102 and 305, the panel observed the assessment of
FERPA in Easton Area II demonstrated that not all education records are automatically
protected from disclosure, given the law’s permission to release education records
without consent when all personally identifiable information has been removed. See id.[J-25-2022] - 13
at 833, citing 34 C.F.R. §99.31(b)(1). In this vein, the Central Dauphin II panel concluded
“[r]edaction of the students’ identities eliminates the potential privacy harm that the
FERPA prohibition seeks to protect” against and “redacting students’ images removes
any argument that the video is [not] a public record and exempt under Federal law or
regulation, and thus removes any argument by the School District that it is exempt under
65 P.S. §67.305(a).” Id. Regarding the District’s assertions it could not redact, and could
not remove all personally identifiable information because the student and adult had
already been publicly identified in news coverage, the panel considered the latter
argument to be circular, i.e., FERPA’s purpose of providing some privacy in personally
identifiable information would not be served by withholding a record when the person’s
identity is already publicly known. See id. at 834. Reviewing the record, the panel
observed the trial court discredited ORO McConnell’s testimony, which lacked any
indication of personal knowledge or other support in the record for her statement the
District did not have the ability to redact the video, and thus declined to disturb the trial
court’s finding that “redaction was ‘not impossible.’” Id. at 835. Because Requester
indicated in its supplemental brief it had no interest in the identities of the other “non-
involved” third-party students, the panel viewed remand to conduct a balancing test of the
students’ informational privacy rights against the public’s right to know as unnecessary,
and ordered “[p]ersonally identifiable information must be redacted.” Id. at 833.
The District appealed the Commonwealth Court’s decision, and we granted
allowance of appeal to examine whether, in light of our Easton Area II decision and the
multiple opinions of this Court expressed therein, the Commonwealth Court “committed
reversible error by ordering disclosure and mandating redaction of a student education
record that is exempt from public access under state and federal law — specifically,
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FERPA and Section[s] 102 and 305(a) of the Pennsylvania Right-to-Know-Law[.]” Cent.
Dauphin Sch. Dist. v. Hawkins, 268 A.3d 376 (Pa. 2021) (per curiam).
Arguments
The District
Foremost, the District argues the redaction provision set forth in RTKL Section 706
is inapplicable to records that fall within a statutory exemption; that is, if a record is not a
“public record” by definition under Section 102, or likewise “presumed to be a public
record” under Section 305, then it is not subject to redaction under Section 706.8
Appellant’s Brief at 23-25, 35, citing 65 P.S. §§67.102 (defining “public record” as a record
of an agency that “is not exempt under section 708[ or] from being disclosed under any
other Federal or State law or regulation or judicial order or decree[ or] is not protected by
a privilege”), 67.305 (record is presumed public unless exempt from disclosure under
Section 708 or other law, decree, or privilege); see also 65 P.S. §67.706 (requiring
redaction of “information which is not subject to access” from, and subsequent disclosure
of, public record otherwise subject to public access). Collecting Commonwealth Court
cases, the District observes, “‘[i]f a record is exempt under Section 708(b), it is not a public
8 Section 706, titled “Redaction,” provides,
If an agency determines that a public record, legislative record or financial
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, legislative record
or financial 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. Information which an agency redacts in
accordance with this subsection shall be deemed a denial under Chapter 9.
65 P.S. §67.706.
[J-25-2022] - 15
record subject to disclosure under the RTKL. If a record is not exempt from disclosure,
but contains information that is not subject to access, the agency may discharge its duty
by providing redacted records [under Section 706]. Conversely, if a record is exempt from
disclosure under the RTKL and thus is not a public record, it need not be redacted in
accordance with Section 706 of the RTKL.’” Appellant’s Brief at 28, quoting Com. Dep’t
of Labor & Indus. v. Simpson, 151 A.3d 678, 682 (Pa. Cmwlth. 2016) (emphasis omitted);
see id. at 26-30, quoting, e.g., Dep’t of Health v. Off. of Open Recs., 4 A.3d 803, 815 (Pa.
