rum - pennsylvania · 2019-02-15 · michael mcauliffe miller, esquire tricia 5, lontz, esquire...

e; -,44:410::e7,5 -16;.,f14 -5;z1%-.

......

11. The OOR, accordingly, is not a proper party to this appeal.' See, e.g., Chambersburg

Area School District v. Pennsylvania Office of Open Records (Maria Dorsey), No.

2012-849 (Frank. Corn. P1. May 17, 2012) (discussing procedural rules for a Court of

Common Pleas and removing the OOR from the caption), available at

http://dced.state.paus/open-records/final-determinations/Filellandler.ashx7ID=9021.,

see also Lackawanna County Government Study Commission v. Office of Open

Records, No. 14 CV 4427 (Lack. COM. P1. Aug. 22, 2014) (holding that "[t]he OOR

should not be named as the respondent in this RUM appeal"), available at

http ://dockbappprd01/OpenRecords/FileHandler.ashx?Fi leID=14391

12. As a quasi-judicial tribunal with no interest in the. outcome of the District's appeal,

the OOR rests upon its Final Determination and. will not file a brief or appear for

argument in the above listed appeal,

Respectfully submitted,

Charles Rees Brown Chief Counsel Supreme Court No. 70612

Office of Open Records . Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120-0225 (717) 346-9903; (717) 425-5343 (facsimile) Counsel for Office of Open Records

Dated: July 8, 2016

1 The OOR's Final Determination states in the Conclusion portion on the last page that "...as the quasi-judicial

tribunal adjudicating this matter, the OOR is not a proper party to any appeal and should not be named as a party,

See Padgettv. Pa, State Nike, 73 A.3d 644, 648 n. 5 (Pa. Commw. Ct. 2013),

3

R. 187a

IN THE COURT OF COMMON PLEAS OF ,DAUPHIN COUNTY, PENNSYLVANIA

CENTRAL DAUPHIN SCHOOL DISTRICT, Petitioner,

v.

VALERIE HAWICINS, FOX 43 NEWS. and the COMMONWEALTH OF

.PENNSYLVANIA OFFICE OF OPEN RECORDS,

2016 -CV -4401 -MP

Respondents

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document was served in the manner indicated upon the

following:

Hon. Bruce F. Bratton,'Judge '

Dauphin County Court of Common Pleas Dauphin County Courthouse 101 Market Street, #6, Fifth Floor Harrisburg, PA 17101 (hand delivered)

Valerie Hawkins, Planning Editor Fox 43 NEWS 2005 South Queen Street York, PA 17403 [email protected] (Via e-mail and first class mail)

Dated: July 8, 2016

Michael McAuliffe Miller, Esquire Tricia 5, Lontz, Esquire Eckert Seamans. Cherin. & Mellott, LLC 213 Market Street 86 Floor Harrisburg, PA 17101 [email protected] tlontz®eckertseamans.com (Via e-mail and first class mail)

(.2anw Carolyn Shuman, Paralegal Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level .

Harrisburg, PA 17120-0225 (717) 346-9903' phone; (717) 425-5343 fax [email protected]

1

R. 188a

EXHIBIT B

R. 189a

Henry, Faith

From: Sent: To: Subject: Attachments:

Good afternoon,

Hawkins, Valerie <[email protected]>

Thursday, March 24, 2016 2:40 PM

DC, OpenRecords

FOX43 NEWS-->RTK appeal form

Appeal_Form_Revised_2016-01-04 (Fillable)-1.pdf; Hawkins-Fox43 3-1-16,pdf; Hawkins-

Fox43 3-24-16.pcit nontrafficcitationfileciagainstericarawlsodf

I am writing to file an appeal after my Right to Know request was denied by Karen L. McConnell, the Open Records

Officer for the Central Dauphin School District, on March 24,

Attached you will find a completed RTK appeal form, and supporting documents of correspondence between myself

and Ms, McConnell.

I filed a RTIC request with the Central Dauphin School District on Feb. 23, 2016 to request a copy of the video that was

captured by a school bus camera system of an incident that occurred on Feb. 16, 2016. Erica Rawls, the wife of CD

Bast Principal Jesse Rawls, is accused of grabbing a 17 -year -old girl by the wrist after she boards the school bus upon

their return from a basketball game, Also attached to this email is a copy of the non -traffic citation which was filed

against Erica Rawls on Feb, 16, 2016 related to the inoident aboard the school. bus,

Below is email correspondence between myself and Ms, McConnell showing my initial request for the school bus

camera video:

From: Hawkins, Valerie Sent: Friday, February 26, 2016 4:24 PM

To: open recordsofficerOcdschools,cm Subject; RE: FOX43 NEWS->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23,

I wanted to confirm that you received my request. Is there a time Ilne available for when I should expect to

hear whether the request has been approved or denied?

Kind Regards,

Valerie Hawkins Planning Editor/ WPMT PDX43 / 717.81.4,5599/ vwalfZ@tribunernedia,corn 2005 South Queen Street, York, PA 17405

From: Hawkins, Valerie Sent: Tuesday, February 23, 201611:09 AM

To: [email protected]

R. 190a

Cc; Smith, Paul Subject: F0X43 NEWS -->standard right -to -know request form

HI there,

My name is Valerie and I am the Planning Editor for F0X43 News.

I am °mailing seeking a copy of an Incident that was captured on a school bus video system on Feb. 16 after Erica Rawls

grabbed a 17 -year -old girl by the wrist following the Central Dauphin East girls' basketball team returned from a game at

Central Dauphin High School,

Date requested; 02/23/2016 Request Submitted by: E-mail

Name of Requestor; Valerie Hawkins

Street Address; 2005 South Queen Street

City/State/County: York PA 17403

Telephone; 717-814-5599

Records requested: FOX43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on Feb.

16, 2016, According to paperwork filed at Magisterial DIstrictJudge Lowell Witmer's office, Erica Rawls grabbed the

wrist of a 17 -year -old girl after the CD East girls' basketball returned from a District 3 playoff game at Central Dauphin on

Feb, 16 (see attached docurhent), Rawls was cited with a summary count of harassment. We would like to obtain a video

copy of the incident that was captured by the school bus video system.

to you want Copies: Yes

Do you want to Inspect the record: Yes

Do you want certified copies of the records; Yes

Please let me know what, if any fees are associated with obtaining a copy of the video.

Kind regards,

Valerie Hawkins Planning Editor/ WPMT rpm / 717,314.5599/[email protected]

2005 South Queen Street) York, PA 17403

Valerie Waltz Planning Editor/ WP1VIT FOX43 / 117,814.5599/ news@fox43,eoin

2005 South Queen Street, York, PA 17403

2

R. 191a

EXHIBIT C

R. 192a

SOHOOL District Adrpldstrall9n Otflap. 600 RUthaffortl Road .

Ffrcitilsbuyg; PA 1.10..`?.

Nophonol (Z17) .$451-474 Faxf (717) 367:.4999 op enrecordsoffiter@dasChaalsAlfg

'00)1,rd:1416w. R dtrionse,''fbrrn

IlarolAr.24? 204:6.

'14A.IEMA11::.%Arciliz6foR48:csrn:

GD L, IN4Craitinalti :MBA, OM. wads 'O'fflor

Valerie tiaM011§: 'goOnouth Owe ei,l'Streef YorkPA 174(5.$

The 'undersign ea islhe Op.en:RecOrds,Of fleer:f or. Cantra I *Dauphin..6c hool DIstriati .0r.i.

Febroaor 210,16:tfrapp.en Regards .Offloq received 1 ,teauesi firorn.you fat ifx0..f910\1

Fo*la News.ls.:regoeS1140 MAI Of the yld06.111OPV.vaS ociptAci bre);

soh0.0.11Dus.caadrO.Sy.sfek:fhal4e.ocurred eb, 13, arlic;

'We rosponated'witign triPlacgiked flya (6).):5ytine.ss; daYsrocNitIllOtIfit afglitald iffhaVOsi heedekl splOgai,1 reyleie Oil() 1niu.6kihq lisr.l0h1V4 'C).410 EiMhtita.

Your rques'tls.der)16t1,.. ;Schaal bus.vIdeo oontains.personally.identiyabfainlarrnaticn: ialrecily.refated +o 0 sfudet or s4uderiis l Is,c.PPkgrOd ciri pdpaatton malritaln0d by 09Ditot.Rauphin cf-)ao1 .r.gstftot an0,1W pt.Ofa0et1 Trorn.ta103:A0 b:9'10 Pattilly EclucatlObal ihts cihd priva4y Mt 1:2820,A4 C:FR:Pak9V,, (Set

13.elnetl Area sahoofq:51§ff10,1)(36k64.1\16. 1.N00214:)' iflalatforyof FERP.A

could result In :the loss of state OndOr federal funding, Therefore, the vrcieali&alo,cporelpt pursuant fo..6'5P:,8: &67,01b).C.1.0) A fecorci yrg of .01a1) yv9gfcr.,.re'sottkt

of.P.eolar0.9r:tcYte.:furtds'y..am or Oomtvr)wootib; Jr) addljlon? Itls'fixktTiPt' purunf to 6 P8 67:708(b)11 ,40)1/).o.pt.ocufv,e. Mate.?101s, riates; darrespondenaebild repart relating:.fO

YçiU hovq.o.ijart itz,copp:01,Vp:i10401-0fil*on,10wtifing. rg: Vs:1 Aro-06o...t .64.64itivg

C.Ilritta0fr 0140 of open RO,PordS,'CarirrOWCKIlth Keyedfio,130idiripr,400Nblith:V.46t, foOrtti Flr Hlsjsir. Mt :17120, 'YoU b14fiei

date Cf ttie-tgency's iesPorise as oullIn'aci:in eatiOn' 11'01, ylgtha Otrice Record's vyetaf, aintliptiotiermoords.,state,ochus!tor furIhrInforrritlory.00 IftIng.ct).1

otVe01,. 1fY0VPIOye-futthr questions', pio.g.o gol icireft moq5011eri,

sInOefeY,

061/.4/e4)11:4

:Kaiten L. kidCaeiriall, Open RqbbtasiaticEpi:

KLMilaw

-r1

R. 193a

EXHIBIT D

R. 194a

permsytvania OFFICE 00 OPEN WORDS

RIGHT.TO-KNOW LAW ("RTICL")

APPEAL OF DENIAL, PARTIAL DENIAL, OR DEEM

Office of Open Records ("00R") Email; openrecords@pa,gov Fax: (717) 425-5343

Today's Date: 0312412016

Requester Name* Valerie Hawkins

RECEIVED

MAR 24 2016

agur OPEN RECORD*

Commonwealth Keystone Building 400 North St., 4th Floor

Harrisburg, PA 17120-0225

Address/City/State/Zip: 2005 South Queen Street York PA 17403

vwaltz©fox43.corn Phone/Fax: 717814'5599 /717-814-6688

Request Submittedto Agency Via: []''Email [Mail []Fax DIn-Person (check only one)

Date of Request; 02/2312018 Date of Response: 3/24/2016 OCheck if no response

Name of Agettcyt Central Dauphin School District

Address/City/State/Zip: 600 Rutherford Road Harrisburg PA 17109

Email; openrecordsofficer@cdschools,org phone/Fax: 717-5454703 / 717-6674999

Name & Title offerson Who Denied Request (If any); Karen L. McConnell

I was denied access to the following records (REQUIRED, Use additional pages f necessarAvideo that

was captured by a school bus camera system that occurred on Feb, 16, 2016 involving'ErIca Rawls.

She Is accused of grabbing a 17 -year -old girl by the wrist after the team returned from .a game at CD High School,

I requested the listed records from the Agency named above. By signing below, I am appealing the Agency's

denial, partial denial, or deemed denial because the requested records are public records in the possession,

custody or control of the Agency; the records do not qualify for any exemptions under § 708 of the RTKL,

are not by a. privilege, and. are not exempt under any Federal or State law or regulation; and the

request was sufficiently specific. Ounexcon favegar19 V4.0

I am also appealing for the following reasons (Optional. Use additional pages ifnecessary):

Is for the notions of the adult, Erica Rawls, who was charged by police and Is the wife of CD East Principal Jesse Rawls,

' DI have attached a copy of my request for records. (REQUIRED)

DI have attached a copy of a responses from the Agency regarding my request. (REQUIRED)

DI have attached 'any letters or notices extending the Agency's time to respond to my request,

DI hereby agree to permit the OOR an additional 30 days to issue a final order,

DI am interested In resolving this issue through OOR mediation. This stays the initial OOR deadline for

the Issuance of a final determination. .ff mediation is unsuccessfid, the OOR has 30 days from the

conclusion of the mediation process to issue a final determination.

Respectfully submitted, Valerie Hawkins (,SIGNATURE REQUIRED)

You should urovide the Agency ivith a cooy of this form and any documentsyou submit to the OOR.

001i Appeal Form -RevIsed lam', 4, 2016

R. 195a

EXHIBIT E

R. 196a

-,VN-',..---1,-.10 ,r, .404,9% 4, ,

, y.s pennsylvania .40 OFFICE OF OPEN RECORDS

Via E -Mail only:

Valerie Hawkins 2005 South Queen Street York, PA 17403 vwaltz Jox43.coni,

March 25, 2016

Via E -Mail only:

Karen L, McConnell Open Records Officer Central Dauphin School District 600 Rutherford Road Harrisburg, PA 17109 openrecordsofficer@cdschools,org

RE: OFFICIAL NOTICE OF APPEAL - DOCKET MAP 2016-0583

Dear Parties:

Please review this information carefully as it affects your legal rights.

The Office of Open Records ("09R") received this appeal under the Right -to -Know Law

("RTKL"), 65 P.S. §§ 67,101, et seq, on March 24, 2016, This letter describes the appeal

process. A binding Final Determination. will be issued pursuant to the timeline required by the

RTKL, Inmost oases, that means within 30 calendar days.

0011 Mediation: This is a voluntary, informal process to help parties reach a mutually

agreeable settlement on records disputes before the OOR, To participate in mediation, both.

parties must agree in writing. If mediation is unsuccessful, both parties will be able to make

submissions to the OOR, and the OOR will have 30 calendar days from the conclusion of the

mediation process to issue a Final Determination,

Note to Parties; Statements of fact inust be supported by an affidavit or attestation

made under penalty of perjury by a person with actual knowledge. Any factual statements or

allegations submitted without an. affidavit will not be considered, The agency' has the burden of

proving that records are exempt from public access (see 65 P.S. § 67.708(a)(1)). To meet this

burden, the agency must provide evidence to the OOR. The law requires the agency position

to be supported by sufficient facts and citation to all relevant sections of the RTKL, case law,

and OOR Final Determinations, An affidavit or attestation is required to show that records do not

exist, Blank sample affidavits are available on the OOR's website,

Submissions to OOR: Both parties may submit information and legal argument to

support their positions by 11:59;59 p.m. seven (7) business days from the date of this letter.

Submissions sent via postal mail and received after 5;00 p.m, will be treated as having been

received the next business day. The agency may assert exemptions on appeal even if it did not

assert them when the request was denied (Levy v. Senate of Pa., 65 A.3d 361 (Fa, 2013)),

Commonwealth Keystone Bultding 140o North Street, 4th Ftoor I Harrisburg, PA 17i20-0225 I 717,346.9903 1 717.425,53431http://openrecords.pa,gov

R. 197a

Include the docket number above on all submissions related to this appeal, Also, any

information you provide to the OOR must be provided to all parties involved in this

appeal. Information shared with the OOR that, is not also shared with all parties will not be

considered.

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)),

Commonwealth Court has held that "the burden [is] on third -party contractors to

prove by a preponderance of the evidence that the [requested] records ate exempt," (Allegheny

County Dept of Admin. Servs, v. A Second Chance, .Inc 13 A,3d 1025, 1042 (Pa, Commw. Ct.

2011)). Failure of a third -party contractor to participate in an appeal before the OOR may

be construed as a waiver pf objections regarding release of the requested records.

Law Xnforcement Records of Local Agencies: District Attorneys must appoint Appeals

Officers to hear appeals regarding criminal investigative records in the possession of a local law

enforcement agency. If access to records was denied in part on that basis, the Requester should

consider filing a concurrent appeal with the District Attorney of the relevant county.

If you have any questions about the appeal process, please contact the assigned Appeals

Officer (contact information is enclosed) - and be sure to provide a copy of any correspondence

to all other parties involved in this appeal.

Sincerely,

Erik Arneson Executive Director

Eno.: Assigned Appeals Officer contact information Entire appeal as filed with OOR

Jy

R. 198a

REQUEST TO PARTICIPATE BEFORE THE OOR

Please accept this as a Request to Participate in a currently pending appeal before the Office of Open

Records. The statements made herein and in airy attachments are true and correct to the best of my

knowledge, information and belief, I understand this statement is made subject to the penalties of 18 Pa.C,S.

§ 4904, relating to unswora falsifications to authorities,

NOTE: The requester filing the appeal with the OOR is a named party in the proceeding and is NOT

required to complete this form,

OOR Docket No: Today's date:

Name:

IF YOU ARE OBJECTING TO THE DISCLOSURE OF YOUR HOME ADDRESS, DO NOT PROVIDE TICE

OFFICE OF OPEN RECORDS WITH YOUR HOIVIE ADDRESS. PROVIDE AN,ALTERNATE ADDRESS

Iir YOU DO NOT HAVE ACCESS TO E-MAIL,

Address/City/State/Zip

E-mail

Fax Number:

Name of Requester:


Telephone/Fax Number:

E-mail

Name of Agency:


Telephone/Fax Number:

B -mail

Record at issue:

I have a direct interest lathe record(s) at Issue as (check all that apply):

O An employee of the agency

El The owner of a record containing confidential or proprietary information or trademarked records

O A contractor or vendor

O Other: (attach additional pages if necessary)

I have attached a.ceov of all evidence and arments I wish to -submit in. support of my position,

Respectfully submitted, (must be signed)

Please submit this form to the Appeals Officer assigned to the appeal. Remember to copy all parties on this

correspondence. The Office of Open Records will not consider direct interest filings submitted after a Final Determination has been issued in the appeal.

R. 199a

La,

pennsylvania OFFICE OF OPEN RECORDS

APPEALS OFFICER: Charles Rees Brown, Esquire

CONTACT INFORMATION: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 NorthStreet, 4 Floor Harrisburg, PA 17120-0225

(717) 346-9903

pAcsimaat (717) 425-5343 CharleBrow@pa,gov

Preferred method of contact and submission of information: EMAIL

Please direct submissions and correspondence related

to,this appeal to the above Appeals Officer. Please include the case

name and docket number on all submissions.

You must copy the other party on evervthinK you submit to the OOR.

The OOR website, http://openrecords,pa,gov, is searchable and both parties

are encouraged to review prior Final determinations involving similar records

and fees that may impact this appeal,

R. 200a


IN THE MATTER OF

FOX 43 NEWS Requester,

v. Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT Respondent.

This correspondence con -firths the above -referenced Requester's agreement to an additional

thirty (30) day extension of time to issue a Final Determination in this matter as Indicated in the

Requester's appeal form, Accordingly, pursuant to 65 P.S. § 67.1101(b)(1), the Office of Open

Records will now issue a Final Determination in the above.eaptioned matter on or before

May 23, 2016.

3

R. 201a

*A-0.

pennsytvania

RECEIVED

MAR 24 2016

'OFFICE Of 01IN RebbRot

RIGHT-TO-ICNOW LAW ("RTIM") OF5

APPEAL OE DENIAL, PARTIAL DENIAL, OR DEEIVADEme OPEN RECORD

Office of Open Records ("OOR") Email: [email protected] Fax: (717) 425-5343

Today's Dote: 0312.4/2010

Requester Name(s); Valerie Hawkins

Address/City/State/Zip: 2005 South Queen Street York PA 17403

Email: vwaltz©fox43.com

Commonwealth Keystone Building 400 North St., 4th Floor

Harrisburg, PA 17120-0225

Phone/Fax: 717814-5599 / 717-814-5608

Request Submitted to Agency Via: DEmail []Mail OFax Din -Person (check only one)

Date of Request: 02/23/2016 Date of Response: 3/24/2016

Name of Agency: Central Dauphin School District

Address/City/State/Zip: 600 Rutherford Road Harrisburg PA 17109

Email: [email protected]

DCheek if no response

Phone/Fax: 717-545-4703 717.657-4999

Name & Title of Person Who Denied Request ('any): Karen L. McConnell

I was denied access to' the following records (REQUIRED, Use additional pages necessary): video that

was captured by a school bus camera system that occurred on Feb. 16, 2016 Involving'Erica Rawls,

She Is amused of grabbing a 17 -year -old girl by the wrist after the team returned from .a game at CD High School,

I requested the listed records from the Agency named above. By signing below, I am appealing the Agency's

denial, partial denial, or deemed denial because the requested records are public records in the possession,

custody or control of the Agency; the records do not qualify for any exemptions under § 708 of theRTKL,

are nofprotected by a privilege, and are not exempt under any Federal or State law or regulation; and the

request was sufficiently specific.

I am also appealing for the following reasons (Optional Use additional pages olecaswary): ou(rOnion forma:10o vtdeo

Is for the actions of the adult, Erloa Rawls, who was charged by pollee and Is the wife of CD East Principal Jesse Rawls,

' Di have attached a copy of my request for records, (BEMIRED)

DI have attached a copy of a responses from the Agency regarding my request. (BEMIRED)

DI have attached any letters or notices extending the Agency's time to respond to my request.

DI hereby agree to permit the OOR an additional 30 days to issue a final order,

Eli am interested in resolving this issue through OOR mediation. This stays the initial OOR deadline for

the issuance of a final determination.* If mediation is unsuccessful, the OOR has 30 days from the

conclusion of the mediation process to issue a final determination.

Respectfully submitted, Valerie Hawkins (SIGNATURE ) EQUIRED)

You should provide the Agency with a cony of this form and any documents you submit -to the 0011.

. 0011Appea/Porm- Rovlsed January 9, 2016

R. 202a

CENTRAL, DA01511)19 s0HooL 6.1sTRIet-

Dis.frict Adrptrirs,trati9n Ofjtcp. 600 Ruthotfatti Road .

141trisburg; PA 1710

Thphi (71.7) 046,47(.4. FaX (714 45.744999

openrecordsoffiterqdcisdhvols..org

141\40614 MBA, ORA .

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ittia Olden:Records:Of licer:for Central Oauphtn..5chool

FablvaW*24;:g01.6,:ffies-0.P.9n Reqcrds Office received O.tpcp6s1 troniyow ft if10.V1(0\ifig1:

r 0*3 News, IslrecieieslitV copy 6.f. the yrdoc5.11idtwo$ 000tote.ci

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outd res.ultin The loss of state 0nd/or lederal funding, Thereforeihe vkloz):1s:.9:14tP'9X01111P1

pursuant ta.6S.P4, &67,YPE.31b).r1.);i1) A.recorOlhOlsclOsYr9.- oh:y.111'0 ,s,qQ1cWe,'441t:10 theete$s

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R. 203a

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R. 205a

Henry, Faith

From: Hawkins, Valerie <VWaltz@fox43,com>

Sent: Thursday, March 24, 2016 2:40 PM

To; DC, OpenRecords

Subject: F0X43 NEWS-->RTK appeal form

Attachments:

Good afternoon,

Appealform_Revised_2016-01-04 (Fillable)-1,pdf; Hawkins-Fox43 3-1-16,pdf; Hawkins-

Fox43 3-24-16.pdf; nontrafficcitationfiledagainstericarawls,pdf

I am writing to file an appeal after ray Right to Know request was denied by Karen. L, McConnell, the Open Records

Officer for the Central Dauphin School District, on March 24,

Attached you will find a completed RTK appeal form, and supporting documents of correspondence between myself - and Ms, McConnell.

I filed a RTK request with the Central Dauphin School District on Feb. 23, 2016 to request a copy of the video that was

captured by a school bus camera system of an incident that occurred on Feb. 16,.2016. Erica Rawls, the wife of CD

Bast Principal Iesse Rawls, is accused of grabbing a 17 -year -old girl by the wrist after she boards the school bus upon

their return from a basketball game, Also attached to this email is a copy of the non -traffic citation which was filed

against Erica Rawls on. Feb, 16, 2016 related to the incident aboard the school bus,

Below is email correspondence between myself and Ms. McConnell showing my initial request for the school has

camera video:

From; Hawkins, Valerie Sent: Friday, February 26, 2016 4:24 PM

To: [email protected] Subject: RE': FOX43 NEWS->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23,

I wanted to confirm that you received my request. Is there a time line available for when I should expect to

hear whether the request has been approved or denied?

Kind Regards,

Valerie Hawkins Planning Editor/ WPMT F0X43 / 717.814.5599/ [email protected]


From: Hawkins, Valerie Sent; Tuesday, February 23, 2016 11:09 AM

To: open_recordsofficerOcdschools,orq

R. 206a

Cc; Smith, Paul Subject: FOX43 NEWS -->standard right -to -know request form

Hi there,

My name is Valerie and I am the Planning Editor for FOX43 News.

I am emallIng seeking a copy of an incident that was captured on a school bus video system on Feb. 16 after Erica Rawls

grabbed a 17 -year -old girl by:the wrist following the Central Dauphin East girls' basketball team returned from a game at

Central Dauphin High School,

Date requested; 02/23/2016 Request Submitted by; E-mail

Name of Requestor: Valerie Hawkins

Street Address; 2005 south Queen Street

City/State/County: York PA 17403

Telephone; 717-814-5599

Records requested: FOX43 News Is requesting a copy of the video that was captured by a school bus camera system that occurred on Feb.

16, 2016, According to paperwork filed at Magisterial District Judge Lowell Witmer's office, Erica Rawls grabbed the

wrist of a 17 -year -old girl after the CD East girls' basketball returned from a District 3 playoff game at Central Dauphin on

Feb. 1,6 (see attached docuriient), Rawls was cited with a summary count of harassment. We would like to obtain a video

copy of the incident that was captured by the school bus video system.

Do you want Copies: Yes

Do you want to Inspect the record: Yes

Do you want certified copies of the records: Yes

Please let me know what, if any fees are associated with obtaining a copy of the video.

Kind regards,

Valerie Hawkins Planning Editor/ WPMT FPX43 / 717,814.5599/ [email protected]

2005 South Queen Street) York, PA 17403 .

-Valerie Waltz Planning Editor/ WPMT FOX43 / 717,814.5599/ [email protected]


2

4f.

R. 207a

EXHIBIT F

R. 208a

S ATTORNEYS AT LAW

Eckert Seamans Cherin & Mellott, LLC 1EL 717 237 6000 213 Market Street PAX 717 237 6019 8°' Floor 'wsvmeekectseamans.corn liatrisburg, PA 17101

Michael McAuliffe Miller 717.237,7174 remit ler@eckertseamans,com

April 1, 2016

VIA EMAIL and U.S. MAIL.

Charles Rees Brown, Esquire. Commonwealth of Pennsylvania Office of Open Records. Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225

Re: Right to Know Request Appeal Docketed at # AP 2016-0583

Dear Mr. Brown:

Kindly permit this letter to respond to the above docketed appeal,

By way of background, on February 23, 2016, the Requestor sought the following; "F0X43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on February 16, 2016," The District's Open Records Officer invoked the District's right to an additional 30 -day period to respond to the Request. The District submitted a timely response on March 24, 2016, denying the request, This Appeal followed,

The District properly denied the request because the requested video recording is an "education record" under the Family Education. Right and Privacy Act, 20 U,S.C, § 1232g, ("FERPA"), and

is therefore (and otherwise) exempt from disclosure under Pennsylvania's Right to Know Law, 65 P.S. § 67.101 et seq. ("RTIM"),

The. District's position is consistent -with the Office of Open Records' (00R) decisions as the OOR has regularly held that education records covered under FERPA are notpublic records, including. denying a.request fora school bus video recording nearly identical to the request here,

See In the Matter of IeffRemling v. Bangor Area Sch. Dist., OOR Dkt. AP 20.11-0021; see also

In the Matter of Larry Fieber v. New Hope-Solebury Sch. Dist,, OOR Dkt, 2013-1020; Hooker v.

Owens J,.Robert Sch. Dist,, OOR Did, AP 2011-0302; In the Matter of Robert Robinson v. Phila. City Sch. Dist,, OOR Dkt, Al' 2010-0917.

03.616.11

R. 209a

Chailes Rees Brown, Esquire April 1, 2016 Tags 2

ATTORNEYS AT LAW

Section. 305(a) of the RTKL provides that records possessed by agencies are presumed to be public records, but that this "presumption shall not apply if; (1) the record is exempt under section 708; (2) the record is protected by a privilege; or (3) the record is- exempt from disclosure under any other Federal or State law, regulation or judicial order or clecree,"1 65 P.S. §

67.3O5(a), Section 306 of the RTKL further provides that "[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 or decree," 65 P,S. § 67,306,

This appeal should lie denied because; (1) the requested record is not public and is exempt under FERPA; (2) disclosure of the requested record would result in the loss of federal or state funding; and (3) the record is a record relating to a noncriminal investigation exempt under Section 708(b)(17). Thus, the requested record is not subject to disclosure under the RTKL.

(11 The Video Recording is Not Public and is Protected from Disclosure under FERPA

The. video recording is an "education record" containing personally identifiable information under FERPA. FERPA defines "education records" as "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." 33

C.F.R. § 99,3; 20 U.S.C. § 1232g(a)(4)(A), A record includes "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and microfiche. 33C.F.R. § 99,3,

First, the videotape at issue contains information directly related to students, "Information that is directly linked to a student or renders the identity of a student traceable is clearly protected under FERPA," 'In the Matter of Jeff Rending, supra. The video recording at issue depicts which students were present on the "bus in question on February 16, 2016 and which students, were involved or not involved in the interaction at issue. Thus, the video recording contains information that is directly related to the students.

Further, the information that is directly related to the students also contains "personally identifiable information," Personally identifiable information includes "{o]ther 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 ji]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record related," 33 C,F,R. § 99,3, The video recording contains "personally identifiable information" because it is traceable to the students depicted. The video

Rally uL these ciretwistatices are met, the record is trot a "public record' as doh tied bytheATKL, 65 P.S. § 67,102,

(L0631216,1)

R. 210a

Charles Rees Brown, Esquire Aril 1, 2016 Page 3

ATTOriNEYS AT LAW

plainly shows and identifies the students present on the bus and those involved or not involved in the interaction at issue.

As to the second factor, the Open Records Officer has confirmed in the attached Affidavit that the Video recording is maintained by the School District,

Because the video. recording contains (i) personally identifiable information directly related to students (ii) that Is maintained by the School District, the video recording constitutes an "educationredord" as defined by FERPA, Under FERPA, such records are protected and confidential, This exact result was reached by the OOR in its Final Determination issued in In the Matter of Jeff Remlitig v. Bangor Area Sch, Dist, OOR Dkt. AP 2011-0021, In Remling, the OOR denied the requestor's appeal seeking access to a school bus videotape because the videotape was an "education record" of the school district protected by FERPA, Similarly, the school bus video recording here is not subject to disclosure under FERPA, Therefore, the video recording is exempt from disclosure under Section 305(a)(3) and Section 306ofthe RTKI,,

In addition, the education record at issue cannot be disclosed pursuant to the law enforcement unit exception under FERPA. Under FERPA, the term "education records" 'does not include "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement," 20 U.S ,C, §

1232g(a)(4)(b). As stated by the District's Open Records Officer in the attached Affidavit, the video recording at issue is, and was, not maintained by a law enforcement unit of the School District and not created by a law enforcement unit of the School District for law enforcement purposes. Rather, the video recording was created by the School District itself, separate and apart from any law enforcement unit of the School District. Therefore, the video recording cannot be disclosed pursuant to the law enforcement unit exception under FERPA,

Moreover, the video recording -cannot be disclosed in a redacted form without violating FERPA's disclosure,proteetions. First, the video recording is not capable of being redacted. As stated by the Open Records Officer; the School District does not have the technological capability of redacting the video recording to remove personally identifiable information,

Second, even if the School District had the technological ability to redact the video recording, such redaction would be insufficient to remove all personally identifiable information from the video as FERPA requires. See Sherry v. Radnor Twp, Sch, Dist,, 20 A.3d 515, 525 (Pa, CmwIth, 2011); in the Matter of Lany Fieber v, New Hope-Solebury Soh. Dist, OORDtk, AP 2013- 1020. In, both Sherry and Reber, it was recognized that under certain circumstances even redaction cannot eliminate all personally identifiable information because the document would still contain elements which could be used to identify the students involved, Specifically, in Fieber, the identity of the student involved could not be withheld through redaction because reports in the local newspapers made reference to the student who was the subject of the record.

(L0631216.1)

R. 211a

Charles Rees Brown, Esquire April 1, 2010

Pagel

ATTORNEYS Al' LAW

Therefore, even ink student's name was redacted from the document, the student's identity would be known to the requestor in violation of FERPA,

Likewise, here, there have been numerous media reports regarding the eircurriStance surrounding the video recording.. The.reports identify the involved students as members of the girls' baSketball bath.. Therefore, even if the at -adepts' faces and other identifying characteristics could be.redacted from the videotape, the students' identities will still be known to, or reasonably discoverable. by, the Requester. in violation of FERPA,

The video recording' at issue is' aneducation record protected by FERPA, Because the video recording is protectedby FERPA, itis exempt from disclosure under the RTKL, This Appeal should therefore be denied.

(2) Disclosure of the Video Recording Would Result in the Loss of Federal Funding

In addition to the basis for denial above, the video is also exempt from disclosure under Section 708(b)(1) of the RTKL. Under Section 708 of the RTKL, a record, the disclosure Of which "would resultin the loss of Federal or State funds by an agency or the Commonwealth" is

exempt froindisClosure. 65 P,S. 67,708(b)(1)(1), FERPA expressly inclicatesthat it financially penalizes. school *districts "which (have] a policy or practice of permittingthe release of education records , of Stude.nts without the written consent of their parents," 20 §

1232g(b)(1),

Therefore, FERPA protects education records from disclosure and financially penalizes school.

districts that lack apolicy for protecting such records. Because the disclosure of the video

recording at issue would result in the loss of Federal funds by the School District, the record is

also exempt from disclosure under Section 708(b)(1)(1) of the RTKL, This Appeal should be denied outhis. basis as well.

(3) The Video Recording Constitutes a Record Relating to a Non -criminal Investigation;

The video recording also constitutes a record relating to a noncriminal investigation; Section

708(b)(17) Of the RTKL, specifically eXempts from disclosure a record of an agency relating to a

noncriminal investigation, The RTKL defines records relating to a noncriminal investigation as

including:

(i) Complaints submitted to an agency, (ii) InVestigative materials, notes, correspondence and reports, (iii) A record that includes the identity of a confidential. source

0..:10'A record that includes information made confidential by law. (v) Work papers underlying an audit, (vi) A record that,.if disclosed, would do any of the following;.

(1,0631216.1)

R. 212a

S ATTORNEYS AT -LAW

Charles Rees )3rolitn, Esquire April 1, 2016 Page 5

(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar 'authorization issued by an agency or an

executed settlement agreement unless the agreement is determined

to be confidential by a court, (B) Deprive apexson of the right to an impartial adjudication, (C) Constitute an unwarranted invasion of privacy, (D) Hinder an agency's ability to secure an administrative or civil

sanction, (E) Endanger the life or physical safety of an individual:

65 P.S. § 67.708(b)(17).

The Commonwealth Court examined this RTKL exception as it pertains to "education records" in Sherry v. Radnor Twp. Soh. Dist., 20 A,ad 515 (Pa. Cmwlth. 2011), In Sherry, the

Coinmonwealth Court affirmed the denial of a request to inspect de4dentified records of honor code violations maintained by the district because it determined the records were exempt from disclosure under the RTKL as noncriminal investigation records. The Court found that the

records were evidence of the district's official probe into a purported rule violation on the

district's premises, contained a description of the violative conduct, contained witness/teacher statements, and contained a description of the course and result of the investigation. Id. at 523-

24,. Thus, the Court found the records constituted noncriminal investigation records and were exempt pursuant to this exception, Id, at 524,

Here, the video recording Contains information relating to an incident on a school bus which

involved students and a parent of a student. The video recording documents activities that were noncriminal in nature (even if certain events are alleged to be criminal innature). As affirmed

by the Open Records Officer, the School District is conducting a detailed examination and

official probe into the incident which occurred on the District's premises and in District property.

The video recording contains an actual depiction of the events in question and is evidence of the

conduct subject to the investigation, Thus, the record relates to a noncriminal investigation

because it constitutes "investigative materials, notes, correspondence and reports" of the

investigation and is also a record that includes information made confidential by law. 65 P.S. §

67.708(b)(17)(ii), (iv); see also Sherry, supra,

R. 213a

V ATTORNEYS AT CAIN

(Aides Refs Brown, Esquire April 1, 2016 Page 6

Therefore, in.addition to the FEAPA protections, the video records is also exempt under the noncriminal investigation exception Of the RTKL.

Sincerely,

Michael McAuliffe Miller

MMM/tl Enclosures

0,0631z16.1)

R. 214a

COMMON*EALTIT OF PENNSYLVANIA OFFICE .OF OPEN RECORDS

VALERIE HAWKINS,

Requestor,

vs. No. AP 2016-0583

CENTRAL PAU. PHIN SCHOOL DISTRICT,

Agency,

AFFIDAVIT

I, Karen L. McConnell, hereby declare, pursuant to 18 Pa.C,S. § 4904, that the following

statements are true and correct based upon my personal knowledge, information and belief;

1, I serve as the Open Records Officer for the Central. Dauphin' School District ("Agency"),

2. I am responsible for Right -to -Know Requests filed with the Agency,

3. In my capacity as the Open Records Officer, I am familiar with the records of the .Agency,

4, Upon receipt of the request, I conducted a thorough examination of files in the possession, custody and control of the Agency for records responsive to the request underlying this appeal.

5. After conducting a good faith search of the Agency's files, I identified all records within -the Agency's possession, custody or control that are responsive to the 'request and determined that the records are protected from disclosure wider the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and

thus, are exempt from disclosure under Pennsylvania's Right td Know Law, 65

P.S. §:61,101 et seq. ("RTKL").

6. The records sought in the Request are education records under FERPA. PERPA defineS "education records" as "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," 33 C,F,R, § 99.3; 20 U.S.C, § 1232g(a)(4)(A),

(1463121$.f )

R. 215a

7. The video recording contains personally identifiable information directly related to students.because the students are visible and identifiable in the video recording,

8, The video recording is maintained by the School District, The requested video recording is, and was, not maintained by a law enforcement unit of the Agency; and not created by a law enforcement unit of the Agency for a law enfOreement purpose,

9, The video recording is an "education record" under FERPA which requires the Ageney to keep the; record confidential.

10, The personally identifiable information of the students cannot be redacted from the 'video recording,

11. First, the Agency cannot redact the student's personally identifiable information because it does not have the teclmological ability to redact the video recording,

12, Second, even if the Agency had the technological ability to redact the video recording, the Agency cannot -remove all personally identifiable informationfrom the videO:recording,.

13 The Agency cannot remove all personally identifiable information. because the subject of the video recordings have been covered on multiple occasions in the news media,

14, The repeated news reports identify the students in the recording as members of the Central Dauphin East girls' basketball team,

15, Therefore,. even if the students' identities were capable of being redacted from the video recording, the students' identities will still be known to the Requester,

16, The Agency may be financially penalized through loss of Federal funds if it permits the release records protected by FERPA such as the video recording.

17. The video recording is part of the Agency's noncriminal investigation of -the

events documented in the video recording.

18, The Agency is conducting a detailed examination and official probe into the

incident which occurred on the District's premises and in District property of which the video recording is evidence,

{L0631218.1)

R. 216a

CENTRAL DAU151-1IN SCHOOLDISTRICT

/ ;r6egts By: -pet car-

( Isar n McConnell, School District/Open Records Officer

Sworn -to and subscrlbed:heforq mo his %sr day of March, 2(116,

Notary Palle

My Commission Expires: Pe., /.4,,,w7

.(Seal): .COWNWEglil PLIMYLVAMA

TARSAL' EAL '

MELISIM FAY

Notiry Pgbl(o

1,001.411JAXTPH W1P, DAUPHIN geotiir My 06nmIsslan ExpirooCoo 12, 2010

(L0631210)

R. 217a

EXHIBIT G

R. 218a

d

N


FINAL DETERMINATION

IN THE MATTER OF

VALERIE HAWKINS AND FOX43 NEWS, Requester

v. ; Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT, Respondent

INTRODUCTION

Valerie Hawkins, Planning Editor for Fox43 News (collectively "Requester"), submitted

a request ("Request") to the Central Dauphin School District ("District") pursuant to the Right -

to -Know Law ("RTKL"), 65 P.S. §§ 67,101 et seq., seeking a video from a District school bus:

The District denied the Request, stating, among other reasons, that the video is confidential

under federal law. The Requester appealed to the Office of Open Records ("00R"), For the

reasons sefforth in this Final Determination, the appeal is granted and the District is required to

take further action as directed.

FACTUAL BACKGROUND

On February 23, 2016, the Request was filed, seeking "a copy of the video that was

captured by a school bus camera system that occurred on Feb, 16, 2016." On March 24, 2016,

after extending its time to respond to the Request by thirty days, see 65 P.S. § 67.902(b), the

District denied the Request, stating that disclosure of the video would violate the Family

1

R. 219a

Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, and would result in the loss

of federal funding. 65 P.S. § 67.708(b)(1)(i). In addition, the District argued that the video is

exempt from disclosure because it is related to a noncriminal investigation. 65 P.S. §

67.708(b)(17).

