Sch. Dist. of Phila. v. Calefati

• Decision Date: 12 January 2022
• Docket Number: 1285 C.D. 2020
• Court: Pennsylvania Commonwealth Court
• Parties: The School District of Philadelphia, Appellant v. Jessica Calefati and the Philadelphia Inquirer

The School District of Philadelphia, Appellant v. Jessica Calefati and the Philadelphia Inquirer

No. 1285 C.D. 2020

Commonwealth Court of Pennsylvania

January 12, 2022

OPINION NOT REPORTED

Submitted: December 16, 2021

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge[1]HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

MEMORANDUM OPINION

ANNE E. COVEY, Judge

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 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, 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 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 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 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 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

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