Cmwlth. 2010) (“[T]he [Section 706] redaction requirement only applies to records that
are determined to be ‘public records.’”). Here, the District contends, the record is exempt
from disclosure under FERPA, a federal law, and therefore it is by definition not a public
record and the redaction provision does not apply. In this vein, the District argues the
panel’s application rewrites Section 706 by striking “public” and mandating redaction of
all records, which renders pointless RTKL Section 306 (“[n]othing in this act shall
supersede or modify the public or nonpublic nature of a record or document established
in Federal or State law, regulation or judicial order or decree”), and prohibits an agency
from exercising any discretion under Subsection 506(c) (authorizing agency discretion to
make otherwise exempt records accessible for inspection if disclosure is not prohibited
under other federal or state law, decree, or privilege). See id. at 35-36, citing 65 P.S.
§§67.306, 67.506(c).
The District maintains this view is entirely consistent with the Easton Area II
plurality decision, which did not foreclose the exemption of bus surveillance video under
other law or other circumstances, much less require its disclosure. See id. at 39-40,
quoting Easton Area II, 232 A.3d at 737 (Baer, J., concurring in part) (“[T]he [Easton Area]
District failed to present a developed claim that it is entitled to withhold the video or any
component thereof from disclosure on the discrete bases of Section 102 and Subsection
[J-25-2022] - 16
305(a)(3) of the RTKL as cited above. Additionally, the lower tribunals did not address
the applicability of those provisions to the requested video. . . . [This] position should not
be interpreted as one foreclosing the possibility that other RTKL provisions or legal
principles, not presently before the Court, may apply to exempt from disclosure a record
such as the requested video[.]”). In addition, the District suggests FERPA does not
contemplate public access to education records, but rather permits access to parents and
students while setting the conditions for providing protected information to other entities,
and although FERPA regulations allow a school’s release of education records without
parental consent when the record has been de-identified, they do not require such a
disclosure. See id. at 40, citing 34 C.F.R. §§99.30-99.39. 9
Assuming, arguendo, Section 706 does apply, the District contends it was error to
mandate redaction here, where “the personally identifiable information of the student
involved cannot be de-identified through redaction, thereby foreclosing disclosure of the
video without parental consent under FERPA’s regulations[.]” Id. at 46; see also id. at
41-42, quoting 65 P.S. §67.706 (“The agency may not deny access to the record if the
9 The Pennsylvania School Boards Association (PSBA), participating as amicus curiae,
advanced arguments substantially aligned with the District regarding the application of
RTKL Section 706. PSBA additionally emphasizes its “grave concern” with the Easton
Area II Court’s majority-supported position that a loss of funds under FERPA required a
school entity’s demonstrated “policy or practice” of unauthorized disclosure of education
records in order to fall within the RTKL loss-of-funds exception under Subsection
708(b)(1)(i). Brief for Amicus PSBA at 11-12 n.1. According to PSBA, whether an
individual school district has such a policy or practice is not dispositive; rather, if state law
is construed to require disclosures of student records in violation of FERPA, statewide
eligibility for FERPA funding is at risk. See id. Notably, though the loss-of-funds
exception was the central issue addressed in our Easton Area II decision, this aspect of
the panel’s Central Dauphin II decision is not encompassed or implicated within our grant
of allocatur in this appeal, and we do not address it anew herein. As we have observed,
however, the access and exemption provisions of both the RTKL and FERPA are highly
sensitive to peculiar facts and circumstances, and an agency’s failure to meet its burden
under one set of variables does not construct a policy of disclosure in all others. See
Easton Area II, 232 A.3d at 737 (Baer, J., concurring in part).