On March 24, 2016, the Requester appealed to the OOR, challenging the denial and

stating grounds for disclosure.1 Specifically, the Requester notes that the video shows an adult

grabbing a 17 year old student by the wrist. The OOR invited both parties to supplement the

record and directed the District to notify any third parties of their ability to participate in this

appeal. See 65 P.S. § 67,1101(c).

On April 1, 2016, the District submitted a position statement reiterating its grounds for

denial, and supported by the affidavit of Karen McConnell, the District's Open Records Officer.

LEGAL ANALYSIS

"The objective of the Right to Know Law , is to empower citizens by affording them

access to information concerning the activities of their government." SWB Yankees L.L.C. v.

Winterrnantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open -government law is

"designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

actions." Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct, 2010), aff'd

75 A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. § 67,503(a). An appeals officer is required "to review all information filed relating to the

request," 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an

1 In its appeal, the Requester granted the OOR an additional thirty days to Issue a final determination, See 65 P,S, §

67.1101(b)(1),

2

R. 220a

appeal. The decision to hold a hearing is discretionary and non -appealable, Id, The law also

states that an appeals officer may admit into evidence testimony, evidence and documents that

the appeals officer believes to be reasonably probative and relevant to an issue in dispute.

Id. Here, neither party requested a hearing; however, the OOR has the necessary, requisite

information and evidence before it to properly adjudicate the matter,

The District is a local agency subject to the RTKI, that is required to disclose public

records. 65 P.S. § 67.302, Records in possession of a local agency are presumed public unless

exempt under the RTKI, or other law or protected by a privilege, judicial order or decree, See 65

P.S. § 67,305. An agency bears the burden of proving the applicability of any cited exemptions,

See 65 P.S. § 67,708(b).

Section 708 of the RTKL clearly places the burden of proof on the public body to

demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of

proving that a record of a Commonwealth agency or local agency is exempt from public access

shall be on the Commonwealth agency or local agency receiving a request by a preponderance of

the evidence," 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such

proof as leads the fact -finder to find that the existence of a contested fact is more probable

than its nonexistence." Pa. State Troopers Ass'n v. Scolforo, 18 A.3d 435, 439 (Pa, Commw, Ct.

2011) (quoting Pa, Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3 d 821,

827 (Pa. Commw. Ct, 2010)).

1. The requested video is not an education record

The District argues that the requested school bus video is protected from disclosure by

FERPA. FERPA protects "personally identifiable information" contained in "education records"

from disclosure and fmancially penalizes school districts "which [have] a policy or practice of

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permitting the release of education records ... of students without the written consent of their

parents." 20 U,S.C. § 1232g(b)(1). Regulations implementing FERPA define "education

records" as those records that are "[cl]irectly related to a student" and "[m]aintained by an

educational agency or institution or by a party acting for the agency or institution." 34 C.F.R.

99.3. While the express language of FERPA's implementing regulation would appear to

encompass all records held by an educational institution and which relate to a student, a review

of case law interpreting FERPA reveals that not all records pertaining to a student and held by an

educational institution are "education records" for purposes of FERPA. Just because a record

involves a student does not automatically invoke the confidentiality provisions of FERPA,

In Owasso Indep. Sch, Dist. No, I-0.1.1 v. Falvo, the United States Supreme Court held

that individual student papers are not "education records" under FERPA because they were not

maintained in a central file by the official records custodian, 534 U.S. 426 (2002). Other courts

have looked at the records themselves and have concluded that only those records relating to a

student's academic performance are "education records" for purposes of FERPA. Bd. of Educ.

of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (614 Cir, 2011) (tally sheets

denoting student's daily activities for purposes of compiling the student's official progress

reports are not "educational records" because the records were not part of the student's

permanent file.); Pollack v. Regional Sch. Unit 75, 2015 U.S. Dist. LEXIS 55992 (D. Me. 2015)

(holding that "educational records" are those records which follow a student from "grade to

grade."); S.A. v. Tulare County Office of Educ., 2009 U.S. Dist, LEXIS 93170 (E,D. Cal, 2009)

(e -mails mentioning a student's name are not "education records" because they are not part of

the student's permanent file); Wallace v. Cranbrook Educ. Cmty,, 2006 U.S. Dist, LEXIS 71251

(E,D, Mich, 2006) (student statements provided in relation to an investigation into school

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employee misconduct do not directly relate to a student, and, therefore, are not "education

records,"); Ellis v. Cleveland Mun. Sch, Dist, 309 F. Supp, 2d 1019 (N.D. Oh. 2004). Perhaps

the most succinct definition of "education records" was enunciated by the United States District

Court for the Western District of Missouri:

It is reasonable to assume that criminal investigation and incident reports are not educational records because, although they may contain names and other personally identifiable information, such records relate in no way whatsoever to the type of records which FERPA expressly protects; te., records relating to

individual student academic pe7formance, financial aid or scholastic probation which are kept in individual student files.

Bauer v, Kincaid, 759 F. Supp. 575, 591 (W,D. Mo, 1991) (emphasis added). Thus, based on the

foregoing, the courts have made clear that only those records relating to student academics are

"education records" protected by FERPA. The mere fact that a record involves a student does

not automatically render a record an "education record."

Here, the Request seeks a school bus video showing an altercation between an adult and a

17 year -old student, While this video purportedly depicts the individual student, there is no

evidence that this video is part of the student's permanent academic file, This is precisely the

type of record which the courts have held to not constitute an "education record" under FERPA.

The District points to Remling v. Bangor Area Sch, Dist., OOR Dkt. AP 2011,-0021, 2011 PA

0.0,R.D. LEXIS 74, wherein the request sought a copy of a school bus video recording,

Because the video recording depicted students on the bus, the OOR concluded that the record

met the definition of an "education record," and, therefore, was protected from disclosure by

FERPA. A review of the final determination in Rending reveals that the OOR relied solely on

the broad language of FERPA's implementing regulations and did not analyze the relevant case

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law limiting the scope of what constitutes an "education record," Based on the foregoing, the

requested video is not an "education record" protected by FERPA.2

2. The requested video does not relate to a noncriminal investigation

The District also withheld the requested video on the basis that it is being used as part of

the District's noncriminal investigation into the incident depicted on the video. The District

argues that this is the type of noncriminal investigation which the Commonwealth Court has held

to be exempt from disclosure, Sherry v. Radnor Trap. Sch. Dist., 20 A.3d 515 (Pa. Commw, Ct.

2011). Section 708(b)(17) of the RTKL exempts from disclosure records of an agency "relating

to noncriminal investigations[.]" Id. In order for this exemption to apply, an agency must

demonstrate that "a systematic or searching inquiry, a detailed examination, or an official probe"

was conducted regarding a noncriminal matter, See Pa. Dep't of Health v. Office of Open

Records, 4 A.3d 803, 810-11 (Pa. Commw. Ct. 2010). Furthermore, the inquiry, examination, or

probe must be "conducted as part of an agency's official duties." id at 814; see also Johnson v.

Pa. Convention Center Auth., 49 A.3d 920 (Pa, Commw. Ct. 2012). The investigation must

specifically involve an agency's legislatively -granted fact-finding powers. See Pa, Dep't of Pub,

Ifelf: v. Chawaga, 91 A.3d 257 (Pa. Commw. Ct. 2014), To hold otherwise would "craft a

gaping exemption under which any governmental information -gathering could be shielded from

disclosure. id, at 259.

In Sherry, the requester sought records regarding Academic Honor Code violations. In

finding the records related to a noncriminal investigation, the Court noted that "these records

surpass the District's routine performance of its duties and entail a systematic or searching

inquiry, detailed examination, and/or official probe into purported student rule violations on the

Z Because the requested video is not protected by FERPA, disclosure would not threaten the loss of Federal funding. Accordingly, the District has not met its burden of proof to withhold the video under Section 708(b)(1)(1) of the RTKL, 65 P.S. § 67.708(b)(1)(i), See 65 P.S. § 67.708(a)(1).

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District's premises," 20 A.3d at 523. Subsequent to the Court's decision in Sherry, the Court

considered whether a report of a performance audit of a Department of Public Welfare grantee

was a record of a noncriminal investigation. In finding that it was not a record of a noncriminal

investigation, the Court noted that "DPW's performance audit was not part of DPW's

legislatively -granted fact-finding or investigative powers; rather the audit was ancillary to

DPW's public assistance services," 91 A.3d at 259 (emphasis added).

Here, unlike the situation in Sherry, the District is not investigating Academic Honor

Code violations, which would unquestionably relate to the District's core function of educating

students, Rather, the District is investigating an assault on a student by the parent of another

student. This cannot be said to relate to the District's core function of educating students, and

can only be said to be "ancillary" to the District's mission. Furthermore, the District has pointed

to no "legislatively -granted fact-finding authority" to conduct a noncriminal investigation, As

such, the District's "investigation" cannot be said to be the type of inquiry that falls within the

ambit of the noncriminal investigative exemption. Chawaga, 91 A.3d at 259.

Assuming, arguenclo, that the District's "Investigation".is a noncriminal investigation for

purposes of the RTKL, the mere fact that the video is being used in the investigation, does not, in

and of itself, mean that the video is a record of a noncriminal investigation. In Pa. State Police

v. Grove, a requester sought a copy of a "dash -cam" video recording of a traffic stop. The State

Police denied access, arguing that the video documented the results of a criminal investigation,

and, therefore, was exempt from disclosure, 119 A.3d 1102 (Pa. Commw. Ct. 2015). In

rejecting the State Police's argument, the Court noted that "[dash -cam videos] are created to

document troopers' performance of their duties in responding to emergencies and in their

interactions with members of the public, not merely or primarily to document, assemble or

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report on evidence of a crime or possible crime," 119 A.3d at 1108 (emphasis added). Thus, to

withhold a video under an investigative exemption, the video must exist "merely or primarily"

for investigative purposes. Here, there is no evidence that the video exists for reasons other than

to document the behavior of students and others aboard school buses, In other words, the

requested video does not exist "merely or primarily" for investigative purposes, Accordingly,

the District has failed to meet its burden of proof that the requested video relates to a noncriminal

inv estigation ,3 65 P S § 67.708(a)(1).

CONCLUSION

For the foregoing reasons, Requester's appeal is granted, and the District is required to

disclose the requested video within thirty days, Within thirty days of the mailing date of this

Final Determination, any party may appeal to the Dauphin County Court of Common Pleas, 65

P,S, § 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be

served notice and have an opportunity to respond according to court rules as per Section 1303 of

the RTKL, However, as the quasi-judicial tribunal adjudicating this matter, the OOR is not a

proper party to any appeal and should not be named as a party,` This Final Determination shall

be placed on the OOR website: http://openrecords.pa,gov.

The remainder of this page is intentionally left blank

3 Additionally, while Section 708(6)(16) of the RTKL references videos as a type of record that may relate to a criminal investigation, Section 708(b)(17) of the RTKL contains no reference to videos, g: 65 P.S. §

67,708(6)(16)(1i) with 65 P.S. § 67,708(b)(17)(ii), 4 Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw, Ct. 2013).

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FINAL DETERMINATION ISSUED AND MAILED: May 19, 2016

/s/ Charles Rees Brown CHARLES REES BROWN CHIEF COUNSEL

Sent via e-mail to:

Valerie Hawkins Tricia Lontz, Esq.

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CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT, : DAUPHIN COUNTY, PENNSYLVANIA

Petitioner

VS.

VALERIE HAWKINS, FOX 43 NEWS, and THE COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Respondents

: NO. 2016 CV 4401 MP

TRANSCRIPT OF PROCEEDINGS

APPEAL HEARING

[Pages 1 - 55]

BEFORE: HONORABLE WILLIAM T. TULLY

DATE: THURSDAY, MARCH 30, 2017

PLACE: COURTROOM NO. 11

JUDICIAL JUSTICE CENTER HARRISBURG, PENNSYLVANIA

APPEARANCES:

MICHAEL MCAULIFFE MILLER, ESQUIRE

For - Petitioner

CRAIG J. STAUDENMAIER, ESQUIRE

For - Respondents

DAUPHIN COUNTY COURT REPORTERS

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PETITIONER Karen McConnell

RESPONDENT 1 News article

INDEX TO WITNESSES

DIRECT CROSS 6 17

INDEX TO EXHIBITS IDENTIFIED ADMITTED

52


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PROCEEDINGS 12:59 p.m.

ATTORNEY MILLER: Good afternoon, Your Honor.

ATTORNEY STAUDENMAIER: Good afternoon, Judge.

THE COURT: All right, this is the time and

place set for Central Dauphin School District versus Hawkins.

This is an appeal from open records determination in favor of

Hawkins and hence Central Dauphin would be the moving party

at this time.

ATTORNEY MILLER: Yes, Your Honor. A few

procedural matters if you wouldn't mind. The parties have

entered into certain stipulations to try and streamline this

matter.

THE COURT: That's always encouraged.

ATTORNEY MILLER: I've been before this Court

before. I am aware of that rule. That's a codicil to the

two nonnegotiable rules that are in front.

Those stipulations Your Honor can review at his

leisure but they essentially set forth the agreement as to

kind of some of the underlying facts that occurred.

And I think that the matter has been fairly

well framed by both the petition for appeal that we filed and

the answer that my colleague Mr. Staudenmaier filed as well.

I think the purpose of today's discussion --

and I've consulted with my colleague -- primarily this is a


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legal argument for Your Honor to decide we think -- I think

jointly on briefs following this matter.

THE COURT: All right.

ATTORNEY MILLER: There are some matters that

The Office of Open Records made conclusions about that would

require some supplementation to the factual record. And as

you know, Your Honor, under the Bowling case decided by the

Supreme Court, this Court has the latitude and probably the

obligation to take additional testimony to make sure that

they have a full record before it.

As such, what we've tried to do jointly is do

those stipulations, enter those documents through those

stipulations. I have one, perhaps two witnesses to testify

to supplement the record about the bus videotape system, how

it works, how it's maintained, who maintains it --

THE COURT: So those questions that I had after

I read the pleadings.

ATTORNEY MILLER: Precisely, Your Honor. And I

don't think that that will be a lengthy colloquy between

myself and that witness. And Mr. Staudenmaier will have some

questions hopefully.

ATTORNEY STAUDENMAIER: Only a couple hours of

cross-examination, Your Honor.

THE COURT: That's right. I think you tend to

use the scalpel more than the bludgeon, so --


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ATTORNEY MILLER: And I think that's how we

have agreed to proceed. Mr. Staudenmaier, if I've

misrepresented anything --

ATTORNEY STAUDENMAIER: No, Your Honor, Mr.

Miller.

THE COURT: He has his factual witnesses. Are

you planning on calling any supplemental factual witnesses

yourself?

ATTORNEY STAUDENMAIER: Your Honor, I don't

anticipate doing that as the District has the burden so to

speak. And I think with regard to the -- the thing that's

always unique about right to know cases is we're sort of

always shooting in the dark, you know.

So I don't anticipate -- I do have some people

here just in case but I don't anticipate, Your Honor, other

than cross-examination perhaps an exhibit or two, that's

probably the extent of it.

THE COURT: All right. And the request seems

to be that you would both have the opportunity following the

record being supplemented to have the opportunity to brief

the matter. Is that your joint desire as well?

ATTORNEY MILLER: Yes, Your Honor.

ATTORNEY STAUDENMAIER: Yes, Your Honor.

THE COURT: All right. Sounds like you've

reached pretty good agreement then.


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ATTORNEY MILLER: Mr. Staudenmaier is

complacent. You can put that on the record.

THE COURT: Are there any other preliminary

matters?

ATTORNEY STAUDENMAIER: No, Your Honor, not

from the requestor.

THE COURT: All right. Then feel free to call

your first witness.

ATTORNEY MILLER: Call Karen McConnell.

KAREN MCCONNELL, called as a witness,

having been duly sworn or affirmed, was examined and testified as follows:

DIRECT EXAMINATION

BY ATTORNEY MILLER:

Q. Are you employed?

A. Yes, I am.

Q. And by whom?

A. Central Dauphin School District.

Q. And what capacity are you employed in?

A. I'm the assistant superintendent for finance and

administrative operations.

Q. Okay. And in your capacity in that position, do

you have any responsibility for overseeing the District's

transport function?

A. Yes, I do.


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Q. By transport function I mean the busses.

A. Yes.

Q. And do you have in your capacity as assistant

superintendent for finance and operations, do you have any

responsibility for student and staff discipline?

A. Yes, I do.

Q. Okay. Now, do you have knowledge whether or not

there are video recorders on each school bus in the District?

A. Yes, there are video recorders on each school bus.

Q. Because I know the judge wants to hear this and I

think we all do, just tell us generally how they work.

A. Okay. So there are usually two cameras on each

bus. There is one that is mounted in the front of the bus

that faces all the way to the back and there is one that is

mounted over the driver's head that faces out to the door.

And each bus has a camera. And the drive or the recording is

on the bus and it is -- runs on a continuous loop.

THE COURT: So it's digital.

THE WITNESS: Records over itself every

probably ten days to two weeks. It is a digital hard drive,

yes. So the only time that we pull that hard drive is if

there is a problem. And then we are able to extract the

sections that we need.

BY ATTORNEY MILLER:


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Q. To extrapolate on that, because it's recorded

over, I assume that if you have something that occurs 10 or

14 or 30 days afterwards it's very likely that the day in

question is recorded over?

A. Yeah, that's correct.

Q. Okay. And when these videos are captured, right,

when the cameras are captured, do they capture students that

get on the bus?

A. Yes, they do.

Q. Okay. And we've all seen different videos. Are

they -- what kind of resolution are they I guess is the

question?

A. They're high resolution. You can see -- you can

see students' faces. And individuals that are on the bus,

you can see their faces.

Q. Okay. And if you want to get a video from a

particular bus, what's the process you follow?

A. So typically the people that would want the videos

would be principals. And they would make contact with the

director of transportation to indicate that there was an

issue on a bus.

And then the director of transportation would go

to that particular bus and take the drive and look for the

section that is germane to the request and capture that

section for the principal to be able to review.


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Q. What you seem to be indicating is those videotapes

are created or those recordings are retrieved primarily for

student code of conduct disciplinary issues; is that correct?

A. No. That's correct. It could be student

discipline, it could be reviewing of a staff member, it could

be a safety issue. Those are usually the three things that

we pull for.

Q. Well, in your experience does the District have

responsibility for creating safe school or responsibility for

maintaining a safe school?

A. Yes.

Q. Where is that authority?

A. Well, that's an integral part in the Pennsylvania

school code. It's in our board policies and it's in the

student code of conduct.

Q. Okay. And does that extend to behavior on school

busses?

A. Yes, it does.

Q. And can just anybody ask for recordings from the

director of transportation?

A. No. Those are protected.

Q. And then with specific reference to the tape that

is the subject of this appeal and the OOR matter, did the

District pull a recording?

A. Yes, we did.


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Q. Okay. And what was the initiating event for that,

was it criminal or was it -- did it have to do with student

safety, which --

A. It had to do with student safety and student

discipline. We had some parent concerns, complaints that

came in in an E-mail, telephone calls and then we pulled

that. So it was not a criminal -- there was not a criminal

matter. We didn't pull it for that reason.

Q. Okay. And did the district-- By the way, in the

incident in question, was the bus itself located on school

property?

A. Yes.

Q. And did the District then undergo any kind of

investigation?

A. Yes, we did.

Q. Were you involved in it personally?

A. Yes, I was.

Q. I presume it was just essentially review of the

video, that was it?

A. No.

Q. Kind of short?

A. No, no. It was very lengthy. Probably -- it

stretched into weeks. The first several days were very

intense. But reviewing the video is only part of what we

did. We interviewed students, we interviewed staff, we


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talked to parents. So we did all those sorts of things. But

it was a very, very lengthy investigation.

Q. As part of that investigation, did you personally

review parts of the videotape?

A. I did.

Q. And I say videotape, I mean --

THE COURT: You're a dinosaur, too. I

understand.

ATTORNEY MILLER: That's correct. I didn't say

33 record so I think that's some small consolation.

THE COURT: Tapes are long gone.

ATTORNEY MILLER: Long -play record.

BY ATTORNEY MILLER:

Q. Are -- based on your review of that, are students

individually identifiable in that recording?

A. Yes, they are. You can see from the one camera

you can see their faces as they get on to the bus. And as

they are loading the bus, you can see their -- obviously the

back of them as they're getting on the bus but their jersey

numbers are on their backpacks that they're wearing as

they're getting to the back of the bus.

And of course once you see them get on the bus,

then you can follow them on the next screen and see where

they go and sit on the bus. So you can see them.

Q. If you know their jersey number, could you


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identify that person?

A. Yes. You can identify the person by their face,

too.

Q. And can you see the actions of the individual

students in the video?

A. Yes, you can.

Q. So what was the district administration's purpose

in reviewing the video?

A. We were trying to see if there should be student

discipline or staff discipline. And we were trying to see if

there were any unsafe acts that took place on the bus.

Q. And ultimately did the District as a result of

reviewing the recording and its investigation take

disciplinary action against staff and students?

A. Yes, we did.

Q. And I think you indicated that the director of

transportation pulls the digital recording off of each bus.

Who is it that maintains the video while it's -- or the

recording after it's pulled off the bus?

ATTORNEY STAUDENMAIER: Your Honor, I'm going

to object. I don't know if he's asking generally or with

regard to this particular incident.

ATTORNEY MILLER: Oh, sure. I can do both.

And I think that's a fair objection. If it's acceptable to

Mr. Staudenmaier, Your Honor, can we go broad and then get


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narrow?

THE COURT: That would be my preference

actually, yes.

BY ATTORNEY MILLER:

Q. Generally speaking.

A. Generally speaking, the section of the video that

was taken by the director of transportation is maintained by

the director of transportation.

Q. Okay. And in this case, who has maintained

control of this video?

A. I have.

Q. You say you have Has that been in your office?

A. It has been in a fireproof safe locked in my

office on a thumb drive in my office.

Q. Thank you. Does Central Dauphin have a police

force?

A. Yes, we do.

Q. Do you know whether or not the police force

maintains the bus video system?

A. The police force does not maintain the bus videos.

Q. And does the police force have the ability to get

videos or search videos on its own?

A. No, they do not.

Q. What process must they follow?

A. They have to follow the same process the principal


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follows. They would have to make a request to the director

of transportation and then they would be given a segment of

the video.

Q. During this investigation, did the CD police

department ask for a copy of the videotape?

A. Yes, they did.

Q. Okay. And was that before, at the same time, or

after the investigation that the administration started into

student conduct?

A. It was after the administration started our

investigation.

Q. Do you know whether or not the district has the

ability to redact or pixelate or do anything to obscure the

images of students on any individual video recording?

A. We do not have the capability of doing that.

Q. Do you have any responsibility for responding to

right -to -know requests?

A. Yes. I'm Central Dauphin's open records officer.

Q. And make an approximation if you could please on

how many requests you get a year.

A. It varies from year to year. In some -- some

years we get a lot; some years we get a couple. But I'd say

on average it's probably 50, maybe, a year.

Q. Do you have any concerns as assistant

superintendent and as the Office of Open Records officer


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about the ability of individuals to use the Right -to -Know Law

to get bus recordings indiscriminately?


to object to this question. I'm not really sure why it's

relevant number 1 because each request is unique in and of

itself and the reason for the request is irrelevant.

Number 2, I don't believe there's been a

foundation laid for why out of 50 requests, you know, the bus

videos would be different than anything else or what this

witness would know about that or have an opinion about that.

I don't think it's relevant to what we're here for.

THE COURT: I'm actually more concerned with

the form of the question. As I heard it, you asked about a

concern for indiscriminate use of the law. I think the law

by itself is not indiscriminate, it's very specific.

ATTORNEY MILLER: Let me back up and rephrase

if you don't mind.

THE COURT: Okay.

BY ATTORNEY MILLER:

Q. In your experience as a school administrator, have

you at least once or more than once gotten a request from

parents to review bus videos?

A. I get requests for parents to review bus video

from time to time. 1 don't know that any of them have ever

come through Open Records before.


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Q. All right. Do you have any concern about the

impact on the District if bus videos are permitted to be used

as open records with regard to your curriculum obligations?


to renew my objection. I don't think any concern she has is

relevant to the issue you have before you as to whether this

document is a public record or not.

THE COURT: Well, I think here's the part, the

fact that this is being contested -- doesn't matter what her

personal feelings are -- obviously the school district has a

concern or they would have resolved this stuff long before we

came here.

So I think we can take that the District

believes there's a reason to do this battle and it's probably

because of the floodgates of requests or something to that

effect. Is that what you're trying to do?

ATTORNEY MILLER: Well, you can take that --

Yes. You can take that as rote and we'll certainly make that

argument in our briefs.

THE COURT: Well, I think it's more of an

argument than it is a factual -- that an opinion would help

the Court.

ATTORNEY MILLER: That's fine.

THE COURT: Okay.

ATTORNEY MILLER: One second. That's all I


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have for direct.

THE COURT: Cross-examine.

CROSS EXAMINATION

BY ATTORNEY STAUDENMAIER:

Q. Good afternoon, Miss McConnell.

A. Hi.

Q. I'm Craig Staudenmaier and I represent Fox News

and Miss Hawkins. And I apologize, I'm probably going to

have to ask you some questions because you've seen the video;

we haven't. And there's some other aspects of how it got

from place to place that I don't know about it so if I could

just ask you some preliminaries first.

Mr. Miller asked you if the bus was on school

property at the time. Where actually was the bus located

when this incident took place?

A. It was in front of Central Dauphin High School.

Q. Okay. And am I correct, did I understand this

incident took place after a girl's basketball game that

involved the Central Dauphin -- is it East or --

A. East.

Q. Okay. East's girls basketball team; is that

correct?

A. That's correct.

Q. And was that game played at the high school?

A. Yes.


R. 244a

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Q. And that was an event open to the public?

A. Yes.

Q. And when the school bus was in its location where

this incident took place, were you there that evening at

all -- were you at the game or at the school that evening?

A. I was not.

Q. Okay. But I indicated to the Court that you did

an investigation afterwards. Are you familiar with generally

what was going on in the vicinity of the incident at the time

it took place?

In other words, what I'm getting at is if this is

a public high school basketball game with the girls

basketball team, they're on a bus at -- and were they Central

Dauphin or Central Dauphin East girls basketball?

A. Central Dauphin East girls basketball team.

Q. And were they playing Central Dauphin or another

team?

A. They were playing another team.

Q. Why did they need a school bus if they were at

their home school?

A. They were at Central Dauphin High School which is

out on Route 30-- we have two high schools, Central Dauphin

High School and Central Dauphin East High School and they're

two separate locations.

Q. Oh, so the one off of Linglestown Road?


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A. That's Central Dauphin High School. And this is

East High which is off of Rutherford Road.

Q. Okay. And they were at Central Dauphin High

School?

A. Yes.

Q. Okay. So that's why they were being bussed?

A. Yes.

Q. They were heading back to their school to change

and go home?

A. Yes.

Q. And the school bus was in the general bus and

parking area of the high school?

A. To the best of my knowledge, yes.

Q. And there would have been members of the public in

the general area leaving the game?

A. I imagine so.

Q. And this took place on a stereotypical school bus,

yellow, black, with windows?

A. Yes.

Q. Okay. And am I correct that every Central Dauphin

school bus has the cameras you described? Every one that's

used regularly for transporting students has a camera set up

similar to this?

A. Similar to this, yes.

Q. Now, it's also my understanding, am I correct,


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that in addition to transporting students on this bus --

assuming nothing had happened -- that there were also adults

that would have been on this bus being transported back to

their home base so to speak?

A. Yes.

Q. And who would those adults have been? And I don't

mean necessarily names, but were they parents, were they

coaches, what were they?

A. Coaches.

Q. How many?

A. To the best of my recollection, there were three

or four.

Q. Okay. How many students were on the bus at the

time of the incident?

A. I would say there was approximately 20.

Q. Okay. And were they all members of the team?

A. To the best of my knowledge, they were.

Q. So the team and the coaches and the bus driver.

Right?

A. Yes.

Q. And are the busses owned by the District or are

they leased or some other arrangements?

A. The busses are not owned by the District. We

outsource transportation to Durham School Services. So the

busses are the property of Durham School Services. But the


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camera is the property of Central Dauphin School District.

Q. And there's an agreement to that effect?

A. Yes.

Q. Is that a written agreement?

A. Yes.

Q. How long has that been in effect?

A. Since we outsourced transportation. I'm going to

say seven or eight years possibly. It's been quite a while.

Q. And the bus driver, was he or she an employee of

the District or of some other entity?

A. He's an employee of Durham School Services.

Q. Okay. And it was a man?

A. Yes.

Q. Now, as part of your investigation as well there

was an indication in something that I read that the

incident -- and I'm calling it that because I don't want to

characterize it other than -- the incident that occurred

actually started outside the school bus. Is that your

understanding as well?

A. Yes.

Q. And based upon-- Well, strike that. Have you

reviewed the entire tape of this school bus for that evening?

A. I reviewed from the beginning of the tape till the

bus got underway and was headed back to East High. I did not

review the entire recording.


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Q. So you started reviewing it when the incident

occurred or sometime before that?

A. It was before the incident occurred.

Q. Okay. Did you see all the students and adults get

on the bus while you watched it?

A. Yes.

Q. Okay. Were you able to see any of the incident

that involved the two individuals, Miss Rawls and the

student, that occurred outside the bus?

ATTORNEY MILLER: Objection. Your Honor, the

whole purpose of this hearing is to talk about the fact that

it's the District's position that this recording is protected

under FERPA.

So I understand where my colleague wants to go

and I guess what I'm asking is that the -- her description of

what happens on the tape that she reviewed is essentially

revealing what we believe to be protected anyways. So -- and

I don't know that it's necessary for your decision at all.

So I guess I would make an objection that we

don't back -door before you've had a chance to make a

determination, the whole point of this hearing.

THE COURT: Just out of curiosity, if you get

all this information out of her you don't need the video

anymore?

ATTORNEY STAUDENMAIER: Well, no, Your Honor.


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Actually, I'm not even sure I was going where Mr. Miller

thinks I was clever enough to go.

But what I'm trying to establish, Your Honor,

is like I said we have no idea of when the video, what it

shows when it starts, what it shows when it ends, and I'm

just trying to establish who all is involved.

There's an allegation here by FERPA involved.

Your Honor, it obviously is based upon Ms. McConnell's

testimony it also involves adults which are not students.

I think there's issues involved with the tape.

And what I was going to ask is whether you see students

getting on the bus, whether you see them getting off the bus,

whether you see anything that took place outside the bus

which would be more in the public view. I think those are

questions I'm entitled to ask.

THE COURT: All right. And if that's the part,

before we even go there, just so I understand, the incident

at issue is not when they arrived back to CD East, it's when

they loaded the bus at CD off Piketown Road. Is that where --

THE WITNESS: Yes.

THE COURT: That's the pertinent portion that

you're asking --

ATTORNEY STAUDENMAIER: Correct. And that's my

understanding, too, Judge. But part of my questions are to

make sure I'm correct there as well. We're basing what we


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know on sort of what we've heard from others and what's been

in news articles and things. That's why I'm trying to get to

the first --

THE COURT: The reason I asked, that satisfies

the question that I have. Your question obviously goes

beyond that. How far are you planning to go as opposed to

getting the context of what might be on there as opposed to

asking specifically what was on the video which I think is

the subject of the objection.

ATTORNEY STAUDENMAIER: Yeah, I believe, Your

Honor, my question is going to go to the context and how much

she viewed, how long the tape was, whether you see all the

students get on or off, whether you see the adults get on or

off.

THE COURT: How about we do this, now that we

have an idea of -- I'm going to overrule for now. If you

feel he goes beyond what he's offered and gets into that area

that you feel needs to be protected from premature

disclosure, renew your objection at that time.

ATTORNEY MILLER: Yes. May I just consult with

Mr. Staudenmaier for a second? Would you mind if we walked

out in the hall for two seconds?

THE COURT: Yeah. If you go out there and

settle it, I'm fine.

ATTORNEY STAUDENMAIER: We're not that good.


R. 251a

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ATTORNEY MILLER: Your faith is availing.

(A brief recess was taken.)

ATTORNEY MILLER: Thank you, Your Honor, for

your courtesy.

THE COURT: Is it fair to assume you've only

resolved the objection, not the --

ATTORNEY MILLER: I think we're getting close.

ATTORNEY STAUDENMAIER: And I'm sorry, could

you read back my last question, please?

(The court reporter read from the record as

requested.)

THE WITNESS: Yes.


Q. And this would have been while they were outside

on the pavement, outside where the bus was sitting?

A. Yes.

Q. And you'd agree that was a public area they were

at at that point in time?

A. Yes.

Q. And then do you see these individuals get on the

bus at some point?

A. Yes.

Q. And with regard to the incident that brings us

here today, were you able to view on the tape what you

thought was the duration of that incident that was involved


R. 252a

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that you were investigating involving the student and the

adult?

ATTORNEY MILLER: Objection. That doesn't

actually state what I asked her. She made clear that they

investigated student conduct generally not just one little

portion. I think it mischaracterizes what she's testified

about before.

ATTORNEY STAUDENMAIER: Your Honor, I don't

believe that was my question. My question was whether she

was able to view what she considered to be the entire

incident that she was investigating on the video or whether

there were portions of it she couldn't see or --

ATTORNEY MILLER: If she understands the

question, she can --

THE COURT: Maybe I can guide it to help me

there. Because you make reference at times where there's a

request and then segments are turned over. Is it fair to

assume that you have preserved and have in your possession

the entire period of time involved?

THE WITNESS: Yes.

THE COURT: All right. Do you have any idea

what he's talking about when he refers to the one adult and

the one individual?

THE WITNESS: Yes.

THE COURT: All right. And then your objection


R. 253a

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would be that it's somehow mischaracterizing her earlier

testimony?

ATTORNEY MILLER: She testified that she was

investigating student conduct on the bus generally not just

one interaction between two people as I understood it, which

was the very basis of his question. He said you were

investigating this interaction between that person and that

student.

THE COURT: It sounds like it may have been the

way you phrased the question, so why don't you rephrase the

question. That might get us around the concern.

ATTORNEY MILLER: I think that's fair.

ATTORNEY STAUDENMAIER: Well, Your Honor, I

think you may have actually covered it.


Q. I just want to be certain that whatever is shown

on the tape involving whatever it was that you felt the need

to investigate is shown on the tape as opposed to there's --

THE COURT: And you're using tape again, too.

ATTORNEY MILLER: Welcome to my world.

ATTORNEY STAUDENMAIER: Yeah.

THE COURT: I know she's sitting there the

whole time going it's a digital recording.



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Q. On the digital recording. Let me see if I can

make it simpler. Ms. McConnell, you indicated in your direct

testimony that as part of the review that you did that you

reviewed the tape -- the digital recording. Correct?

A. Yes.

Q. And when you reviewed it, was it your

understanding at the time you reviewed it that this is all

the tape there was to look at that was available regarding

any incident that occurred on this particular school bus on

this particular day and time?

A. I reviewed the recording from the time the

recording starts when the bus ignition is turned on.

Q. Okay. And was that prior to any of the students

or adults boarding the bus to leave?

A. Yes.

Q. Okay. Then take it from there.

A. And it runs until -- they're set up to run until

20 minutes after the bus is turned off. So that entire time

was on there.

Q. Okay. And rough guesstimate, how long is that?

A. Probably 30 or 40 minutes.

Q. Okay. And of that 30 or 40 minutes, was there any

particular time period that you thought was more relevant to

what your investigation was concerning than other portions?

And what I'm trying to get at is -- Mr. Miller


R. 255a

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explained it -- probably most of this tape is the bus going

home and the students sitting there. And in terms of what

you were looking at with regard to this incident, how much of

that tape or that 30 to 40 minutes would you say is involved?

A. Ten, twelve minutes, something around there.

Q. Okay. And when you described for us the way the

two cameras work, they're fixed in a certain position?

A. Yes.

Q. And the one camera shoots from the front of the

bus all the way to the rear?

A. Yes.

Q. And the other camera shoots down the steps leading

up from the bus from the outside. Correct?

A. From -- so if I was driving the bus, it would be

above here and down. (Indicating)

Q. So it would be the driver's left above his or her

head shooting down towards the doorway in the bus. Is that

fair?

A. Yes.

Q. Maybe I should say the main doorway.

A. Yes, right.

Q. And I'm correct, am I not, that the cameras are

not focused ever on any particular student that's on the bus?

A. Correct.

Q. And the same thing would have been true of this


R. 256a

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digital recording as well, it showed what was generally

shown. It wasn't focused on this particular student or two

or three students, it just showed what it normally shows?

A. Yes, correct.

Q. And I'm also correct, am I not, that this video

was not created or started because of this incident. It

began to run because the ignition to the bus was turned on

just as it would have on any other day?

A. Correct.

Q. It's also my understanding that there were

other -- besides the students on the bus and the adult

individuals who were on the bus that there were other adults

that witnessed some portion of what occurred that evening

with regard to the incident on the bus.

ATTORNEY MILLER: Can we lay some foundation as

to where, on the bus, outside the bus, because I think that

matters.

ATTORNEY STAUDENMAIER: Fair enough. That's

fair enough.


Q. That witnessed it outside the bus.

A. I can-- Because I wasn't there, I can't really

say who saw it. I can say parents E -mailed the

superintendent which is how this came to our attention.

Q. And did you review any of these E -mails or were


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made aware of what they contained?

A. Yes.

Q. And were they parents or adults saying that they

had witnessed some portion of this incident that evening?

A. Yes.

Q. Okay. Do you know a woman named Michelle

Sneeringer?

A. Yes, I do.

Q. And how is Miss Sneeringer connected to this

incident if at all?

A. Mrs. Sneeringer was one of the parents that

E -mailed the superintendent about her concern about the

events of that evening. And the superintendent of schools is

the one who has this investigation. And I was in the room

during the investigation. But Mrs. Sneeringer was one of the

parents that we spoke to over the course of the

investigation.

Q. Okay. And it's my understanding she also filed a

request for the video as well or a portion of the video?

A. Yes.

Q. And I'm also correct, am I not, Ms. McConnell,

that this incident was widely reported on in the news media?

A. Yes.

Q. In print media, on broadcast. Correct?

A. Yes.


R. 258a

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Q. And, in fact, over the course of several months,

both the name of the adult involved, Miss Rawls, and of the

student was released. Correct?

ATTORNEY MILLER: Objection, Your Honor. I'm

not sure how that really gets to whether this is a FERPA

record or not. The recording itself is a FERPA record.


think I can answer that. It's our position -- and I think

Ms. McConnell agrees -- that the names of the individuals

involved as I understand part of the FERPA protection

asserted is because that it doesn't identify or directly link

to the student herself.

The student's name has been publicized now for

over a year. It's known who she was. It's known who the

adult was. So therefore, I think it goes directly to this

issue of whether this is an education record that's blocked

with personal identifiable information of the student.

ATTORNEY MILLER: Ms. McConnell's testimony as

I recall it was that the adult's name has been publicized not

the student's name has been publicized. And even so, there's

not just one student on the bus. We're verging into legal

argument because it's the right of all those other parents

and all those other students not to be identified as well.

THE COURT: But the one thing I want to avoid

is a supplemental evidentiary hearing. And until I know the


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final arguments of counsel, I'm going to give a little

latitude just to make sure whatever factual basis needs to be

there.

Because I'm not sure exactly what, is it the

general floodgates of litigation or is it you're trying to

protect the identities of the student or the students or --

ATTORNEY MILLER: We have an obligation under

FERPA -- an absolute obligation of the threat of losing

federal money that educational records -- and FERPA

specifically says videos are educational records-- By the

way, 00R --

THE COURT: We're --

ATTORNEY STAUDENMAIER: I believe you are.

THE COURT: Well, you asked. We're about to

jump into final argument. At this point, all I'm interested

is making sure there's an adequate record so that we don't

have to do a rerun and drag innocent witnesses back for a

second time.

ATTORNEY MILLER: That's fair, Your Honor.

THE COURT: So what I'm going to do with the

understanding that we're not going to go far afield, I'm

going to allow this question. I don't want to get into

specifics. But I think that may or may not feed the argument

of either side and I just don't want to have an inadequate

regard. So I'm going to err on the side -- as frustrating as


R. 260a

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this probably is --

ATTORNEY MILLER: No, I understand completely,

Your Honor. I would ask him to lay some foundation. I don't

think that the District ever released the name of that

student and I think that's really important.

ATTORNEY STAUDENMAIER: Your Honor, that was my

question. My question was --


Q. Ms. McConnell, it's true, is it not, that the news

media reported the name of the student after the magistrate

hearing that occurred in front of the magistrate?

A. And I honestly don't know the answer to that.

Q. If I were to show you a copy of an article from

PennLive that's dated May 25, 2016 --

THE COURT: Are you attempting to refresh her

recollection or are you trying to bring an article in through

a witness that doesn't --

ATTORNEY STAUDENMAIER: Well, Your Honor, a

news article is self -authenticating anyway under the Rules of

Evidence, Rule 902, they're self -authenticating.

THE COURT: Well, that means you can bring it

in without questioning this witness about it.

ATTORNEY STAUDENMAIER: Well, but I think I

have a right to ask her the question. If she looks at it and

sees that it was published, I think she can state one way or


R. 261a

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the other.

