Easton Area SD, Aplt. v. Miller, R.

[J-75-2019] [MO:Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
EASTON AREA SCHOOL DISTRICT, : No. 13 MAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 1897
: CD 2017 dated July 20, 2018
v. : Affirming the Order of the
: Northampton County Court of
: Common Pleas, Civil Division, at No.
RUDY MILLER AND THE EXPRESS : C-0048-CV-2017- 5558 dated
TIMES, : December 1, 2017, exited December
: 5, 2017.
Appellees :
: ARGUED: September 12, 2019
CONCURRING AND DISSENTING OPINION
JUSTICE BAER DECIDED: June 18, 2020
In this appeal, the Easton Area School District (District) contends that it is entitled
to withhold from disclosure a school bus surveillance video, requested by Rudy Miller and
The Express Times (collectively, Requester), under Subsection 708(b)(1)(i) of the Right-
to-Know Law (RTKL), 65 P.S. § 67.708(b)(1)(i) (exempting from access “[a] record, the
disclosure of which[] … would result in the loss of Federal or State funds by an agency or
the Commonwealth”). I agree with the Majority that this contention fails because the
District has not met its burden to prove that disclosure of the video would result in the loss
of federal funding pursuant to the Family Educational Rights and Privacy Act (FERPA),
20 U.S.C. § 1232g, as it claims.
More specifically, as explained by the Majority, Subsections 1232g(b)(1)-(2) of
FERPA generally provide that federal funding shall be made unavailable to educational
agencies or institutions that have a policy or practice of releasing certain information
outside of the manner in which FERPA prescribes. Maj. Op. at 3.1 Here, the District has
failed to establish that, inter alia, it has a policy or practice of releasing information--
through its release of the requested video or otherwise--in contravention of FERPA’s
provisions that would result in the loss of funding under that federal act.2 Accordingly, the
District has not met its burden under Subsection 708(b)(1)(i) of the RTKL, and thus cannot
refuse to release the video under that provision. As the Majority as well as the
Commonwealth Court reached the same conclusion and because, in my view, the
District’s entitlement to application of Subsection 708(b)(1)(i) is the only issue properly
before this Court, I would affirm the order of the Commonwealth Court.
The Majority, however, observes improperly that the issue upon which we granted
review additionally implicates whether the video constitutes a “public record” under
Section 102 of the RTKL and can be withheld under Subsection 305(a)(3) of the RTKL
because it is exempt from disclosure “under any other Federal … law or regulation,” i.e.,
FERPA. See 65 P.S. § 67.102 (defining a “public record,” in part, as a record that “is not
exempt from being disclosed under any other Federal … law or regulation”); id.
1 See Maj. Op. at pp. 14-16 for the relevant language and a fuller discussion of the
requirements regarding Subsections 1232g(b)(1)-(2).
2 The Majority also notes that the District has not alleged or demonstrated that it is an
educational agency or institution that receives, or is eligible to receive, funding through
an applicable program that is subject to loss under FERPA in the first instance. While the
Majority opines that “such an omission may prove fatal to an agency’s attempt to invoke
FERPA as a basis for withholding records pursuant to a RTKL request,” it declines to view
the omission as fatal under the circumstances of this case, where neither Requester nor
the lower tribunals have noted the District’s failure and the information is available in the
public domain. Maj. Op. at 16. However, it is the District’s burden to prove its entitlement
to the RTKL exemption it claims, in its entirety, by a preponderance of the evidence. See
65 P.S. § 67.708(a)(1). Accordingly, unlike the Majority, I would not “accept for purposes
of this analysis that the District is eligible to receive applicable funding and is therefore
subject to FERPA’s requirements.” Maj. Op. at 16. Instead, I would hold that the District’s
omission serves as an additional basis for finding that it failed to meet its burden to show
its entitlement to withhold the requested video under Subsection 708(b)(1)(i) of the RTKL.
[J-75-2019] [MO: Dougherty, J.] - 2
§ 67.305(a)(3) (providing that a record in the possession of a local agency is presumed
to be a public record unless, inter alia, “the record is exempt from disclosure under any
other Federal … law or regulation”). In doing so, the Majority proceeds to conclude that:
(1) FERPA prohibits the release of the student images depicted in the video, though not
the video itself, and (2) therefore, the RTKL also precludes those images from disclosure
pursuant to the provisions of Section 102 and Subsection 305(a)(3).
However, in this appeal, the District has 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 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. Further, I find it questionable that FERPA operates to prohibit disclosure of the
information it covers outright, rather than protect it through the mechanism of withholding
federal funding from entities that disclose that information.3 See, e.g., Nat’l Collegiate
Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1210 (Fla. Dist. Ct. App. 2009) (“By
its terms, FERPA does not prohibit the disclosure of any educational records. Instead, it
operates to deprive an educational institution of its eligibility for federal funding if its
policies or practices run afoul of the rights of access and privacy protected by the law.”).
Given these circumstances, I would not reach the issue in the case sub judice.
Finally, after concluding that Section 102 and Subsection 305(a)(3) of the RTKL
operate to preclude disclosure of the student images depicted in the video, the Majority
proceeds to discuss the balancing test set forth in Pa. State Educ. Ass’n v. Comm., Dep’t
of Cmty. & Econ. Dev., 148 A.3d 142 (Pa. 2016) (PSEA). As the Majority acknowledges,
3 The Majority’s decision is particularly problematic in this regard, as it fails to explain in
its analysis under Section 102 and Subsection 305(a)(3) of the RTKL precisely how
FERPA prohibits release of protected information altogether, as opposed to merely
depriving an educational institution of federal funding upon violation of its provisions.
[J-75-2019] [MO: Dougherty, J.] - 3
however, the District did not raise this issue below, see Maj. Op. at 13, and the
Commonwealth Court never discussed it. Given the District’s omission in this respect
and my view that the applicability of the PSEA balancing test is, in any event, outside of
the scope of the issue upon which we granted review, I would likewise abstain from any
discussion of that test.
Ultimately, I view this case as one concerning only whether the District met its
burden of establishing that it is entitled to withhold the requested video under Subsection
708(b)(1)(i) of the RTKL because release of the video would result in the loss of federal
funds. As noted, under the facts and circumstances of the case actually before us, I
conclude that the District has not met its burden. This is not to say, however, that this
burden could not be met in another case. Further, my 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 this matter. See, e.g., 65 P.S. § 67.708(b)(1)(ii) (exempting records
from access when their disclosure “would be reasonably likely to result in a substantial
and demonstrable risk of physical harm to or the personal security of an individual”).
However, as no other provisions or means to withhold the video from disclosure are
properly before us, and because the Commonwealth Court also concluded that the
District failed to meet its burden under Subsection 708(b)(1)(i) of the RTKL, I would affirm
the order of that Court.
Based on the foregoing, I agree with the Majority Opinion to the extent it concludes
that the District failed to meet its burden under Subsection 708(b)(1)(i) of the RTKL and
that the Commonwealth Court did not err in ordering disclosure of the requested video.
However, for the reasons stated, I dissent from the opinion insofar as it directs that the
[J-75-2019] [MO: Dougherty, J.] - 4
student images contained in the video be redacted pursuant to Section 102 and
Subsection 305(a)(3) of the RTKL, and the PSEA balancing test.4
Justice Wecht joins this concurring and dissenting opinion.
4 As a final point, while I find no legal basis in this case upon which to conclude that the
student images must be redacted from the requested video, I nonetheless see no
obstacle to redaction given that, as noted by the Majority, Requester does not seek
disclosure of the identity of the student(s) involved.
[J-75-2019] [MO: Dougherty, J.] - 5