[J-25-2022] - 17
information which is not subject to access is able to be redacted.”) (emphasis provided
by District). The District first asserts “unrefuted record evidence shows that the District
lacks the technological capability to redact the video,” and notes, under the RTKL, an
affidavit based upon the personal knowledge of an agency’s representative is sufficient
to meet the preponderance of the evidence standard; in this case, the District observes,
Requester had the opportunity to cross-examine the affiant regarding redaction but did
not, and no other evidence in the record supports a contrary finding regarding the District’s
technological capabilities. Id. at 41-45. Notwithstanding its purported lack of redaction
capacity, the District also argues the only exception for which FERPA allows the
unconsented release of an education record still mandates “‘the removal of all personally
identifiable information’” and disclosure only after the institution “‘has made a reasonable
determination that a student’s identity is not personally identifiable[.]’” Id. at 47, quoting
34 C.F.R. §99.31(b)(1) (emphasis omitted). The District maintains this cannot be
accomplished here because the personally identifiable information in the video includes
more than just the students’ faces and jersey numbers, i.e., as a result of Requester’s
and the public’s knowledge of the incident, the student’s actual identity cannot be
redacted. See id. at 46-51. According to the District, in such a situation, FERPA requires
“more, not less, protection” of student privacy, as is demonstrated by its regulations
defining personally identifiable information to include “‘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’” or is “‘requested by a
person who the educational agency or institution reasonably believes knows the identity
of the student to whom the education record relates.’” Id. at 51-52 (emphasis omitted),
quoting 34 C.F.R. §99.3(f), (g). The District argues that, because of the news coverage
[J-25-2022] - 18
and public legal filings, both factors are encompassed here, and redacting the involved
student’s face cannot de-identify the record. See id. at 51-53.
Lastly, referring to the Easton Area decisions, the District argues “‘[w]hat’s past is
prologue[,]’” and where the Easton Area II plurality identified the potential dangers of
disclosing school surveillance videos via public record requests in light of students’ and
families’ lack of control in the matter, the Court here should perform a balancing test with
regard to the students’ informational privacy rights. Id. at 54-57, quoting WILLIAM
SHAKESPEARE, THE TEMPEST, act II, scene i, line 253, and citing, inter alia, Easton Area
II, 232 A.3d at 731 (“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 this 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.”)
(quotation marks omitted); Pa. State Educ. Ass’n v. Com., Dep’t of Cmty. & Econ. Dev.,
148 A.3d 142, 158 (Pa. 2016) (PSEA II) (requiring agencies to balance constitutional
privacy rights of third parties implicated in public record requests). However, rather than
allowing disclosure of a redacted video to a requester who expressly disclaims interest in
the identities of the students, as was the case in Easton Area II, the District argues the
Court in this case should conclude the video cannot be released, even in redacted form,
to this Requester, who knows the identity of the student to whom the education record is
directly related, and has only disclaimed interest in the identity of the “‘non-involved’”
students, a fact the panel erroneously relied upon to the exclusion of the involved
student’s privacy interest. See id. at 55-56, quoting Central Dauphin II, 253 A.3d at 833
(“‘[Requester] has indicated that it has no interest in the identity of the other ‘non-involved’
[J-25-2022] - 19
third-party students[,] it is unnecessary for the School District to conduct the balancing
test[.]’”).
Requester
Requester agrees, under FERPA and in accord with the Easton Area II lead
opinion’s analysis, the video is an education record. Requester argues, however, just like
any other record of an agency, an education record is presumed to be a public record
under the RTKL unless the agency meets its preponderance burden to prove otherwise.
See Appellees’ Brief at 6, citing Bowling v. Off. of Open Recs., 75 A.3d 453, 457 (Pa.