THE COURT: Well then, you've got to proceed

with refresh her recollection. So why don't we lay the

foundation.

Do you believe if you saw that article that

might refresh your recollection as to whether that was

released?

THE WITNESS: I have to say that because I do

what I do every day and living through these meetings and

board meetings and such, I don't watch the news. So it's not

a matter of my recollection. I can just tell you that I

don't know.

And if he shows me an article that it's

PennLive and it's in there, then it's in there. I do not

watch the news. I do not want to relive something that I

lived 9 to 5 and then go watch it on the news and relive it

again.

THE COURT: So it has no chance of refreshing

your recollection I don't think this is the appropriate

mechanism for your self -authenticating document.

ATTORNEY STAUDENMAIER: Let me rephrase the

question then and I'll enter this as an exhibit when it's my

turn.



R. 262a

36

1 Q. Ms. McConnell, you're aware, however, that the

2 name of the student was eventually released in the news media

3 after the hearing involving Miss Rawls?

4 ATTORNEY MILLER: Objection. I think she said

5 she didn't --

6 THE WITNESS: I'm going to have to take your

7 word for it. I don't know that.

8 BY ATTORNEY STAUDENMAIER:

9 Q. So you conducted this multi -month investigation

10 involving a student and one of the assistant coaches for the

11 girls basketball team and you talked about it was intense and

12 involved all these contacts with people from the community,

13 the superintendant, and you don't remember whether the name

14 of the student was actually released in the news media in May

15 of 2016. That's your testimony?

16 A. My testimony is I do not read things that are on

17 the news and/or watch -- no offense to anyone in this room --

18 I do not watch them when they were on the news. So I'm not

19 saying you're not saying the truth.

20 Q. No, no offense taken. I really wasn't asking

21 about you having read the article but just having become

22 aware that the name came out after the hearing with Ms.

23 Rawls .

24 THE COURT: I think she's answered.

25 THE WITNESS: My answer is the same.


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Q. Your answer is the same? Okay. Then we're going

to move on. All right.

THE COURT: That would have been the suggestion

of the Court.


Q. Mr. Miller asked you some questions about the

Central Dauphin police force. Is it a police force that's

unique to the District, correct, it's not part of the Lower

Paxton Township police?

A. That's correct.

Q. And you indicated, you said -- let me be sure I

quote it correctly -- you said that the police force does not

maintain these school videos. Correct?

A. Correct.

Q. However, they did ask for this one.

A. Yes.

Q. And was it provided to them?

A. Yes.

Q. Okay. And was the entire tape that you viewed

provided to the police force?

A. I believe so.

Q. Do you know why they asked for it?

A. I believe a complaint was filed.

Q. And, in fact, the adult involved was cited?


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A. Yes.

Q. And they were cited by the Central Dauphin police

force?

A. Yes.

Q. And you indicated also that it's the normal or in

general that when a piece of digital recording from one of

these busses is requested that it's kept by the director of

transportation. Correct?

A. Yes.

Q. Okay. But in this instance, you kept this one?

A. I kept it as the open records officer.

Q. Okay. But would I be correct that prior to you

keeping it, it should have been in the hands of the director

of transportation under your normal general rules?

A. Yes.

Q. And whenever you've gotten requests in the past

for these types of videos -- and let's put the Right -to -Know

Law aside for now. We'd all like to do that at some point.

Let's put that aside for the moment. In the normal -- if I'm

a parent or somebody says I want to see a picture of a bus on

Thursday when my kid came home from middle school, that would

be retrieved or if a principal asks for it, that portion

would be retrieved and kept by the director of

transportation. Correct?

A. The principal would request it and it would be


R. 265a

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retrieved by the director of transportation. And that

segment of it would be put up on a shared drive for viewing.

And then it would later be removed after the issue was

handled. But parents don't come and view bus video.

Q. Unless it's viewed by principals or whomever, then

the director of transportation, he's the one -- or she --

A. He.

Q. He maintains it. Correct?

A. Well, once it's no longer needed, it's taken off

the drive. It's discarded. It's not kept.

Q. And who is the director of transpor-- Well, if

it's changed since the time of this incident, who is the

director of transportation?

A. James Omslaer.

Q. Can you spell the name.

A. O -m -s -l -a -e -r.

Q. And I'm also correct, am I not, that this video is

not being kept in any student's student file?

A. No. The only copy of this video is in my

possession.

Q. And I believe Mr. Miller asked you, he said

whether -- you indicated as part of your duties -- I'm

sorry -- that you also have some responsibility for student

and staff discipline. What responsibilities do you have for

student or staff discipline?


R. 266a

40

A. Occasionally -- very rarely am I involved in a

case of student discipline because I am on the finance and

operations side of the District.

Q. And hence the reason for my question. Go ahead.

A. So occasionally I become involved in a student

matter for one reason or another but very infrequently.

Q. In the last year, how many student discipline

issues have you been involved in?

A. I can't think of any.

Q. So none that you can recall?

A. I have been aware of some cases.

Q. No. My question was --

ATTORNEY MILLER: Can she answer the question?

THE WITNESS: No.

ATTORNEY STAUDENMAIER: I --

ATTORNEY MILLER: I really think it would be --

ATTORNEY STAUDENMAIER: Okay.


Q. And I believe in answer to one of Mr. Miller's

questions he asked whether there was any student or staff

discipline meted out as a result of this incident. And I

believe your answer was yes?

A. Yes.

Q. And I don't remember you answering whether it was

student discipline or staff discipline or both?


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A. Both.

Q. And were you the individual who decided and meted

out that discipline?

A. I was-- No, I did not.

Q. Who --

A. The superintendent of schools.

Q. And there was some talk, too, and you mentioned

about what's shown on the video you said you could see the

jersey numbers of the basketball players; is that correct?

A. Yes.

Q. Am I correct if I go to a Central Dauphin girls

basketball game and get a program it's got their numbers and

who their names are and everything?

A. I would imagine so.

Q. In fact, I haven't been to one in recent years but

one I remember it even has statistics on what grade they're

in and that type of thing?

A. It's possible.

Q. You're not a basketball fan?

A. I'm not.

Q. Okay. You shouldn't say that this time of year.

THE COURT: She doesn't watch sports or the

news.

THE WITNESS: I'm sorry.

THE COURT: Do you tune in for the weather?


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THE WITNESS: There's an ap for that.

THE COURT: You're breaking their hearts I'm

sure.

THE WITNESS: I'm really sorry.


Q. And I don't want to know any names, but in terms

of student discipline, how many students were disciplined as

a result of this incident?

A. One for certain.

Q. Okay. How many staff members?

A. One.

Q. And at Central Dauphin -- and here again I'm

showing my age -- if I talk about a student's file, I

probably realize in this day and age it may not be a paper

file. Is it an electronic file of some sort or is it both?

A. It's both.

Q. Okay. And if a student is disciplined, is that

put in their -- I'm just try-- Is there an academic file and

a discipline file? Is it all one file? How is it kept?

A. I can't answer that.

Q. Is that because you're not in charge of those type

of things?

A. Correct. Those would be maintained in the school

building and I'm in the administrative office and I don't

have any reason to go in a student file for any reason


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whatsoever.

Q. Understood, So I'm correct once again that you

have this video on the flash drive. It's in your office.

It's not in any student's discipline file, academic file?

A. Correct. That's correct.

Q. Other than you, to your knowledge who viewed this

videotape?

A. The superintendent of schools, the director of

transportation, and there's another assistant superintendent.

Q. Would that be Mr. Miller?

A. Yes, Dr. Miller.

Q. Dr. Miller. Do you know if any of the school

board members viewed the videotape?

A, I don't believe so. There really wouldn't be a

reason for that.

Q. And Ms. McConnell, with regard to-- Well, strike

that. I know you told me you're not a big newspaper reader

or news watcher but are you aware that at some point in time

there was a hearing held before a magistrate judge regarding

this incident?

A. Yes, I'm aware of that.

Q. Were you at that hearing?

A. No, I was not.

Q. Okay. Were you aware that at that hearing a

portion of this video was shown at the hearing to the


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magisterial district judge?

A. I am aware of that.

Q. And there were reports that a minute or two of

that tape was shown to the judge during that proceeding. Are

you aware of that?

A. That's my understanding, yes.

Q. Ms. McConnell, I went on Central Dauphin's

website.

A. Yes.

Q. And it's a very good website, by the way.

A. Thank you.

Q. And I'm correct, am I not, that on Central

Dauphin's website you post photographs and video of students?

A. Yes, we do.

Q. And, in fact, the ones that I looked at had

pictures of it looked like sports teams, younger children,

older children. Correct? It's to show the representative

sample of the students that attend Central Dauphin?

A. Yes.

Q. And there's also videos on the website. Correct?

A. Yes.

Q. And it looked to me that a lot of those videos

were student -produced videos?

A. It's possible.

Q. Are you involved in any of that production or


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help?

A. No, I'm not.

Q. I don't know because of your title you might have

been involved. And with regard to that type of thing --

Well, strike that. Because you are the open records officer,

you are familiar with FERPA?

A. Yes.

Q. And are you familiar with what's known as

directory information under FERPA?

ATTORNEY MILLER: Objection. He's now getting

into asking her to interpret FERPA and make legal

conclusions. Really we're getting far afield from whether or

not this videotape is protected.

THE COURT: It sounds like we're about to get

far afield, especially is she familiar with it. And I'm not

sure how she could be the records officer without being

familiar. Now, where are you planning on going after that?

ATTORNEY STAUDENMAIER: Well, I just wanted --

I wanted to ask her if she was familiar with that type of

information, what her understanding as the open records

officer is, what directory information is under FERPA as to

whether it's exempt or not under her understanding.

THE COURT: And how is that going to help the

Court that has to make the ultimate decision here?

ATTORNEY STAUDENMAIER: Well, Your Honor, it's


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my position -- our position --

THE COURT: Because it sounds like you haven't

agreed with anything that the school district has done

relative to its interpretation of that and they don't agree

with your interpretation of it. So documenting how much you

don't agree, how is that helping me?

ATTORNEY STAUDENMAIER: Well, Your Honor, it

doesn't mean I can't convince them eventually. And what

I'm --

THE COURT: Isn't there a better forum like

waiting for a decision of the Court one way or the other?


just wanted to establish if she was aware of it and what her

understanding of the categories of information that are

included under directory information of FERPA. That was all

I was going to ask her.

ATTORNEY MILLER: Your Honor, that's asking for

a legal conclusion from her. And this is really about

whether a bus video --

THE COURT: I follow you. I follow you. The

question before you, are you familiar with FERPA?

THE WITNESS: I am familiar with FERPA.

THE COURT: And the next question is frankly

not helpful so I'm going to sustain the objection. We'll

stay on task so we can finish this one up today. All right.


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Q. And just one final question, Ms. McConnell, has

Central Dauphin School District ever been penalized by the

Department of Education for a violation of FERPA?

A. No, we have not.

ATTORNEY STAUDENMAIER: I have no further

questions, Your Honor.

THE COURT: Any redirect?

ATTORNEY MILLER: One second.

THE COURT: While you're conferring, I have two

questions just so I follow it.

The 10 minutes of relevant time that you think

applied to the inquiry, that would have constituted double

screen where each camera has half of it so essentially 20

minutes of camera time, 10 minutes on each camera.

THE WITNESS: Yeah. When you view it, it's

split screen so you can see both at the same time.

THE COURT: So that's what I was getting at,

the 10 minutes are with both screens going.

THE WITNESS: Yes, yes.

THE COURT: That's what I needed to know. And

the controls -- there's no bus driver control of angle,

focus. Those are all preset?

THE WITNESS: Yes. Yeah. He has no ability to

adjust or not adjust.


R. 274a

48

THE COURT: I thought that was the case. Just

wanted to clarify. Any additional redirect?

ATTORNEY MILLER: Your Honor, I think that

we've gotten what we need from this witness and we're

probably just going to go to briefs. So yeah, no redirect.

THE COURT: Thank you very much, ma'am. You

can step down.

THE WITNESS: Thank you.

ATTORNEY MILLER: Can I confer with Mr.

Staudenmaier, maybe we can short-circuit this.

Your Honor, after conferring with my colleague

I think we have a couple matters for cleanup and I think

we're probably done with the evidentiary portion.

THE COURT: All right.

ATTORNEY MILLER: First --

THE COURT: Before you go to that, I want to

make sure I'm not left with the wrong impression because you

asked some questions regarding video portion played at the

MDJ in a public setting.

You're not going to assert that that came

voluntarily from a disclosure from the director as opposed to

coming from the copy that was provided to the Central Dauphin

police department and then utilized --

I'm just trying to make sure that you're not

trying to argue that because it was played in a public forum


R. 275a

49

that somehow they abandoned their normal practice.

ATTORNEY STAUDENMAIER: No, Your Honor. I

think what it does is -- I think the law is pretty clear

there that once it's shown in a judicial proceeding that

portion of it shown becomes a record of a judicial agency and

therefore is public outside the scope of the Right -to -Know

Law. But I'm not saying they conceded anything by doing

that.

THE COURT: Okay. I just wanted to make sure

it wasn't going further than that.

ATTORNEY MILLER: Your Honor, yes, I believe

just like any police department requests those kind of videos

for any prosecution, they did that in that particular case.

We had no choice, we gave it to them, they showed I believe

we said about 57 or 90 seconds.

And I've talked to Mr. Staudenmaier and he's

agreeable we can supplement the record by sending you a

letter to identify precisely that amount of time.

THE COURT: You've anticipated my next couple

questions, so good.

ATTORNEY MILLER: If it's acceptable to the

Court, I'll give that to Mr. --

THE COURT: That would be fine.

ATTORNEY STAUDENMAIER: Yeah. And Judge, just

so you understand, I was going to make a request that the


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Court review the video in camera anyway as part of it, so --

THE COURT: Well, we'll come to that bridge

when we come to it.

ATTORNEY STAUDENMAIER: Sure. I understand. I

didn't know if you wanted that now or, you know, when we're

here in court to do closings which we are anyway.

THE COURT: If I view it, are you going to

start asking me what's on it?

ATTORNEY STAUDENMAIER: No, Judge, but if I

could.

THE COURT: Just curious. We'll cross that

bridge. Let's finish up the rest of the loose ends then we

can discuss that option.

ATTORNEY MILLER: In the loose ends category, I

think there was a slight tweak in the testimony. I believe

Mr. Staudenmaier asked about an interaction between an

individual and an assistant basketball coach and I believe he

was referring to Ms. Rawls.

Miss Rawls is not a girls basketball coach.

She is merely a parent. She is the wife of Jesse Rawls, Jr.,

the principal at Central Dauphin East High School. I don't

think that's --

THE COURT: She was not there in any official

capacity; she was simply a parent of one of the players?

ATTORNEY MILLER: Correct. She's not -- she's


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not a school employee for purposes of the basketball. I

don't think there's any dispute to that.

ATTORNEY STAUDENMAIER: No.

THE COURT: You agree that that's a proper

characterization?

ATTORNEY STAUDENMAIER: Correct, Your Honor.

THE COURT: All right. We'll accept it as

such.

ATTORNEY MILLER: Oh, and then Mr. Staudenmaier

would like to put in a news article. I generally object to

it but given the fact there's not a jury and the Court can

take whatever cognizance of it with the stipulation though

that -- and I think Mr. Staudenmaier would agree -- the

District has never released the name of any student. It came

out as a result of prosecution in court, but has nothing to

do with anything the District did.

THE COURT: And although it was ambiguous with

this first question, after he actually reviewed it and it

became very clear it was not through the school district. So

with that caveat, do you want to mark that as a exhibit?

ATTORNEY STAUDENMAIER: Yes, Your Honor.

THE COURT: Since it's self -authenticating --

ATTORNEY MILLER: I'm not quite sure that I

agree with that, but for purposes of this hearing, I think

the Court will give it whatever evidentiary weight it deems


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appropriate.

THE COURT: Very well.

ATTORNEY STAUDENMAIER: We'll mark this as

Hawkins Fox 43 Number 1. And as I said, Your Honor, it's

admitted solely for the purpose of indicating that in the

article the name of the student was released after the MDJ

hearing.

MR. RACILLA: Mr. Staudenmaier, is Respondent 1

fine or do you want --

ATTORNEY STAUDENMAIER: Oh, that's okay, yes.

That's fine. Whichever way is best for you.

THE COURT: We have some preprinted with

respondent.

ATTORNEY MILLER: I don't think that there's

anything else that we're --

THE COURT: No other loose ends?

ATTORNEY STAUDENMAIER: No, Your Honor.

ATTORNEY MILLER: If we are -- Your Honor,

we'll confer and contact the Court but I don't think there

is.

THE COURT: All right. So you said you wanted

to brief this. Is this based upon any request for a

transcript in this case or not?

ATTORNEY MILLER: I think it would help to have

a transcript, Your Honor.


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THE COURT: Off the record a second.

(A discussion was held off the record.)

THE COURT: Should we wait-- Are you making

the request? You'll get the paperwork to catch up.

ATTORNEY MILLER: Yeah, we'll make the request.

I'm sure both sides will.

And if it's acceptable to Your Honor, when I

get the transcript and when Mr. Staudenmaier gets the

transcript, we could contact the Court and ask for a

scheduling order.

THE COURT: All right or do you want to set a

time frame from the time that the record is provided?

ATTORNEY STAUDENMAIER: I'd probably prefer,

Your Honor, because it has gone on a while give us X days

after the transcript is delivered.

THE COURT: All right. So how many X days do

you want?

ATTORNEY STAUDENMAIER: Well, I guess you'd go

first or do you --

ATTORNEY MILLER: How do you want to do it,

Your Honor? Do you want to do it --

THE COURT: Well, if there's an agreement to

submit it at the same time -- but that's not going to happen

I can tell. So how many days would you want your brief and

how much time do you want to supplement if necessary?


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ATTORNEY MILLER: When I say how much time I

need, let me confer with my associate. Would 30 days after

the transcript be acceptable and then 15 days for reply if

we're not going to be submitting at the same time?

THE COURT: Satisfied 30 days?

ATTORNEY STAUDENMAIER: That's fine.

THE COURT: Well, you're the ones that made the

request.

ATTORNEY STAUDENMAIER: Fifteen days one way or

the other probably won't make a big difference.

THE COURT: Well then, we'll do 30 days.

ATTORNEY MILLER: That's fine.

THE COURT: All right. We'll do 30 days after

the record. No later than that.

ATTORNEY STAUDENMAIER: Then mine is 30 and

theirs is 15 days for the reply brief?

ATTORNEY MILLER: That's what I understood.

ATTORNEY STAUDENMAIER: Yeah.

THE COURT: Okay. That works. All right then

we're good.

ATTORNEY MILLER: Thank you, Your Honor.

THE COURT: All right. Thank you. Thanks for

expediting. For a while there it didn't look like that was

going to happen.

(The proceedings concluded at 2:07 p.m.)


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CERTIFICATION

I hereby certify that the proceedings and

evidence are contained fully and accurately in the notes

taken by me on the hearing of the above cause, and that this

transcript of proceedings meets the format specifications

established by the Supreme Court of Pennsylvania in Rule

4010.

Debra L. Heary, RPR Official Court Reporter

Date Filed


R. 282a

Michael McAuliffe Miller, Esquire (PA I.D. 78507) Tricia S. Lontz, Esquire (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected] CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT, : DAUPHIN COUNTY, PENNSYLVANIA

Petitioner

vs.

VALERIE HAWKINS, FOX 43 NEWS and the COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Respondents

: NO. 2016 -CV -4401 -MP : NOTICE OF APPEAL/PETITION FOR : JUDICIAL REVIEW

: CIVIL ACTION - LAW

POST -HEARING BRIEF

ECKERT SEAMANS CHERIN & MELLOTT, LLC

Michael McAuliffe Miller, Esquire (I.D. No. 78507) Tricia S. Lontz, Esquire (I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 [email protected] [email protected] Telephone: (717) 237-6000

Date: May 22, 2017 Counsel for Central Dauphin School District

{L0684072.2}

R. 283a

TABLE OF CONTENTS

I. INTRODUCTION 1

II. PARTIES/JURISDICTION/PROCEDURAL HISTORY/BACKGROUND 3

III. QUESTIONS PRESENTED 8

IV. ARGUMENT 9

1. The School Bus Video Recording is an Education Record Made Confidential by FERPA, a Federal Law, and Is Therefore Not a Public Record Under the RTKL 9

A. The Video Contains Information Directly Related to Students ................12

B. The Video Was Maintained by Persons Acting for the District 21

2. Disclosure of the School Bus Video Recording Would Result in a Loss of Federal Funds Because FERPA Financially Penalizes Schools that Release Education Records Without Parental Consent and the Video Recording Is Therefore Exempt From Disclosure Under the RTKL. ,,,,,,,,, 26

3. The School Bus Video Recording Is a Record Relating to a Noncriminal Investigation and Is Exempt Under Section 708(b)(17) of the RTKL 28

4. The Student's Privacy Interests Expressly Provided by FERPA, a Federal Statute, Outweigh Any Presumption of Openness Associated With Judicial Records, and in any Event, the District Is Not the Proper Party to Provide Judicial Records.,.,..34

V. CONCLUSION 36

(L0684072.2)

R. 284a

TABLE OF AUTHORITIES

Cases

Baltimore v. Cromwell Public Schools, FIC 2004-551 (September 14, 2005) 15

Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. 1991) 18

Bd. of Educ. of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011) 22, 23

Bryner v. Canyons Sch. District, 351 P.3d 853 (Ct. App. Utah 2015) . passim

Commonwealth v. Sartin, 708 A.2d 121 (Pa. Super. Ct. 1998) 34

Commonwealth v. Upshur, 924 A.2d 642 (Pa. 2007) 34

Dep't of Health v. OUR, 29

Ellis v. Clevenland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Oh. 2004) 17, 18

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) 12

Honig v. Doe, 484 U.S. 305 (1988) 12

In re Rome City School District Disciplinary Hearing v. Grifasi, 806 N.Y.S.2d 381 (N.Y. Sup. Ct. Oct. 28, 2005) 16, 17

In the Matter of Barry Katz v. Lower Merion Sch. Dist., 32

In the Matter of Lance and Sarah Fanner v. Susquenita Sch. Dist., OOR Dkt. AP 2015-0447 (April 28, 2015) 31

In the Matter of Laura Kilmer v. Dubois Area Sch. District, OOR Dkt. AP 2013-1349 (Aug. 29, 2013) 10

Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036 (9th Cir. 2009) 12

Lindeman v. Kelso Sch. Dist., 172 P.3d 329 (Wash. 2007) 16, 17

Malt Beverages Distributors Ass'n v. Pennsylvania Liquor Control Bd., 974 A.2d 1144 (Pa. 2009) 14

Medley v. Board of Educ. of Shelby County, 168 S.W.3d 398 (Ky. Ct. App. 2005) 14

Owasso Independent Sch. Dist. v. Falvo, 534 U.S. 426 (2002) 22, 23, 24

Pennsylvania State Police v. Grove, 133 A.3d 292 (Pa. March 15, 2016) 33

4 A.3d 803 (Pa. Cmwlth. 2010)

AP 2015-0749 (July 8, 2015)

(L0684072.2) ii

R. 285a

Pennsylvania State Police v. Grove, 133 A.3d 292 (Pa. Cmwlth. 2016) 32, 33

Pollack v. Regional Sch. Unit 75, 23 2015 U.S. Dist. LEXIS 55992 (D. Me. 2015)

Remling v. Bangor Area School District, 25 2011 WL 554115 (Pa. Off. Open Rec. February 1, 2011)

Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 14, 15, 20, 29 109 So.3d 851 (Fla. Dist. Ct. App. 2013) 12,

S.A. v. Tulare County Office of Educ., 23 2009 U.S. Dist. LEXIS 93170 (E.D.Cal. 2009)

Sherry v. Radnor Twp. Sch. Dist., 29 20 A.3d 515 (Pa. Cmwlth. 2011)

State v. Mart, 16, 17 697 So.2d 1055 (La.Ct.App. 1997)

Street Road Bar & Grille, Inc., v. Pennsylvania Liquor Control Board, 11 583 Pa. 72, 876 A.2d 346 (2005)

United States v. Miami Univ., 11, 12, 27 294 F.3d 797 (6th Cir. 2002)

Wallace v. Cranbrook Educ. Cmty., 17, 18 2006 U.S. Dist. LEXIS 71251 (E.D. Mich. 2006)

Walsh v. Bethel Public Schools, 15 FIC 2012-047 (December 12, 2012)

West Virginia Newspaper Publishing Co. v. Monongalia County Board of Educ., passim 2006 WL 4642782 (W. Va. Cir. Ct. 2006)

Statutes

1 Pa.C.S. §1903 11

1 Pa.C.S. §1921 11

1 Pa.C.S. §1922 11

20 U.S.C. § 1232g passim

20 U.S.C. § 1232g(b)(2) 26

24 P.S. §§ 5-502,._ 31

24 P.S. § 5-507 30, 31

24 P.S. § 5-510 30, 31, 32

24 P.S. § 5-511 31

24 P.S. § 5-514 31

24 P.S. § 7-775 31

24 P.S. §§ 13-1301-A 32

24 P.S. §§ 13 -1301 -A --13-1313-a 30

24 P.S. § 13-1317 31

24 P.S. § 13-1318 31

65 P.S. § 67.101 2,3 65 P.S. § 67.102 9, 28

{L0684072.2) iii

R. 286a

65 P.S. § 67.1302(a) 65 P.S. § 67.305(a) 65 P.S. § 67.306

3

9

9

65 P.S. § 67.708 26, 28, 30

Regulations

22 Pa. Code §§ 10.1-10.25 30, 32

33 C.F.R. § 99.3 10, 11, 14

34 C.F.R. § 99.33 35

34 C.F.R. § 99.8 16

Other

Black's Law Dictionary 22

Letter re: Berkeley County School District 104 LRP 44490 (FPCO February 10, 2004) 14

Opinion of Kentucky Attorney General 99-ORD-217 (Dec. 2, 1999) 14

Opinion of Texas Attorney General, 0R2006-07701 (July 18, 2006) 13

Opinion of Texas Attorney General 0R2006-00484 (January 13, 2006) 13

Opinion of Texas Attorney General OR2005-02984 (April 7, 2005) 13

National Forum Education Statistics 15

{L0684072.2} iv

R. 287a

I. INTRODUCTION

In the decision currently on appeal, the Office of Open Records ("OOR") has ignored the

requirements of federal law as well as the clear exception carved out in the Right to Know Law

by which the Pennsylvania General Assembly intended to avoid a situation where governmental

agencies would be compelled to release records under the RTKL where those records were also

required to be held confidentially by other federal or state statutes. In so doing, OOR

(overturning 5 years of its prior jurisprudence without any real analysis) has opened the

floodgates to a stream of requests which-if complied with-would put School districts in direct

conflict with FERPA, the federal statute requiring student records remain confidential.

Placing aside OOR's erroneous construction of the law, as a practical matter, the

sweeping implications of OORs decision on the privacy rights of the students recorded in this

video recording are staggering. This decision allows any member of the public to request School

bus video records, and by implication, any other recording made on School property. Every

movement, reaction, facial expression, and action of the students depicted on these videos -

often recorded in confined or perceived private areas - will now be open to public examination

and scrutiny.

Such access begs the question of who will protect the confidentiality of students who,

like most, will not be cognizant that a video may be catching their every move and not

suspecting it may be requested and then publicly displayed, including - the student athlete who

executes a quick outfit change on the back of the bus, the student sneaking a kiss from his or her

significant other, the student picking his nose - the possibilities are endless.

State and federal law recognizes that educational institutions gain significant access to a

wide variety of information concerning students in their care. The federal government therefore

{L0684072.2) 1

R. 288a

saw fit to absolutely mandate the confidentiality of these records and imposed no content -based

restrictions on education records, requiring only that the records be directly related to a student

and maintained by the educational institution. Pennsylvania's Right to Know Law ("RTKL"), 65

P.S. § 67.101 et seq., likewise absolutely mandates the confidentiality of these records under

multiple sections.

Because education records are inherently confidential and therefore treated differently

than other records that government entities maintain in the course of conducting the public's

business, student education records, like the School bus video recording, are not "public records"

as completed by the RTKL. The OOR's decision to the contrary must therefore be reversed.

{L0684072.2} 2

R. 289a

II. PARTIES/JURISDICTION/PROCEDURAL HISTORY/BACKGROUND

The Parties entered into the following Stipulations regarding the Parties, Jurisdiction,

Procedural History and Background, which were submitted to the Court at hearing:

PARTIES

1. Petitioner, the District, is a School district duly organized and existing under the

laws of the Commonwealth of Pennsylvania, having an address of 600 Rutherford Road,

Harrisburg, Pennsylvania 17109.

2. Respondent, Valerie Hawkins, is an assignment editor with Fox 43 News with an

office located at 2005 South Queen Street, York, Pennsylvania 17403 (the "Requester").

3. Respondent, Fox 43 News, is the fictitious name of WPMT, LLC a limited

liability company providing news services with a principal place of business at 2005 South

Queen Street, York, Pennsylvania 17403.

4. Respondent, Commonwealth of Pennsylvania Office of Open Records ("OOR"),

is an office within the Commonwealth's Department of Community and Economic Development

established pursuant to Section 1310(a) of the Pennsylvania Right to Know Law (65 P.S.

§ 67.101 et seq.) ("RTKL") having an office located at 400 North Street, Plaza Level,

Harrisburg, Pennsylvania 17120-0225.

5. The OOR declined to participate in the matter and filed a Notice of Non -

Participation on July 8, 2016. [A true and correct copy of the Notice of Non -Participation is

attached to the Stipulations as Exhibit Al

JURISDICTION

6. This Notice of Appeal/Petition for Review is filed pursuant to Section 1302(a) of

the RTKL (65 P.S. § 67.1302(a)).

{L0684072.2) 3

R. 290a

FACTUAL AND PROCEDURAL BACKGROUND

7. On February 23, 2016, Requester, Valerie Hawkins, submitted a RTKL request to

the District. [A true and correct copy of the Request is attached to the Stipulations as Exhibit B

and to the Petition for Review as Exhibit Al

8. Requester's RTKL Request sought the following: "FOX 43 News is requesting a

copy of the video that was captured by a School bus camera system that occurred on February

16, 2016."

9. The video recording at issue is a video recording that was captured on a District

School bus through its video recording system on February 16, 2016.

10. In response the RTKL request for the School bus video recording, the District's

Open Records Officer invoked the District's right to an additional 30 -day period to respond to

the Request on March 1, 2016, and then issued a timely denial of the request on March 24, 2016.

[A true and correct copy of the District's denial is attached to the Stipulations as Exhibit C and to

the Petition for Review as Exhibit B.]

11. Requester appealed the District's denial to the Office of Open Records on

March 24, 2016. [A true and correct copy of the Requester's appeal is attached to the

Stipulations as Exhibit D and the Petition for Review as C.]

12. On March 25, 2016, the OOR issued an Official Notice of the Requester's appeal

and invited both parties to supplement the record. [A true and correct copy of the OOR's Notice

of Appeal is attached to the Stipulations as Exhibit E and the Petition for Review as Exhibit D.]

13. Only the District supplemented the record by submitting a letter brief and

supporting affidavit of the District's Open Records Officer in support of its denial. [A true and

{L0684072.2} 4

R. 291a

correct copy of the District's Letter Brief and Affidavit is attached to the Stipulations as Exhibit

1: and to the Petition for Review as Exhibit E.]

14. The OOR issued a Final Determination granting the Requester's appeal on

May 19, 2016 at OOR Dkt # AP 2016-0583. [A true and correct copy of the OOR's Final

Determination is attached to the Stipulations as Exhibit G and the Petition for Review as Exhibit

F.]

By way of further background, a hearing to ascertain additional evidence was held on

March 30, 2017 at 1:00 p.m., the Honorable William T. Tully presiding. The District offered the

sworn testimony of Karen McConnell, the District's Assistant Superintendent for Finance and

Administrative Operation. (Notes of Testimony (hereinafter "N.T."),1 6.) Respondents did not

offer any witness testimony at the hearing.

Ms. McConnell's responsibilities at the District include overseeing the District's

transportation function, including School buses, as well as responsibility for student and staff

discipline. (N.T. 6-7.) She is also the District's Open Records Officer. (N.T. 38.) She was

personally involved in the District's investigation into staff and student discipline as a result of

the conduct that was captured on the School bus video recording at issue. (N.T. 10, 12.)

Ms. McConnell testified that there are two high resolution video cameras on each District

bus that capture images of students and others on the bus. (N.T. 7-12.) The cameras are located

over the bus driver and one faces toward the door and captures the students' faces as they enter

the bus. (N.T. 7.) The other camera faces toward to the back of the bus and captures the length

of the bus. (N.T. 7.) This camera captures the students' backs as they walk toward their seat and

then captures their faces as they are turned sitting in their seats. (N.T. 7-8.) Ms. McConnell

' Hearing Transcript is attached hereto as Exhibit 1.

{L0684072.2} 5

R. 292a

testified that the students' are individually identifiable in the recording by both facial recognition

and by the jersey numbers that are embroidered on the backpacks. (N.T. 11-12.) The students'

actions and conduct are also captured on the video recording. (N.T. 12.) The District does not

have the capability of redacting the video recordings to remove personal identification

information regarding the students. (N.T. 14.)

The District's video recording system is maintained by the District's Director of

Transportation. (N.T. 13.) The video recording system is not maintained by a law enforcement

unit of the District, nor does the District's police force have the ability to access or view video

recordings on its own. (N.T. 13.) The police force must request access from the Director of

Transportation. (N.T. 13-14.)

The video cameras are programmed to record over the content every ten to fourteen

days. (N.T. 7-8.) Video recordings are only extracted into a permanent form when there is a

particular reason for the District to pull and download a recording. (N.T. 7-8.) Administrators

must contact the Director of Transportation and request a video recording. (N.T. 8-9.) Such

requests are made for the purpose of investigating student and staff conduct for discipline

purposes as well as safety issues. (N.T. 8-9.)

The School bus video recording at issue here was created (converted to a permanent

form) to investigate student and staff conduct for safety and discipline purposes after reports

regarding an issue where received by the District. (N.T. 9-10.) Ms. McConnell maintains the

video recording on a flash drive in a fireproof safe that is locked in her office. (N.T. 13.)

Ms. McConnell maintained this video recording because she is the District's Open Records

Officer and it is the subject of a RTKL request. (N.T. 38.) Student files at the District are

{L0684072.2} 6

R. 293a

maintained in varying forms and in varying locations, including hard copy paper format and

electronic forms. (N.T. 42.)

The District is charged, under the School Code, with creating and maintaining a safe

School. (N.T. 9.) This obligation extends to behavior on School buses. (N.T. 9.) The School

bus was located on District property at the time the video was recorded. (N.T. 10.) The District

initiated an extensive investigation into the conduct at issue, which included analysis of the video

recording, interviewing students, interviewing staff, speaking with parents, among other things.

(N.T. 10-11.) The investigation was lengthy and Ms. McConnell was personally involved in it.

(N.T. 11.) As a result of the investigation, the District took disciplinary action against both staff

and students. (N.T. 12, 40-41.) The District's police force also conducted a separate

investigation of the conduct. (N.T. 14.)

(11,06a4072.2) 7

R. 294a

III. QUESTIONS PRESENTED

1. Whether the School bus video recording that directly relates to students and is maintained by the District is an education record protected from disclosure under FERPA, a federal law, and is therefore not a public record and not subject to disclosure under the RTKL?

[Suggested Answer: Yes.]

2. Whether the School bus video recording is exempt from disclosure under the RTKL because disclosure of the School bus video recording could result in a loss of federal funding?


3. Whether the School bus video recording is a record relating to a noncriminal investigation and is exempt under Section 708(b)(17) of the RTKL.


4. Whether the student's privacy interests that are expressly provided by FERPA, a federal statute, outweigh any presumption of openness associated with judicial records, and in any event, whether District is the proper party to provide judicial records.

[Suggested Answer: Yes, and in any event, No.]

(L0684072.2) 8

R. 295a

IV. ARGUMENT

Pennsylvania's Right to Know Law provides that records possessed by agencies are

presumed to be public records, but this "presumption shall not apply if: (1) the record is exempt

under Section 708; (2) the record is protected by a privilege; or (3) the record is exempt from

disclosure under any other Federal or State law, regulation or judicial order or decree."2 65 P.S.

§ 67.305(a). Section 306 of the RTKL further provides that "[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." 65 P.S. § 67.306. The Legislature, therefore,

evidenced a clear intent not to disrupt confidentiality protections afforded by federal laws such as

FERPA.

The OOR's decision must be reversed because: (1) the requested record is not public as it

is confidential under federal law; (2) disclosure of the requested record would result in the loss of

federal funding; (3) the record is a record relating to a noncriminal investigation exempt under

Section 708(b)(17); and (4) the judicial presumption of openness is overcome by the privacy

rights expressly provided by federal statute.

1. The School Bus Video Recording is an Education Record Made Confidential by FERPA, a Federal Law, and Is Therefore Not a Public Record Under the RTKL.

The overwhelming weight of authority plainly recognizes that video recordings, like the

School bus video at issue here, are "education records" under FERPA. Congress enacted

FERPA "to protect [parents' and students'] rights to privacy by limiting the transferability of

their records without their consent." Bryner v. Canyons Sch. Dist., 351 P.3d 853 (Ct. App. Utah

2015). These established privacy rights have been negated by OOR's decision. Because

2 If any of these circumstances are met then the record is not a "public record" as defined by the RICTL. 65 P.S. § 67.102.

{L0684072.2) 9

R. 296a

Congress specifically protected such records from disclosure, this Court must reverse the OOR's

decision allowing any member of the public to access any and all video recordings of students

captured on School property.

To provide some initial clarification regarding certain assertions made by Respondents in

their Answer to the Petition for Review, FERPA does, in fact, allow parental access to education

records of their own children. Indeed, FERPA expressly mandates that such access be provided.'

20 U.S.C. § 1232g(a)(1)(A).

What FERPA does not permit is parental access to the education records of another

child, even if the record is also considered an education record of their own child.4 Moreover,

FERPA does not permit the general public any access to education records. 20 U.S.C.

§ 1232g(b)(1).5 Yet, despite these express statutory mandates, OOR's decision eliminates the

statutory protections providing for the confidentiality of such records and allows public access to

education records.

Under FERPA, "education records" are those records, files, documents, and other

materials which

OOR has previously recognized that the mechanism for a parent to gain access to "education records" under FERPA is not through the RKTL. See, e.g., In the Matter of Laura Kilmer v. Dubois Area Sch. Dist., OOR Dkt. AP 2013-1349, at *3 (Aug. 29, 2013) ("Although Requester, as a parent of the Student, may be entitled to the requested records through a different legal mechanism, the Requester is not entitled to the requested records through the RTKL.").

4 "If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as it relates to such student or to be infon-ned of the specific information contained in such part of such material." 20 U.S.C. § 1232g(a)(1)(A).

5 FERPA permits disclosure of certain information related to students that qualifies as "directory information." Directory information relating to a student includes: "the student's name, address, telephone listing, 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, and the most recent previous educational agency or institution attended by the student." 20 U.S.C. § 1232g(a)(5)(A). Directory information "means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed." 34 C.F.R. § 99.3.

(L0684072.2) 10

R. 297a

(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)(i)-(ii). A record includes "any information recorded in any way,

including, but not limited to, handwriting, print, computer media, video or audiotape, film,

microfilm, and microfiche." 34 C.F.R. § 99.3 (emphasis added).6 "Notably, Congress made no

content -based judgments with regard to its 'education records' definition." Bryner, 351 P.3d at

857 (quoting United States v. Miami Univ., 294 P.3d 797, 812 (6th Cir. 2002)).

Statutory construction principles are well -settled in Pennsylvania, "including the primary

maxim that the object of statutory construction is to ascertain and effectuate legislative intent.

1 Pa.C.S. § 1921(a).

In pursuing that end, we are mindful that "when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). As a general rule, the best indication of legislative intent is the plain language of a statute. [Commonwealth v.} Shiffler, 879 A.2d [185,] 189 [Pa. 2005] (citations omitted). In reading the plain language, "words and phrases shall be construed according to rules of grammar and according to their common and approved usage," while any words or phrases that have acquired a "peculiar and appropriate meaning" must be construed according to that meaning. 1 Pa.C.S. § 1903(a). It is only when "the words of the statute are not explicit" on the point at issue that resort to statutory construction is appropriate. Street Road Bar & Grille, Inc., v. Pennsylvania Liquor Control Board, 583 Pa. 72, 876 A.2d 346, 352 (2005). Finally, in ascertaining legislative intent, the Statutory Construction Act "requires a presumption that the General Assembly did not intend a result that is absurd or unreasonable." 1 Pa.C.S. § 1922(1); Street Road Bar & Grille, Inc., 876 A.2d at 353.

6 A School bus video recording "is undisputedly a 'record' as defined by the applicable FERPA regulations ... since `video' recordings are expressly included in the definition." West Virginia Newspaper Publishing Co. v. Monongalia County Bd. of Educ., 2006 WL 4642782 (W. Va. Cir. Ct. 2006).

(L0684072.2) 11

R. 298a

Malt Beverages Distributors Ass'n v. Pennsylvania Liquor Control Bd., 974 A.2d 1144, 1149

(Pa. 2009).

