Easton Area Sch. Dist. v. Miller

• Decision Date: 20 July 2018
• Docket Number: No. 1897 C.D. 2017,1897 C.D. 2017
• Parties: EASTON AREA SCHOOL DISTRICT, Appellant v. Rudy MILLER and The Express Times
• Court: Pennsylvania Commonwealth Court

191 A.3d 75

EASTON AREA SCHOOL DISTRICT, Appellant

v.Rudy MILLER and The Express Times

No. 1897 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued June 4, 2018

Decided July 20, 2018

Rebecca A. Young, Bethlehem, for appellant.

Douglas J. Smillie, Center Valley, for appellees.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Easton Area School District (School District) appeals an order of the Court of Common Pleas of Northampton County (trial court) granting a request under the Right-to-Know Law¹ for a school bus surveillance video. In doing so, the trial court affirmed the determination of the Office of Open Records (OOR) that the recording, which depicts a school teacher roughly disciplining a student on the school bus, was disclosable. The School District contends that the video is an exempt public record because its disclosure will lead to a loss of federal funding; provides information on discipline, demotion or discharge of an agency employee; and was admitted as evidence at an arbitration proceeding. For the following reasons, we affirm the trial court.

Background

On February 21, 2017, Rudy Miller, on behalf of The Express Times (Requester), submitted a written request to the School District, which stated in pertinent part:

As per Pennsylvania's right-to-know law I'm requesting information in connection with an incident on a school bus outside Paxinosa Elementary School, which is temporarily located in the rear of Easton Area Middle School in Forks Township. It's come to my attention that elementary school teacher Aaron Dufour disciplined a child roughly on a school bus in front of the school on the morning of Feb. 8, 2017; Feb. 9, 2017; or Feb. 10, 2017. It's my understanding he grabbed a child and "slammed" him down in a bus seat. It's my understanding that Mr. Dufour has either been suspended or terminated as a result of this incident.

* * *

It's my understanding that each school bus is outfitted with a security camera. I would like a copy of the surveillance video if any exists that captured this incident involving Mr. Dufour on the school bus in front of Paxinosa Elementary School on either Feb. 8, Feb. 9 or Feb. 10, 2017.

Reproduced Record at 9a (R.R. __). The written request also sought information about Dufour's employment status and his annual salary.

The School District denied the request for the stated reason that disclosure of the video would imperil federal funding and, thus, it was exempt under Section 708(b)(1)(i) of the Right-to-Know Law, 65 P.S. § 67.708(b)(1)(i). Requester appealed to the OOR. The School District contended that disclosure of the video would violate the federal Family Educational Rights and Privacy Act (Privacy Act), 20 U.S.C. § 1232g, and, therefore, result in a loss of federal funding. Alternatively, the School District argued that the video recording was exempt under Section 708(b)(7)(viii) of the Right-to-Know Law, 65 P.S. § 67.708(b)(7)(viii), because the video was used "in the pending action to discipline, demote or discharge [ ] Dufour." R.R. 15a. In support, the School District submitted an affidavit of John Castrovinci, its human resources director and open records officer, which stated that Dufour was the subject of a disciplinary proceeding pending with the School Board and that the video had been admitted into evidence in that proceeding.

OOR's Final Determination

On May 24, 2017, the OOR issued a final determination partially granting Requester's appeal. It held that the exemption under Section 708(b)(1)(i) of the Right-to-Know Law was inapplicable because the video was not an "education record" within the meaning of the federal Privacy Act. The OOR did not address whether the exemption under Section 708(b)(7)(viii) of the Right-to-Know Law for information concerning employee discipline applied to the video recording. On the other hand, the OOR held that Requester's questions about Dufour's employment status and salary, which were not put in the form of document requests, did not have to be answered by the School District.²

Trial Court Decision

The School District appealed to the trial court, again relying on Sections 708(b)(1)(i) and 708(b)(7)(viii) of the Right-to-Know Law. The trial court affirmed the OOR and held that the video recording is not an "education record" for purposes of the federal Privacy Act. In so holding, the trial court relied upon a New York trial court decision, Rome City School District Disciplinary Hearing v. Grifasi , 10 Misc.3d 1034, 806 N.Y.S.2d 381 (2005). In Grifasi , a school district video camera captured images of students involved in an altercation along with bystanders. A student who was suspended for the incident subpoenaed the school district for copies of the video recordings.³ The court rejected the school district's argument that the videotape was an educational record protected by the Privacy Act, stating:

[The Privacy Act] is intended to protect records relating to an individual student's performance. [It] is not meant to apply to records, such as the videotape in question which was recorded to maintain the physical security and safety of the school building and which does not pertain to the educational performance of the students captured on this tape....