2013); 65 P.S. §67.305 (agency record presumed public unless exempt under Section
708, privilege, or other state/federal law or judicial order/decree). Requester indicates
there is no provision of FERPA or the RTKL categorically exempting education records
from disclosure; rather, FERPA’s regulations provide the proper conditions for their
release, i.e., once personally identifiable information that would reveal a student’s identity
has been removed, education records may be publicly disclosed, and the RTKL
conditions nondisclosure of such a non-categorical exemption on the proof of loss of
federal funds. 10 See id. at 7-8, citing 34 C.F.R. §99.31(b)(1) (agency may release
education records or information without consent “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”); 65 P.S. §67.708(b)(1) (exempting from public access “[a] record, the
disclosure of which[ ] would result in the loss of Federal or State funds by an agency or
10 Responding to the District’s argument the video cannot be disclosed because the
District lacks the capability to redact, Amici Pennsylvania NewsMedia Association and
Reporters Committee for Freedom of the Press contend, “[w]hen a public agency uses
video technology as a means of surveilling the public, it has a concomitant duty to ensure
it can facilitate public access when required by law. Agencies cannot be permitted to use
technology for their own purposes but disclaim technology when it is necessary for public
oversight and accountability.” Brief for Amici Pa. NewsMedia Assoc., et al. at 22.
[J-25-2022] - 20
the Commonwealth”). Requester observes a majority of justices in Easton Area II, which
included the plurality, agreed the bus surveillance video was an education record, and
yet the plurality still held those records were not categorically exempt under RTKL
Sections 102 and 305, but instead were public and required redaction of students’
personally identifiable information. See id. at 10-11 & n. 4, citing Easton Area II, 232 A.3d
at 729-31 (plurality); Easton Area II, 232 A.3d at 735 (Saylor, C.J., concurring in part)
(viewing bus surveillance video as an education record, but would hold it was therefore
exempt under FERPA and RTKL’s loss-of-funds exception under Subsection
708(b)(1)(i)). In Requester’s view, the Easton Area II plurality’s position was not joined
by a majority only because four justices, with two sets of diverging opinions, did not
consider exemptions under Sections 102 and 305 to be properly before the Court in that
case. See id. at 10 & n.4, citing Easton Area II, 232 A.3d at 737-38 (Baer, J., concurring
in part) (district’s failure to meet its burden under the loss-of-funds exception, and failure
to develop claim RTKL Sections 102 and 305 entitled its withholding of the video or its
components, required disclosure of the school bus surveillance video with no redactions).
Here, where Sections 102 and 305 are the RTKL provisions solely accepted for review,
Requester argues the panel was correct to apply the Easton Area II plurality’s analysis,
that is, “‘to avail itself of an exempt[ion] from disclosure under RTKL Subsection 305(a)(3),
the District had the burden of proving the school bus surveillance video was 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.’” Id. at
12, quoting Easton Area II, 232 A.3d at 730.
Requester contends the present case is a “perfect example” of why education
records should not be categorically exempt from disclosure, as the bus surveillance video
[J-25-2022] - 21
does fit the broad definition of an education record, but it contains no confidential
information. Id. at 12-13. According to Requester, the District did not meet its burden to
show the video contained protected information, could be used to discover the students’
identities, or could not be redacted, but instead merely asserted that individuals who
already knew the students could identify them by their faces or information on their
jerseys, and baldly claimed it lacked the capability to redact. Requester asserts the video
captured a highly public altercation in a public school parking lot, regarding which the
student later testified in a public hearing where portions of the video were shown; in
addition, the students had just participated in a basketball game, and even if not
redactable, their images in connection with an official school activity were already
“directory information” and disclosable without consent. See id. at 13, 19-20, citing 20
U.S.C. §1232g(a)(5)(A) (“directory information” includes, inter alia, student’s name, 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); 20 U.S.C. §1232g(b)(1) (protecting from release “personally
identifiable information contained [in education records] other than directory information”).
Discussion
School districts are local agencies subject to the RTKL’s public record access
provisions required to provide access to public records in accordance with its provisions.
See Easton Area II, 232 A.3d at 724; 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.” Id. §67.102 (footnote omitted).