As noted by Bryner, a "plain reading of FERPA's statutory language reveals that

Congress intended for the definition of education records to be broad in scope." Bryner, 351

P.3d at 857; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 292 (2002) (observing that the "key

language" of FERPA, including its definition of education records, is "broad and nonspecific").

In fact, "nothing in the plain language of the statute limits the application of FERPA to only

academic records." Bryner, 351 P.3d at 857 (emphasis in original). Therefore, courts are not

empowered to read exceptions into the statute because the plain language of the statute evinces

Congress's intent to omit such exceptions and courts are not "at liberty to engraft onto the statute

an exception that Congress chose not to create." Honig v. Doe, 484 U.S. 305, 324-25 (1988),

superseded by statute on other grounds as recognized by Joshua A. v. Rocklin Unified Sch. Dist,

559 F.3d 1036 (9th Cir. 2009).

A. The Video Contains Information Directly Related to Students

The first prong of the "education records" definition provides that the record must

"contain information directly related to a student." 20 U.S.C. § 1232g(a)(4)(A)(i). Courts

interpreting this prong have explained that "[i]nformation is directly related to a student if it has

a close connection to that student." Bryner, 351 P.3d at 858 (quoting Rhea v. District Bd. of

Trustees of Santa Fe Coll., 109 So.3d 851, 857 (Fla. Dist. Ct. App. 2013)). "Records therefore

directly related to a student if 'the matters addressed in the ... records pertain to actions

committed or allegedly committed by or against' the student and contain information identifying

the student." Id. (quoting Miami Univ., 91 F. Supp. 2d 1132, 1149 (S.D. Ohio 2000), aff d 294

F.3d 797 (6th Cir. 2002)).

{L0684072.2} 12

R. 299a

Indeed, the Family Policy Compliance Office ("FPCO"), which is the office which

administers FERPA and the Protection of Pupil Rights Amendment ("PPRA") under the auspices

of the United States Department of Education, has issued guidance specifically indicating that

video recordings -just like the video recording at issue here - are education records under

FERPA. Most notably, in Letter re: Berkeley County School District, the FPCO issued a letter

to a parent who requested a videotape of an altercation between her child (the student) and a

police officer (a non -student). Letter re: Berkeley County School District, 104 LRP 44490

(FPCO February 10, 2004) ("Berkley Letter"), attached hereto as Exhibit 2. In its letter FPCO

accepted, without question, that a video recording depicting an altercation between a student and

a non -student is an education record protected under FERPA for the student in the video

recording. FPCO explained to the parent:

If the education records of a student contain information on more than one student, the parent requesting access to education records has the right to inspect and review, or be informed of, only the information in the record directly related to his or her child.... If, on the other hand, another student is pictured fighting in the videotape, [the parent] would not have the right to inspect and review that portion of the videotape.

Exhibit 2. The FPCO has further provided regular guidance to District Attorneys charged with

enforcing FERPA explaining that video recordings are education records for those students who

are "directly related" to the focus or subject of the video. See, e.g., Opinion of Texas Attorney

General, OR2006-07701 (July 18, 2006) ("[T]he [FPCO] ... has determined that videotapes of

this type do not constitute the education records of students who did not participate in the

altercation.... The [FPCO] has, however, determined that the images of the students involved in

the altercation do constitute the education records of those students. Thus, FERPA does apply to

the students involved in the altercation."); Opinion of the Texas Attorney General, 0R2006-

00484 (January 13, 2006) (same); Office of Texas Attorney General, OR2005-02984 (April 7,

{1,0684072.2} 13

R. 300a

2005); Office of Kentucky Attorney General, 99-ORD-217 (Dec. 2, 1999), attached hereto as

Exhibit 3.

Based on this guidance and its interpretation of the plain language of the FERPA statute,

the Bryner court found that the video recording at issue "contain[ed] information directly related

to the students involved in the altercation." Bryner, 351 P.3d at 858. The Bryner court

explained:

The Video pertains to "action committed or allegedly committed by or against" Bryner's child and other students. Indeed, the Video is

nothing more than a record of the actions of the students involved in the incident. And the students' images in the Video constitute information identifying the students.

Id. As such, the court held that the video contained information "directly related to" the students

involved in the incident under the first prong of the test. Id.

In West Virginia Newspaper Publishing, the School bus video recording at issue was

similarly "a record of the activity of both minors and adults." West Virginia Newspaper

Publishing, 2006 WL 4642782, at Stipulation of Fact, ¶ 14. The Court held that the video

recording was an education record under FERPA. It found that the video recording contained

personally identifiable information of students, including "images of students and records their

behaviors during the bus ride." Id. Accordingly, "the video clearly contained 'personally

identifiable information' about students that 'would make the students' identity easily

traceable.'" Id. (citing 34 C.F.R. § 99.3).

Likewise, in Medley, the Kentucky appellate court found that videotapes of a teacher's

classroom, which contained images of individual students and the teacher, were "education

records" within the meaning of FERPA and protected from public disclosure. Medley v. Board

of Educ. of Shelby County, 168 S.W.3d 398, 404 (Ky. Ct. App. 2005). Thereafter, the court in

Rhea rejected any contention that a record cannot relate both to a student and to a non -student.

14 {L0684072.2}

R. 301a

Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 109 So.3d 851, 858 (Fla. Dist. Ct. App. 2013).

The court explained: "If a record contains information directly related to a student, then it is

irrelevant under the plain language in FERPA that the record may also contain information

directly related to a teacher or another person." Id.

Furthermore, the Connecticut Freedom of Information Commission has taken

administrative notice of the Berkley Letter and recognized that video recordings on School buses

and School campuses constitute education records. See, e.g., Walsh v. Bethel Public Schools,

FTC 2012-047 (December 12, 2012); Baltimore v. Cromwell Public Schools, FIC 2004-551

(September 14, 2005), attached hereto as Exhibit 4. Because such video recording are education

records for those students individually identifiable in the recordings, the Commission recognizes

they are exempt from disclosure under Connecticut's open records law.

The National Forum on Education Statistics ("NFES"), which established the National

Cooperative Education Statistics System to assist in producing and maintaining comparable and

uniform information for educational institutions, published a resource for Schools on FERPA

explaining that surveillance videotapes are education records under FERPA. Forum Guide to the

Privacy of Student Information: A Resource for School, NATIONAL FORUM ON EDUCATION

STATISTICS, July 2006, at 9-10, attached hereto as Exhibit 5. NFES explains that "surveillance

videotapes (or other media) with information about a specific student are considered education

records if they are kept and maintained by the School system." Exhibit 5, at 9-10.

The overwhelming weight of authority, including the institution charged with

administering FERPA by the federal government, squarely rejects any notion that video

recordings -just the like video recording at issue here - are not education records under FERPA.

{L0684072.2} 15

R. 302a

None of the cases cited by OOR or Respondents changes this result and the faulty analysis

underlying OOR's determination must be corrected.

Respondents cite to In re Rome City School District Disciplinary Hearing v. Grifasi, 806

N.Y.S.2d 381 (N.Y. Sup. Ct. Oct. 28, 2005), State v. Mart, 697 So.2d 1055 (La.Ct.App. 1997),

and Lindeman v. Kelso Sch. Dist., 172 P.3d 329 (Wash. 2007) as support for their position that

the video recording is not an education record. As explained by the court in West Virginia

Newspaper Publishing, these cases are distinguishable from the instant case.

First, in Grifasi, "the Court's decision was based on the FERPA exception for records

maintained by a law enforcement unit of an educational agency." West Virginia Newspaper

Publishing, 2006 WL 4642782. Under FERPA, the term "education records" does not include

"records maintained by a law enforcement unit of the educational agency ... that were created by

that law enforcement unit for the purpose of law enforcement." 20 U.S.C. § 1232g(a)(4)(B)(ii).

The Grifasi court's opinion contains scant, if any, analysis regarding what constitutes an

"education record" and it cites solely to the law enforcement exception under FERPA. See

Grifasi, 806 N.Y.S.2d at 382-83 (citing 20 U.S.C. § 1232g(a)(4)(A)-(B), pertaining to law

enforcement unit exception and 34 C.F.R. § 99.8, pertaining to what provisions apply to records

of a law enforcement unit).

As such, the Grafasi opinion relied exclusively on the law enforcement exception which

is wholly inapplicable to the instant case. It is undisputed that the video recording here was not

created by "a law enforcement unit of the educational agency" and that it was not "created by

that law enforcement unit for the purpose of law enforcement." As set forth by Karen

McConnell in her Affidavit:

{L0684072.2}

The video recording is maintained by the School District. The requested video recording is, and was, not maintained by a law

16

R. 303a

enforcement unit of the Agency; and not created by a law enforcement unit of the Agency for a law enforcement purpose.

Affidavit of Karen McConnell, at ¶ 8, attached to the Petition for Review as Exhibit E. Further,

at hearing, Ms. McConnell offered uncontroverted testimony that the District's police force does

not maintain the School bus video system and does not have the ability to independently access

the School bus video system. (N.T. 13.) The police force must, like all other members of the

administration, make a request for access by following the procedures set forth by the District

through the Director of Transportation. (N.T. 13-14.) Here, the School bus video system is

maintained by the Director of Transportation for the District. (N.T. 13.) Therefore, the law

enforcement unit exception cannot apply and Grifasi is wholly inapplicable to the present case.

Second, "the Louisiana court's decision in Mart was solely based on the court's

determination that FERPA does not prohibit disclosure of education records." West Virginia

Newspaper Publishing, 2006 WL 4642782 (citing Mart, 697 So.2d at 1060). "There is no

discussion in [the Mart] case of whether the video was an 'education record' under FERPA." Id.

Similarly, there is no discussion in the Lindeman case of whether the video was an "education

record" under FERPA. See Lindeman v. Kelso Sch. Dist., 172 P.3d 329 (Wash. 2007). These

decisions therefore have no bearing on the present determination of whether the School bus

video recording is an "education record" under FERPA.

Moreover, in light of the available opinions and guidance specifically addressing video

recordings under FERPA, the cases relied on by the OOR are curious and, in any event,

inapposite. None of the cases cited by OOR can be used to find that the video recording here is

not "directly related to" the students' depicted in the recording. See OOR Final Determination,

OOR Dkt. AP 2016-0583, at 4-5 (May 19, 2016) (citing Wallace v. Cranbrook Educ. Cmty.,

2006 U.S. Dist. LEXIS 71251 (E.D. Mich. 2006); Ellis v. Clevenland Mun. Sch. Dist., 309 F.

{L0684072.2} 17

R. 304a

Supp. 2d 1019 (N.D. Oh. 2004); Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. 1991)). Each of

these cases involved students' statements contained in incident reports about the subject of the

investigation such that the records were only tangentially related to the students or concerned the

law enforcement unit exception. Wallace, 2006 U.S. Dist. LEXIS 71251, at *8 (student

statements provided in relation to an investigation into a School employee's alleged misconduct);

Ellis, 309 F. Supp. 2d at 1022-23 (witness statements related to allegations of a physical

altercation); Bauer, 759 F. Supp. at 590 (criminal investigation and incident reports maintained

by a law enforcement unit).

Even assuming arguendo that these cases were properly decided, they are distinguishable

from the video recording at issue. In each of these cases, the statements were gathered post hoc,

after a particular incident, and as a result of an investigation into the non -students at issue. For

this reason, the courts found that after -the -fact witness statements were not "directly related to"

the students, but rather were "directly related" to the non -students' investigations. Such incident

reports are nothing like the videotape at issue here which plainly depicts the actual events in

question - it is a video recording of students which documents both conduct by students on a bus

provided by the school leaving a school function on the grounds of the school as well as the

conduct of a parent of another student. See West Virginia Newspaper Publishing Co., 2006 WL

4642782 (finding that video recordings contain personally identifiable information of students,

including "images of students and records their behaviors during the bus ride").

The video recording at issue here pertains to "actions committed or allegedly committed

by or against" students, is a record of the actions of the students and non -students involved, and

contains images identifying the students involved. See Bryner, 351 P.3d at 858. Specifically,

Ms. McConnell established in her Affidavit submitted to OOR that:

{L0684072.2} 18

R. 305a

The video recording contains personally identifiable information directly related to students because the students are visible and identifiable in the video recording.

Affidavit, attached to Petition for Review as Exhibit E, at ¶ 7.

The personally identifiable information of the students cannot be redacted from the video recording.

Affidavit, attached to Petition for Review as Exhibit E, at ¶ 10.

Further, Ms. McConnell offered uncontroverted testimony establishing that the student's

faces are individually identifiable as they enter the School bus. (N.T. 7-8.) The students' backs

are then visualized as they walk down the bus aisle to their seats. (N.T.7, 11-12.) On the

students' backpacks, their jersey numbers are embroidered, allowing individual identification of

the students by cross-referencing their player numbers. (N.T. 11-12, 41.)7 As the students take

their seats on the bus, their faces, actions, and conduct are again visualized on the recording.

(N.T. 7-12.) Based on the high resolution recordings from the two video cameras on the bus,

each student is individually identifiable on the recording. There is no record evidence which

would support any argument to the contrary.

It is well publicized in the media that the incident recorded involved both a students and a

non -student. Indeed, the entire controversy surrounds a particular student's interaction with a

7 Based on hearing questioning, Petitioner anticipates that Respondents will assert that since the individual students' are identified as members of the girls' basketball team as a result of the permissible release of "directory information" under FERPA this somehow obviates any need to protect the record at issue here. Such an argument, however, would be nonsensical. To accept such an argument would render a majority of protected "education records" unprotected under the statute simply because the District is permitted to release certain limited information under the statute for a limited purpose. To allow this limited release of information to eliminate protections for other education records created or maintained for particular students would create an absurd result plainly not intended by Congress. In fact, that the directory information is available, allowing the public to determine the name of a student based on their jersey number, operates to increase the likelihood that a member of the public can personally and individually identify a student based on the video recording. Such facts weigh in favor of finding the video recording is an education record, not against.

It is wholly irrelevant that the media somehow learned the identity of the minor student involved and then published the student's name in a mews article. This fact in no way eliminates the District's obligation to protect the

confidentiality of this education record under FERPA,

{ L0684072.21 19

R. 306a

non -student. That particular student is personally identifiable on the recording as well as other

students who were directly involved with the interaction.

Respondents' position that "the student involved here played a much more passive role,"

Answer of Respondents to the Petition for Review, at ¶ 35, is nothing but unsupported

speculation. Incredibly, having never seen the video recording at issue (and having not called

any witnesses to offer first hand testimony), Respondents also accuse Petitioner of

"mischaracteriz[ing] the video." Id. at 1142. The District, however, offered sworn, un-

contradicted testimony that the video recording unquestionably depicts events involving a

student: the student is the focus and subject of the video. (Affidavit, at ¶ 6-7; N.T. 11-12, 40-

41.) Indeed, student discipline was levied as a result of a student's actions and conduct that was

depicted on the video recording. (N.T. 12, 40-41.)

That the video recording also depicts conduct of a non -student does not eliminate the

FERPA protections afforded to the involved students' education records. Rhea, 109 So.3d at

858. In fact, it would be nonsensical to suggest that the presence of a non -student, such as a

parent, custodian, teacher, teacher's assistant, cafeteria worker, administrative staff, or any other

individual, divests such records of protections expressly provided by FERPA. It is a

fundamental mischaracterization of Petitioner's position, as well as FERPA, to suggest that

shielding these records from public view "would have the perverse effect of elevating the privacy

interests of adult offenders over student and parent access to information regarding student

safety." Answer of Respondents to the Petition for Review, at ¶ 35. In fact, the FERPA

protections provided here and advocated for by Petitioners are the privacy interests afforded to

the students - the privacy interest of any non -students captured on the video recordings is not at

issue, at all.

{L06840722) 20

R. 307a

Instead, there can be no question that FERPA expressly provides access to parents and

students to that student's "education records." 20 U.S.C. § 1232g(a)(1)(A). What FERPA does

not permit is: (1) a parent's or student's access to another student's education record; and (2) the

public's access to any students' education records. Yet, despite these express privacy protections

afforded to students, OOR has carte blanche eliminated these protections by misinterpreting the

statute, thereby allowing free access to the public to any and all video recorded images of

students on School campuses. The consequences of such public access cannot be overstated and

subjects School children to being exposed for anticipated private behaviors in seemingly

secluded areas on School property or objectified by ill -meaning members of society.

Based on all of the authority specifically addressing School video recordings, including

case law, Attorney General opinions, other jurisdictions' open records interpretations, and

federal agency guidance, this Court should find that the School bus video recording here contains

information "directly related" to students because students involved in the incident on the School

bus are individually identifiable on the recording and are involved in the conduct at issue in the

recordings. Because the students are individually identifiable, the record satisfies the first prong

of "education record" definition under FERPA.

B. The Video Was Maintained by Persons Acting for the District.

OOR's Final Determination is seemingly based primarily on this second prong of the

statutory test. OOR reaches its conclusion that the video recording was not maintained by the

District by (1) disregarding entirely the sworn testimony of the District's Open Records Officer

and creating its own facts; and (2) disregarding the plain language of the statute in favor of case

law it either misinterpreted or read too broadly in order to improperly narrow FERPA's

applicability.

{L0684072.2} 21

R. 308a

The second prong of the "education records" definition provides that the record is

"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)(ii). Black Law Dictionary defines "maintain" as

follows: 1. To continue (something). 2. To continue in possession of (property, etc.). Black's

Law Dictionary (loth Ed. 2014). Based on the common understanding and definition of

"maintain" the statute merely requires that the District, or a person acting for the District,

"continue in possession of' the video recording. The District here has established that the video

recording is "maintained by" the District in accordance with the plain language of the statute.

The OOR's decision which engrafts particularized requirements for how, when, where, and why

a record be "maintained by" the District, plainly oversteps its authority and diverges from well -

established statutory construction principles.

Specifically, the case law cited by OOR does not stand for the propositions for which it

relies upon:

Owasso Independent Sch. Dist. v. Falvo, 534 U.S. 426 (2002): OOR contends that this case stands for the broad proposition that "individual student papers are not 'education records' under FERPA because they were not maintained in a central file by the official records custodian." OOR Final Determination, at 4. Contrary to OOR's assertion, the Court limited its holding to the "narrow point" that individual student papers in the hands of student graders are not education records "at that stage." Falvo, 534 U.S. at 433-36 (emphasis added). In fact, the Court did not purport to limit "education records" to only those records relating to academic performance nor did it suggest any requirement that such records must be maintained in that particular student's permanent file. Instead, the Court offered nothing more than that the "word 'maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the School or on a permanent secure database, perhaps even after the student is no longer enrolled." Id. at 433.

Bd. of Educ. of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011) (case not selected for publication): OOR contends that tally sheets are not "educational records" because the records were not part of the student's permanent file. OOR Final Determination, at 4. The Horen court, however, in relying on Falvo, merely found that "the word 'maintain' requires

(L0684072.2) 22

R. 309a

the records be kept in a permanent facility." Horen, 2011 U.S. App. LEXIS 26644, at *20 (emphasis added). It held that "temporary notes made by [the

student's] teacher, for the teacher's own use, which were subsequently destroyed, [we]re not educational records." Id. at *20-21.

Pollack v. Regional Sch. Unit 75, 2015 U.S. Dist. LEXIS 55992 (D. Me, 2015): OOR contends that Pollack held that "education records" are those records which follow a student from "grade to grade." OOR Final Determination, at 4.

Pollack, however, did not hold that at all. Instead, the court relied on Oswasso, noting that the term "maintain" was intended to refer to "institutional records kept in a single place." The court's passing reference to the phrase "grade to grade" is mere dicta offered to support its proffered distinction between education records under FERPA and education records under The Individual with Disabilities Education Act. Pollack, 2015 U.S. Dist. LEXIS 55992, at *24.

S.A. v. Tulare County Office of Educ., 2009 U.S. Dist. LEXIS 93170 (E.D.Cal. 2009): OOR again engrafts a requirement that the record be a part of the student's permanent file where one does not exist. OOR Final Determination, at 4 (emphasis added). Instead, the court focused on emails which were temporary because they were deleted and records that "will be kept in a filing cabinet in a records room at the School or on a permanent secure database." S.A., 2009 U.S. Dist. LEXIS 93170, at *

10 (citing Owasso, 534 U.S. at 434). Indeed, the court indicated that "emails, whether in hard copy or in electronic format, may be education records so long as the educational institution maintains them." Id. at *9.

Contrary to OOR's recitation, each one of these cases stands for the proposition that the

records are "maintained by" an educational institution if the institution continues in possession of

the record in some reasonable fashion. These cases do not set forth specific manner, mode, time,

place, etc requirements for how a District must "maintain" the records. Indeed, to require such

specific maintenance protocols goes well beyond the plain language of the statute and is simply

not practical in light of the thousands of School systems with differing procedures subject to this

federal law across the country.

A School district may "maintain" records in a multitude of ways such as keeping certain

kinds of records in a single place while other kinds of records are kept in another permanent

place or facility. Some records may be hardcopy while others are electronic such that some

records are maintained on a database while others are maintained in a filing room or cabinet. So

(L06E4072.2) 23

R. 310a

long as the District continues in possession of the records for the time period that is reasonable

under the circumstances9 depending on the nature of the record itself, the records are

"maintained by" the District under the plain language of the statute.

As explained by the Bryner court, any suggestion that Owasso (or any other court)

interpreted "maintained by" to suggest FERPA records must be kept in a particularized fashion

such as in a specific filing cabinet in a records room at the School or on a peli !anent secure

database is wrong. Bryner, 351 P.3d at 859, n.4 (citing Owasso Independent Sch. Dist. v. Falvo,

534 U.S. 426 (2002)). Instead, "the question before the [Owasso] Court was whether peer -

graded assignments were education records before receipt and recording by a teacher, and

Owasso did not address the question of what procedures constitute maintenance once the School

is already in possession of a record." Id. Therefore, the Bryner court did "not read Owasso to

impose a strict requirement that records must be kept in a central location such as a filing cabinet

to qualify as an education record as defined in FERPA," and it saw "no basis in the statutory

language of FERPA to impose such a strict limitation." Id. The Bryner court's analysis is sound

and should be adopted by this Court.

OOR's singular and unsupported conclusion that education records must be "part of the

student's permanent academic file," is nothing more than a requirement invented by OOR to

justify its decision that flies in the face of the plain language of the statute and case law

interpreting the same. The video recording here is maintained by the District in a single location

and as part of its permanent records. The District's Open Records Officer affirmed that the

video recording was "maintained by" the District under this precise understanding of its

9 Any suggestions that the records must be maintained "forever" is simply untenable.

{L0684072,2) 24

R. 311a

definition in her Affidavit to the OOR. See Affidavit attached as Exhibit E to the Petition for

Review, at ¶ 8.

In addition, Ms. McConnell offered testimony establishing that the District's Director of

Transportation, not any law enforcement unit, has responsibility for maintaining the District's

video recording system. (N.T. 13.) The District does not maintain every recording captured via

School video cameras throughout its campuses. (N.T. 7.) Instead, when a particular issues

arises, video recordings may be retrieved and converted to permanent form for review by

following an established procedure set by the District. (N.T. 9.)

This particular video recording was converted to a permanent form when it was pulled

from the School bus video recording system for the purpose of investigating student and staff

conduct captured on the recording. (N.T. 7-8, 10, 12.) This particular video recording has

thereafter been maintained by Ms. McConnell in a fireproof safe that is locked in

Ms. McConnell's office.1° (N.T. 13.) OOR's conclusion that the District does not "maintain"

the video recording under FERPA because it is not specifically located in a particular "student's

permanent academic file," OOR Final Determination, at 5, is not supported by the law or the

facts of this case. Therefore, OOR's decision that the video recording is not maintained by the

District must be reversed.

Notably, OOR reached its decision which overruled five years of OOR's own precedent,

(on which the District was entitled to rely) without providing a hearing on this matter. Contrary

to OOR' s present determination, however, its determination in Remling properly applied the

plain language of the statute in determining that the School bus video recording was an education

record protected from disclosure under FERPA. See Remling v. Bangor Area School District,

i° Ms. McConnell was a member of the team investigating the conduct recorded on the video and is the District's Open Records Officer. (N.T. 10.)

(L0684072.2) 25

R. 312a

2011 WL 554115 (Pa. Off. Open Rec. February 1, 2011). OOR's determination has

demonstrated that it has simply failed to interpret and apply the provisions of FERPA consistent

with the federal government's own guidance as well as well -established precedent. Its

conclusions in this case are not supported by the law or the facts and its Final Determination

must be reversed.

2. Disclosure of the School Bus Video Recording Would Result in a Loss of Federal Funds Because FERPA Financially Penalizes Schools that Release Education Records Without Parental Consent and the Video Recording Is Therefore Exempt From Disclosure Under the RTKL.

In addition to the basis for denial above, the video is also exempt from disclosure under

Section 708(b)(1) of the RTKL. Under Section 708 of the RTKL, a record, the disclosure of

which "would result in the loss of Federal or State funds by an agency or the Commonwealth" is

exempt from disclosure. 65 P.S. § 67.708(b)(1)(i). FERPA expressly indicates that it financially

penalizes school districts "which [have] a policy or practice of permitting the release of

education records ... of students without the written consent of their parents." 20 U.S.C.

§ 1232g(b)(1)

FERPA conditions an educational institution or agency's federal education funding on

"maintaining the privacy" of "education records other than directory information." West

Virginia liewspapa Publishing Co., 2006 WL 4642782 (citing 20 U.S.C. § 1232g(b)(2)).

Under FERPA, Schools and educational agencies receiving federal financial assistance must comply with certain conditions. One condition specified in the Act is that sensitive information about students may not be released without [the student's [or parent's]] consent." The FERPA unambiguously conditions the grant of federal education funds on the educational institutions' obligation to respect the privacy of students and their parents. Based upon these clear and unambiguous terms, a participant who accepts federal education funds is well aware of the conditions imposed by the FERPA and is clearly able to ascertain what is expected of it. Once the conditions and the funds are accepted, the School is indeed

(L0684072.2) 26

R. 313a

prohibited from systematically releasing education records without consent.

United States v. Miami Univ., 294 F.3d 797, 809 (6th Cir. 2002) (internal citations omitted)

(emphasis added).

Therefore, FERPA protects education records from disclosure and financially penalizes

School districts that lack a policy for protecting such records. Respondents suggests that

releasing the video here would not constitute a "policy or practice" because the video would be

released pursuant to an administrative decree or court order. Answer of Respondents to Petition

for Review, at ¶ 53. This argument is entirely lacking in logic. Essentially, Respondents suggest

that the District must properly refuse to release the education record and then litigate the issue

each time until it receives "an administrative decree or a court order" which would allow the

District to release the education record under FERPA. Certainly, federal and state funds

provided to educational institutions were intended for better use.

Equally lacking in logic is Respondents next position that "as of a year ago, the

Department of Education has never withdrawn federal funds based on a FERPA violation."

Answer of Respondents to Petition for Review, at ¶ 53. Here, Respondents take the apparent

position that since it believes no one has been punished yet for violating federal law, the District

should just violate federal law because it probably will not get into any trouble for doing so.

However, the "but he did it and didn't get in trouble" defense often used by elementary School

children is not likely to find solid footing when the federal agency does pursue educational

institutions for FERPA violations. Indeed, it is not a risk the District here is willing to take.

Because the District receives federal funding, it is prohibited from releasing education

records, such as the recording, except as permitted by FERPA. The disclosure of the video

recording at issue could result in the loss of Federal funds by the School District. Therefore, the

{L0684072.2} 27

R. 314a

record is also exempt from disclosure under Section 708(b)(1)(i) of the RTKL and the OOR's

determination directing disclosure must be reversed.

3. The School Bus Video Recording Is a Record Relating to a Noncriminal Investigation and Is Exempt Under Section 708(b)(17) of the RTKL.

The OOR's Final Determination that the School bus video is not a record relating to the

District's noncriminal investigation of the events depicted in the video recording is also clearly

erroneous and must be reversed. The video recording constitutes a record relating to a

noncriminal investigation. Section 708(b)(17) of the RTKL, specifically exempts from

disclosure a record of an agency relating to a noncriminal investigation. The RTKL defines

records relating to a noncriminal investigation as including:

(i) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports." (iii) A record that includes the identity of a confidential source .... (iv) A record that includes information made confidential by law. (v) Work papers underlying an audit. (vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court.

(B) Deprive a person of the right to an impartial adjudication. (C) Constitute an unwarranted invasion of privacy. (D) Hinder an agency's ability to secure an administrative or civil

sanction. (E) Endanger the life or physical safety of an individual.

65 P.S. § 67.708(b)(17).

11 OOR flippantly drops a footnote purporting to suggest that videos can never be a part of a noncriminal investigation as follows: "Additionally, while Section 708(b)(16) of the RTKL references videos as a type of record that may related to a criminal investigation, Section 708(b)(17) of the RTKL contains no reference to videos." OOR Final Determination, at 8, n.3. Petitioner can locate no other case where OOR has taken such an astonishing position, particularly in light of the actual definition of "record" under the RKTL, which specifically includes "film or sound recording." 65 P.S. § 67.102.

{L0684072.2} 28

R. 315a

The "term 'investigation' means a systematic or searching inquiry, a detailed

examination, or an official probe." Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth.

2011) (quoting Dep't of Health v. 00R, 4 A.3d 803, 810-11 (Pa. Cmwith. 2010)). The

Commonwealth Court examined the noncriminal investigation exception as it pertains to

"education records" in Sherry v. Radnor Twp. Sch. Dist. There, the Commonwealth Court

affirmed the denial of a request to inspect de -identified records of honor code violations

maintained by the district because it determined the records were exempt from disclosure under

the RTKL as noncriminal investigation records. The Court found that the records were evidence

of the district's official probe into a purported rule violation on the district's premises, contained

a description of the violative conduct, contained witness/teacher statements, and contained a

description of the course and result of the investigation. Id. at 523-24. Thus, the Court found the

records constituted noncriminal investigation records and were exempt pursuant to this

exception. Id. at 524.

Here, the video recording contains information relating to an incident on a School bus

which involved students and a parent of a student. The video recording documents activities that

were noncriminal in nature (even if certain events are alleged at one time to be criminal in

nature). As affirmed by the District's Open Records Officer, the School District conducted a

detailed examination and official probe into the incident which occurred on the District's

premises and in District property. See Affidavit attached to Petition for Review as Exhibit E, at

11118. Ms. McConnell further testified that the District conducted an extensive investigation into

the conduct at issue, which included analysis of the video recording, interviewing students,

interviewing staff, speaking with parents, among other things. (N.T. 10-11.) The investigation

was lengthy and Ms. McConnell was personally involved in it. (N.T. 11.)

{L0684072.2} 29

R. 316a

The video recording contains an actual depiction of the events in question and is evidence

of the conduct subject to the investigation. The record, the permanent form of the video

recording, was created for the purpose of investigating student and staff conduct for safety and

discipline purposes after reports regarding an issue where received by the District. (N.T. 9-10.)

If the District had not been conducting an investigation, then this video recording would never

have existed in permanent form as it would have been recorded over within ten to fourteen days.

(N.T. 7-8.) Thus, the record relates to a noncriminal investigation because it constitutes

"investigative materials, notes, correspondence and reports" of the investigation and is also a

record that includes information made confidential by law. 65 P.S. § 67.708(b)(17)(ii), (iv); see

also Sherry, supra.

OOR contends that the District "investigating an assault12 on a student by the parent of

another student ... cannot be said core function of educating students,

and can only be said to be 'ancillary' to the District's mission." OOR Final Determination, at 7.

Furthermore, it contends the District has "pointed to no legislatively -granted fact-finding

authority' to conduct a noncriminal investigation." Id.

OOR's suggestion that a School district may only conduct "noncriminal investigations"

related to its "core function of educating students" is wrong. See OOR Final Determination, at 7.

Among other core functions, the District also has a core function of ensuring the safety of its

students.13 See, e.g., 24 P.S. §§ 13 -1301 -A -13-1313-a; 22 Pa. Code §§ 10.1-10.25 (relating to

the District's obligation to ensure "Safe Schools"); 24 P.S. § 5-510 (relating to the District's

12 It must be noted that OOR's characterization of the incident as "an assault" is erroneous and inflammatory. Indeed, neither party to this action has characterized the incident as such, nor is such a description accurate.

13 The School Code provides that the "board of School directors in each School district is hereby vested with, all

necessary power and authority to comply with and carry out any or all of the provisions of this act." 24 P.S. § 5-

507.

(L06840722) 30

R. 317a

ability to adopt and enforce such reasonable rules and regulations regarding management of

School affairs and conduct of pupils).

Further, the District has a core function of ensuring staff and students conduct themselves

appropriately and levying discipline when necessary and after a full and fair investigation. See,

e.g., 24 P.S. § 5-510; 24 P.S. § 5-511 (providing that the District has authority to "prescribe,

adopt, and enforce such reasonable rules and regulation as it may deem proper, regarding ... the

management, supervision, control, or prohibition of exercises, athletics, or games of any kind ...

and may provide for suspension, dismissal, or other reasonable penalty in the case of any

appointee, professional or other employee, or pupil who violates any such rules or regulations");

24 P.S. § 7-775 (providing that the District has authority to "permit the use of its School grounds

and buildings for social, recreation, and other proper purposes, under such rules and regulations

as the board may adopt"); 24 P.S. § 5-514 (providing that the District has authority "to remove

any of its officers, employees, or appointees for incompetency, intemperance, neglect of duty,

violation of any of the School laws ... or improper conduct); 24 P.S. § 13-1317 (relating to

authority as to conduct and behavior over pupils); 24 P.S. § 13-1318 (relating to the District's

authority to suspend or expel pupils on account of disobedience or misconduct).

Indeed, each of these provisions provide "legislatively -granted fact finding and

investigative powers" to the District to regulate and investigate student, staff, and visitor

conduct, such as the student conduct captured in the video at issue here, as well as levy discipline

or take other action on behalf of or against a student. OOR has, in fact, previously recognized a

School district's authority to conduct noncriminal investigations pursuant to 24 P.S. §§ 5-502, 5-

507, 5-511, 5-514, 7-775, 13-1317, and found such records exempt from disclosure under

Section 708(b)(17) of the RTKL. In the Matter of Lance and Sarah Farmer v. Susquenita Sch.

{L0684072.2} 31

R. 318a

Dist., OOR Dkt. AP 2015-0447 (April 28, 2015) (finding that the District, as part of its "official

duties of overseeing the conduct and behavior of pupils" conducted a noncriminal investigation

based on a complaint received about the Requesters' daughter); In the Matter of Barry Katz v.

Lower Merion Sch. Dist., AP 2015-0749 (July 8, 2015) (holding that "Nnvestigating complaints

and allegations of improper staff conduct is an official duty of the District").

In addition, the "Safe Schools" provisions at 24 P.S. §§ 13-1301-A et seq. expressly

empowers the District to investigate conduct by non -students "on School property, at a School

sponsored activity or on a conveyance ..., such as a School bus, providing transportation to or

from a School or School sponsored activity." 22 Pa.Code § 10.1. Ms. McConnell testified at the

hearing that the District is charged, under the School Code, with creating and maintaining a safe

School. (N.T. 9.) She testified that this obligation extends to behavior on School buses. (N.T.

9.) The District's mission to ensure the safety of its students under this statutory mandate is

anything but "ancillary."

Moreover, the District's fact-finding and investigative power is also inherent in its duties

to implement and enforce rules and regulations regarding the management of School affairs,

conduct of employees, and conduct of students when they are under the District's supervision.

24 P.S. § 5-510. Such obligations are not limited strictly to educational functions. As such,

OOR's determination that the District was not empowered to conduct a noncriminal investigation

of an incident which involved a student and a parent of a student on the District's premises and

in District property is simply without merit.

Finally, OOR's citation to Pennsylvania State Police v. Grove, 133 A.3 d 292 (Pa.

Cmwlth. 2016) is unavailing for three reasons: (1) criminal cases and criminal investigations are

different in nature than noncriminal investigations; (2) the Grove court merely found that the

(L0684072.2) 32

R. 319a

video at issue did not contain any investigative information, not that such videos could never

contain investigative information, 119 A.3d at 1109; and (3) the Grove case is currently on

appeal to the Pennsylvania Supreme Court to consider the question of whether the video at issue

is exempt from disclosure under Section 708(b)(16) of the RTKL. Pennsylvania State Police v.

Grove, 133 A.3d 292 (Pa. March 15, 2016) (granting appeal).14

Moreover, Contrary to OOR's unsupported assertion, the video recording here does exist

"merely or primarily" for investigative purposes. See OOR Final Determination, at 8. In fact,

this video recording only exists for this purpose. (N.T. 7-10.) The District does not retain

surveillance videos for any other purpose and only created a permanent form of this video to

conduct its investigation. (N.T. 7-10.) Without the investigation, this video recording would

never have existed. (N.T. 7-8.) The video recording here is a record relating to the District's

noncriminal investigation of this matter. See Affidavit Attached to the Petition for Review as

Exhibit E, at ¶¶ 17-18. It contains an actual depiction of both the student's conduct and the non -

student's conduct. It is the investigative material central to the noncriminal investigation of the

events in question. Accordingly, OOR's determination that the video recording is not exempt

under the noncriminal investigation exception of the RTKL must be reversed.

Therefore, in addition to the FERPA protections, the video records is also exempt under

the noncriminal investigation exception of the RTKL.

14 To the extent the Court reaches this issue and finds Grove, persuasive, Petitioner respectfully requests that the Court hold its decision in this matter until the Pennsylvania Supreme Court issues its decision in the Grove matter.

{L0684072.2) 33

R. 320a

4. The Student's Privacy Interests Expressly Provided by FERPA, a Federal Statute, Outweigh Any Presumption of Openness Associated With Judicial Records, and in any Event, the District Is Not the Proper Party to Provide Judicial Records.

Respondents contend that the "Pennsylvania Supreme Court has determined that tape

recordings played during preliminary hearings are public judicial records or documents to which

the common law right of access attaches." Answer of Respondent's to Petition for Review, at

68 (citing Commonwealth v. Upshur, 924 A.2d 642, 653 (Pa. 2007)). Such a statement,

however, simply does not accurately portray the state of the law. First, the Upshur opinion is a

plurality opinion. Second, while there may be a presumption, it is not absolute.

The Court explained in Upshur that:

While there is a "presumption - however gauged - in favor of public access to judicial records," ... the right to examine public judicial documents is not absolute, and courts retain supervisory power over their records and documents." See [Commonwealth v. Fenstennaker, 530 A.2d 414 (Pa. 1987)). Indeed, this Court has determined that, `[w]here the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied." Id.

Upshur, 924 A.2d at 651 (emphasis added); see also Commonwealth v. Sartin, 708 A.2d 121,

123 (Pa. Super. Ct. 1998) ("At the discretion of the trial judge and in the interest of protecting

public as well as private interests, the public may be excluded, temporarily or permanently, from

being present at certain judicial proceedings or examining the records of such proceedings.").

The express confidentiality protections afforded to this video recording under FERPA

easily outweigh the presumption of openness. Respondents contend that there is no basis for

denying access because "there is no chance that prejudice would result from a broadcast of the

Video, given that the harassment charge has been dismissed .." Answer of Respondents to

Petition for Review, at ¶ 68. This argument, however, misses the mark. The proper focus is the

(L0684072.2) 34

R. 321a

privacy interests afforded to the students under FERPA. The students' and parents' rights to

maintain privacy and prevent the broadcast of their images based on the express confidentiality

protections provided under federal statute must trump any presumption under the circumstances.

Indeed, even when lawfully disclosing education records under FERPA, the District may

disclose the education records "only on the condition that a party to whom the information is

disclosed will not disclose the information to any other party without the prior consent of the

parent or eligible student. " 34 C.F.R. § 99.33(a)(1). The party that receives the info,.niation

"may use the information, but only for the purposes for which the disclosure was made." Id.

§ 99.33(a)(2). Any subsequent re -disclosure would require notification to the parents of the

student such that a protective order can be sought. Id. § 99.33 (b)(2). FERPA plainly intends

that education records disclosed for lawful purposes will nevertheless remain confidential despite

use for such lawful purpose. Congress' intent to protect the confidentiality of these records must

outweigh any presumption of openness.

Moreover, even if the private confidentiality interests of the students here were not

outweighed by the presumption, the District is nevertheless prohibited from providing the video

recording under FERPA - the District is simply not the proper party to provide the video

recording under this presumption.

Finally, it must be noted that only a small portion of the video tape was played at the

preliminary hearing, and, as such, any release under this presumption must be limited to that

portion of the video recording.

(L0684072.2) 35

R. 322a

V. CONCLUSION

Central Dauphin School District requests this Honorable Court issue an order granting the

Notice of Appeal/Petition for Review and reversing the Final Determination of the Office of

Open Records. The Requester's request for access to the School bus video recording should be

denied under Pennsylvania Right to Know Law.



Michael McAuliffe Miller, Est wire (I.D. No. 78507) Tricia S. Lontz, Esquire (I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 [email protected] [email protected] Telephone: (717) 237-6000

Date: May 22, 2017 Counsel for Central Dauphin School District

111.0684072.2) 36

R. 323a


I hereby certify that I have served a true and correct copy of the foregoing Post -hearing

Brief upon the parties listed below by United States Postal Service First Class Mail, postage

prepaid, as follows:

May 22, 2017

{L0684072.2)

Craig J. Staudenmaier, Esquire Nauman, Smith, Shissler & Hall, LLP

200 North 3rd Street, 18th Floor Harrisburg, PA 17101

Charles Rees Brown, Esquire Commonwealth of Pennsylvania

Office of Open Records Commonwealth Keystone building

400 North Street, 4th Floor Harrisburg, PA 17120-0225

37

R. 324a

)g,vrtraTT:

R. 325a


Petitioner

VS.