Id. at 383 (internal citation omitted).

Relying on the Grifasi analysis, the trial court concluded that because the video sought by Requester did not concern any student's academic performance, it was not an educational record. Accordingly, disclosure of the video would not jeopardize the School District's federal funding under the Privacy Act, and the School District did not prove an exemption under Section 708(b)(1)(i) of the Right-to-Know Law.

The trial court also rejected the School District's argument that the video recording was exempt from disclosure under Section 708(b)(7)(viii) of the Right-to-Know Law as " ‘information regarding’ discipline, demotion or discharge [of Dufour]." Trial Ct. Op. 12/1/2017, at 6 (citing 65 P.S. § 67.708(b)(7)(viii) ); R.R. 49a. In so ruling, the trial court found that "no final action resulting in demotion or discharge has occurred." Id.

Appeal

The School District appealed to this Court.⁴ In this appeal, the School District presents three issues for our consideration. The School District first argues that the trial court erred in ruling that the video recording is not exempt from disclosure under Section 708(b)(1)(i) of the Right-to-Know Law (loss of federal funding). Second, the School District argues that the trial court erred in holding that Section 708(b)(7)(viii) of the Right-to-Know Law (employee discipline) does not apply to the video. Finally, the School District argues that the video is exempt from disclosure under Section 708(b)(8)(ii) of the Right-to-Know Law (arbitration evidence), 65 P.S. § 67.708(b)(8)(ii). We address these issues seriatim .

I. Loss of Federal Funding Exemption

The School District argues that the trial court erred in holding that the video was not exempt because the Privacy Act prohibits disclosure of a student's education records without parental consent. The School District contends that because the video depicts students on the school bus during the school day, it is an "education record." The School District argues that the trial court erred in holding that the Privacy Act protects only those records that relate to a student's academic performance.

The Right-to-Know Law requires state and local agencies to provide access to public records upon request. Section 302 of the Right-to-Know Law, 65 P.S. § 67.302 ("A local agency shall provide public records in accordance with this act."). Section 102 of the Right-to-Know Law defines a "public record" as a

record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708[, 65 P.S. § 67.708 ]; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.

65 P.S. § 67.102. A "record" is further defined under the Right-to-Know Law as:

Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.

Id.

The burden of proving that a "record" is exempt from public access is placed on the "local agency receiving a request by a preponderance of the evidence." Section 708(a)(1) of the Right-to-Know Law, 65 P.S. § 67.708(a)(1). By this standard of proof, "the existence of a contested fact must be more probable than its nonexistence." Pennsylvania State Troopers Association v. Scolforo , 18 A.3d 435, 439 (Pa. Cmwlth. 2011) (quoting Department of Transportation v. Agricultural Lands Condemnation Approval Board , 5 A.3d 821, 827 (Pa. Cmwlth. 2010) ). In addition, "the exceptions to disclosure of public records must be narrowly construed." Office of the Governor v. Davis , 122 A.3d 1185, 1191 (Pa. Cmwlth. 2015).

Section 708(b)(1)(i) of the Right-to-Know Law exempts from disclosure "[a] record, the disclosure of which would result in the loss of Federal or State funds by an agency or the Commonwealth[.]" 65 P.S. § 67.708(b)(1)(i). Here, the School District argues that the Privacy Act forbids disclosure of the video recording without first obtaining the consent of the parents of all students on the bus that appear in the video. Without this consent, disclosure will cause the School District to lose federal funding.

The Privacy Act prohibits schools receiving federal financial assistance from disclosing "sensitive information about students" without...