Similarly, the RTKL presumes a record in the possession of a local agency, e.g., a school
district, is a public record unless, inter alia, the record is exempt from disclosure under
[J-25-2022] - 22
Section 708 or any other federal or state law or regulation. See id. §67.305(a)(1), (3). To
support a denial of access to a record within its possession, an agency has the burden of
proving the record is exempt from public access by a preponderance of the evidence, see
id. §67.708(a)(1), which is “tantamount to a ‘more likely than not’ inquiry[.]” Popowsky v.
Pa. Pub. Util. Comm’n, 937 A.2d 1040, 1055 n.18 (Pa. 2007). “Consistent with the RTKL’s
goal of promoting government transparency and its remedial nature, the exceptions to
disclosure of public records must be narrowly construed.” Pa. State Police v. Grove, 161
A.3d 877, 892 (Pa. 2017) (quotation and citations omitted).
FERPA, together with its regulations, 34 C.F.R. §§99.1-99.67, “affords parents the
right to have access to their children’s education records, the right to seek to have the
records amended, and the right to have some control over the disclosure of personally
identifiable information from the education records.” USDOE, What is FERPA?,
PROTECTING STUDENT PRIVACY, https://studentprivacy.ed.gov/faq/what-ferpa (last visited
December 14, 2022) (emphasis added). As explained in Easton Area II and supra,
inspection of the federal law’s access and nondisclosure requirements reveals the critical
exemption from disclosure under FERPA is not the entire category of education records,
as the District advances, but rather the students’ personally identifiable information. See
Easton Area II, 232 A.3d at 728-31. Despite the District’s view the plurality’s assessment
in this regard is not controlling, it does not offer any reason tending to indicate the
assessment was incorrect; nor is one evident from the concurring and dissenting opinions
declining to join that portion of the lead opinion, as they viewed the scope of review as
confined to only the Easton Area District’s asserted loss-of-funds exception under RTKL
Section 708. See id. at 734-35 (Saylor, C.J., concurring and dissenting), 736-37 (Baer,
J. concurring and dissenting). Accordingly, as with any other record in a local agency’s
possession, education records in a school district’s possession are presumed public, and
[J-25-2022] - 23
the District had the burden to prove it was exempt from disclosure by a preponderance of
the evidence. Furthermore, this view is consistent with the District’s observations
regarding the RTKL’s redaction provision under Section 706: where an education record,
as defined and regulated under FERPA, is presumed to be public rather than categorically
exempt, and not proven otherwise under the circumstances of a request, “but contains
information that is not subject to access, the agency may discharge its duty by providing
redacted records” under Section 706 of the RTKL. Simpson, 151 A.3d at 682; see 65
P.S. §67.706.
In this instance, the District has not met its burden to show the video, by virtue of
being an education record, is exempt from disclosure under Section 708 or any other law
(i.e., FERPA), order, or privilege. See 65 P.S. §§67.102, 67.305(a). Thus, as we
determined with respect to the bus surveillance video in Easton Area II, “insofar as the
video itself is a public record subject to disclosure under the RTKL but contains the
images of school students which are not subject to disclosure, . . . the District is obligated
to redact students’ images by, for example, blurring or darkening portions of the video
revealing the students’ identities, and to subsequently provide access to the redacted
video.” Easton Area II, 232 A.3d at 731; see also 65 P.S. §67.706.
The District aptly notes, however, under Section 706 of the RTKL, “[t]he 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). Here, the District’s first
contention, that its lack of redaction capacity is sufficiently established in the record via
ORO McConnell’s “unrefuted” affidavit and testimony, is unavailing. Appellant’s Brief at
42. We have said, “the proposition that OOR appeals officers and courts lack competency
to assess the adequacy and probity of an agency affiant’s characterization of the record
or the credibility of its effects assessment is untenable.” ACLU of Pa. v. Pa. State Police,
[J-25-2022] - 24
232 A.3d 654, 669 (Pa. 2020). Even when an affiant’s veracity and good faith are wholly
unquestioned, the sufficiency of its attestation may be discredited. See id. Such is not
the case here, however, where the factfinding trial court observed unreconciled
inconsistencies and expressed clear doubt regarding the finance administrator’s personal
knowledge of both the District’s investigation and its technological capacity. 11 Borrowing
an observation from the D.C. Circuit Court of Appeals regarding prison surveillance video,
the Commonwealth Court keenly illustrated the strain associated with acceptance of the
District’s assertion:
[I]t is not at all clear from the government’s affidavit why it cannot
segregate the portions of the record that do not [invade privacy]. . . .