VALERIE HAWKINS, FOX 43 NEWS, and THE COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Respondents

: NO. 2016 CV 4401 MP

TRANSCRIPT OF PROCEEDINGS

APPEAL HEARING

[Pages 1 - 55]

BEFORE: HONORABLE WILLIAM T. TULLY

DATE: THURSDAY, MARCH 30, 2017

PLACE: COURTROOM NO. 11

JUDICIAL JUSTICE CENTER HARRISBURG, PENNSYLVANIA

APPEARANCES:

MICHAEL MCAULIFFE MILLER, ESQUIRE

For - Petitioner

CRAIG J. STAUDENMAIER, ESQUIRE

For - Respondents


R. 326a

/

R. 327a

SpecialEdConnectiona Case Report

7 FAB 40

104 LRP 44490

Letter re: Berkeley County School District Family Policy Compliance Office

N/A

February 10, 2004

Judge / Administrative Officer Ricky C. Norment, Program Specialist

Case Summary The parent claimed a FERPA violation occurred

when the district allegedly refused access to a

videotape of an altercation between her son and a

police officer. FPCO pointed out that if the child was

the only student pictured fighting in the tape, the

parent would have a right to inspect and review it.

However, if another student also was pictured fighting in the video, then the parent would not have FERPA inspection rights over that portion of the tape.

Assuming the parent's son was the only student

pictured fighting with the police officer on tape, FPCO suggested the parent write to the appropriate district official and request an opportunity to view the

video. If the district fails to provide such opportunity

within 45 days, the parent was advised to contact

FPCO again.

Full Text Appearances:

Mr.[]

[]

Dear Mr. [

This is in response to your complaint to the

Department's Office for Civil Rights (OCR) in which

you allege that the Berkeley County School District

(District) violated your rights under the Family Educational Rights and Privacy Act (FERPA) when it failed to provide you access to your son's education records. Specifically, it appears that you are seeking access to a videotape of an altercation between your

son and a police officer. Your complaint was

forwarded to this Office for response because we

administer FERPA which addresses issues that pertain to education records.

FERPA is a Federal law that gives custodial and

noncustodial parents alike the right to have access to

their children's education records unless the school

has evidence that there is a court order or State law

that specifically provides to the contrary. The term "education records" is defined as those records that contain information directly related to a student and

which are maintained by an educational agency or institution or by a party acting for the agency or institution. Enclosed for your information are a

FERPA fact sheet and complaint form.

Under FERPA, a school must provide a parent with an opportunity to inspect and review his or her child's education records within 45 days of the receipt of a request. A school is not, however, required to

comply with a standing request for access to

education records or to provide immediate access to

education records. Rather, it must comply with each

individual request for such access.

If the education records of a student contain information on more than one student, the parent requesting access to education records has the right to

inspect and review, or be informed of, only the information in the record directly related to his or her

child. If our understanding of the information in your complaint is accurate, your son is the only student pictured fighting in the videotape. If this is the case,

you would generally have the right under FERPA to

inspect and review the videotape. If, on the other hand, another student is pictured fighting in the

videotape, you would not have the right to inspect and review that portion of the videotape.

This Office investigates those timely complaints that contain specific allegations of fact giving reasonable cause to believe that a school has failed to

comply with FERPA. A timely complaint is defined as one that is submitted to this Office within 180 days of the date that the complainant knew or reasonably should have known of the alleged failure to comply

Copyright © 2017 LRP Publications 1

R. 328a

SpecialEdConnection® Case Report

with FERPA. It appears that your letter to OCR was

written before the expiration of the 45 days permitted

by FERPA for the District to comply with your

request. If you believe you now have a timely

complaint of an alleged failure by the District to

comply with your right to have access to education

records, please complete the enclosed complaint form

and include; the date you requested access to the

videotape; the name of the official to whom your

request was made (please provide us with a copy of any written request); and the response of that official,

if any. We will review the information you submit

and take any appropriate action.

However, in order to exercise your rights under

FERPA, you may want to write to the appropriate

official in the District and request an opportunity to

view the videotape. Although it is not required, you

may want to include a copy of this letter along with

your request. If the District fails to provide you the

opportunity to inspect and review the videotape or

fails to contact you within 45 days, you may write to

this Office again. At such time, please provide us with

a dated copy of your letter to the District; any

response from the District, and a completed copy of the enclosed complaint form. We will review the

information you submit and take any appropriate

action.

I trust that the above information is helpful in

explaining the scope and limitations of FERPA.

Copyright 2017 LRP Publications 2

R. 329a

vitnr,TTirr.

R. 330a

5/21/2017 Abbott Open Records Letter Ruling OR2006-07701

ATTORNEY GENERAL OF TEXAS GREG ABBOTT

July 18, 2006

Mr. William C. Bednar Law Office of William C. Bednar

712 West 14th Street, Suite A Austin, Texas 78701-1708

Dear Mr. Bednar:

OR2006-07701

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 255439.

The Wylie Independent School District (the "district"), which you represent, received five requests "to

view the tapes of A & B lunch on Thursday, May 4, 2006.411 You claim that the requested information is excepted from disclosure under section 552.114 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, we must address the district's obligations under the Act. Pursuant to section 552.301(e), a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code § 552.301(e). You failed to submit to this office copies of the written requests for information. Thus, the district failed to comply with the procedural requirements mandated by section 552.301.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App. --Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). A compelling reason exists when third -party interests are at stake, or when information is confidential under other law. Open Records Decision No. 150 (1977). Because section 552.114 of the Government Code can provide a compelling reason to withhold information, we will address this exception.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Gov't Code § 552.101. This section encompasses information protected by other statutes such as the Family Educational Rights and Privacy Act of 1974 ("FERPA"). See 20 U.S.C. § 1232g(b)(1). FERPA provides that no federal funds will be made available under any applicable program to an educational agency or institution that releases personally identifiable information (other than directory information) contained in a student's education records to anyone but certain enumerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 20 § 1232g(b)(1); see also 34 C.F.R. § 99.3

https://texasattorneygerteraLgov/opinions/openrecords/50abbott/or1/2006/htm/or200607701.htm R. 331a 1/4


(defining personally identifiable information). Under FERPA, "education records" means those records that 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. See 20 U.S.C. § 1232g(a)(4)(A). Section 552.026 of the Government Code provides that "information contained in education records of an educational agency or institution" may only be released under the Act in accordance with FERPA. This office generally applies the same analysis under section 552.114 of the Government Code and FERPA. Open Records Decision No. 539 (1990).

In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state - funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. See Open Records Decision No. 634 at 6-8 (1995). In this instance, you have submitted information that you contend is confidential under FERPA. Accordingly, we will address your claim.

Generally, information must be withheld from required public disclosure under FERPA to the extent "reasonable and necessary to avoid personally identifying a particular student." See Open Records Decision Nos. 332 (a982), 206 (1978). Such information includes both information that directly identifies a student, as well as information that, if released, would allow the student's identity to be easily traced. See Open Records Decision No. 224 (1979) (finding student's handwritten comments protected under FERPA because they make identity of student easily traceable through handwriting, style of expression, or particular incidents related).

The submitted information is a DVD of the requested videotape. You explain that this disc contains the surveillance recordings "from about 11:15 AM to 12:56 PM on May 4, 2006" from two different cameras that are located within the cafeteria. Thus, the disc contains images of those involved in an altercation and those who were not involved. You state that FERPA applies to all of the student images. However, the Family Policy Compliance Office of the Department of Education ("DOE") has determined that videotapes of this type do not constitute the education records of students who did not participate in the altercation. Thus, FERPA does not apply to the images of the students who did not participate in the altercation. The DOE has, however, determined that the images of the students involved in the altercation do constitute the education records of those students. Thus, FERPA does apply to the students involved in the altercation. Further, DOE has determined that the students involved in the altercation are directly related to each other because of the altercation.

In this instance, the requestors are students and the parents of students who were involved in the altercation at issue. Thus the students' images and those of the other participants to the altercation are considered their educations records that are directly related to each other. We note that FERPA grants both a student and the parents of a student a right of access to the educational records of that student. See 20 U.S.C. § 1232g(a)(1)(A). Thus, since the other students involved in the altercation are directly related to the requestors or the requestors's children, the requestors have a right of access to the entire DVD.

Accordingly, the district must release the submitted DVD to the requestors.a)

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling

https://texasattorneygeneraLgov/opinions/openrecords/50abbott/orl/2006/htm/or200607701.htm R. 332a 2/4


and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over -charging must be directed to Hadassah Schloss at the Office of the Attorney General at (512) 475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Anne Prentice Assistant Attorney General Open Records Division AP/sdk Ref: ID# 255439 Enc. Submitted documents

c: Mr. Tony B. 138 CR 127 Tuscola, Texas 79562 (w/o enclosures)

Ms. Becky J. 967 Bacacita Farms Road Abilene, Texas 79602 (w/o enclosures)

Mr. Jacob J. 967 Bacacita Farms Road Abilene, Texas 79602 (w/o enclosures)

Ms. Brandi B. 3534 Potosi Road Abilene, Texas 79602 (w/o enclosures)

Mr. Chance P.

3534 Potosi Road

https:fitexasattomeygeneral.gov/opinions/openrecords/50abbattior1/2006/htm/or200607701.htm R. 333a 3/4


Abilene, Texas 79602 (w/o enclosures)

Footnotes

1. As you failed to submit copies of the written requests for information, we take our description from your brief.

2. If you have questions as to the applicability of FERPA to information that is the subject of an open records request, you may consult with the United States Department of Education's Family Policy Compliance Office, whose address and telephone number follow:

Family Policy Compliance Office United States Department of Education 600 Independence Avenue S.W. Washington, D.C. 20202-4605 (202) 260-3887

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.Ua An Equal Employment Opportunity Employer

Home I ORLs

https://texasattorneygeneral .gov/opinions/openrecords/50abbott/or1/2006/11m/or 200607701.htm R. 334a 4/4



January 13, 2006

Mr. Philip Marzec Escamilla & Poneck, Inc. P.O. Box 200 San Antonio, Texas 78291-0200

Dear Mr. Marzec:

OR2006-00484


The Edgewood Independent School District (the "district"), which you represent, received a request for a specific videotape of a lunch room altercation involving the requestor's son. You claim that the submitted information is excepted from disclosure under sections 552.026, 552.101, and 552.114 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Gov't Code § 552.101. This section encompasses infounation protected by other statutes such as the Family Educational Rights and Privacy Act of 1974 ("FERPA"). See 20 U.S.C. § 1232g(b)(1). FERPA provides that no federal funds will be made available under any applicable program to an educational agency or institution that releases personally identifiable information (other than directory information) contained in a student's education records to anyone but certain enumerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 20 U.S.C. § 1232g(b)(1); see also 34 C.F.R. § 99.3 (defining personally identifiable information). Under FERPA, "education records" means those records that 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. See 20 U.S.C. § 1232g(a)(4)(A). Section 552.026 of the Government Code provides that "information contained in education records of an educational agency or institution" may only be released under the Act in accordance with FERPA. This office generally applies the same analysis under section 552.114 of the Government Code and FERPA. Open Records Decision No. 539 (1990).

In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state - funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. See Open Records Decision No. 634 at 6-8 (1995). In this instance, you have submitted information that you contend is confidential under FERPA. Accordingly, we will address your claim.

Generally, information must be withheld from required public disclosure under FERPA to the extent "reasonable and necessary to avoid personally identifying a particular student." See Open Records

https://texasattorneygeneraLgov/opinions/openrecords/50abbotUor1/2006/htm/or200600484.htm R. 335a 1/4


'Decision Nos. 332 (a982), 206 (1978). Such information includes both information that directly identifies a student, as well as information that, if released, would allow the student's identity to be easily traced. See Open Records Decision No. 224 (1979) (finding student's handwritten comments protected under FERPA because they make identity of student easily traceable through handwriting, style of expression, or particular incidents related).

The submitted information is a compact disc of the requested videotape. You explain that this disc contains the "video" for the first lunch period from four different cameras that are located within the cafeteria, some of which recorded the altercation at issue and some of which did not pick it up. Thus, the disc contains images of those involved in an altercation and those who were not involved. You state that FERPA applies to all of the student images. However, the Family Policy Compliance Office of the Department of Education ("DOE") has determined that videotapes of this type do not constitute the education records of students who did not participate in the altercation. Thus, FERPA does not apply to the images of the students who did not participate in the altercation. The DOE has, however, determined that the images of the students involved in the altercation do constitute the education records of those students. Thus, FERPA does apply to the students involved in the altercation. Further, DOE has determined that the students involved in the altercation are directly related to each other because of the altercation.

In this instance, the son of the requestor was involved in the altercation at issue and thus his image and those of the other participants to the altercation are considered their educations records that are directly related to each other. We note that FERPA grants the parents of a student a right of access to the educational records of that student. See 20 U.S.C. § 1232g(a)(1)(A). Thus, since the other students involved in the altercation are directly related to the requestor's son, the requestor has a right of access to the entire compact disc. Accordingly, the district must release the submitted compact disc to the

requestor.W


This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App. --Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for

https://texasattorneygeneraLgov/opinions/openrecords/50abbott/or1/2006/htm/or200500484.htrn R. 336a 214


'the information are at or below the legal amounts. Questions or complaints about over -charging must be directed to Hadassah Schloss at the Office of the Attorney General at (512) 475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Jaclyn N. Thompson Assistant Attorney General Open Records Division JNT/segh Ref: ID# 240281 Enc. Submitted documents

c: Mr. & Mrs. Rodriguez 1539 Villa del Sol San Antonio, Texas 78237 (w/o enclosures)

Footnotes

1. If you have questions as to the applicability of FERPA to information that is the subject of an open records request, you may consult with the United States Department of Education's Family Policy Compliance Office, whose address and telephone number follow:

Family Policy Compliance Office

United States Department of Education

600 Independence Avenue S.W.

Washington, D.C. 20202-4605

(202) 260-3887

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512)463-2100 WE13:WWW.OAG.STATE.TXUS An Equal Employment Opportunity Employer

Home I ORLs

https://texasattorneygeneraLgov/opinions/openrecords/50abbotUor1/2006/htrn/or200600484.htm R. 337a 3/4


htlps://texasattorneygeneral.gov/opinions/openrecords/50abbott/or1/2006/htm/or200600484.htm R. 338a 414



April 7, 2005

Ms. Carolyn Hanahan Feldman & Rogers, L.L.P. 5718 Westheimer, Suite 1200 Houston, Texas 77057

Dear Ms. Hanahan:

OR2005-02984


The Klein Independent School District (the "district"), which you represent, received a request for a copy of a videotape made on a specified date, on a specified school bus, during a certain time period. You

claim that the requested information is excepted from disclosure under the Federal Family Educational Rights and Privacy Act of 1974 ("FERPA") and sections 552.026, 552.101, and 552.114 of the Government Code. We have considered your arguments under FERPA and the exceptions you claim and reviewed the submitted videotape.

Section 552.114 of the Government Code excepts from disclosure student records at an educational institution funded completely or in part by state revenue. This office generally applies the same analysis under section 552.114 and FERPA, which is also encompassed by section 552.101 of the Government

Code .W Open Records Decision No. 539 (1990). FERPA provides that no federal funds will be made available under any applicable program to an educational agency or institution that releases personally identifiable information (other than directory information) contained in a student's education records to anyone but certain enumerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 20 U.S.C. § 1232g(b)(1); see also 34 C.F.R. § 99.3 (defining personally identifiable information). "Education records" means those records that 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. See 20 U.S.C. § 1232g(a)(4)(A). Section 552.026 of the Government Code provides that "information contained in education records of an educational agency or

institution" may only be released under the Act in accordance with FERPA. Information must be withheld from required public disclosure under FERPA only to the extent "reasonable and necessary to

avoid personally identifying a particular student." See Open Records Decision Nos. 332 (1982), 206 (1978). Such information includes information that directly identifies a student as well as information that, if released, would allow the student's identity to be easily traced. See Open Records Decision No. 224 (1979) (finding student's handwritten comments protected under FERPA because they make identity of student easily traceable through handwriting, style of expression, or particular incidents related).

In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state - funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. However, because you have

https://texasattorneygeneral.gov/opinions/openrecords/50abbott/or1/2005/htm/or200502984.htm R. 339a 1/3


submitted the video to this office for a decision, we have reviewed it and agree that it is made confidential under section 552.114 and FERPA. The requestor in this instance does not appear to be among the individuals or entities authorized by section 1232g(b) to receive this information. See 20 U.S.C. § 1232g(b)(1) (listing individuals and entities to whom release of education records is authorized). Furthermore, you also have not informed us that the requestor has provided the district with written authorization from any of the students' parents or legal guardians in compliance with section 1232g(b)(2). See 20 U.S.C. § 1232g(b)(2) (prescribing elements of proper written authorization by student's parent or legal guardian). We therefore conclude that the district must withhold the submitted video in its entirety pursuant to section 552.114 and FERPA.


This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the govermnental body to release all or part of the requested information, the govenunental body is responsible for taking the next step. Based on the statute, the attorney general expects that, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411. (Tex. App. --Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over -charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at (512) 475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552,325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Cary Grace Assistant Attorney General Open Records Division ECG/jev Ref: ID# 221680 Enc. Submitted documents

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c: Ms. Carolyn Campbell KHOU-TV, Channel 11

1945 Allen Parkway Houston, Texas 77019 (w/o enclosures)

Footnotes

1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information made confidential by other statutes.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE,TX,US An Equal Employment Opportunity Employe

Home I ORLs

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NOT TO BE PUBLISHED

99-ORD-217

December 2, 1999

In re: Thomas Bennett / Bell County School System

Open Records Decision

The question presented in this appeal is whether the Bell County School System violated the Open Records Act in denying Thomas Bennett's request to

inspect a videotape recording of an incident involving Mr. Bennett's son that occurred on a Bell County school bus on September 1, 1999. For the reasons that follow, we find that the Bell County Schools did not violate the Act in denying the request.

On September 8, 1999, Mr. Bennett requested that he be afforded an opportunity to view "a school bus V.II.S. tape recording [made on] . . .

September 1, 1999, [on] bus number 14, driveln by] Frank Mason." Mr. Bennett explained that the tape recording would reflect that an older student riding the bus threatened and intimidated Mr. Bennett's son, and a number of other younger students. In a response dated September 13, 1999, Director of Transportation for the Bell County School System, Lorraine Brock, denied Mr. Bennett's request, explaining:

Due to the confidentiality of all students that ride our buses only the personnel of the Bell County Board of Education that have received training in confidentiality can view these tapes.

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In addition, Ms. Brock indicated that although there was a camera on bus number 14, a review of the tape disclosed that it ran out on August 30, and was

not immediately replaced. Thus, the incident that occurred on September 1 was not recorded. This appeal followed.

In his letter of appeal, Mr. Bennett noted that he has received conflicting stories concerning the existence of the videotape. lie stated that he had been "led to believe" that Jeff Saylor, Bell County High School, had reviewed the tape, and that Principal Saylor had gleaned additional information about the incident from the tape, including the identities of two other unnamed high school

students who were apparently involved. Mr. Bennett further indicated that on September 7, he and his wife went to Ms. Brock's office where they spoke to an employee named Robert. Mr. Bennett stated that Robert advised them that it was he who retrieved the tape from bus number 14, and delivered it to Principal Saylor with whom he viewed the tape. At this point, Mr. Bennett continued, Ms. Brock arrived at her office, and proceeded to advise the Bennetts that "the tape had been put in new on Wed. Sept. 1, 1999," but had not yet been reviewed. Upon being reminded of Principal Saylor's statements concerning the tape, Mr. Bennett concluded, Ms. Brock confirmed that the tape had run out on the previous day, "then stated [that the Bennetts] could not review the tape because they could not block other kid's [sic] faces." In order to independently substantiate when the tape ran out, Mr. Bennett requested, in the course of his letter of appeal to this office, that the Bell County Public Schools furnish him with "the last 3 minutes of the tape dated 8/30/99, and the [first three minutes of

the] one dated 9/21/99." Mr. Bennett raised a number of additional questions concerning the propriety of Bell County Public School's transportation policies and the adequacy of the methods used in storing the videotapes. However, we must state, at the onset, that these non -open records questions cannot be resolved in the context of a KRS 61.880(2) appeal.

Upon receipt of notification of this appeal, Bell County Public Schools

Safety Director, George Thompson, prepared a supplemental response in which he elaborated on the school system's position. He reaffirmed the view "that a

parent viewing a video of student behavior on a school bus that is inclusive of

students other than their own child is a violation of confidentiality." Continuing, he observed:

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We are not preventing Mr. Bennett from viewing the videos requested in order to hide any evidence regarding an alleged terroristic threat made to his son on 9-1-99. We are only trying to protect the confidentiality rights of the other students that are in the video.

For the first time, the Bell County Public Schools argued, through Mr. Thompson, "that such videos are indeed an educational record that is [sic]

protected by [the Family Educational Rights and Privacy Act]." Mr. Thompson enclosed a copy of Bell County Board of Education policy 06.34, along with a

copy of the system's "Cameras as Surveillance Devices" policy contained in the code of conduct handbook, the texts of which appear below.'

1 The referenced policies provide, in part, as follows:

Board Policy 06-34

VIDEO RECORDING EQUIPMENT

Video cameras may be installed in the District's school buses to record student behavior

during transportation to and from school and school -related events. Evidence of student

misbehavior recorded on video may be used to discipline students under provisions of

governance authorities.

CAMERAS AS SURVEILLANCE DEVICES

The Bell County School District shall continue to utilize cameras on school buses in order

to monitor for safety purposes. In addition, during the 1998-99 year cameras will also be

used in some hall ways at the Bell County Middle School and Bell County High School.

Only school personnel shall have access to tapes for review of student conduct and

behavior unless the parents have signed a release form or unless other students can be

obscured if the tape is shown to persons other than school personnel, due to

confidentiality concerns.

As we have so often observed, a public agency cannot make records confidential or

exempt from public inspection unless the particular records fall within the parameters of

one or more of the exceptions found at KRS 61.878(1)(a) through (1). OAG 82-435; OAG

82-158; 92-ORD-1136; 97-ORD-22. As we will explain more fully below, the record in

dispute in this appeal qualifies for exclusion from public inspection under KRS

61.878(1)(k) and (1) which incorporate the Family Educational Rights and Privacy Act and

its state counterpart into the Open Records Act.

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As an additional basis for denying access to the tape, Robert B. Bowling, attorney for the school system, argued in a letter to this office dated September 24, that "pursuant to KRS 61.878(1)(a) the public records (i.e.,

videotape) requested by Mr. Bennett contains information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of the personal privacy of all of the children on the school bus mentioned." In support, Mr. Bowling cited Kentucky Board of Examiners of

Psychologists v. Courier -Journal, Ky., 826 S.W.2d 324 (1992) and Board of Education

v. Lexington -Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981). In closing, Mr. Bowling reiterated that "the video of the incident in question in unavailable as the videotape ran out on the day prior and was not noticed until the day subsequent to the incident."

We cannot agree that the privacy interests of students engaging in, and subjected to, misconduct in the nondisclosure of a record documenting those activities outweighs the public's interest in disclosure of that record for the open records related purpose of monitoring whether the school system is effectively discharging its duty to insure student safety on school buses. We therefore cannot affirm the Bell County Public School's denial of Mr. Bennett's request on this basis. Nevertheless, we must agree that the disputed videotape, if it exists,2 is an education record within the scope and meaning of the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, and its Kentucky counterpart, codified at KRS 160.700, et seq. Because the record apparently contains information on more than one student, and that information is inextricably intermingled and therefore nonsegregable, we conclude that the school system cannot disclose the videotape in such a way as to meaningfully honor the rights of the Bennetts to inspect the tape without violating the corresponding rights of the other students and their parents in nondisclosure of the tape to third parties.

2 The record abounds with inconsistent statements regarding the existence of the tape. If, in fact,

it does not exist, arguments advanced in support of denying access are superfluous. We therefore

assume that the tape exists, and proceed to assess the validity of the school system's arguments

supporting nondisclosure.

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We begin by noting certain irregularities in the Bell County Schools' original response to Mr. Bennett's request. KRS 61.880(1) establishes guidelines for public agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS

61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a

brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or

under his authority, and it shall constitute final agency action.

In construing this provision, the Kentucky Court of Appeals has observed:

The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed

information in response to a request for documents.

Edmondson v. Alig, Ky.A pp., 926 S.W.2d 856, 857 (1996) (emphasis added). The court concluded that a "limited and perfunctory response" to a request did not "even remotely compl[y] with the requirements of the Act - much less . .

amount [ to substantial compliance." Id.

To the extent that the Bell County Schools' original response to Mr. Bennett's request consisted of little more than a statement that the record was confidential, without reference to the exception upon which it relied or a

supporting explanation of how the exception applied to the records withheld, it was deficient. We remind the Bell County Schools that the requirements set forth in KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the Bell County Schools to review the cited provision to insure that future responses conform to the Open Records Act.

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Turning to the substantive issues in this appeal, we find that the Bell

County Public Schools properly relied on KRS 61.878(1)(k) and 20 U.S.C.

§ 1232(g), the Federal Family Educational Rights and Privacy Act (FERPA), as

well as KRS 61.878(1)(1) and KRS 160.700 et seq., the Kentucky Family Education Rights and Privacy Act (KFERPA), in denying Mr. Bennett's request.3

The Family Educational Rights and Privacy Act of 1974, and its state counterpart, regulate access to "education records." That term is defined at 20

U.S.C.A. § 1232g(4)(A) as "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." With the exception of

certain narrow categories of records identified at 20 U.S.C.A. § 1232g(4)(B)(i)-(iv),

and not relevant here, the term is expansively construed to include all

information, in whatever form, which satisfies the two-part test described above.

The corresponding provision in Kentucky's act defines the term "education record" as:

p]ata and information directly relating to a student that is

collected or maintained by educational institutions or by a person acting for an institution including academic records and portfolios: achievement tests; aptitude scores; teacher and counselor evaluations; health and personal data; behavioral and psychological evaluations; and directory data recorded in any medium including handwriting, magnetic tapes, film, video, microfiche, computer - generated and stored data, or data otherwise maintained and used by the educational institution or a person acting for an institution.

It too contains four exclusions which basically track the language of the federal exclusions, also not relevant here, and it too is intended to be inclusive.

The Family Educational Rights and Privacy Act precludes the disclosure of personally identifiable student information to third parties in the absence of a

3 KRS 61.878(l)(k) and (I) require public agencies to withhold:

(k) All public records or information the disclosure of which is prohibited by

federal law or regulation; and

(I) Public records or information the disclosure of which is prohibited or

restricted or otherwise made confidential by enactment of the General Assembly.

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parent or eligible student's prior written consent. It is also aimed at insuring

parents of students, and students themselves if they are over eighteen years of

age, access to their education records.

20 U.S.C.A. § 1232g(a)(1)(A) provides:

No funds shall be made available under any applicable program to

any educational agency or institution which has a policy of

denying, or which effectively prevents, the parents of students who are or have been in attendance at a school or such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.

The converse of this rule is found at 20 U.S.C.A. § 1232g(b)(1), which provides:

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 [meaning information relating to a student not normally considered confidential including the student's name, address, telephone listing, and date and place of birth] of students without the written consent of their parents to any individual, agency, or organization, other than [to certain enumerated officials

and organizations, or in connection with certain activities] . . . .

The goal of this legislation, as we understand it, was "to end denial of access to

parents and students, and to prevent violations of student and family privacy rights by the release of =screened records to third parties without parental or

student consent." Note, Federal Genesis of Comprehensive Protection of Student

Educational Record Rights: The Family Educational Rights and Privacy Act of 1974, 61

Iowa Law Review 74 (1975). With respect to parent access to their children's records, the Act serves two purposes:

First, the student education records contain information that the parent needs in order to help plan the student's future. It can scarcely be denied that items such as educational testing results, attitudinal and behavioral studies, and disciplinary records relating

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to the student, are needed in order to make educational and vocational decisions for the student. Second, and equally important, parental access is needed to facilitate the correction of

erroneous and harmful material that makes its way into students' files. Such inaccurate materials can have devastatingly negative effects on the academic future and job prospects of students if

parents are unaware of their presence in the record and cannot have them corrected.

Id, at 94. With respect to nondisclosure of education records to third parties, the

Act serves an equally important purpose:

Even after the enactment of FERPA's provisions designed to facilitate correction of student records, inaccurate and inappropriate information may remain in pupils' files either because the interested parent or student did not challenge the contents or because a challenge which was made was unsuccessful. More importantly, the release of admittedly accurate student documents to third parties who have no legitimate educational interests or related needs violates the privacy rights of the students.

Id. at 109. It is reasonable to assume that Kentucky's Family Education Rights and Privacy Act, and the corresponding provisions within the Act,4 are intended to serve these same purposes.

4 KRS 160.715(1) thus provides:

Parents of students or eligible students attending public institutions or who have been in

attendance shall have the right to inspect and review student education records within a

reasonable time of making a request to inspect.

KRS 160.705(1), on the other hand provides:

Education records of students in the public educational institutions in this state are

deemed confidential and shall not be disclosed, or the contents released, except [with the

written consent of the parents or eligible students, or to individuals or entities identified

in KRS 160.720(2)(a) through (g)].

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The appeal before us implicates both of the purposes for which the federal and state laws were enacted: to insure the parents' right of access to their child's education records as well as to insure the parents' right to nondisclosure of their child's education records to third parties. The surveillance tape, which, as noted, must be characterized as an education record ,5 documents the conduct and activities of the Bennetts' son. However, the tape also documents the conduct and activities of numerous other students on the bus, including some students who presumably were not even involved in the incident. In order to honor the Bennetts' right to inspect and review education records related to their son, the Bell County School System would be compelled to compromise the corresponding rights of the parents of the other students on the bus, and the students themselves, in the nonrelease of their education records. Redaction of

the faces, or other physically identifying characteristics of the other students, which is required by law when feasible/6 is apparently not a realistic possibility in this appeal. We assume that redaction would be made difficult, if not impossible, by the number of students on the bus, the constant movement of the students, and the likelihood that some students could be identified by height, weight, hair color, or manner of dress. We must, therefore, affirm the Bell

County Public Schools' denial of Mr. Bennett's request on the basis of KRS

61.878(1)(k) and 20 U.S.C. § 1232g(b)(1), and corresponding provisions in state law. Because we conclude that the cited provisions are controlling, we do not address the propriety of the school system's invocation of the privacy exemption, KRS 61.878(1)(a), except to note, as above, that we question the internal consistency of its logic in placing students under video surveillance and subsequently asserting a privacy right on their behalf.

In closing, we note that we are unable to resolve the question of whether Mr. Bennett is entitled to receive a copy of the surveillance tape from the day immediately preceding, and the day immediately following, the incident involving his son insofar as that issue has not been properly presented to the

5 This conclusion was confirmed by Ellen Campbell, family policy analyst with the U.S.

Department of Education's Family Policy Compliance Office, the federal agency charged with

enforcement and interpretation of FERPA, in a conversation with the undersigned that occurred

on November 23, 1999.

6 See 34 C.F.R. § 99.12(a) ("If the education records of a student contain information on more than

one student, the parent or eligible student may inspect and review or be informed of only the

specific information about that student"); see, 95-ORD-55.

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Attorney General. Mr. Bennett must first submit his request to the school

system, and await a written response. However, should the school system deny him access to the tapes for the same reasons cited above, this office will, in all

likelihood, reach the same conclusion should the matter come to us on appeal.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to

KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

#614

Distributed to:

Thomas Bennett 280 Raymond Partin Road Pineville, KY 40977

Robert Bowling Bell County School Board Attorney P.O. Box 859 Middlesboro, KY 40965

George Thompson Transportation Safety Director Bell County School System P.O. Box 340 Pineville, KY 40977

Albert B. Chandler III Attorney General

Amye L. Bensenhaver Assistant Attorney General

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99-ORD-217 Page 11

Lorraine Brock Director of Transportation Bell County School System P.O. Box 340 Pineville, KY 40977

Yvonne Gilliam, Superintendent Bell County Schools P.O. Box 340 Pineville, KY 40977

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Freedom of Information Commission Final Decision FIC2012-047

In the Matter of a Complaint by FINAL DECISION

Leah F. Walsh, Complainant

against Docket #FIC 2012-047

Superintendent, Bethel Public Schools; and Bethel Public Schools,

Respondents December 12, 2012

The above -captioned matter was heard as a contested case on June 18, 2012, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. A copy of the videotape that is the subject of this complaint was submitted by the respondents for an in camera inspection.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of §1-200(1)(A), G.S.

2. It is found that the complainant, as counsel for the parents of a certain student, made a November 18, 2011 request for certain records, including a copy of a videotape made by a surveillance camera inside a school bus.

3. It is found that the respondents denied the complainant's request for the videotape by letter on December 17, 2011, on the grounds that the videotape contained personally identifiable information of other students-that is, the images of other students riding on the bus at the time.

4. It is found that the complainant made a second request to the respondents for the videotape by letter dated December 28, 2011.

5. It is found that the respondents denied that second request by letter dated January 17, 2012.

6. By letter dated January 26, 2012, the complainant appealed to the Commission, alleging that the respondent's failure to provide the videotape violated the Freedom of Information Act ("FOIA").

7. It is found that the requested videotape shows a number of students being transported on a school bus, including the particular student whose parents are represented by the complainant.

8. It is further found that the videotape cannot be edited to delete the images of the other students.

9. Further, it is found that the respondents gave the parents who are represented by the complainant an opportunity to view the videotape, but did not give them a copy.

10. Section 1-210(a), G.S., states in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212....

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11. The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g(b)(2), provides in relevant part that:

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, 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 . . . ."

12. Also, 20 U.S.C. § 1232g(a)(1)(A), provides in relevant part that:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. (emphasis added)

13. It is concluded that the requested videotape is a public record within the meaning of §1-210(a), G.S.

14. Administrative notice is taken of "Letter re: Berkeley County School District", 7 FERPA Answer Book 40, 104 LRP Publications 44490 (February 10, 2004) (hereinafter "Berkeley Letter"). The Family Policy Compliance Office, a unit administering FERPA in the U.S. Department of Education, issued the Berkeley Letter. It states in relevant part:

If education records of a student contain information on more than one student, the parent requesting access to education records has the right to inspect and review, or be informed of, only the information in the record directly related to his or her child.... If, on the other hand, another student is pictured fighting in the videotape, you would not have the right to inspect and review that portion of the videotape.

15. The Commission has previously addressed the issue of videotapes that show more than one student in Docket #FIC 2007-100, Bover v. Stonington Public Schools. In that case, the Commission concluded:

20 U.S.C. § 1232g(a)(1)(A) is "federal law", as that term is used by §1-210(a), G.S. .... This federal law unambiguously establishes that a parent does not have the right to records which include or have information about students other than their own child. The Berkeley Letter reaffirms this principle in the specific context of a videotape and supersedes the earlier decision in Deborah Maynard v. Superintendent, Voluntown School District, Docket #FIC 1998-023. See also U.S. v. Miami University, 294 F. 3rd 797 (2002).

16. The complainant maintains that the Commission's decision in Boyer should not be followed in this case, citing to Rome City School Dist. V. Grifasi, 806 N.Y.S. 3d 381 (Sup. 2005) and Lindeman v. Kelso Sch. Dist. No. 458, 162 Wash. 2d 196 (2007).

17. It is concluded that in both Rome City and Lindeman, above, a state court ordered disclosure of a

surveillance videotape in circumstances similar to those in this case. However, the courts in those cases balanced the due process rights of a student subject to discipline against the privacy rights of other students pictured in the videotapes, an analysis that is not available to the Commission under §1-210(a), G.S. Further, the Commission notes that school officials are permitted to disclose education records without prior written consent pursuant to court order or judicial subpoena, as occurred in Rome City and Lindeman, but are not similarly permitted to disclose education records pursuant to the order of an administrative agency such as this Commission.

18. The Commission is therefore not persuaded sufficient reason exists to depart from its previous ruling in Bover, above.

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' 19. is further found that the respondents did not waive the privacy rights of the other students on the videotape when they permitted the parents who are represented by the complainant in this matter to view the videotape.

20. Accordingly, it is concluded that the requested videotape is exempt from mandatory copying, pursuant to §1-210(a), G.S., and that the respondents did not violate the FOI Act when they declined to provide the complainant with a copy of the requested record.

The following order by the Commission is hereby recommended on the basis of the record concerning the above -captioned complaint:

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 2012.

Cynthia A. Cannata Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Leah F. Walsh Ventura, Ribeiro & Smith 235 Main Street Danbury, CT 06810

Superintendent, Bethel Public Schools; and Bethel Public Schools c/o Henry J. Zaccardi, Esq. Shipman and Goodwin, LLP One Constitution Plaza Hartford, CT 06103-1919

Cynthia A. Cannata Acting Clerk of the Commission

FIC/2012-047/FD/cac/12/12/2012

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In the Matter of a Complaint by

Mary Baltimore,

against

Superintendent of Schools, Cromwell Public Schools,

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT

Complainant

Respondent

FINAL DECISION

Docket #FIC 2004-551

September 14, 2005

The above -captioned matter was heard as a contested case on May 12.2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

I. The respondent is a public agency within the meaning of §1-200(1)(A), G.S.

2. It is found that, by letters dated November 11 and 18, 2004, the complainant made a request to the respondent for copies of a videotape and all other records concerning an incident its the Cromwell High School cafeteria on October 21, 2004 between her daughter, Deanna Baltimore, and another student.

3. By letter dated November 19, 2004, counsel for the respondent declined to provide copies of the videotape and the other requested records, stating that such records "contain personally identifiable information and are confidential in accordance with the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §12328, Conn. Gen. Stat. §1-210(17) [sic)."

4. By letter dated December 6, 2004 and filed with the Freedom of Information Commission ("Conunission" or sometimes "FOIC") on December 9, 2004, counsel for the complainant appealed to the Commission, alleging that the respondent's failure to provide the videotape violated the Freedom of Information Act ("FOIA"), and specifically that 20 U.S.C. §1232g permitted the complainant, in her capacity as a parent of Deanna Baltimore, to obtain educational records.

5. It is found that the scope of the complainant's request for records, by letters dated November 11 and 18, 2004, was broader than the complaint to the Commission, which alleged a violation exclusively with reference to the videotape.

6. At the hearing, the hearing office directed the respondent to submit the videotape and the other requested written records for in camera inspection. Testimony indicated that the other written records included: 1) a referral letter for each of two students; 2) a statement received from each of two students; and 3) a discipline letter to the parents of each of two students.

7. Following the hearing, pursuant to the Regulations of Connecticut State Agencies §1-21j-38, the hearing officer accepted into evidence an agreement between the parties, wherein the complainant acknowledged receipt of eight pages, and the respondent stated that these records comprise "all written documentation concerning the October 21 incident". The parties agreed that the videotape is the only record that remains at issue in this case (the "requested record" or sometimes the "record").

8. It is found that the Cromwell public schools purchased a "CCTV (Closed Circuit Television) DVR (Digital Video Recorder) system front Nuvico" (hereinafter the "video recorder"), in order "to video tape student and/or employee conduct its defined areas of the school building." The Cromwell public schools also have the capability of preserving video images "by downloading them from the temporary storage of the Novice DVR to a CD-ROM disk."

9. Pursuant to the directive set forth at paragraph 6, above, the respondent submitted two CD-ROM disks for an in camera inspection, which has now been performed. For identification purposes, the in camera records have been designated IC 2004-551 CD-ROM Disk 1 and Disk 2.

10. At the hearing, the complainant more specifically contended that, pursuant to 20 U.S.C. §1232g(aXI)(A), she has the right to the portion of a record that pertains to her child, even if other children are also shown. She relied on Deborah Maynard v. Sunerintendent. Voluntown School District, Docket #FIC 1998-023. At the hearing, the complainant also contended that the respondent violated §1-211(b) and (o), 0.5., by purchasing a video recorder that renders "video redaction" impossible.

11. It is also found that the Cromwell High School cafeteria was equipped with a video recorder, which was in operation on October 21, 2004. Based upon testimony at the hearing in this matter, the download from the cafeteria video recorder for October 21, 2004 shows about 100 to 120 students throughout the whole video. Deanna Baltimore is never seen by herself, with no other student around her. Neither the respondent nor the complainant made any attempt to gain the consent of the parents of the 100 to 120 students who are shown in the download from the cafeteria video recorder.

12. It is found that it is "impossible to alter video images" of the video recorder, which its manufacturer, "Nuvico" has rendered "intentionally un-editable" utilizing a proprietary format. The purpose of the Cromwell public schools in acquiring this equipment was to render "video redaction" impossible and to ensure that "footage can always be considered legitimate evidence." Moreover, there was no evidence that the Cromwell High School had previously had any video system that did allow for redacting videotape images.

13. Finally, it is found that agents of the respondent did meet with the complainant and provided her orally with information concerning her daughter, Deanna Baltimore, from the requested record.

14 Section 1-210(a), CS., states in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212... (emphasis added)

15. Section 1-211(a), G.S., states in relevant part:

Any public agency which maintains public records in a co mist ter storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a cops of any nonexempt data contained in suet- records properly identified, on paper, disk, tape or any other electronic storage device or medians rearrested by the person if the agency can reasonably make such copy or have such copy made. (emphasis added)

16. Section 1-211(b), GS., states in relevant part:

Except as otherwise provided by state statute, Ba pub lie agency shall enter into a contmet with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under the Freedom of Information Act to inspect or copy the agency's nonexempt public records existing on -litre in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions. (emphasis added)

17. Section 1-211(c), G.S,, states in relevant part:

On and after July I, 1992, before any public aucncv acouires any computer system &aliment or software to store or retrieve nonexempt public

http://www.state.ctus/foi/2005FD/20050914/FIC2004-551.htm R. 357a 1/2

5/21/2017 FIC2004-551

records it shall consider whether such proposed system equipment or software adequately Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act. (emphasis added)

.

18. The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g(b)(2), provides in relevant part that:

I 11 .1

fnlo funds shall be made available under any applicable program to ..1 rI . ,.. 4. I I , I has a policy or practice of releasing. er providIn ,j, 4 I II, . I. i I. I .1 I - I i III i I I di 4 I es. d other than directory information, or as is permitted under paragraph (1) of this subsection unless - (A) there is written consent from the students 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 ..."(emphasis added)

19. Also, 20 U.S.C. § 1232g(a)(I)(A), provides in relevant part that:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a

student includes information on more than one student. the parents of one of such students shall have the right to inspect and review only such onslarchnillgaglor. cloemaientzs relato_teaugh stugLegt or to be informed of the specific information contained in such part of such material. (emphasis added)

20. Administrative notice was taken of "Letter re: Berkeley County School District", 7 FERPA Answer Book 40, 104 LRP Publications 44490 (February 10, 2004) (hereinafter "Berkeley Letter"). The Family Policy Compliance Office, a unit administeting FERPA in the U.S. Department of Education, issued the Berkeley Letter. It stated in relevant part:

If education records of a student contain information on more than one student, the parent requesting access to education records has the right to inspect and review or be informed of. only the information in the record directly related to his or her child. If, on the other hand another student is pictured fiehtina in the videotape, you would not have the Pain to inspect and review that portion of the videotane. (emphasis added)

21. It is concluded that 20 U.S.C. § 1232g(a)(1)(A) is "federal law", as that term is used by §1-210(a), G.S., set forth at paragraph 14, above. This federal law unambiguously establishes that a parent does not have the right to records which include or have information about students other than their own child. The Berkeley Letter reaffinns this principle in the specific context of a videotape and supercedes the earlier decision in llebotah Maynard v. Superintendent. Voluntrawn Scheme: District,, Docket #FIC 1998-023. See also U S. v. Miami University. 294 F. 3rd 797 (2002).

22. Accordingly, it is concluded that the requested record is exempt from mandatory disclosure, pursuant to § I.210(a), G.S., and that the respondent did not violate §1.211(a), G.S., when he declined to provide the complainant with a copy of the requested record.

23. Based upon the findings at paragraph 12, above, it is concluded that, in contracting to purchase the video recorder; the Cromwell public schools did not impair existing FOIA rights. It is also concluded that, in acquiring the video recorder, the respondent did consider whether the equipment adequately provides for the rights of the public under the FOIA. It is finally concluded that the respondent did not violate §§1-2 I I (b) or 1-211(c), G.S., when it acquired the Nuvico video recorder.

The following order by the Commission is hereby recommended on the basis of the record concerning the above -captioned complaint:

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 14, 2005.

Petrea A. Jones Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Mary Baltimore c/o Daniel H. Kennedy, IH, Esq. Heneghan, Kennedy & Doyle, LLC West Hill Center 21 New Britain Avenue Rocky Hill, CT 06067-1100

Superintendent of Schools, Cromwell Public Schools

c/o Craig S. Menses, Esq. Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103-1919

Petrea A. Jones Acting Clerk of the Commission

FlOXIM-551FEVAIMIISt.2005

http://www.state,ctus/foi/2005FD/20050914/FIC2004-551.1-dm R. 358a 2/2

R. 359a

R. 360a

National Coowativ-e Education Statistics System

The National Center for Education Statistics established the National Cooperative

Education Statistics System (Cooperative System) to assist in producing and maintaining

comparable and uniform information and data on early childhood education and

elementary and secondary education. These data are intended to be useful for policy -

making at the federal, state, and local levels.

The National Forum on Education Statistics, among other activities, proposes principles

of good practice to assist state and local education agencies in meeting this purpose.

The Cooperative System and the National Forum on Education Statistics are supported

in these endeavors by resources from the National Center for Education Statistics.

Publications of the National Forum on Education Statistics do not undergo the formal

review required for products of the National Center for Education Statistics. The infor-

mation and opinions published here are the product of the National Forum on Education

Statistics and do not necessarily represent the policy or views of the U.S. Department of Education or the National Center for Education Statistics.

July 2006

This publication and other publications of the National Forum on Education Statistics

may be found at the National Center for Education Statistics website.

The NCES World Wide Web Home Page is http://nces.ed.gov

The NCES World Wide Web Electronic Catalog is http://nces.ed.gov/pubseizrch

The Forum World Wide Web Home Page is httpilinces.edgov/fOrum

Suggested citation National Forum on Education Statistics. (2006). Forum Guide to the Privacy of Student

Information: A Resource for Schools (NFES 2006-805). U.S. Department of Education. Washington, DC: National Center for Education Statistics.

For ordering information on this report, write: U.S. Department of Education ED Pubs P.O. Box 1398 Jessup, MD 20794-1398 Or call toll free 1-877-4ED-PUBS; or order online at http://www.edpubs.org

Technical contact: Ghedam Bairu 202-502-7304

[email protected]

R. 361a

FERPA Toolkit Action Plan Team

This document was developed through the National Cooperative Education Statistics

System and funded by the National Center for Education Statistics (NCES) of the U.S.

Department of Education. A volunteer Action Plan Team of the National Forum on

Education Statistics produced this document.

Chair

Levette Williams Georgia Department of Education

Members

Eva Charm District of Columbia Public Schools

Bruce Dacey Delaware Department of Education

Mary IC Hervey DeGarmo Brookc County Schools (West Virginia)

Judy Pillion New Hampshire Department of Education

Consultant

Mary Gervase Blaine County School District (Idaho)

Angela Hagans Georgia Department of Education

Wanda Jones Georgia Department of Education

Polly Sorcan Eveleth-Gilbert Public Schools (Minnesota)

Beth Young Quality Information Partners

Project Officer

Ghedam Bairu National Center for Education Statistics

Forum Guide to the Privacy of Student Information iii

R. 362a

Forum Review Procedures Development team members review all products iteratively throughout the development

process. Documents prepared, reviewed, and approved by development team members

are posted to the Forum website prior to publication so that other interested individuals

or organizations can provide feedback. After development team members oversee the inte-

gration of public review comments and review the document a final time, all publications

are subject to examination by members of the Forum standing committee sponsoring the

project. Finally, the entire Forum (approximately 120 members) must review and vote to

formally approve the document prior to final publication.

Publications of the National Forum on Education Statistics do not undergo the formal

review required for products of the National Center for Education Statistics. The

information and opinions published here are the product of the National Forum on

Education Statistics and do not necessarily represent the policies or views of the U.S.

Department of Education or the National Center for Education Statistics.

Acknowledgments The members of the FERPA Toolkit Action Plan Team of the National Forum on

Education Statistics would like to thank everyone who reviewed drafts of this document or otherwise contributed to its development. In particular, thanks are due to Lee Hoffman,

Marilyn Seastrom, and Ellen Campbell of the U.S. Department of Education; Tom Ogle, Missouri Department of Elementary and Secondary Education; Brad James, Vermont

Department of Education; Raymond Yeagley, Northwest Evaluation Association; Sonya

Edwards and Bruce Gordon, California Department of Education; Jan Rose Petro,

Colorado Department of Education; David Weinberger, Yonkers Public Schools; and Bob Beecham, Nebraska Department of Education. Frances Erlebacher edited the document and the Creative Shop provided layout and design services.

Finally, the Action Plan Team members would like to thank their tireless leader, Levette Williams, and her staff at the Georgia Department of Education, including Wanda Jones and Angela Hagans. They went above and beyond the call of duty by preparing

a preliminary draft of this document. Without their hard work, this document would not have been published in such a timely manner.

iv Forum Guide to the Privacy of Student Information

R. 363a

Table of Contents

Introduction F 4 F F 4 F F 4 1

FERPA and Its Protection 4 b F b i 1 4 F %FE bi 4 F . 2

Education Rec.ords. i 1 4 F4 F4 F4 Fi ei F 1 F44 i ilF4 F4 '42

Directory Information .e9ebbemi +++++++ F4 b 4 4 I ++ 3

Annual Notification and Rights of Parents 4 YR F4 P4 YR FE4 i FPI 4 1 4 ++ 3

Disclosuie of Student Information +4 4 4

Transfer of School Disciplinary Records F4 Fi41444 4 F 6

Health Records: FERPA and HIPAA b4 Fi.b b4 ++ 14 i 4 F 4 44 F44 4 6

Data Requests and FERPA F b i b +++++++ i bi i +++ 7

Military Recruiters 1 F+1. 4 4 F 8

Confidentiality and Privacy Concerns bi 1.11 1 4 4 4 F

Surveillance Cameras 11.11 11.1111F F ++++++ +++++++++ 4+ 1. 1 9

Videotapes and Online Information 1.41.4 ee4 +++++ +++++ 1.41.4 ++++++++++++ 1.41. +++++ 041.4 +++++++ 1.41141.41.41.4+1 FF4 F lU

Conclusion................. 44 e ....... Nom, ............ 44 .......... ov-4 r44 4 '41E4 4 r4 4 r4r4 .... I re, '11

Appendix A. Key Terms and Definitions b 13

Appendix B. References and Other Resources ......................... r r ..... 14

Forum Guide to the Privacy of Student Information v

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R. 365a

Introduction As an employee of a school or other education institution, you may sometimes access

individual student records while performing your official duties. Under the Family Educational Rights and Privacy Act (FERPA), you are legally and ethically obliged to safeguard the confidentiality of any information they contain. This guide provides a general overview of the legal and related issues you may encounter while carrying out your duties.

The Forum Guide to the Privacy of Student Information: A Resource for Schools was written to help school and local education agency staff better understand and apply FERPA, a

federal law that protects privacy interests of parents and students in student education records. The Forum has developed full reports on student (and staff) privacy guidance, but a shorter document was needed to provide a quick overview and links to other resources when more information is needed. This guide defines terms such as "education records" and "directory information"; and offers guidance for developing appropriate privacy

policies and information disclosure procedures related to military recruiting, parental rights and annual notification, videotaping, online information, media releases, surveillance

cameras, and confidentiality concerns related specifically to health -related information. Additional references to related resources from both the federal government and private organizations can be found in the online document, "FERPA Facts for School Staff," which is available ar http://nces.ed.gov/fOrum/ferpa_links.asp.

For a more in-depth review of privacy laws and professional practices that apply to information collected for, and maintained in, student records, see the Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies (NCES 2004).

The school district is responsible for ensuring that all parents and eligible students are afforded all the rights provided

them by FERPA.

FERPA-related violations may have serious repercussions. A school district found to have violated FERPA

will be required to implement a plan of action to ensure compliance, and schools that refuse to comply risk losing federal education dollars. Therefore, it is essential to train school staff in FERPA requirements, especially since the Family Policy Compliance Office (FPCO) investigates entire school districts even when complaints are

filed against individual school officials.

Forum Guide to the Privacy of Student Information 1

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FERPA applies to any education agency or institution that receives funds under a program administered by the

U. S. Department of Education.

FERPA and Its Protection The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects

the privacy interests of students. It affords parents the right to access and amend their

children's education records, and gives them some control over the disclosure of the

information in these records. FERPA generally prevents an education agency or institution

from sharing student records, or personally identifiable information in these records,

without the written consent of a parent. A "parent" is defined as a natural or adoptive

parent, a legal guardian, or an individual acting as a parent in the absence of the parent

or guardian. When students reach the age of 18, or attend a postsecondary institution at

any age, they are considered "eligible students" and all of the rights afforded by FERPA

transfer from the parents to the students. (34 CFR § 99.3)

Although student files are protected under the law, FERPA does allow the disclosure of student data without parental consent under certain, specified conditions. For example,

schools may reveal information from student records to school officials with a legitimate

educational interest in the information.

As employees of a school and education institution, you may have access to individual

student records in performing your official duties. You are legally and ethically obliged

to safeguard their confidentiality This guide provides a general overview of FERPA and

related issues you may encounter while you carry out your job duties.

Education Records The term "education records" is defined as all records, files, documents and other materials containing information directly related to a student; and maintained by the education agency or institution, or by a person acting for such agency or

institution (34 CFR § 99.3). This includes all records regardless of medium, including, but not limited to, handwriting, videotape or audiotape, electronic or computer files,

film, print, microfilm, and microfiche.

In addition, for students who attend a public school district, all records pertaining to

services provided under the Individuals with Disabilities Education Act (IDEA) are

considered "education records" under FERPA. As such, they are subject to the confidentiality provisions of both Acts.

For PreK-12 students, health records maintained by an education agency or institution subject to FERPA, including immunization records and school nurse records, generally

would be also considered "education records" and subject to FERPA because they are:

directly related to the student;

maintained by an education agency or institution, or a party acting for the agency or institution; and

not excluded from the definition of education records as treatment or sole -possession

records, or on some other basis. (See Health Records: FERPA and HIPAA.)

Personal notes made by teachers or other staff; on the other hand, are nor considered education records if they are:

2 Forum Guide to the Privacy of Student Information

R. 367a

kept in the sole possession of the maker;

not accessible or revealed to any other person except a temporary substitute, and

used only as a memory aid.

Records created and maintained by a law enforcement unit for law enforcement purposes

are also excluded.

More on FERPA can be found at: http://wwwedgov/poky/gen/guid/fpcofindex.htmi

Directory Information The term "directory information" is used for the portion of the education record that,

if disclosed, would not generally be considered harmful or an invasion of privacy (34

CFR § 99.3). This may include the student's name, address, telephone number, date

and place of birth, honors and awards, and dates of attendance.

Under FERPA, school systems have flexibility in deciding what information will be

considered directory information. A Est of the types of data that may be designated

and disclosed as directory information is listed under the definition of "directory

information" in the Code of Federal Regulations (34 CFR § 99.3). While school

systems designate varying types of information as directory information, most include

a student's name, family members' names, home address, and school activities. The height and weight of athletes may also be included.

School systems should give careful consideration to designating data as "directory

information" because once this designation is given, school officials may distribute the

information to anyone who requests it-in or outside the school.

School systems that disclose directory information must give "public notice" of this

policy and explain what is included in such information. The notice must also indicate

that parents may refuse to allow the school to designate any, or all, of their child's record

as directory information. Several ways public notice can be given include: a notice

in the registration package sent home to parents, a notice in the local newspaper, a

notice in the school handbook distributed each year, or a posting on the school

system's website. FERPA requires the notice to specify how much time parents have

to tell the school or school system what, if any, directory information they do not wish released.

Annual Notification and Rights of Parents FERPA regulations require that local education agencies give annual notification to parents

and eligible students of their rights under FERPA (34 CFR § 99.7). The law does not requires agencies to notify parents and eligible students individually, but agencies must provide notification where they are likely to see it. In addition, education institutions

must make provisions to effectively inform individuals with a disability or whose primary

language is not English.

If a school system

discloses directory

Information, it must

give "public notice" of

this policy and explain

what is included in such

information. FERPA

does not define "public

notice," and the

means of notification

is left up to the school.


R. 368a

The annual notification process must ensure that parents understand that they have the

right to:

inspect and review their child's record;

seek to amend the record if they believe it to be inaccurate;

consent (or not) to disclosures of personally identifiable information; and

file a complaint with the U.S. Department of Education concerning the district's

failures to comply with FERPA.

Either parent has the right to review an education record unless there is evidence of a

court order or state law revoking or restricting these rights. Parents may access the edu-

cation records of eligible students if they claim the student as a dependent for income

tax purposes. However, agencies may require verification of the requester's relationship

with the child before providing access to records.

The right of parents to access information is limited to their own child or children. If the education record includes information about other students, that information must

be removed prior to disclosure so that parents do not have access to any other child's

records. (34 CFR § 99.12)

When parents (or eligible students) request to review their records, the education insti-

tution must respond within 45 days, even if these records are kept by an outside party

acting for the school. During these 45 days, the education institution cannot destroy

any of the requested records.

For more in-depth information on directory Information, disclosure of

student information, and annual notification to parents, see the Forum Guide

to Protecting the Privacy of Student Information: State and Local Education Agencies

(National Forum on Education Statistics, 2004).

Disclosure of Student Information Generally, schools must have written parent (or eligible student) permission to release

any information from a student's education records. However, in addition to properly

designated "directory information," FERPA allows disclosure, without consent, to the

following parties or under the following conditions (except as noted, conditions are

listed in 34 CFR § 99.31):

A IcaitimatE Educational intErEst School officials with a "legitimate educational interest" may access student records

under FERPA. Generally, this refers to individuals in the school district who need to

know information in the student's education record in order to perform their professional

responsibility. Interest in students that "fit" a profile or category is not a legitimate educational interest. The school's criteria for appropriate "school officials" and valid

"legitimate educational interest" must be included in the annual notification to

parents of their FERPA rights. A sample notice of rights, including suggested

language can be found at the Family Policy Compliance Office's website:

http://www.ed.gov/policy/gen/guie*co/firpafiea-offici att html.


R. 369a

'Pe

Other schools into which a student is transferring or enrolling Schools that submit a records request or in which a student has enrolled are eligible to

receive information from that student's education records. This includes postsecondary institutions to which the student are applying. A parent (or eligible student) may also

request a records transfer.

Specified officials for audit or evaluation purposes This category exception refers to federal, state, and local education agencies that must col-

lect data or student information to audit, evaluate, or enforce educational programs. State

agencies other than those responsible for education are not induded. This exception is

commonly used by state education agencies to justify state -level student records systems.

Appropriate parties in connection with financial aid Information required to determine student eligibility for financial aid, the amount of aid to award, and the conditions under which aid is to be granted may be disclosed

under this category; access to information needed to enforce those terms and conditions is also allowed. This exception typically applies to postsecondary institutions.

Organizations conducting certain studies for; or on behalf of, the school The purpose of the study conducted for, or on behalf of, a school has to be to: develop,

validate, or administer predictive tests; administer student aid programs; or improve instruction. Even if these conditions are met, the school may only disclose information if: the study methodology does not permit the personal identification of parents and students by anyone other than the researchers and their representatives; the information is not used for any purpose other than to complete the study; and the information is

destroyed when it is no longer needed for the stated purposes of the study.

Accrediting organizations Disclosure of personal information is permitted to an accrediting organization if it is

needed to carry out the accreditation.

Judicial orders or lawfully issued subpoenas Schools must release information requested by a judicial order or legal subpoena. However, the school must make a reasonable effort to notify the parent (or eligible student) in advance of compliance, unless the court or other issuing agency has ordered that the contents of the subpoena not be disdosed, or that the protected education records not be included. [34 CFR 4 99.31 paragraph (a)(9)(I)]

Health and safety emergencies Disclosure to appropriate officials is valid if the information contained in the education record is necessary to protect the health or safety of the student or other individuals (34 CFR 5 99.36).

State and local authorities, within a juvenile justice system, pursuant to specific state law If state law permits, schools may release information to state and local juvenile justice authorities after receiving written certification that the information will not be disclosed to any other agency, organization, or third party without the parent's permission, except as allowed in state law.


R. 370a

In all of the above cases, education agencies or institutions disclosing personally identifi-

able information from an education record must do so on the condition that the party

receiving the information will use it only for the purpose for which it was disclosed,

and will not disclose the information to another, third party without prior consent.

An exception is allowed if the disclosure is made on behalf of the education agency

or institution under the permitted disclosures in FERPA. (34 CFR § 99.33)

Transfer of School Disciplinary Records While FERPA does not require schools to transfer education records to third parties,

it does permit their transfer to another school if a student seeks or intends to enroll in

that school; as part of the education records, disciplinary records would therefore be

included in the transfer. However, the No Child Left Behind Act of 2001, reauthorizing

the Elementary and Secondary Education Act (ESEA), requires that states provide an

assurance to the Secretary of Education that the state "has a procedure in place to facili-

tate the transfer of disciplinary records, with respect to a suspension or expulsion, by

local education agencies to any private or public elementary school or secondary school

for any student who is enrolled or seeks, intends, or is instructed to enroll, on a full- or

part-time basis, in the school."

Health Records: FERPA and HIPAA In 1996, Congress enacted the Health Insurance Portability and Accountability Act

(HIPAA) to ensure continued health insurance coverage to individuals who change jobs,

and to establish standards regarding the electronic sharing of health information, For

purposes of HIPAA, "covered entities" include health plans, health care clearinghouses,

and health care providers that transmit health information in electronic form in connection

with covered transactions (45 CFR 160.103).

Technically, schools and school systems that provide health care services to students may qualify as "covered entities" under HIPAA. However, the final regulations for

the HIPAA Privacy Rule exclude information considered "education records" under FERPA from HIPAA privacy requirements. This includes student health records

and immunization records maintained by an education agency or institution, or its representative; as "education records" subject to FERPA, these files are not subject

to HIPAA privacy requirements. In addition, school nurse or other health records

maintained on students receiving services under the Individuals with Disabilities Education Act (IDEA) are considered "education records" and also subject to that Act's confidentiality provisions. Consequently, these records are subject to FERPA

and not the HIPAA Privacy Rule.

Nevertheless, certain activities, when performed by a school, could be subject to other provisions of HIPAA that concern electronic transactions. According to the preamble to the December 2000 final rules, "the educational institution or agency that employs

a school nurse is subject to our (HIPAA) regulation if the school nurse or the school

engages in a HIPAA transaction." HIPAA transactions are defined in the Code of Federal Regulations (CFR) as "the transmission of information between two parties to carry out financial or administrative activities related to health care," including


R. 371a

submitting claims. However, consent must still be secured under FERPA before the

records are disclosed.

For more information on the intersection of HIPAA and FERPA, see Health and

Healthcare in Schools, The Impact of FERPA and HIPAA on Privacy Protections

for Health Information at School: Questions from Readers" (2003, Volume 4,

Number 4) at http://www,healthInschools,orgiejournal/2003/privacy,htm,

Data Requests and FERPA Information requests from the press, researchers, and the general public are fairly

common in most school systems and state education agencies. In this regard, the

FERPA statute provides that an education agency or institution may not have a policy

of disclosing education records or personally identifiable information from education

records, without prior consent from the parent or eligible student, unless it is considered

directory information or falls under one of the other consent exceptions contained in the

law [20 U.S.C. §1232(g)(b)(l)]. (For exceptions to consent guidelines, see Disclosure

of Student Information.) Agencies should determine whether requests for data meet

these exceptions on a case -by -case basis.

Nothing in FERPA prohibits a school from disclosing information in aggregate, or in

another form that is not personally identifiable. Personally identifiable information

includes:

the student's name;

the name of the student's parent or other family member;

the address of the student or student's family;

a personal identifier, such as the student's social security number or student

number;

a list of personal characteristics that would make the student's identity easily

traceable; or

other information that would make the student's identity easily traceable.

In circumstances that may lead to the identification of an individual, the disclosing

education agency or institution must ensure that student -level information is not personally identifiable by removing the student's name and ID number, as well as

any "personal characteristics" and "other information that would make the student's

identity easily traceable." This includes, but is not limited to, such factors as physical

description (race, sex, appearance, etc.); date and place of birth; religion and national

origin; participation in sports, clubs, and other activities; academic performance; employment; and disciplinary actions or criminal proceedings. "Other information that would make the student's identity easily traceable" may also exist in the form

of small cell sizes in aggregated or statistical information from education records.

In cases where personal information cannot be removed, school officials must secure

written parental consent before disclosing the data to outside organizations. The


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"Confidentiality" is a person's obligation to not disclose or

transmit information to unauthorized parties.

"Privacy" is a uniquely personal

right that reflects an

individual's freedom from intrusion.

required consent form should specify:

the records that may be disclosed;

the purpose of the disclosure; and

the identity of the party or class of parties to whom the disclosure may be made.

[34 CFR § 99.30(b)]

Military Recruiters The No Child Left Behind Act of 2001 (NCLB) and the National Defense Authorization

Act for Fiscal Year 2002 both require high schools to provide military recruiters with

access to directory -type information on secondary school students. Upon request, and

after notifying parents, schools must release to military recruiters the name, address, and

telephone numbers of high school juniors and seniors. (The disclosed information is used

only for armed services recruiting and to inform high school students of scholarship

opportunities.)

To minimize their administrative burden, some schools notify parents of the military

recruiters' right to student data by utilizing the same notice they use to inform parents of directory information disclosure. A sample directory information notice with reference to

disclosures to military recruiters can be found on the Family Policy Compliance Office's

(PPCO) website: http://wwzgedgov/polig/gen/guid4cdhottopics/ht-10-09-024.html.

Schools that normally do not disclose directory information and, therefore, may not

have a directory -information disclosure policy under FERPA, must nevertheless release

to military recruiters the student information listed above unless parents (or

eligible students) disallow disclosure,

Confidentiality and Privacy Concerns Until recently, the main concern regarding confidentiality and privacy of education

records centered on individuals hacking into central computer systems or otherwise illegally

accessing records through other security breaches. With technology increasingly used to

ensure the availability of timely and accurate information, however, the scope of this issue

has expanded to include portable storage devices (flash drives), handheld computers, electronic information transfers (e-mail), and other tools and devices used to store or

transfer data.

Today's information portability makes performing many school -related tasks more conven-

ient; however, it also increases the risk of unauthorized access to protected information. As school administrators, teachers, and support staff find new ways to store and access

student records, they must still ensure the information's confidentiality and privacy.

For example, if an administrator misplaces a handheld computer, any personally identifiable information it contains becomes potentially accessible to anyone who

finds the device. Teachers carrying grade files home on a flash drive or storing other personally identifiable student information on home computers create the risk of unauthorized access to protected education records. Likewise, education records transferred through electronic mail could potentially be intercepted by unauthorized


R. 373a

r

individuals. Since such situations occur daily in schools across the country, local

education agencies must take precautions to guard against the unintentional release

or unauthorized disclosure of education records.

Each education institution subject to FERPA should consider establishing policies,

procedures, and best practices to address the following questions:

What are the current legal restrictions for disclosure and nondisclosure?

Does the potential risk to the confidentiality and security of education records

outweigh the benefit of using certain electronic devices poses?

Does the teacher or staff member have a legitimate educational interest in the

information that meets the exception rule for prior consent (see Disclosure of Student Information)?

Is prior consent required since the ability to carry education records off school prem-

ises changes the physical context in which the education records were originally used?

What jobs or roles include responsibility for the safety and maintenance of education

records?

What is the ethical and legal responsibility of staff in terms of preventing unauthorized use or disclosure of information?

What is appropriate and inappropriate use of data, and how can information be

protected against unauthorized access?

What type of training will individuals who access and/or use the information require?

Do individuals with access to personally identifiable information take an oath of nondisclosure?

Establishing policies, procedures, and best practices is not a cure-all, but it sets the foundation for ensuring a deliberate effort to safeguard the confidentiality and privacy

of education records.

Updated resources can be found on the FERPA page of the Forum website:

http://nces.edgov/forum/ferpa links,asp

Surveillance Cameras According to Indicators of School Crime and Safety: 2005 (U.S. Departments of Education and Justice, 2006), schools continue to implement a variety of tools to improve safety

and monitor activities. In fact, the report notes that "in 1999-2000, 14 percent of primary schools, 20 percent of middle schools, and 39 percent of secondary schools

used one or more security cameras to monitor the school."

School cameras are typically placed in areas that do not infringe on students' right to

privacy, such as classrooms, hallways, common areas, and building perimeters. However,

recent reports of cameras in bathrooms have sparked a debate over the appropriate balance

between student privacy rights and the need for school security. While FERPA does not specifically address this issue, school systems should have a surveillance camera policy


R. 374a

outlining the rights and responsibilities of students, teachers, administrators, and other school staff: As a best practice, the policy should include the following:

a clear statement of appropriate reasons for using surveillance cameras;

the role and responsibilities of individuals with access to the cameras;

who will have access to any footage;

how long will any footage be kept and how will it be destroyed; and

a consent provision.

For FERPA purposes, surveillance videotapes (or other media) with information about a

specific student are considered education records if they are kept and maintained by the

school system. If the school's law enforcement unit controls the cameras/videos and it is doing the surveillance for safety reasons, the ensuing videos would be considered law

enforcement, rather than education, records. As soon as school officials use them for

discipline purposes, however, the tapes become education records and are subject to

FERPA requirements.

For more information, see Tact sheet 29: Privacy in Education" (Privacy Rights

Clearinghouse, 2005) at http://www,privacyrights.org

For more in-depth information on directory information, disclosure of student

information, and annual notification to parents, see the Forum Guide to Protecting

the Privacy of Student information: State and Local Education Agencies (National

Forum on Education Statistics, 2004).

Videotapes and Online Information When created and kept by the school or education agency, videotapes or photographs

directly related to a specific student axe considered parr of that student's education records

and, therefore, subject to FERPA. For instance, if the tape captured an altercation, it would be included in the involved students' education record, and the school has to

obtain consent before publishing or disclosing its contents to unauthorized individuals.

However, authorization would be needed only for the students actually involved in the

altercation; other students in the video would be considered "set dressing" (not relevant

to the incident) and not covered.

Information on the Internet is treated in a similar way. Posting information is considered

"disclosure" and must, therefore, comply with FERPA guidelines. Even without FERPA,

school officials should consider safety concerns and exercise caution when displaying infor-

mation (such as identifiable pictures) about students on the Internet, even if the information is designated as directory information. Including parents in any decisions about how much student information is appropriate might be a good practice, especially for younger students.

More information on this topic can be found in The Appropriate and Eflictive Use of Security Technologies in U.S. Schools: A Guide for Schools and Law Enforcement Agencies

(U.S. Department of Justice Office of Justice Programs 1999), which is available online at http://www.ncjrs.govischool/home.html.


R. 375a

'r

Conclusion Safeguarding the confidentiality of individual student information is the responsibility

of any and all organizations and individuals who collect, maintain, access, transfer, or

use education records. This guide reviews federal privacy laws, defines related terms

and concepts, summarizes organizational and individual responsibilities, and describes

appropriate responses to privacy -related concerns that commonly arise in a school or

district setting.

This document is meant to serve as a resource for schools and school districts, but is not a substitute for the detailed direction provided in local and state privacy laws,

regulations, and procedures. For a more in-depth review of privacy laws and professional

practices that apply to information collected for, and maintained in, student records,

see the Forum Guide to Protecting the Privacy of Student Information! Stare and Local

Education Agencies (NCES 2004). Additional resources about FERPA and other privacy

issues can be found in the online document, "FERPA Facts for School Staff," available

at http://nces.edgov/fOrum/felpa_links.asp. Schools and districts should also consult all

local and state privacy laws, regulations, and procedures to which they are subject.

Iv .0 44 akm,*101

poifot it


R. 376a

R. 377a

Appendix A. Key Terms and Definitions Source: Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies. (National Forum

on Education Statistics, 2004). Terms marked with an asterisk (*) indicate a consistent definition with FERPA.

Confidentiality: a person's obligation not to disclose or transmit information to unauthorized parties.

Directory Information*: information contained in a student's education record that would not generally be considered

harmful or an invasion of privacy if disclosed.

Disclosure: access, release, or transfer of personally identifiable information about an individual.

Education Agency: a state or local education agency authorized to direct and control public elementary and secondary, or

postsecondary, institutions.

Education Institution: an institution or school that provides educational services or instruction, or both, to students.

Education Record*: any information recorded in any way-including, but not limited to, handwriting, print, computer

media, videotape or audiotape, electronic files, film, microfilm, and microfiche-that are maintained by education

agencies or institutions, or individuals acting on their behalf. Personal notes by teachers or other staff, kept in the sole pos-

session of the maker, used only as memory aid, and not accessible or revealed to any other person except a temporary sub-

stitute are not considered part of the education record.

Eligible Student*: a student who has reached the age of 18; or has attended a postsecondary institution, regardless of age.

Informed Consent: an individual's agrcement in the context of a written account of why personal information is requested

and how is will be used.

Legitimate Educational Interest: information is used within the context of official agency or school business and its use

is consistent with the purpose for which it is maintained; access to the information is necessary for school officials to

perform tasks related to their position.

Parent*: a natural or adoptive parent, a legal guardian, or an individual acting as a parent in the absence of a parent or

guardian.

Personally Identifiable Information*: includes the student's name; the name of the student's parent or other family member;

the address of the student; a personal identifier, such as the social security number or student number; a list of personal

characteristics that would make the student's identity easily traceable; or any other information that would make the

student's identity easily traceable.

Privacy: a uniquely personal right that reflects an individual's freedom from intrusion.

School Official: a person employed by the agency or school in an administrative, counseling, supervisory, academic, student

support, or research position; or a person under contract to the agency or school to perform a specified task.

Security: the process that focuses on the confidentiality, integrity, and availability of information systems and data.

Student*: any person who is or has been in attendance, about whom an agency or institution maintains education records or

personally identifiable information.


R. 378a

Appendix B. References and Other Resources References

National Forum on Education Statistics Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies (NCES 2004-330).

U.S. Department of Education. Washington, DC: National Center for Education Statistics.

http://nces.edgov/fbrurn/pub_2004330.asp

Privacy Issues in Education Staff Records: Guidelines for Education Agencies (NCES 2000-363). U.S. Department of Education. Washington, DC: National Center for Education Statistics,

http://nces.ed.gov/fbrum/pub_2000363.asp

Family Policy Compliance Office (FPCO) Policy Guidance-Access to High School Students and Information by Military Recruiters. (2002). U.S. Department of Education. Washington, DC: Family Policy Compliance Office.

http://www.ed.gov/policy/gen/guid/co/hottopics/ht-10-09-02a.htrnl

Rooker, L. (2005). Compliance Training: Family Educational Rights and Privacy Act, Protection of Pupil Rights

Amendment, and Military Recruiter Provisions of NCLB. U.S. Department of Education, Washington, DC.

Other references

DeVoe, J.F., Peter, K., Noonan, M., Snyder, TD., and Baum, K. (2005). Indicators of School Crime and Safety: 2005

(NCES 2006-001/NCJ 210697). U.S. Departments of Education and Justice. Washington, DC: U.S. Government Printing Office.

Ensuring Quality School Facilities and Security Technology. Northwest Regional Educational Laboratory: The Safetyzone.

Retrieved February 2006 from http://www.safetyzone.org.

Green, Mary W. (1999). The Appropriate and Effective Use of Security Technologies in U.S. Schools: A Guide for Schools

and Law Enforcement Agencies. U.S. Department of Justice Office of Justice Programs. Sandia National Laboratories. Retrieved February 2006 from http://www.rujrs.govischool/home.html.

The Impact of FERPA and HIPAA on Privacy Protections for Health Information at School: Questions from

Readers. Health and Healthcare in Schools (2003, Volume 4 Number 4). George Washington University School of Public Health and Health Services, Washington, DC: The Center for Health and Health Care in Schools, Retrieved

December 2005 from http://www.healthinschools.orgiejournal/2003/privacy.htm.

Other resources

National Forum on Education Statistics Home page: http://nces.ed.gov/fOrum/index.asp

FERPA information website: http://nces.ed.gov/firum/fbpa_links.asp

Family Educational Rights and Privacy Act (FERPA). Code of Federal Regulations (Title 34, Part 99). Code of Federal

Regulations (CFR) main page: htq)://www.gpoaccess,govicfilirdex.html

Family Policy Compliance Office (FPCO) at U.S. Department of Education Home page: ht://www.agov/policy/gen/guid/fiicolindex.html

Privacy Rights Clearinghouse (2005). "Fact Sheet 29: Privacy in Education." Retrieved December 2005 from http://www.privacyrights.org.

Rules and Regulations, Federal Register (Vol. 68, No. 34,20 February 2003). The Federal Register (FR) main page: http://www.gpoaccess.gov/fr


R. 379a

NAUMAN, SMITH, SHISSLER & HALL, LLP Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18th Floor P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 [email protected] jbonnanssh.com


Petitioner, : CIVIL ACTION - LAW

v.

VALERIE HAWKINS, FOX 43 NEWS, : NO. 2016 -CV -4401 -MP and the COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS, : OOR Dkt. No. AP 2016-0583

Respondents.

RESPONSE OF VALERIE HAWKINS AND FOX 43 NEWS TO PETITIONER'S POST - HEARING BRIEF

R. 380a

Table of Contents

I. INTRODUCTION 1

II. BACKGROUND 1

III. QUESTIONS PRESENTED 3

IV. ARGUMENT 4

A. The Video is presumptively public, and the District cannot overcome this presumption 4

B. Several Courts have ordered the disclosure of school videos, and FERPA does not prohibit the disclosure of the Video here ...... 5

1. The Video does not contain "information directly related to a student" under FERPA5

2. The Video is not "maintained by" the District 11

3. The District has never lost federal funds under FERPA and cannot point to any educational body ever that has forfeited federal funds in the 40 -plus years since the enactment of FERPA 13

C. The investigative exemption under RTKL does not apply . 14

D. The Video has already been disclosed in open court. 16

V. CONCLUSION... 17

11

R. 381a


Cases Pages

Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. 1991) 7, 13

Bd. of Educ. of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. May 26, 2011) 11, 12

Bryner v. Canyons School District, 351 P.3d 852 (Utah Ct. App. 2015) .8

Carey v. Pa. Dep't of Corr ,

61 A.3d 367 (Pa. Cmwlth. 2013) 14

Commonwealth v. Upshur, 592 Pa. 273, 924 A.2d 642 (Pa. 2007) 16, 17

Dep't of Health v. Office of Open Records, 4 A.3d 803 (Pa. Cmwlth. 2010) 15

Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Ohio 2004) 6, 7, 8, 10

Grove Fresh Distribs. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) 16

Lindeman v. Kelso Sch. Dist. No. 458, 172 P.3d 329 (Wash. 2007) 5, 8

Medley v. Bd. Educ., 168 S.W.3d 398 (Ky. Ct. App. 2004) 6

Owasso Independent School District v. Falvo, 534 U.S. 426 (2002)... 12

Pa. State Police v. Grove, 2017 Pa. LEXIS 1394 (June 20, 2017) passim

Remling v. Bangor Area School District, OOR Dkt. AP 2011-0021 11

Rhea v. Dist. Bd. of Trs. of Santa Fe College, 109 So. 3d 851 (Fla. Dist. Ct. App. 2013) 9

iii R. 382a

Matter of Rome City School Dist. v. Grifasi, 10 Misc. 3d 1034 (NY Sup. Ct. 2005) 5, 8, 13

S.A. v. Tulare Cty Office of Educ., 2009 U.S. Dist. LEXIS 93170 (E.D. Cal. 2009) 11

Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011) 15

State v. Mart, 697 So. 2d 1055 (La. App. 1997), overruled on other grounds by In re: Matter Under Investigation, 15 So. 2d 972 (La. 2009) 5, 8

United States v. Miami University, 91 F. Supp.2d 1132, 1149 (S.D. Ohio 2000) 9, 10

Wallace v. Cranbrook Educ. Cmty., 2006 U.S. Dist. LEXIS 71251, 2006 WL 2796135 (E.D. Mich. Sept. 27, 2006) 7, 8

West Virginia Publishing Co, v. Monongalia County Board of Education, 2006 WL 4642782 (W. Va. Cir. Ct.) 6

Statutes

65 P.S. § 67.305(a) 4

65 P.S. § 67.305(a)(1) 4

65 P.S. § 67.305(a)(3) 4

65 P.S. §67.705 10

65 P.S. §67.706 10

65 P.S. § 67.708(17) 4

65 P.S. § 67.708(b)(17) 14

65 Pa. C.S. §§ 67.1102, 67.1301 11

20 USC § 1232(a)(5) 6

20 USC § 1232g(b)(1) 13, 14

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g 4, 5, 6

Pennsylvania Right -to -Know Law, 65 P.S. §§ 67.101 to 67.3104 1

iv

R. 383a

Other Authorities

(2011), http://s3.amazonaws.com/edn.getsnworks.com/spl/pdf/ferpa wp.pdf 6

First Amendment 16

Owasso Indep. Sch. Dist. No. I-0.11 v. Falvo, No. 00-1073 8, 9, 12

Penn Live at http://www.pennlive.com/news/2016/05/judge_dismisses harassment_cha.ht ml 3

R. 384a

I. INTRODUCTION

Notwithstanding the determination by the Pennsylvania Office of Open Records ("OOR")

that a school bus video must be disclosed and cases from around the country reaching the same

finding, Petitioner Central Dauphin School District (the "District") continues to seek to conceal

the video at issue (the "Video") from the public. The Video depicts an incident involving an

adult (the wife of the Central Dauphin East High School principal) and a student, and the has

admitted she grabbed the student by the arm. Not surprisingly, the incident has garnered a great

deal of public attention. Also not surprisingly, the District has gone to extraordinary lengths to

keep the Video out of the public eye (even though a critical portion of the Video was played in

court at the adult's trial on a harassment charge). Accordingly, Respondents WPMT, LLC, d/b/a

Fox 43 News and Valerie Hawkins (together, "Respondents"), made an open records request for

the Video. Respondents prevailed with the OOR, but the District continues to contend that the

Video is an education record protected from disclosure under federal law. This position

contradicts not only the OOR but also the case law and the applicable statutory language. The

District also claims the video is subject to an exemption from disclosure for investigatory

materials in a noncriminal investigation. The testimony of the District's only witness is fatal to

the noncriminal investigation exemption though. The District's witness made clear that the

Video was not created merely or primarily for investigative purposes. Instead, it was swept into

the investigation after the investigation began. The Video meets none of the exemptions from

disclosure under the Pennsylvania Right -to -Know Law, 65 P.S. §§ 67.101 to 67.3104 ("RTKL")

and should be disclosed to the public.

H. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Ms. Hawkins submitted an RTKL request to the District on February 23, 2016. The

R. 385a

District denied the request on March 24, 2016, and Ms. Hawkins appealed to the OOR that same

day. On May 19, 2016, the OOR issued a Final Determination granting the appeal and ordering

the release of the Video. The District filed a Petition for Review with this Court on June 9, 2016,

and Respondents filed a response on July 14, 2016. The Court held a hearing in the matter on

March 30, 2017, and the District filed its Post -Hearing Brief on May 22, 2017.

The Video was shot by stationary cameras on a public school bus and shows, among

other things, the activities of an adult who is not a faculty member. It also depicts an incident that

occurred, in significant part, in the public parking lot outside the school bus and that was visible

to the general public.

District school busses are equipped with two cameras. One camera is mounted over the

driver's head and shows the front door of the school bus-and the area outside the front door.

(Transcript of March 30, 2017 Hearing ("Tr.") at 7:12-17.) The other camera is mounted in the

front of the bus and shows the length of the interior of the bus from front to rear. (Id. at 7:12-17.)

The cameras are not focused on any individual on the bus. (Id. at 29:22-24.) The cameras

typically begin recording when the bus engine is turned on and continue to record until 20

minutes after the engine has been turned off. (Id. at 28:11-19.) The cameras run continuously,

regardless of what is occurring in or around the bus. (Id. at 28:11-19.) The video created from

these cameras is typically displayed as a split screen with the feed from each camera occupying

half of the screen. (Id. at 47:12-20.)

The school bus videos are created for several purposes. (Id. at 9:1-7.) Although the

videos may be used in student discipline, they are also used for reviewing staff members'

performance and to monitor safety issues. (Id. at 9:4-7.) Nowhere, by the way, does the District

claim that the school bus videos are created for any educational purpose. The District does not,

2

R. 386a

as a matter of course, maintain school bus videos. (Id. at 7:19-23.) The videos are overwritten

every 10 days to two weeks. (Id. at 7:20.)

The Video at issue here was shot on February 16, 2016. The bus was located at Central

Dauphin East High School after a girls' basketball game, and it was parked in the public area of

the school parking lot. (Id. at 17:13-16, 18:19-24, 19:11-19.) The Video includes footage of a

confrontation between Erica Rawls, the wife of the Central Dauphin East High School principal

(Id. 50:19-51:2), and a member of the girls' basketball team. The incident on the Video actually

began outside the school bus, and the Video from the camera above the driver's seat captures the

early stages of the incident as it unfolded in the public parking lot. (Id. at 21:14-25:22.) The

relevant portion of the Video is approximately 10-12 minutes. (Id. at 29:5.)

The names of the student and adult involved in the incident are known to the public, and

both testified at Ms. Rawls' trial for harassment. "I reached for her arm to get her attention," Ms.

Rawls testified with regard to her interaction with 17 -year -old basketball player Jada Pettis.

"Jada started screaming, 'Don't touch met' It wasn't a forceful grab." See Matt Miller, "Judge

dismisses harassment charge against CD East principal's wife," Penn Live at

http://www.pentilive.com/news/2016/05/judge_dismisses_harassment cha.html. According to

Ms. Pettis, "Mrs. Rawls comes and she stops me. She was yelling at me, like, 'Why are you

being so disrespectful- She grabbed my forearm and I told her to get off of me . . . . I was kind

of in shock." Id. The District has informed counsel for Respondents that 55 seconds from the

camera above the driver's head (the one that shows the door and the area outside the door) was

shown at Ms. Rawls' Magisterial District Judge hearing.

QUESTIONS PRESENTED

Whether the OOR correctly ruled that the Video, which had nothing to do with

education, not directly related to a student, and which was not maintained by the

3

R. 387a

District, was not an "education record" under the Family Educational Rights and

Privacy Act of 1974, 20 U.S.C. § 1232g ("FERPA")?

[Suggested answer: Yes.]

Whether the OOR correctly ruled that the Video is not subject to RTKL's

noncriminal investigation exemption because it was not created "merely or

primarily" for investigative purposes after the District's sole witness testified that it

was created for several purposes?


Whether the portion of the Video played in open court is presumptively open to the

public?


IV. ARGUMENT

A. The Video is presumptively public, and the District cannot overcome this presumption

Under the OOR, "[a] record in the possession of a Commonwealth agency or local

agency shall be presumed to be a public record." 65 P.S. § 67.305(a). In addition, the District has

the burden of proof to show by a preponderance of the evidence why the requested public record

is exempt from disclosure. 65 P.S. § 67.305(a)(1). The District claims the Video is exempt from

disclosure under the noncriminal investigation exemption set forth in 65 P.S. § 67.708(17) and

that the Video is exempt from disclosure under federal law 65 P.S. § 67.305(a)(3). Exemptions

are to be narrowly construed. See Pa. State Police v. Grove, 2017 Pa. LEXIS 1394, at *12 (June

20, 2017). The District has now received the benefit of fulsome briefing and an evidentiary

hearing. It cannot carry its burden and overcome the presumption of openness.

4

R. 388a

B. Several Courts have ordered the disclosure of school videos, and FERPA does not prohibit the disclosure of the Video here

Perhaps the biggest hurdle the District must overcome (beyond the fact that the OOR

already ruled against it) are the cases from around the country in which courts have ordered the

disclosure of videos from a school or bus. See Matter of Rome City School Dist. v. Grifasi, 10

Misc. 3d 1034, 1037 (NY Sup. Ct. 2005) (directing disclosure of videotape after finding that it

was not an education record); State v. Mart, 697 So. 2d 1055, 1060 (La. App. 1997) (directing

release of school bus video over school board's objection that FERPA gave students reasonable

belief that video would not be disclosed), overruled on other grounds by In re: Matter Under

Investigation, 15 So. 2d 972, 983 (La. 2009); Lindeman v. Kelso Sch. Dist. No. 458, 172 P.3d

329, 331-32 (finding that Washington's state student records act, which is similar to FERPA, did

not prevent release of school bus surveillance video). In addition, the language of FERPA simply

does not support the District's attempt to hide the requested public record. FERPA applies only

to "education records," which means the record must "contain information directly related to a

student" and that it must be "maintained" by an educational agency.20 USC § 1232g(a)(4). The

Video is neither.

1. The Video does not contain "information directly related to a student" under FERPA

Like educational institutions around the country, the District essentially takes the position

that all records held by a school are "education records." (Post -Hearing Brief ("Br.") at 12

(arguing for "broad" interpretation of FERPA).) This reflexive secrecy flies in the face of the

definition of "education records" in FERPA. FERFA's reach is far more limited than the District

acknowledges, and not all records related to a student and held by an educational institution are

5

R. 389a

subject to FERPA'.

As one commentary has stated, "[t]he 'directly relate' prong of FERPA is widely

misunderstood or ignored, but it substantially narrows the scope of what FERPA covers." See

Student Press L. Ctr., "FERPA and Access to Public Records" at 3

(2011), http://s3.amazonaws.coin/cdn.getsnworks.com/spl/pdf/ferna wopdf ("SPLC White

Paper"). As the SPLC White Paper emphasizes: "[t]o be a confidential FERPA record, a

document must not merely mention a student, it must actually be about the student." /d.2 Here,

the students are merely ancillary subjects of video captured by stationary cameras. Plus, the

Video was shot on a bus sitting in a public parking lot and traveling on public byways, not in a

classroom or even within the four walls of a school. The subjects would have had no expectation

of privacy. See, e.g., Grove, 2017 Pa. LEXIS 1394, at *49 (stating with regard to wiretap claim

that "individuals at the scene could have had no reasonable expectation of privacy").

Courts consider the content of the record at issue in determining whether it is an

"education record" subject to FERPA. When the requested record involves allegations of

misconduct engaged in by a non -student, as the Video does, the record is not "directly related" to

a student. See Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019, 1022-23 (N.D. Ohio

2004) ("while it is clear that Congress made no content -based judgments with regard to its

`education records' definition, it is equally clear that Congress did not intend FERPA to cover

'Because the Video was shot on a bus after a girls' basketball game it does not reflect a core academic activity. (Tr. at 17:17-23.) The Video shows faces and jersey numbers (which were on the back of the players' backpacks) (Id. 11:16-21), exactly the sort of information that would be on a roster and would be permissibly disclosed as "directory information." 20 USC § 1232(a)(5) ("`directory information' relating to a student includes the following: the student's name, address, telephone listing, 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, and the most recent previous educational agency or institution attended by the student"). 2 The District relies on West Virginia Publishing Co. v. Monongalia County Board of Education, but that case deals with the "directly related" prong in only a conclusory fashion. 2006 WL 4642782 (W. Va. Cir. Ct.). In addition, the Medley case plaintiff cites, which dealt with the wholly different situation of a video taken in a classroom, includes no analysis of what it means for a video to be "directly related" to a student. Medley v. Bd. Educ., 168 S.W.3d 398 (Ky. Ct. App. 2004).

6

R. 390a

records directly related to teachers and only tangentially related to students") (internal citations

and quotations omitted); Wallace v. Cranbrook Educ. Cmty., 2006 U.S. Dist. LEXIS 71251, at

*12, (E.D. Mich. Sept. 27, 2006). In Ellis, the requester sought incident reports related to

altercations between substitute teachers and students, including student and employee witness

statements. Ellis, 309 F. Supp. 2d at 1022. Even though such records "clearly involve students as

alleged victims and witnesses," the court held that they "do not implicate FERPA because they

do not contain information 'directly related to a student.'" Id. at 1023. Likewise, in Wallace the

court held that student statements provided in relation to an investigation into a school

employee's alleged misconduct "do not directly relate to the students and are not education

records" subject to FERPA. Wallace, 2006 U.S. Dist. LEXIS 71251, at *12. Similarly, the

subject of the records at issue here is, in large part, the conduct of a non -student (the wife of a

school principal), and the Video is only tangentially related to any students who appear in it.

The District attempts to distinguish Ellis and Wallace on the basis that the statements in

those cases were gathered after the incident. (Br. at 18.) The rationale of those cases, which

explicitly consider the subject matter of the requested documents and base their conclusions as to

the "directly related" inquiry on the same, does not support the District's position. Another case,

Bauer v. Kincaid, also focused on the type of records at issue. The Bauer court found that

"criminal investigation and incident reports are not educational records because, although they

may contain names and other personally identifiable information, such records relate in no way

whatsoever to the type of records which FERPA expressly protects; i.e., records relating to

individual student academic performance, financial aid or scholastic probation which are kept in

individual student files." 759 F. Supp. 575, 591 (W.D. Mo. 1991). The Video is similar to the

records at issue in Ellis and Wallace in that the record involves students but the Video is not the

7

R. 391a

type of education record FERPA expressly protects.

The District has not cited any Pennsylvania case standing for the proposition that school

bus videos (or even school surveillance videos generally) are educational records under FERPA.

The District's best case, Bryner v. Canyons School District, is from Utah. 351 P.3d 852 (Utah Ct.

App. 2015). Although the Bryner court found that the video at issue was subject to FERPA, this

holding was not at odds with the reasoning of Ellis and Wallace. 351 P.3d at 857. Unlike the

record at issue here, the Bryner case involved surveillance video depicting an altercation between

two students and was thus considered a record "directly related" to a student. Id. Bryner stands as

the exception to the other cases in which school surveillance videos have been ordered disclosed.

The District also cites to several state attorney general opinions (Br. at 13-14), but, as

noted above, the weight of the actual court cases is in favor of Petitioners. In Grifasi, the court

looked at whether a video of a fight between two students should be disclosed. 10 Misc. 3d at

1036. The court determined that FERPA "is intended to protect records relating to an individual

student's performance. FERPA 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 1036-37. The court found that "[c]learly, the videotape in question is not an 'educational

record' within the meaning of FERPA." Id. at 1037. A Louisiana court made a similar

determination in Mart, 697 So. 2d at 1060. See also Lindeman, 172 P.3d at 331-32.

These findings are consistent with the U.S. Department of Education's view of FERPA.

In Owasso, the United States filed a brief in which it elucidated a very limited view of what

constitutes an "education record." According to the U.S. government, the designation of a

document as an education record means that parents have a "right to a hearing to challenge the

8

R. 392a

content of the record to ensure that it is not inaccurate, misleading, or otherwise in violation of

the privacy rights of the student, and a right to insert into such records a written explanation by

the parents regarding the content of the records." Owasso Indep, Sch. Dist. No. I-011 v. Falvo,

No. 00-1073, Brief for the United States as Amicus Curiae, at 15-16 (June 2001) (copy attached

hereto as Ex. A). According to one commentator, "[t]his is important because many of the

documents that schools and colleges mistakenly believe to be FERPA records - for example, the

footage from a security video shot aboard a school bus - cannot qualify as 'education records'

under the DOE definition." SPLC White Paper at 3. A school cannot have a hearing with a

parent to challenge the accuracy of the Video (as Ms. McConnell testified, the cameras are fixed

and simply run continuously), and a parent cannot insert comments into the Video. The Video

therefore falls outside the Department of Education's definition of an "education record."

The Bryner court adopted the "close connection" test articulated in Rhea v. Dist. Bd. of

Trs, of Santa Fe College, 109 So. 3d 851, 857 (Fla. Dist. Ct. App. 2013). In Rhea, the court

considered a student's email about a professor's classroom behavior and held that although the

professor was the subject of the email, the email also directly related to its student author. There

is no question that the Video is directly related to the adult accused of grabbing a student by the

wrist, but, under Rhea, the relevant question is whether the Video is also "directly related" to the

student victim. Id. at 858 The record at issue is distinguishable from the email in Rhea because

the student involved here and was simply captured on stationary cameras that captured

everything in their field of vision. Therefore, even under the reasoning of Rhea, the Video is not

directly related to a student.

The Bryner case also quotes language from United States v. Miami University to broadly

suggest that a record is directly related to a student if it pertains to actions committed "by or

9

R. 393a

against" a student. 91 F. Supp. 2d 1132, 1149 (S.D. Ohio 2000). This would seem to encompass

any record with a student victim no matter how tangential, and would directly contradict the

holding in Ellis. Moreover, it would have the perverse effect of elevating the privacy interests of

adult offenders over student and parent access to information regarding student safety.

Respondents do not suggest that the mere "presence" of a non -student would divest a

record of FERPA protection. Instead, the Video is not subject to FERPA because it is not directly

related to a student. Moreover, exempting this Video would not serve the policy goals of

FERPA. It would prevent the release of a video embarrassing to school authorities at the expense

of the public's and parents' right to know about student safety in the presence of adults.

At minimum, should this Court find, contrary to the arguments stated above, that the

Video contains information directly related to the involved student, it should order the District to

redact that student's information and produce the Video, as in Bryner. 351 P.3d at 860 (affirming

the trial court's ruling that the video depicting an altercation between two students is an

education record subject to FERPA and finding that the court did not err in ordering the District

to produce a redacted copy of the video); see also Miami Univ., 294 F.3d at 824 ("Nothing in . .

. FERPA would prevent [educational institutions] from releasing properly redacted records.").

The District's witness testified that the District cannot redact the Video (Tr. at 14:12-15), but the

mere fact that it may be difficult to redact the Video is not, in and of itself, a sufficient basis to

deny the request as a whole. Grove, 2017 Pa. LEXIS 1394, at *32 n.18; 65 P.S. §67.706. An

abbreviated form of the Video could be produced, or the District could enlist a vendor to do the

redaction or pixilation.3

3 The Pennsylvania Supreme Court held in Grove that redaction of a video does not create a new record in violation of 65 P.S. §67.705. 2017 Pa. LEXIS 1394, at *40. In addition, Northern York County School District recently released a pixelated school bus video in response to an RTKL request. See March 31, 2017 Alexander email transmitting link to school bus video. (attached as Exhibit B).

10

R. 394a

Although the District gives no deference to the OOR's decision in this matter, it does

seek to place great weight on the OOR's prior decision in Reviling v. Bangor Area School

District, OOR Dkt. AP 2011-0021. (Br. at 25-26.) The OUR, however, is not bound by its prior

decisions and may overrule them, subject to its duties under 65 Pa. C.S. §§ 67.1102, 67.1301.

The OOR's prior decision in Remling, did not analyze or cite to any case law interpreting the

definition of "education records" under FERPA, and the OOR properly reached a contrary ruling

in this matter.

2. The Video is not "maintained by" the District

The case law on the "maintained by" prong of the "education records" definition

repeatedly focuses on the idea of permanent records. As the hearing made clear, the District does

not "maintain" videos. (Tr. at 7:19-23.) In fact, videos are overwritten every 10-14 days. (Id. at

7:19-23.) The District held the Video longer than two weeks only because a District employee

set it aside for safekeeping. (Id. at 9:22-25, 13:9-14.) School bus videos in the District are

temporary records at best. Ms. McConnell's testimony demonstrates that there is no "system" for

maintaining such records or a central repository, and the continued existence of the Video is an

aberration. Such retention would not be sufficient to meet the definition of "maintained" under

the case law. See, e.g., Bd. of Educ. of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App.

LEXIS 26644, at *20-21 (6th Cir. May 26, 2011) (finding that temporary notes, which were

subsequently destroyed were not education records); S.A. v. Tulare Cty Office of Educ., 2009

U.S. Dist. LEXIS 93170, at *10 (ED. Cal. 2009) (noting that emails are "fleeting" and easily

deleted, and finding that those emails not printed and maintained in a central, permanent file

were not education records even if they could be accessed). As noted above, the District must

prove an exemption applies, and it has failed to provide sufficient factual support to meet its

burden.

11

R. 395a

The OOR ruled in Respondents' favor in a thorough, thoughtful, and comprehensively

researched Final Determination. Nonetheless, the District takes issue with the OOR's citation of

certain cases in support of its decision in favor of Respondents. For example, the District

disputes the OOR's interpretation of Owasso Independent School District v. Falvo, 534 U.S. 426,

432-33 (2002). (Br. at 22-24.) For present purposes, there are two salient points within Owasso.

First, the U.S. Supreme Court took a searching look at the reference to the word "maintain" in

FERPA and held that peer -graded papers were not subject to FERPA because they were not

"maintained" within the meaning of the statute. Id. at 432-33. Second, the Supreme Court

attempted to limit school districts' reflexive attempts to declare anything and everything an

"education record" under FERPA.

Following Owasso, the Sixth Circuit also determined that just because a record

concerning a student is made in a school it is not necessarily an educational record. Bd. of Educ.

of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644, at *20-21 (6th Cir. May

26, 2011) (interpreting Owasso and determining, with regard to temporary notes made by

teachers, that "the word 'maintain' requires that the records be kept in a permanent facility" and

finding that the records at issue did not constitute a "permanent document of [the student's]

education.") (emphasis added). There is no evidence here, by the way, that the Video was in fact

maintained in a permanent facility. Moreover, the District's witness testified that it was not kept

as part of any student's file. (Tr. at 43:2-5.) Again, the consistent theme running through all of

these cases-all of which involved a finding that school records about students were not

necessarily "education records" under FERPA-is that FERPA is not a blanket prohibition on

disclosure. As the OOR accordingly noted in its Final Determination, "not all records pertaining

to a student and held by an educational institution are 'education records' for purposes of

12

R. 396a

FERPA. Just because a record involves a student does not automatically invoke the

confidentiality provisions of FERPA." (Final Det. at 4.)

Although the case law does not mandate that only those records kept in a student's

permanent file are "maintained" within the meaning of FERPA, such records are referenced as a

prime example. The case law suggests that records are "maintained" if they are kept in a single

place as part of a permanent record. The District seems to suggest that it can "maintain" records

in any manner it sees fit and thereby deem such records subject to FERPA. (Br. at 23-24.) The

District's lone witness testified that she simply tucked the Video (and none of the other school

bus videos) in her safe. (Tr. 13:13-14.) This ad hoc approach hardly rises to the level both the

statute and case law require to "maintain" a record under FERPA.

3. The District has never lost federal funds under FERPA and cannot point to any educational body ever that has forfeited federal funds in the 40 -plus years since the enactment of FERPA

The District claims that it would lose federal funds if it were to disclose the Video. (Br. at

26.) As the District's only witness admitted, the District has never lost funds because of a

FERPA violation. (fr. at 47:2-5.) Critically, "FERPA is not a law which prohibits disclosure of

educational records. It is a provision which imposes a penalty for the disclosure of educational

records." Bauer, 759 F. Supp. at 589. Nonetheless, the District cannot point to a single situation

ever in the four -plus decades since FERPA became law in which an educational institution has

lost funding under FERPA.

The District cannot do so because, despite the District's hyperbolic claims, its funding

will not be in jeopardy if it discloses the Video. FERPA provides that federal funds may be

withheld only when an educational institution "has a policy or practice of permitting the release

of educational records." 20 USC § 1232g(b)(1). Release of the Video pursuant to an

administrative decree or a court order does not a "policy or practice" make. See Grifasi, 10 Misc.

13

R. 397a

3d at 1037 (finding school district's stated concern about losing federal funding "without merit"

because disclosure would be pursuant to court order). In addition, the Department of Education

does not simply deprive a school of funds if it believes there has been a violation. First, the

Department issues a plan of correction, and then it determines whether the educational institution

will voluntarily comply. See 20 USC § 1232g(b)(1) (stating that "action to terminate assistance

may be taken only if the Secretary finds there has been a failure to comply with this section, and

he has determined that compliance cannot be secured by voluntary means").

The District's argument is thus a red herring and under both a statutory and reality

analysis provides no support for its claims that release of the video will cause it a loss of federal

funding.

C. The investigative exemption under RTKL does not apply

The District fails to specify which provision of 65 P.S. § 67.708(b)(17) it claims applies

to the Video. The request does not seek records of any investigation of the incident created after

the fact, but the raw material of the Video that captured the incident as it happened. The District

has not explained how the daily recording of surveillance video qualifies as a record relating to

an "investigation," which the case law defines as a "systematic or searching inquiry" or "official

probe." Carey v. Pa. Dep't of Corr., 61 A.3d 367, 378 (Pa. Cmwith. 2013). Any "investigation"

sufficient to meet this definition would not have begun until after the incident. The Video is

analogous to police dash cam videos, which the Supreme Court recently explained are not

exempt from the RTKL under the criminal investigation exemption because they are not

themselves investigative. Grove, 2017 Pa. LEXIS 1394, at *31.

Although Grove involves a separate RTKL exemption for criminal investigative records

under section 708(b)(16), it is relevant to the present case because it involves a video recording

of the interaction at issue. Id. at *2. Also, like the Video, the police dash cam video were turned

14

R. 398a

on in investigative and non -investigative situations (the dash cam video is activated when a

trooper turns on his or her emergency lights or siren) and were used in various types of

proceedings (civil, criminal, quasi -criminal, administrative enforcement, and disciplinary

proceedings). Id. at *30-31. The District contends that the case is "unavailing" because criminal

investigations are different from non -criminal investigations, but the District fails to explain why

this difference matters.4 (Br. at 32-33.) The RTKL exempts both criminal and noncriminal

investigative records and thus the key issue is the meaning of the term "investigative." See, e.g.,

Sherry v. Radnor Twp, Sch. Dist., 20 A.3d 515, 522 (Pa. Cmwlth. 2011) (analogizing between

the two exemptions); Dep't of Health v. Office of Open Records, 4 A.3d 803, 810-11 (Pa.

Cmwlth. 2010) (same). The District also incorrectly argues that the Grove court merely found

that the video at issue did not contain any investigative information. (Br. at 33.) However, one

of the videos did contain "potential 'investigative information,' in the form of witness

interviews captured on the audio portion of the video and the lower court simply ordered the

agency to produce the video with that information redacted. Grove, 2017 Pa. LEXIS 1394, at

*35. Here, there is no evidence in the record that the Video contains any audio information.

The District originally claimed the school bus video recording system "only exists" for an

investigative purpose. The District submitted no evidence in its Petition in support of that

dubious proposition, but it nonetheless repeated it in its post -hearing brief. (Br. at 33.) At the

recent hearing, the District's witness, Karen McConnell, directly contradicted the District's

position. At the hearing, the District's attorney asked "What you seem to be indicating is those

videotapes are created or those recordings are retrieved primarily for student code of conduct

The District also claimed Grove was "unavailing" because it was on appeal to the Pennsylvania Supreme Court (Br. at 33), but the Supreme Court issued its opinion yesterday and found that the videos were not exempt. Grove, 2017 Pa. LEXIS 1394, at *35.

15

R. 399a

disciplinary issues; is that correct?" (Tr. at 9:1-3.) Ms. McConnell responded: "No. That's

correct. [sic] It could be student discipline, it could be reviewing of a staff member, it could be a

safety issue. Those are usually the three things that we pull for." (id. at 9:4-7.)

The District therefore fails to address its burden, much less carry its burden, on this

crucial point. The OOR recognized this deficiency in reaching its Final Determination and

emphasizing that "[h]ere, there is no evidence that the video exists for reasons other than to

document the behavior of students and others aboard school buses." (Final Det. at 8.) As Ms.

McConnell made clear, the surveillance videos exist to monitor and ensure student safety, and

also to monitor the bus driver's performance of his or her duties. Only after a specific incident

occurs are the videos used in an investigation. Regardless of any importance it may now have in

the context of an investigation, it was not "investigative material" created for that purpose. As

such it does not fall under any of the provisions of section 708(b)(17).

D. The Video has already been disclosed in open court

As established at the hearing, a crucial portion of the Video was played in Magisterial

District Judge Dominic Pelino's courtroom at a hearing on the harassment charge filed against

Erica Rawls based on conduct allegedly captured in the Video. (Tr. at 49:14-15.) The playing of

the Video occurred on May 25, 2016, nearly a week after the OOR issued its final determination.

The Pennsylvania Supreme Court has determined that tape recordings played during preliminary

hearings are public judicial records or documents and that there is a presumptive right of access

to such records. Commonwealth v. Upshur, 592 Pa. 273, 290, 924 A.2d 642, 653 (Pa. 2007). As

in Upshur, the recording at issue here was played in court and the judge relied on it in making his

decision. In addition, constitutional concerns underlie the right or access. See Grove Fresh

Distribs v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) ("Justified originally by

common-law traditions predating the enactment of our Constitution, the right of access

16

R. 400a

belonging to the press and the general public also has a First Amendment basis.") (citing Globe

Newspaper Co. v. Superior Court, Norfolk, 457 U.S. 596, 603 (1982)).

Because there is no chance that prejudice would result from a broadcast of the Video,

given that the harassment charge has been dismissed, there is no basis for denying access to this

public judicial record. In addition, the Upshur court emphasizes that "[tjhe burden of showing

that closure is warranted under the circumstances is on the party seeking to prevent access; that

party must obtain a court order sealing the documents." 592 Pa. at 288, 924 A.2d at 651. The

District has presented no evidence that the Video has been placed under seal. The District

contends that this Court is not the proper venue to request the portion of the Video already

played in court. (Br. at 35.) Because the propriety of release of the Video is currently before this

Court, though, it is certainly within this Court's power to direct the release of the entire Video or,

at minimum, the portion played in court.

V. CONCLUSION

For the reasons set forth herein and in their Answer to the Petition for Review,

Respondents FOX 43 News and Valerie Hawkins respectfully request that the Court deny the

Petition for Review filed by Petitioner Central Dauphin School District, affirm the Final

Determination of the Office of Open Records, and order the District to turn over to Respondents

a copy of the Video.

17

R. 401a

Dated: June 21, 2017 Respectfully submitted,

WPMT, LLC (d/b/a FOX 43 News) and Valerie Hawkins

By:

Attorney of Record: Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967 NAUMAN, SMITH, SHISSLER & HALL, LLP 200 North Third Street, 186 Floor, P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 [email protected] [email protected]

Of Counsel: Brendan J. Healey MANDELL MENKES LLC 1 North Franklin Street, Suite 3600 Chicago, IL 60606 (312) 251-1000 [email protected]

Counsel for Respondents WPMT, LLC and Valerie Hawkins

18

R. 402a


The undersigned, an attorney, certifies that the attached Response of Valerie Hawkins

and Fox 43 News to Petition's Post -Hearing Brief was served upon counsel herein named by U.S.

Mail and email on June 21, 2017.

Michael McAuliffe Miller, Esq. (PA I.D. No. 78507) Tricia S. Lontz, Esq. (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected]

R. 403a

EXHIBIT A

R. 404a

No. 00-1073

3fn tbe cupterne Court of tly niteb Mate

OWASSO INDEPENDENT SCHOOL DISTRICT No. I-011, AKA OWASSO PUBLIC SCHOOLS, ET AL., PETITIONERS

V.

KRISTJA J. FALVO, PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, ELIZABETH PLETAN,

PHILIP PLETAN AND ERICA PLETAN

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

BARBARA D. UNDERWOOD Acting Solicitor General

Counsel of Record STUART E. SCHIFFER

Acting Assistant Attorney General

EDWIN S. KNEEDLER Deputy Solicitor General

BETH S. BRINKMANN Assistant to the Solicitor

General MARK B. STERN COLETTE G. MATZZIE

Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217

R. 405a

QUESTION PRESENTED

The Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999), prohibits the furnishing of federal funds to an educational institution that has a policy or practice of releasing, without parental consent, students' "education records," which are defined by FERPA as "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 question presented is:

Whether allowing students to grade each other's homework and tests as their teacher goes over the correct answers aloud in class violates FERPA's prohibition against the release of "education records."

i

(I)

R. 406a

TABLE OF CONTENTS

Page

Statement 1

Discussion 13

Conclusion 20


Cases:

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) 9

Christensen v. Harris County, 529 U.S. 576 (2000) ., , 9

Fay v. South Colonie Century Sch. Dist., 802 F.2d 21

(2d Cir. 1986) 7 Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1999) ...,. 7

United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) 7

Constitution, statutes and regulations:

U.S. Const. Amend. XIV 6, 8 Education Amendments of 1974, Pub. L. No. 93-380,

§ 513(a), 88 Stat. 571:

88 Stat. 571 . 3 88 Stat. 572 3, 4

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g:

20 U.S.C. 1232g note ...................... ..,._ ....... ..................... 3

20 U.S.C. 1232g(a)(1)(A) 4, 16 20 U.S.C. 1232g(a)(1)(B) 4 20 U.S.C. 1232g(a)(2) .... ... ... ..... .......... 4, 11, 16 20 U.S.C. 1232g(a)(3) 2 20 U.S.C. 1232g(a)(4)(A) 3, 13 20 U.S.C. 1232g(a)(4)(A)(i) 10 20 U.S.C. 1232g(a)(4)(A)(ii) .......... -... ........ .... 10, 11, 12, 14 20 U.S.C. 1232g(a)(4)(B)(i) 3

20 U.S.C. 1232g(a)(5) 2 20 U.S.C. 1232g(a)(5)(A) 18

R. 407a _

IV

Statutes and regulations-Continued:

20 U.S.C. 1232g(a)(5)(B)

Page

18

20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999) - 1, 2

20 U.S.C. 1232g(b)(1)(A)-(J) (1994 & Supp. 1999) 2

20 U.S.C. 1232g(b)(2) 2

20 U.S.C. 1232g(b)(4)(A) 2, 11, 16

20 U.S.C. 1232g(b)(6)(A) (Supp. V 1999) 2

20 U.S.C. 1232g(f) 5, 7, 17

20 U.S.C. 1232g(g) 5, 17

Joint Resolution of Dec. 31, 1974, Pub. L. No. 93-568, 88 Stat. 1855:

§ 2(a): 88 Stat. 1858-1862

88 Stat. 1859-1860 § 2(b), 88 Stat. 1862

Privacy Act of 1974, 5 U.S.C. 552a(a)(3) 20 U.S.C. 1234c .

42 U.S.C. 1983 .

34 C.F.R.:

4

4

4

7, 8

5, 17

6, 7, 9

Section 99.32 16

Section 99.60(a) 5

Section 99.60(b) 5

Section 99.60(c) 5

Miscellaneous:

120 Cong. Rec. (1974): pp. 39,861-39,862 17

p. 39,862 pp. 39,862-39,866

13, 16, 17 12

Random House Dictionary of the English Language (2d ed. 1987) 14

Webster's Third New International Dictionary (1993) 14

R. 408a

mu tjjt4§iupteme Court of tOe nitrb 2s.tatt5

No. 00-1073

OWASSO INDEPENDENT SCHOOL DISTRICT No. I-011, AKA OWASSO PUBLIC SCHOOLS, ET AL., PETITIONERS

V.

KRISTJA J. FALVO, PARENT AND NEXT FRIEND OF HER MINOR CHILDREN, ELIZABETH PLETAN,

PHILIP PLETAN AND ERICA PLETAN

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTII CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States.

STATEMENT

1. a. The Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999), provides that "[n]o funds shall be made available under any applicable program to any educational agency or institutionili which has a policy or

1 For purposes of FERPA, "the term 'educational agency or institution' means any public or private agency or institution which

(1)

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practice of permitting the release of education records (or personally identifiable information contained therein other than directory information [as defined in 20 U.S.C. 1232g(a)(5)]) of students without the written consent of their parents," other than in certain statu- torily identified circumstances. 20 U.S.C. 1232g(b)(1) (1994 & Supp. V 1999); see also 20 U.S.C. 1232g(b)(2). The cirumstances identified by the statute in which education records may be released without written parental consent include release to other teachers and school officials who have been determined by the institution to have legitimate educational interests, officials of other schools in which the student seeks to enroll, certain state and federal educational and law enforcement officials, persons designated in a subpoena for law enforcement purposes, victims of certain crimes at a postsecondary institution, and educational testing, financial aid, and accrediting organizations. 20 U.S.C. 1232g(b)(1)(A)-(J) (1994 & Supp. V 1999); 20 U.S.C. 1232g(b)(6)(A) (Supp. V 1999).2

The term "education records" is defined by FERPA to mean:

those records, files, documents, and other materials which-

is the recipient of funds under any applicable program." 20 U.S.C. 1232g(a)(3).

2 The educational institution must "maintain a record, kept with the education records of each student, which will indicate all individuals (other than [school officials]), agencies, or organizations which have requested or obtained access to a student's education records maintained by such educational agency or institution, and which will indicate specifically the legitimate interest that each such person, agency, or organization has in obtaining this information." 20 U.S.C. 1232g(b)(4)(A).

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(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 statute excludes from its definition of "education records" several specific categories of records, including "records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." 20 U.S.C. 1232g(a)(4)(B)(i).8

FERPA was enacted on August 21, 1974, as Section 513(a) of the Education Amendments of 1974, Pub. L. No. 93-380, 88 Stat. 571, and became effective on November 19, 1974. 20 U.S.C. 1232g note. As initially enacted, FERPA did not use the term "education records" or contain a definition of that term. It instead used different terms to describe the materials that were subject to its various restrictions. Thus, it provided parents a right to inspect "any and all official records, files, and data directly related to their children, including all material that is incorporated into each student's cumulative record folder, and intended for school use or to be available to parties outside the school or school system, and specifically including, but not necessarily limited to, identifying data, academic work completed, level of achievement (grades, standard- ized achievement test scores), attendance data, scores on standard- ized intelligence, aptitude, and psychological tests, interest inven- tory results, health data, family background information, teacher or counselor ratings and observations, and verified reports of serious or recurrent behavior patterns!' 88 Stat. 572. It also provided parents with the right to challenge the accuracy of "their child's school records," 88 Stat. 572, and prohibited release, with

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In addition to restricting release, without parental consent, of materials that constitute education records, FERPA requires that education records be made available to parents. FERPA provides that "[nlo funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children." 20 U.S.C. 1232g(a)(1)(A); see also 20 U.S.C. 1232g(a)(1)(B) (applying requirement to State educational agencies). Educa- tional agencies and institutions also must provide parents an opportunity for a hearing "to challenge the content of such student's education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records." 20 U.S.C. 1232g(a)(2).

out parental consent (except in limited circumstances), of "personally identifiable records or files." 88 Stat. 572.

Congress amended FERPA less than 45 days after its effective date and made the amendments "effective, and retroactive to, November 19, 1974." Pub. L. No. 93-568, § 2(a) and (b), 88 Stat. 1858-1862. One of the changes made by the amendments was to define the term "education records" and to insert that term in place of both the list of materials accessible to parents, and the description of the records the release of which is restricted. 88 Stat. 1859-1860.

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b. Congress authorized the Secretary of Education to "take appropriate actions to enforce" FERPA and to "deal with violations," but specified that "action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with [FE EPA], and he has determined that compliance cannot be secured by voluntary means." 20 U.S.C. 1232g(f); see also 20 U.S.C. 1234c. Congress also directed the Secre- tary to establish an office and a review board within the Department of Education for the purpose of investigating, processing, reviewing, and adjudicating violations of FERPA and complaints concerning alleged violations of the statute. 20 U.S.C. 1232g(g). Pursuant to that authority, the Secretary designated the Department's Family Policy Compliance Office (Compliance Office) to provide technical assistance to ensure compliance with the statute through voluntary means and to process complaints. 34 C.F.R. 99.60(a) and (b). The Secretary designated the Office of Administrative Law Judges as the review board. 34 C.F.R. 99.60(c).

As part of the technical assistance provided to ensure compliance with FERPA, the Compliance Office re- sponds to inquiries from educational agencies and institutions about the statute. Pet. App. F2. In a letter dated July 15, 1993, the Director of the Compliance Office responded to an inquiry whether certain activities violate FERPA. That letter explained, inter alia, that "FERPA would not prohibit teachers from allowing students to grade a test or homework assignment of another student or from calling out that grade in class, even though such grade may eventually become an education record. Such papers being graded and the grades which will be assigned would fall outside the FE RPA definition of education records as they are not, strictly speaking, 'maintained' by an educational

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agency or institution at that point." Id. at F4 -F5. The Director of the Compliance Office submitted a declaration in the instant case confirming that the July 15, 1993, letter correctly sets forth the longstanding position of the Department. Id. at F2 -F3.

2. a. Respondent, Kristja Falvo, is the mother of three children who are enrolled in the petitioner school district, Owasso Independent School District No. I-011, in a suburb of Tulsa, Oklahoma. During the 1997-1998 and 1998-1999 school years, respondent objected to the practice of teachers in her children's classes having students grade one another's homework and tests while the teacher went over the correct answers in class and, after the students received back their own papers, having the students call out their grades to the teacher. Pet. App. A3, B2. Respondent complained about the practice to school counselors and to the school district superintendent, claiming that it "severely embarrassed her children by allowing other students to learn their grades." Id. at A3. Petitioners told respondent that her children had the option of reporting their grades to the teacher confidentially, but petitioners declined to prohibit the student grading of schoolwork. Id. at A3 - A4.

In October 1998, respondent filed the instant action in the United States District Court for the Northern District of Oklahoma, under 42 U.S.C. 1983, seeking damages and declaratory and injunctive relief against petitioners, including the Owasso School District and various school and school district officials. Respondent alleged that the challenged grading practice violated FERPA and was unconstitutional under the Four- teenth Amendment. Pet. App. A4.

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b. On April 26, 1999, the district court, ruling on cross -motions for summary judgment, entered judgment for petitioners. Pet. App. B1 -B6.4

The district court held that allowing a student to grade the paper of another student and to have students call out their grades in class does not violate FERPA. Pet. App. B2 -B4. The court relied (id. at B2 - B3) on the Department of Education's interpretation of FERPA set forth in the July 15, 1993, letter of the Director of the Compliance Office (see id. at F3 -F6), which explains that FERPA does not prohibit the practices at issue here because homework assignments and tests, as well as the grades assigned to them by other students in such circumstances, "would fall outside the FERPA definition of education records as they are not, strictly speaking, 'maintained' by an educational agency or institution at that point." Id. at F4 -F5. The court noted that the Department of Educa- tion is the agency charged with enforcing FERPA, see 20 U.S.C. 1232g(f) and, as such, its interpretation of the statute "is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress." Pet. App. B3 (quoting United States v. Riverside Bay - view Homes, Inc., 474 U.S. 121, 131 (1985)). The court rejected respondent's contention that the court should adopt the definition of "maintain" set forth in the Privacy Act of 1974, 5 U.S.C. 552a(a)(3), which includes

4 On October 16, 1998, in an order denying respondent's request for a temporary restraining order, the court stated that, for purposes of that motion, it was following the holdings of two other circuits that a plaintiff may bring a FERPA claim under 42 U.S.C. 1983. See Pet. App. C4 (citing Fay v. South Colonie Century Sch. Dist., 802 F.2d 21 (2d Cir. 1986); Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990)).

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any collection or use of the material.' The court emphasized that Congress did not choose to incorporate that special definition into FERPA. The court instead construed "maintain" in accordance with its ordinary meaning of "preserve" or "retain" and held that the Department of Education's interpretation of FERPA was reasonable in light of that construction and did not conflict with the expressed intent of Congress. Pet. App. B4.