The government further does not explain why it cannot by use of such
techniques as blurring out faces, either in the video itself or in
screenshots, eliminate unwarranted invasions of privacy. The same
teenagers who regale each other with screenshots are commonly known
to revise those missives by such techniques as inserting cat faces over
the visages of humans. While we do not necessarily advocate that
specific technique, we do hold that the government is required to explain
why the possibility of some similar method of segregability is unavailable
if it is to claim the protection of the exemption.
Central Dauphin II, 253 A.3d at 835, quoting Evans v. Fed. Bureau of Prisons, 951 F.3d
578, 587 (D.C. Cir. 2020). Similarly, we note the trial court determined, despite ORO
McConnell’s testimony to the contrary, “the capability to blur out individual students . . . is
not impossible” and we will not disturb that finding. Cent. Dauphin Sch. Dist. v. Hawkins,
11 We observe similar reservations regarding the District’s contention favoring greater
privacy protection here as a result of the disclosure of identifying information by the media.
Indeed, although ORO McConnell first averred, “based upon [her] personal knowledge,”
“the subject of the video recording[] ha[s] been covered on multiple occasions in the news
media[,] . . . [which] identify the students in the recording as members of the [school’s]
basketball team[,] . . . [and therefore] the students’ identities w[ould] still be known[,]” she
subsequently testified, six distinct times during the hearing, she does not read or watch
the news. Affidavit of ORO McConnell, 3/31/2016; see N.T., 3/30/2017 at 35-37, 41-42.
[J-25-2022] - 25
No. 2016-CV-4401-MP, at 10 (C.P. Dauphin County filed Aug. 1, 2017) ; see Central
Dauphin II, 253 A.3d at 835. 12
Under FERPA regulations, students’ “[p]ersonally identifiable information,” which
we affirmatively view as exempt from disclosure under FERPA, “includes, but is not
limited to” the student’s and family members’ names; student's social security number;
other direct or indirect identifiers; and, as the District relies upon here:
(f) Other 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; or
(g) Information requested by a person who the educational agency or
institution reasonably believes knows the identity of the student to whom
the education record relates.
34 C.F.R. §99.3 (emphasis added). We would agree videographic images generally fall
within such identifying information under subsection (f), although the provision is less apt
here where the District indicates the public has personal knowledge of the relevant
circumstances. Subsection (g) is more compelling, and we recognize that certain
12 Justice Mundy complains that we “summarily” reject the District’s claim it does not
possess the ability to redact the video. Concurring and Dissenting Opinion at 2. Of
course, the District bears the burden of proving its education records are exempt from
disclosure, and it stands to reason the District must do more than baldly state it lacks the
ability to redact them. Cf. Evans, 951 F.3d at 587 (“the government is required to explain
why the possibility of some similar method of segregability is unavailable if it is to claim
the protection of the exemption”). Moreover, the suggestion redaction technology is
prohibitively expensive, and the District is “cash-strapped” and financially incapable of
using it, Concurring and Dissenting Opinion at 3-4, is completely unsupported in the
record. In any event, it is clear Section 706 of the RTKL mandates agencies like the
District to redact information exempt from disclosure and does not give them discretion in
this regard; they are simply required to comply with the law. See 65 P.S. 67.706 (“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 . . .”). It is the statute that “creates a presumption” and “obligation” on
the part of the District, Concurring and Dissenting Opinion at 3, 6, rather than today’s
decision.
[J-25-2022] - 26
circumstances might warrant reliance on this provision to preclude the press or others
from accessing records regarding well-known incidents or students. However, the
circumstances are the key. As we have said, these determinations involve context-
specific, case-by-case, fact-sensitive examinations, see Easton Area II, 232 A.3d at 728-
29, which turn on reasonableness — that is, whether the District “has made a reasonable
determination that a student’s identity is not personally identifiable” when “taking into
account other reasonably available information.” 34 C.F.R. §99.31(b)(1) (emphasis
added). Such inquiries are properly raised before the factfinder, rather than decided as
a matter of law on appeal. 13 The District first introduced these provisions into its argument
to the Commonwealth Court on appeal, and we therefore lack sufficient context to reverse
the fourth consecutive directive to disclose the video in reliance upon them here. 14
In addition, as indicated supra at note 1, there is no suggestion in the record that
the District complied with its obligation to notify the students and their parents of the
record request, its disposition or its appeal. Where the District advances an argument
the record depicts an incident so highly-publicized that no amount of redaction can de-
identify the video and thus a greater degree of privacy must be afforded, the absence of
any third parties, or some certification of notice to them as directed by the OOR, is
13 In this regard, we depart from the Central Dauphin II panel’s conclusion that redaction
of the students’ identities “eliminates” any potential privacy harm and “removes any
argument” a record is otherwise exempt under any provisions. See Central Dauphin II,
253 A.3d at 833 (emphasis added). Given the fact-sensitive nature of determinations
under FERPA and the RTKL, we do not foreclose on different circumstances yielding
different results.
14 To the extent Requester argues the features that might be identified in the video would
constitute disclosable “directory information,” this claim similarly lacks consideration
below; however, we note the concept is not mutually exclusive from personally identifiable
information. Both terms are defined to include a student’s name and address. See 34
C.F.R. §99.3. “Directory information” is information “that would not generally be
considered harmful or an invasion of privacy if disclosed[,]” while disclosure of personally
identifiable information achieves the opposite result. Id.[J-25-2022] - 27
perplexing. Moreover, we have said it is the responsibility of the agency, here the District,
to balance students’ informational privacy rights, by implementing required redactions, in
the first instance, and addressing those constitutional considerations before the factfinder
when challenged; our mechanism for addressing failures in this regard is merely to
remand. See Easton Area II, 232 A.3d at 732-733, citing City of Harrisburg v. Prince, 219
A.3d 602, 618-19 (Pa. 2019); Reese v. Pennsylvanians for Union Reform, 173 A.3d 1143,
1159 (Pa. 2017); PSEA II, 148 A.3d at 144. Here, however, we perceive no remaining
reasonable expectation of a heightened privacy protection from disclosure of this school
bus surveillance video which would warrant that result. Litigation does not progress in a
vacuum, and six years later, even the youngest of the Central Dauphin basketball players
will turn twenty years old this year. Whatever privacy interest may still exist in a redacted
video six years after the incident was highly publicized can only be speculated now. The
District’s obligation at this juncture is to redact the video to the extent it deems necessary
to reasonably remove the students’ personally identifiable information. 15
Conclusion
For the foregoing reasons, we conclude the Commonwealth Court did not err when
it applied the analysis articulated in Easton Area II and ordered the mandatory redaction
and disclosure of a school bus surveillance video it determined to be an education record
subject to FERPA. Accordingly, we affirm the order of the Commonwealth Court, with
instructions to the District to reasonably redact the students’ personally identifiable
information prior to disclosure.
15 Justice Mundy suggests we have somehow “diminish[ed]” the students’ privacy
interests by declining to remand. Concurring and Dissenting Opinion at 6. But our
decision actually ensures protection of those interests. Moreover, redaction and
production of the video now, rather than further protracting this litigation, will finally resolve
any remaining privacy concerns.
[J-25-2022] - 28
Chief Justice Todd and Justices Donohue and Wecht join the opinion.
Justice Mundy files a concurring and dissenting opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
Justice Brobson did not participate in the consideration or decision of this matter.
[J-25-2022] - 29