The district court rejected respondent's constitutional claim as well, holding that a student's "interim tests and homework assignments" "are not 'highly personal' matters worthy of constitutional protection." Pet. App. B5. The court noted that, in any event, "students are given the option of having their grade related in confidence," "students do not grade 9 -week exams," and "[n]o revelation is made of a letter grade on a report card or from a student's permanent transcript." Ibid.'

3. a. The court of appeals affirmed in part and reversed in part. Pet. App. A1 -A32.7 The court affirmed

5 The Privacy Act provides that, for purposes of that statute, "the term 'maintain' includes maintain, collect, use, or dissemi- nate." 5 U.S.C. 552a(a)(3).

6 The court declined to rule on respondent's motion for class certification in light of its ruling on the merits. Pet. App. B6. The court also rejected the individual petitioners' argument that they were entitled to summary judgment based on qualified immunity because, in the court's view, the rights of privacy under FERPA and the Fourteenth Amendment were clearly established at the time of the alleged violations. Ibid.

7 The panel filed its original opinion on July 31, 2000, but in the court's October 4, 2000, order denying rehearing and rehearing en bane, see pp. 11-13, infra, the court announced that the panel had determined, on its own motion, to amend its July 31 opinion. Pet. App. D2. The court therefore ordered the original opinion with -

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the grant of summary judgment in petitioners' favor on the constitutional claim, holding that "the school work and test grades of pre -secondary school students do not rise to the level of [the] constitutionally -protected category of information," id. at A6, because they do not constitute "highly personal or intimate" information, id. at A8 (internal quotation marks omitted).

The court of appeals reversed the judgment of the district court on the FERPA claim! The court first concluded that the terms "education records" and "maintain" are "clear from the statute itself' and that deference therefore was not due the Department of Education's interpretation under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). Pet. App. A18 -A19.9 The court further held that, in any event, Chevron deference was not owed the agency interpretation at issue here because it was contained in an opinion letter issued by the administering agency. Ibid. (citing Christensen, v. Harris County, 529 U.S. 576, 586-587 (2000)). The court recognized that such an interpretive letter is "'entitled

drawn and the amended opinion filed forthwith. Ibid. Our description of the court of appeals' opinion is of the opinion as amended and filed on October 4, 2000, which is reported at 229 F.3d 956 and reprinted in the appendix to the petition, Pet. App. A1 -A32.

8 The court affirmed the grant of summary judgment on the FERPA claim with regard to the individual petitioners to the extent respondent sought monetary relief. The court ruled that the individual petitioners were entitled to qualified immunity from liability for money damages because it was not clearly established that the challenged grading practice violated FERPA. Pet. App. A2 -A3; A29 -A32.

9 As an initial matter, the court held that a violation of FERPA may be the basis for a suit under 42 U.S.C. 1983. Pet. App. A10 - A16.

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to respect' under * * Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)," but the court found the letter and accompanying declaration to have minimal persuasive power under Skidmore because, in its view, they lacked sufficient reasoning, failed to take into account the breadth of the statutory language, and were stated in general terms that did not address the details of the practice at a particular school. Id. at A19 -A20.

Turning to its own analysis of the statutory terms, then, the court of appeals first noted that there was no dispute that the grades placed on the papers by students and then reported to the teacher "contain information directly related to a student" and thereby satisfy the first element of the statutory definition of "education records." See 20 U.S.C. 1232g(a)(4)(A)(i). The only disagreement was over whether the grades placed by one student on the paper of another are "maintained * * * by a person acting for [an educational] agency or institution," for purposes of the second element of the definition. 20 U.S.C. 1232g(a)(4)(A)(ii). Pet. App. A21.

The court of appeals noted that at least some of the grades that are reported to the teacher are then recorded in the teacher's grade book. The court concluded that the grades become education records at least at that time because, in its view, a teacher's grade book and the grades it contains are "maintained * *

by a person acting for" an educational institution and therefore are "education records." Pet. App. A21 -A24. The court then concluded that the grades are also "maintained * " by a person acting for" the school, and therefore "education records," even at what the court characterized as "the more preliminary stage when one student simply writes the grade of a fellow student on homework and test papers." Id. at A24.

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The court reasoned that when one student writes the grade of another student on the homework or test, the correcting student is a "person acting for [an educational] agency or institution." Ibid. (quoting 20 U.S.C. 1232g(a)(4)(A)(ii), court's alteration). And the court held that the student is "maintain[ing]" the grade, within the meaning of Section 1232g(a)(4)(A)(ii), by marking the homework or test paper, "because that student is preserving the grade until the time it is reported to the teacher for further use." Ibid.

Finally, the court rejected petitioners' argument that other provisions of FERPA demonstrate that Congress did not intend to include in the definition of "education records" the student grading of other students' work under the auspices of an individual teacher. Pet. App. A25 -A26. Petitioners argued that a broad definition of "education records" is inconsistent with the statutory requirement that educational institutions provide a hearing to challenge education records, 20 U.S.C. 1232g(a)(2), and maintain a record of all persons who have requested or obtained access to a student's education records, 20 U.S.C. 1232g(b)(4)(A). But the court explained that "Congress could have sensibly intended to provide parents a means to challenge the accuracy of grades on individual homework and test papers," Pet. App. A26, and that schools could continue the practice of having a central custodian keep records of who was granted access even though such papers remain under the individual teacher's classroom supervision.

b. On October 4, 2000, the court entered an order denying petitioners' petition for rehearing and suggestion for en bane review. Pet. App. D1 -D6.

Four judges dissented from the denial of rehearing en bane. Pet. App. D2 -D6. Those judges stated that

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the grades recorded by students on the papers of other students, as well as the papers themselves, do not constitute "education records" within the meaning of FERPA because a student grading another student's paper is not acting for the educational institution within the meaning of Section 1232g(a)(4)(A)(ii). Id. at D3. The dissenting judges questioned how grades on individual student papers could be education records when, in their view, even a teacher's grade book is normally not an education record, except in limited circumstances. Ibid. Moreover, even if a teacher may act for the school in recording a grade in a grade book, they continued, "it is one step removed to say that the teacher's potential receipt of that grade makes every uncompensated student that participates in the grading process 'a person acting for such agency or institution." Ibid.

The judges dissenting from the denial of rehearing en bane also expressed the view that it "seem[s] impossible, if not implausible," that educational institutions must provide the right to a hearing to challenge each of the "thousands of grades a student might receive over time" and must maintain a record of access to each grade. Pet. App. D5. They cited the Joint Statement submitted by the Senators who sponsored the 1974 floor amendment containing the current definition of "education records." Ibid. (citing Joint Statement in Explanation of the Buckley/Pell Amendment, 120 Cong. Rec. 39,862-39,866 (1974)); see notes 3, supra, & 10, infra. The dissenting judges noted that the Joint Statement "drew a critical distinction between an institutional record in which a grade was recorded (the accuracy of which can be challenged) and the graded material itself (the accuracy of which cannot be challenged)," and they agreed with the Joint State -

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ment's conclusion "that 'education records' referred only to the former." Pet. App. D5 (citing 120 Cong. Rec. at 39,862). Finally, the dissenting judges suggested that practical difficulties will result from the panel's ruling because it means that no student may learn the grade of another. Id. at D6.

DISCUSSION

The court of appeals' interpretation of the term "education records," as set forth in the Family Educa- tional Rights and Privacy Act of 1974 (FERPA or Act), 20 U.S.C. 1232g(a)(4)(A), is contrary to the statutory text and framework and inconsistent with the interpretation of the Department of Education, which is the agency charged with administering and enforcing the statute. In our view, therefore, the court of appeals erred in concluding that FERPA prohibits students from grading the homework and tests of other students in the classroom.

Nonetheless, we believe that review by the Court is not warranted at this time. The question presented was a matter of first impression for the court of appeals in this case, and the question has not been addressed by any other court of appeals in the more than 25 years since FERPA was enacted. Thus, there is no circuit conflict. In addition, the court of appeals' analysis was based, in significant part, on the absence of formal guidance by the Department of Education and the brevity of the reasoning the Department had provided in support of its interpretation in the 1993 letter that was before the court. See Pet. App. A19 -A20. In response to the court of appeals' decision, the Depart- ment has determined that it will issue regulations or other formal guidance setting forth a more detailed analysis of the meaning of "education records" under

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FERPA and the application of that term and of FERPA not only to the particular practice at issue in this case, but also to a variety of other practices. For example, that process will afford the Department an opportunity to consider such matters as the teacher's own handling of students' homework, tests, and classroom work and the recognition of students' performance. The regulations or guidance should be of substantial assistance to school districts and teachers about a range of issues, and should also furnish the courts (including the Tenth Circuit) in any future cases a more complete presentation of the views of the agency charged by Congress with administering and enforcing the Act. In those circumstances, we believe that it would be premature for the Court to grant review in this case to consider the meaning of "education records" under FERPA.

1. a. When a student grades another student's homework or test as a teacher goes over the answers aloud in the classroom, the homework or test and the grade placed on the paper are not being "maintained" as records or documents by an educational institution, or by "a person acting for such agency or institution," within the meaning of FERPA, 20 U.S.C. 1232g(a)(4)(A)(ii). The ordinary meaning of the word "maintain" is "to keep in existence or continuance; preserve; retain." Random House Dictionary of the Eng- lish Language 1160 (2d ed. 1987); see also Webster's Third New International Dictionary 1362 (1993) (maintain: "1: to keep in a state of repair, efficiency, or validity: preserve from failure or decline"). The grading student does not keep the paper or the grade. In this case, for example, each grading student apparently returned the graded paper immediately to the student who had written the paper. See Pet. App.

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C2. Only after students received back their own papers, and were in a position to review the grading by the other student, were the students called upon to submit their grades to the teachers. Ibid.

The student's homework or test answers that have not been graded and are initially provided to another student, as well as the grade marked by the other student that has not been adopted by the teacher, are the work product of the students. Even if the grading student submitted the other student's paper or grade directly to the teacher, rather than handing it back to the student who produced the paper, the fact that the teacher may maintain the grade (or the student's paper) on behalf of the school, thereby making it an education record, does not mean that any grade or paper that potentially may be so maintained for the educational institution becomes an education record from its inception.

Reviewing fellow students' work can be a useful tool in the process of learning and critical thinking. The exchange of student papers for grading or other purposes is part of the on -going educational dynamic in the classroom among students and between students and teachers. And as the judges who dissented from the denial of rehearing en bane observed, the "teacher's potential receipt of that grade" does not make "every uncompensated student that participates in the grading process" a person acting for the school in connection with the maintenance of records. Pet. App. D3.

b. The court of appeals' contrary conclusion cannot be reconciled with the purposes underlying other provisions of FERPA. The designation of a document as an education record under FERPA means not only that it is subject to restrictions against release without parental consent, but also that parents have a right to

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inspect and review the record, a right to a hearing to challenge the content of the record to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, and a right to insert into such records a written explanation by the parents regarding the content of the records. 20 U.S.C. 1232g(a)(1)(A) and (a)(2). In addition, the school must maintain a record of all individuals, agencies, and organizations (other than the parent, eligible student and certain other authorized persons) that have requested or obtained access to a student's education records. 20 U.S.C. 1232g(b)(4)(A); 34 C.F.R. 99.32.

The court of appeals' interpretation raises questions concerning the application of those requirements to homework assignments, classroom exercises, and student evaluations and grading, and whether parents may be entitled to an opportunity to a hearing by school officials to present challenges concerning the accuracy of such materials and to insert the parent's own written explanation into the record. Imposing such an obligation on schools and teachers would constitute a dra- matic departure from ordinary educational practices, and there is no indication that Congress intended that the enactment of FERPA, including its definition of "education records," would result in such a change. Rather, when Congress enacted the definition of "education records," the accompanying Joint Statement by the Senators who sponsored the legislation explicitly stated that the amendment was "not intended to overturn established standards and procedures for the challenge of substantive decisions made by the institution." 120 Cong. Rec. 39,862 (1974). The Joint Statement further noted that "Where has been much concern that the right to a hearing will permit a parent or student to contest the grade given the student's

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performance in a course. That is not intended. It is intended only that there be procedures to challenge the accuracy of institutional records which record the grade which was actually given." Ibid.; see also ibid. (stating that hearing procedures must be adapted to different circumstances and noting that "Mt is not the intent of the Amendment to burden schools with onerous hearing procedures").'

2. The Department of Education, as the agency charged with enforcing FERPA (see 20 U.S.C. 1232g(f) and (g), 1234c), interprets the statute not to prohibit students from grading other students' homework or tests in class because such papers and grades are not "maintained" by the school at that point and therefore are not "education records" within the meaning of the statute. Although the court of appeals' ruling is contrary to that longstanding and, in our view, reasonable administrative interpretation of FERPA, we believe that the Court should not review the issue at this time.

The Department of Education intends to issue regulations or other formal guidance regarding the meaning of "education records" and the application of FERPA to a range of practices concerning student papers and grading and the recognition of students' performance. The Department has received an inquiry

10 When Senator Buckley submitted the Joint Statement to the Senate, he explained that the amendments were intended to address certain ambiguities that had arisen from the language of FERPA as originally enacted, which itself had been offered as an amendment on the Senate floor and therefore had not been accompanied by traditional legislative history materials that would guide the agency in implementing the statute. 120 Cong. Rec. at 39,861-39,862. He stated that the Joint Statement therefore "provides a narrative and explanation of the meaning and intent of the various provisions of the amendment." Id. at 39,862.

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from the National Education Association about the implications of the court of appeals' decision in this case, and the Department is responding by informing the Association about its intention to issue regulations or other formal guidance that will address the issues raised by the opinions in this case. The Department of Education disagrees, for example, with the suggestion in the dissent from denial of rehearing en bane in the court of appeals that the panel's ruling in this case renders invalid all school practices that may reveal students' grades. See Pet. App. D5 -D6. Indeed, many such practices, including honor rolls and other awards received, are specifically allowed by FERPA. See 20 U.S.C. 1232g(a)(5)(B) (allowing publication of certain "directory information," after prior public notice of directory categories and opportunity for parents to prevent publication) and 20 U.S.C, 1232g(a)(5)(A) (defining "directory information" to include "awards received" by a student). In the past, the Department's Compliance Office has responded to questions from school officials regarding other such practices and has analyzed such practices individually, finding that some are valid under FERPA, whereas others are not. See, e.g., Pet. App. F3 -F6.

In any event, regardless of the questions raised by the opinions below about other school practices, the instant case presents only the narrow question of the validity under FERPA of the practice of students grading other students' homework and tests in class. Although the court of appeals discussed parental challenges to homework and test papers under FERPA, it did not definitively rule on the question concerning the circumstances or scope of any such right. See Pet. App. A26. Nor did the court decide whether having students call their grades out in class is allowed under FERPA.

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See id. at A3 n.2, A21 n.10. Thus, the case does not present those issues or other questions that may arise regarding the treatment of students' papers and other work, in the classroom and elsewhere. For those reasons alone, this case is not a suitable vehicle for this Court to address the meaning and application of FERPA in a sufficiently broad context to furnish significant guidance to the lower courts and school administrators and teachers.

By contrast, the Department of Education is well situated to consider the meaning of "education records" and the application of FERPA in the context of a variety of common educational practices. As we have said, in response to the court of appeals' decision in this case, the Department intends to do so through the issuance of regulations or other formal guidance. We believe that such regulations or formal guidance will be of substantial benefit to the courts (including the Tenth Circuit) in any future case considering the validity of various practices under FERPA. Indeed, because the interpretation of FERPA by the agency charged with its enforcement is entitled to deference, the action the Department intends to take will have a bearing on the disposition of those legal issues by the courts. For these reasons, and because of the absence of a circuit conflict, we believe that review by the Court at this time is not warranted.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD Acting Solicitor General

STUART E. SCHIFFER Acting Assistant Attorney

General EDWIN S. KNEEDLER

Deputy Solicitor General BETH S. BRINKMANN

Assistant to the Solicitor General

MARK B. STERN COLETTE G. MATZZIE

Attorneys

JUNE 2001

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EXHIBIT B

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From: Alexander, Cindy [mailto:[email protected]] Sent: Friday, March 31, 2017 3:19 PM

To: WPMT Assignment Desk <[email protected]> Cc: Eric Eshbach ([email protected]) <[email protected]>; Frankhouser, Robert M. <[email protected]>; Walker, David M. <[email protected]> Subject: 2/23/17 Right -to -Know Request

Ms. Hawkins:

In response to your 2/23/17 Right -to -Know request to the Northern York County School District, please see the attached letter from Mr. Walker and the link below. Please be advised that the link will expire on 4/21/17.

https://barleysnyder.sharefile.com/d-sfb942beS7fa4e718

Sincerely, Cindy Alexander

Cindy Alexander Legal Administrative Assistant 126 East King Street Lancaster, PA 17602 T: 717-208-8837 I x3589 I F: 717-291-4660 www.barley.com

PRACTICE Berle Snyder EXCELLENCE' ATT6-13NEN5 AT LAW

This email and any attachments may contain privileged and confidential information and are solely for the use of the sender's intended recipient(s). If you received this email in error, please notify the sender by reply email and delete all copies and attachments. Thank you.

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RECEIVED OFFICE OF

PROTHONOTARY

All JUL -6 AM 10: 4 I

it, DAUPHIN COUNTY

PENNA

Michael McAuliffe Miller, Esquire (PA I.D. 78507) Tricia S. Lontz, Esquire (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected] CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT, : DAUPHIN COUNTY, PENNSYLVANIA

Petitioner

vs.


Respondents

: NO. 2016 -CV -4401 -MP : NOTICE OF APPEAL/PETITION FOR. : JUDICIAL REVIEW

: CIVIL ACTION - LAW

POST -HEARING REPLY BRIEF


Michael McAuliffe Miller, Esquire (I.D. No. 78507) Tricia S. Lontz, Esquire (I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 86 Floor Hanisburg, PA 1710.1

[email protected], [email protected] Telephone: (717) 237-6000

Date: July 6, 2017 Counsel for Central Dauphin School District

{L06914462}

R. 431a

I. REPLY

Respondents' respond to Petitioner's brief by failing to address the points raised in

Petitioner's opening brief and, instead, seeking to distract this Court with straw man arguments.

Measured against Respondents' bare conclusory assertions, Petitioner has moved into the record

un-controverted evidence sufficient to meet its burden to prove that (1) the requested record was

not public as it was confidential under federal law; (2) disclosure of the requested record would

result in the loss of federal funding; (3) the record was a record relating to a noncriminal

investigation exempt under Section 708(b)(17); and (4) the judicial presumption of openness is

overcome by the privacy rights expressly provided by federal statute. The Office of Open

Records' (00R) Final Determination should therefore be reversed and this Court should hold

that the District is not required to disclose the School bus video recording.

A. The School Bus Video Recording Is an Education Record Made Confidential by FERPA, a Federal Law, and Is Therefore Not a

Public Record Under the RTKL.

The overwhelming weight of authority confirms that school bus video recordings, like the

School bus video recording here, constitute "education records" under FERPA, and are therefore

not subject to disclosure under Pennsylvania's Right -to -Know Law (RTKL). The School bus

video recording at issue is "directly related" to a student and is "maintained by" the District.

Because the School bus video recording meets both prongs of the "education record" definition,

it is an "education record" protected from public disclosure under FERPA and not subject to

public access under the RTKL.

1. The Video Contains Information Directly Related to Students

Despite Respondents' recitation to the contrary, the case law relied on by Respondents

does not support Respondents' claim that the video is not an education record. On the contrary,

the case law cited by Respondents (Grifasi, Mart, and Lindeman) is palpably distinguishable

{L0691446.2) 1

R. 432a

from the case at hand (by way of example, Grifasi addresses the law enforcement exception not

applicable here and Mart and Lindeman do not even contain any discussion of whether the

videos were "education records" under FERPA).

Indeed, in its opening brief, Petitioner directly and plainly sets forth the inapplicability of

Respondents' preferred case law. See Petitioner's Brief, at 16-18. Unable to counter any of

Petitioner's points regarding their preferred case law, Respondents instead ignore, entirely, their

case law's distinguishing features and continue instead to simply insist the law is on their side

despite the plethora of authority cited by Petitioner to the contrary.

Mostly notably, Respondents make no reference to the Family Policy Compliance

Office's (FPCO) uncontroverted position that such video recording are "education records"

under FERPA when the recording depicts an altercation or incident between a student and a non -

student, as here. See Letter re: Berkeley County School District, 104 LRP 44490 (FPCO

February 10, 2004), attached to Petitioner's Brief as Exhibit 2. Rather than addressing the FPCO

which is the authority on FERPA, Respondents instead suggest that this Court should rely on

"one commentary," a "White Paper," published by the "Student Press Law Center" which is an

"advocate for student First Amendment rights, for freedom of online speech, or for open

government on campus" supporting student journalists. See www.splcs.org. The fallacy in this

position is resoundingly obvious and need not be belabored here further.

At bottom, Respondents' entire argument seemingly rests on two fundamental fallacies:

(1) their continued mischaracterization of what happened during the School bus video recording

despite a) having never actually seen the recording itself and, b) not having called any witnesses

to offer first hand testimony, all in the face of c) sworn, un-contradicted testimony to the

{L0691446.2} 2

R. 433a

contrary; and (2) their continued mischaracterization of the privacy interests required by FERPA

which the District is obligated by statute to protect.

First, with respect to Respondents repeated mischaracterization of the event contained in

the video, Respondents, without citation to any record evidence, continue to claim that "the

students are merely ancillary subjects of [the] video," and the "Video is only tangentially related

to any students who appear in it." Brief of Respondents, at 6-7. Respondents introduced no first

hand evidence to substantiate such claims and derived no support from the testimony of the

individuals who actually have viewed the video.

Such a position can only be based upon a wholesale disregard of the un-contradicted

sworn testimony of the District's witness. Specifically, the District's witness-who has the

benefit of actually watching the video at issue-testified that: 1) the individual actions of the

students were visible on the video recording; and 2) the recording was reviewed to determine if

there should be student or other discipline levied as a result of those actions. (Affidavit, at116-7;

N.T. 11-12.)

Respondents' attempt to obscure the weight and impact of that testimony is undercut by

Respondents' own briefing. One example clarifies this point on one hand. Respondents attempt

to characterize the student as "victim" of an alleged assault while simultaneously claiming that

the alleged "victim" was essentially completely irrelevant to the video and just happened to be

within the cameras' "field of vision." Brief Respondents, at 9. Respondents, however, do so

without ever having seen the video in question and cannot now frame the student's import to the

video differently based on their needs of the moment. The video simply cannot be

unquestionably related to the adult accused of grabbing a student by the wrist while at the same

(L0691446.2} 3

R. 434a

time not be directly related to the "student victim" who was allegedly grabbed by the wrist. In. so

claiming, Respondents attempt to create a distinction with no difference at all.

Indeed, it, is the alleged contact or non -contact with the student that is the incitement,for

the request of the video recording here. It is the student's role in this recording that is central to

its importance to Respondents. The student depicted in the video recording is the very essence

of the recording itself despite Respondents attempt to frame it alternatively in order to gain

access.

This is not a situation, however, where a student or students were merely "set dressing"

lingering in the background of a video recording and just happened to be in view when an

unrelated incident was caught on camera. Students were involved in the action at issue, and one

student in particular, was integral to, and the central focus of, the incident recorded.

In an attempt to address the obvious flaw in their argument, Respondents blithely state

that they "do not suggest that the mere 'presence' of a non -student would divest a record of

FERPA protection," Brief of. Respondents, at 10, but that conclusion is the only one than can be

drawn from Respondents' argument. If Respondents' position is adopted, anytime a non -student

is involved, no matter how central the student is to video recording, FERPA protections are

erased.

Congress simply did not intend such a result when writing FERPA and, if it had, it would

have said so plainly. As such, Respondents are simply reading into the statute distinctions which

have never existed.

In their characterization of the video, Respondents also suggest that it is significant that

the bus was "sitting in a public parking lot"1 when the pertinent portion of the video recording

The "public parking lot" here was the Central Dauphin School District's parking lot. (N.T. 17)

(L0691446.2) 4

R. 435a

was captured. Brief of Respondents, at 6. It is beyond cavil that school district property is

public property. This fact, however, has no relevance whatsoever to the determination of

whether the School bus video is an education record.

Indeed, if the fact that school property is "public" property worked to somehow deprive

"education records" of their protected status, FERPA would be meaningless. Obviously almost

all education records are created on public property. In creating this argument, Respondents

have attempted to use a non -sequitur statement having no basis in the law as a substitute for

cogent argument.

This identical tactic is repeated in the next immediate statement that the "subjects would

have had no expectation of privacy," offering as supporting authority - the Wiretap Act. Since

the Wiretap Act is undisputedly not at issue in this appeal and "an expectation of privacy" is

unquestionably not an element of the "education records" definition, Petitioners are unable to

ascertain the meaningfulness of these statements which serve to do nothing more than attempt to

divert the Court's attention from the applicability of FERPA.

In addition, Respondents (again relying on their one "commentator") dubiously contend

that a video recording cannot be an "education record" - despite 'video' actually being included

in the definition of record2 - because "[a] school cannot have a hearing with a parent to

challenge the accuracy of the Video ..., and a parent cannot insert comments into the Video."

Brief of Respondent, at 9. For this reason, Respondents contend video recordings fall outside

the definition of an "education record."

2 A record includes "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and microfiche." 34

C.F.R. § 99.3 (emphasis added).

(L0691446.2) 5

R. 436a

Setting aside the fact that such an interpretation requires this Court to read out express

words from the definition of "record" under the Act, this position is simply nonsensical. As to a

hearing, of course a school can have a hearing regarding a video recording - parents can

challenge the content on the recording to ensure that the analysis of the events recorded and the

conclusions drawn therefrom are not "inaccurate, misleading, or otherwise in violation the

privacy rights of the student." See Brief of Respondents, at 9. If the video captures only their

own child, then they have the ability to view that video but neither they nor Respondents have

the right under FERPA to traduce the privacy rights of the other students who are plainly visible.

As to a written explanation or ability to insert comments, it is illogical to suggest that a

parent could not draft a written statement in support of a position with respect to a video

recording that is maintained alongside the challenged video recording. This line of argument

lacks any solid legal footing and should be summarily rejected by this Court, particularly in light

of the actual definition of record, which as mentioned above, plainly includes videos.

Second, regarding Respondents repeated mischaracterization of the privacy interests and

access provided by FERPA, Petitioners must, again, make clear that the private interests afforded

by FERPA belong to the students and the parents - nothing in this case works to deprive students

or parents of access to their own education records. See Brief of Petitioner, at 10, 20-21.

Respondents continued insistence to the contrary is legally wrong. Specifically, Respondents,

again, state: "[1]t would, have the perverse effect of elevating the privacy interests of adult

offenders over student and parent access to information regarding student safety"; "It would

prevent the release of a video embarrassing to school authorities at the expense of the public's

and parent's right to know about student safety in the presence of adults." Brief of Respondents,

at 10.

{L0691446.2) 6

R. 437a

As stated in Petitioner's opening brief, FERPA expressly provides access to parents and

students to that student's "education records." 20 U.S.C. § 132g(a)(1)(A). Indeed, parental and

student access is the only access permitted by FERPA (notwithstanding express exceptions not

applicable here) and the precise access the District is attempting to protect.

Here, it is undisputed that Respondents are not parents or students trying to gain access to

their own education records. Respondents are members of the news media trying to gain access

to a confidential records to air them over public airways - this is the precise access prohibited by

FERPA (20 U.S.C. § 1232g(b)(1)) - the public simply does not have a "right to know" under the

circumstances here as asserted by Respondents.

Finally, the District has prOvided sufficient evidence that the video recording at issue is

not capable of being redacted and Respondents insistence that the District should nevertheless be

ordered to redact the un-redactable video recording is without merit. Notably, in making the

assertion that "the mere fact that it may be difficult to redact the Video is not, in and of itself, a

sufficient basis to deny the request as a whole," Respondents also admit that redaction is not

merely "difficult" but impossible. See Brief of Respondents, at 10 ("The District's witness

testified that the District cannot redact the Video (Tr. at 14:12-15)....").

Moreover, in addition to this uncontroverted testimony in which Respondents offered no

cross-examination or witnesses of their own to establish redaction was, in fact, possible, the

District also submitted sworn testimony by Affidavit affirming that "the Agency cannot redact

the student's personally identifiable information because it does not have the technological

ability to redact the video recording." Affidavit of Karen McConnell, at 1111.

Furthermore, even if-arguendo-the School District had the technological ability to

redact the video recording, such redaction would be insufficient to remove all personally

{L0691446.2) 7

R. 438a

identifiable information from the video as FERPA requires. Specifically, FERPA requires

schools to deny a request for records even when all identifying information is removed under the

following relevant circumstances:

(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; see also Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 525 (Pa. Cinwlth.

2011); In the Matter of Larry Fieber v. New Hope-Solebury Sch. Dist., OOR Dtk. AP 2013-

1020. In both Sherry and Fieber, it was recognized that under certain circumstances even

redaction cannot eliminate all personally identifiable information because the document would

still contain elements which could be used to identify the students involved. Specifically, in

Fieber, the identity of the student involved could not be withheld through redaction because

reports in the local newspapers made reference to the student who was the subject of the record.

Therefore, even if the student's name was redacted from the document, the student's identity

would be known to the requestor in violation of FERPA.

As such, FERPA prohibits the release of the video recording under the circumstances

here because (i) other information (i.e. news reports) is linkable to the student allowing a

reasonable person to identify the student; and (ii) the information here is requested by a person

whom the District reasonably believes knows the identity of the student to whom the education

record related. Specifically, there have been numerous media reports regarding the circumstance

(L0691446.2) 8

R. 439a

surrounding this video recording. (N.T. 31.) The reports identify the involved students as

members of the girls' basketball team, and according to Respondents, specifically identify the

individual student involved in the incident with the non -student. (N.T. 32, 34-36.) Therefore,

even if the students' faces and other identifying characteristics could be redacted from the video

recording, the students' identities will still be known to, or reasonably discoverable by, the

Requestor in violation of FERPA. In fact, Respondents admit they already know the identity of

the student involved, which prohibits their access under FERPA. See 34 C.F.R. § 99.3; (N.T. 32,

34-36.)

2. The Video Was Maintained by Persons Acting for the District

Under the second prong of the "education records" definition, Respondents state that

since video recordings are not typically maintained by the School District they can never be

maintained by the School District. This position, however, is untenable and, indeed, fatally

undercut by the very case cited by Respondents.

Specifically, Respondents cite to S.A. v. Tulare Cty Office of Educ. for the proposition

that "emails are 'fleeting and easily deleted, and finding that those emails not printed and

maintained in a central, permanent file were not education records even if they could be

accessed." Brief of Respondents, at 1.1 (emphasis added). Plainly, this case recognizes that not

all emails are "education records" by their very existence, but those emails that are converted to

a permanent form (i.e. printed or stored) will meet the "maintained by" prong of the definition.

Precisely like the School bus video recording here, not all school bus video recordings will be

education records by their very existence, but those that are converted to a permanent form will

meet the "maintained by" prong of the definition. There is simply no requirement under FERPA

{L0691446.2} 9

R. 440a

that each and every record of that "type" must be maintained in order for that particular record to

meet the definition of "maintained by" under FERPA.

Respondents likewise state that "[t]here is no evidence here, by the way, that the Video

was in fact maintained in a permanent facility." Brief of Respondents, at 12. The District,

however, offered sufficient uncontroverted testimony that the Video is, in fact, maintained in a

"permanent facility." Initially, as noted by Respondents, Karen McConnell, the Assistant

Superintendent of the School District, "tucked the Video (and none of the other school bus

videos) in her safe." Brief of Respondents, at 13.

The safe referenced by Respondents is located within Karen McConnell's desk, within

her office, within the school administration building. See Affidavit, at ¶ 8; N.T. at 7-10, 12-13;

Brief of Petitioner, at 25. Petitioner offers that since the office and administrative building have

been at the same location since 1967, one can safely conclude that the building is of sufficient

quality construction to qualify as a "permanent facility." Further, Respondents' suggestion that a

safe inside of Karen McConnell's office is a transient, temporary location is simply belied by

common sense.

Respondents criticize the storage methods utilized by Petitioner while offering not even a

single, remote suggestion of what specific storage methods Respondents would have deemed

sufficient under their subjective whims. However, if storing the video recording inside of a safe,

inside of a desk, inside of the Assistant Superintendent's office, inside of the School

Administration building is not sufficiently permanent, central, or secure - then nothing is. Here,

the District presented sufficient evidence that the video recording was converted to a permanent

form and maintained in a central, secure location within District buildings by the District.

{L0691446.2) 10

R. 441a

B. Disclosure of the School Bus Video Recording Would Result in a Loss of Federal Funds Because FERPA Financially Penalizes Schools that Release Education Records Without Parental Consent and the Video Recording Is Therefore Exempt from Disclosure Under the RTKL.

The RTKL contains no qualifier providing that if no one has actually previously lost

Federal or State funds for disclosing the record then it must be disclosed. See 65 P.S. §

67.708(b)(1)(i). Instead, in accordance with the plain and unambiguous language of the RTKL

and FERPA, the District is prohibited from disclosing "education records" without parental

consent and would be financially penalized for doing so. The District need not point to a single

situation where an educational institution has lost funding under FERPA - nothing in the

language of the RTKL or FERPA requires such proof. Such disclosure is in violation of the

statute - this is all that the District is required to demonstrate. Whether an educational institution

has been financially penalized is simply irrelevant.

C. The School Bus Video Recording Is a Record Relating to a

Noncriminal Investigation and Is Exempt Under Section 708(b)(17) of the RTKL.

Respondents erroneously state that the "District fails to specify which provision of 65

P.S. § 67.708(b)(17) it claims applies to the Video." Brief of Respondent, at 14. Instead,

Petitioners plainly cited to Section 708(b)(17)(ii), (iv) as follows: "the record relates to a

noncriminal investigation because it constitutes 'investigative materials, notes, correspondence

and reports' of the investigation and is also a record that includes information made confidential

by law. 65 P.S. § 67.708(b)(17)(ii), (iv)." Brief of Petitioner, at 30.

Respondents likewise erroneously claim that the District submitted no evidence in

support of its position that the "school bus video recording system 'only exists' for an

investigative purpose." Brief of Respondents, at 15 (emphasis in original). Indeed, the

testimony cited by Respondents for its proposition that the District's witness "directly

(L0691446.2} 11

R. 442a

contradicted the District's position" nicely captures sufficient evidence that the School bus video

recording here exists only for an investigative purpose. As explained by the District's witness,

School bus video recordings are only pulled, or converted to a permanent form, in order to carry

out an investigation - this investigation could be related to student discipline, staff member

conduct (and inherently staff member discipline), or another safety issue. (N.T. at 9-10.) All of

these functions or purposes are encompassed within the District's legislatively granted fact-

finding authority to conduct noncriminal investigations discussed at length in Petitioner's

opening brief and ignored entirely by Respondent's in reply. See Brief of Petitioner, at 30-32.

With respect to the Grove decision, despite Respondents attempt to characterize it

differently, this decision supports Petitioner's position. In Grove, the Supreme Court recently

held that the "MVRs are not exempt from disclosure as a general rule." PR v. Grove, 2017 WL.

2645401, at *11 (June 20, 2017). It explained that "whether an MVR contains criminal

investigative material must be determined on a case -by -case basis." Id. With respect to the

MVR at issue in Grove, the Court found that the "`MVRs at issue do not depict the accident

itself,' and instead show the troopers observing the crash scene and engaging with the drivers

and bystanders." Id. (emphasis added). It was for this reason that PSP could not "explain how

the video portion of the MVRs captured any criminal investigation." Id. at *12. Inherent and

obvious in this holding is that if the MVR had captured the incident itself, that portion of the

video recording would be exempt from disclosure under the criminal investigative exception.

Indeed, the 00R, as amicus, submitted for the Court an example contending that "when the

MVR apparatus records the actual sale of illegal drugs" this would be a record of a criminal

investigation. See id. at *9.

{L0691446.2} 12

R. 443a

Here, the School bus video recording does, in fact, depict the incident itself it is the

record of the incident - and is directly analogous to an MVR that "depicts the accident itself'

and which would be exempt from disclosure under Grove. Indeed, Respondents admit that the

video requested here contains "the raw material of the Video that captured the incident as it

happened," and "involves a video recording of the interaction as issue." Brief of Respondents, at

14. As such, under Grove, the video recording is exempt from disclosure.

Even further, unlike police MVRs which are in place to capture public activity for a

public purpose, School bus video recordings generally capture minor student activity on school

property for the purposes outlined in the School Code and discussed at length in Petitioner's

opening brief. For those reasons, in addition to the express confidentiality protections afforded

by federal law, disclosure of School bus video recordings is subject to a heightened and different

degree of protection as compared to MVRs. Despite Respondents' bald, conclusory statements,

Petitioner met its burden to prove that the School bus video recording is a record of the District's

non -criminal investigation exempt from disclosure under the RTKL.

D. The Student's Privacy Interests Expressly Provided by FERPA, a Federal Statute, Outweigh Any Presumption of Openness Associated With Judicial Records, and in any Event, the District is. Not the Proper Party to Provide Judicial Records.

Tellingly, Respondents ignore Petitioner's argument regarding the privacy interest

involved outweighing any presumption of openness and reiterate their misdirected argument

regarding "prejudice." The lack of prejudice related to the dismissed harassment charge,

however, is irrelevant.

First, the proper focus is the on the students' and parents' right to maintain privacy based

on the express confidentiality protections provided under federal law. Second, if prejudice is a

relevant inquiry at all, it is the prejudice that the parents' and students' would suffer as a result of

(L0691446.2) 13

R. 444a

the unconsented-to broadcasting of their education records, which is, again, outweighed by any

presumption of openness.

Yet again, the District is not the proper party to disclose "judicial records." Indeed, only

a court can do that. In any event, the District need not have sought a protective order at this

stage under FERPA. To the extent the court in possession of any judicial record protected by

FERPA considers re -disclosing it, the notification provisions under FERPA would then be

invoked, allowing the request for a protective order. See 34 C.F.R. § 99.33.

II. CONCLUSION

Central Dauphin School District requests this Honorable Court issue an order granting the

Notice of Appeal/Petition for Review and reversing the Final Determination of the Office of

Open Records. The Requester's request for access to the School bus video recording should be

denied under Pennsylvania Right to Know Law.



Micha. °Auld uirller,

E D. No. 78507) Tricia Lantz, Es e (I.D. o. 6052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 [email protected] [email protected] Telephone: (717) 237-6000

Date: July 6, 2017 Counsel for Central Dauphin School District

{L0691446.2} 14

R. 445a

CERTIFICATE OF SERVICE,

I hereby certify that I have served a true and correct copy of the foregoing Post -hearing

Reply Brief upon the parties listed below by United States Postal Service First Class Mail,

postage prepaid, as follows:

July 6, 2017

{L0691446.2)






15

Trir a S. Lontz

R. 446a

ies StibUted

InitialsDistributed

CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS OF DISTRICT, : DAUPHIN COUNTY, PENNSYLVANIA .

Petitioner

v. : NO. 2016 CV 4401 MP

VALERIE HAWKINS, FOX 43 NEWS, and the COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS, : CIVIL ACTION - LAW

Respondents

MEMORANDUM OPINION

Presently before this Court is the appeal of Central Dauphin School District

(hereinafter "Plaintiff' or "the District") from a final determination of the Office of Open

Records (hereinafter "OOR") under the Right -to -Know Law, 65 P.S. §§ 67.101, et seq.

("RTKL").

FACTUAL AND PROCEDURAL BACKGROUND

The parties submitted the following stipulations in regard to the factual and

procedural background of this case:

1. On February 23, 2016, Requester Valerie Hawkins (hereinafter "Requester" or "Respondent") submitted a RTKL request to the District seeking the followihg: "FOX 43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on February 16, 2016."

2. The video recording at issue is a video recording that was captured on a District school bus through its video recording system on February 16, 2016.

3. In response to the RTKL request for the school bus video recording, the District's Open Records Officer invoked the District's right 'to an additional 30 - day period to respond to the Request on March 1, 2016, and then issued a

`timely denial of the request on March 24, 2016.

4.. Requester appealed the District's denial to the OOR on March 24, 2016.

5. On March 25, 2016, the OOR issued an Official Notice of the Requester's appeal and invited both parties to supplement the record.

Page 1 of 17

R. 447a

6. Only the District supplemented the record by submitting a letter brief and supporting affidavit of the District's Open Records Officer in support of its denial.

7. The OOR issued a Final Determination granting the Requester's appeal on May 19, 2016, at OOR docket number AP 2016-0583.

In its denial, the District states that the school bus video contains personally

identifiable information directly related to a student or students, which is considered an

education record that is maintained by the District and is protected from release by the

Family Educational Right and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, 34 CFR Part

99. Likewise, the District stated that the school bus video is also exempt from disclosure

pursuant to 65 P.S. § 67.708(b)(1)(i) (a record, the disclosure of which would result in the

loss of Federal or State funds by an agency or the Commonwealth) because a violation

of FERPA would result in the loss of Federal funds to the District. In addition, the District

states that the school bus video is exempt from disclosure pursuant to 65 P.S. §

67.708(b)(17)(ii) - investigative materials, notes, correspondence and reports relating to

a noncriminal investigation. There was no explanation as to why the District believes the

video is exempt as a noncriminal investigation. See Certification of Record, EXhibit 1,

August 30, 2016.

Requester appealed the denial to the OOR. Neither party requested a hearing.

The OOR granted Requester's appeal and issued a Final Determination on May 19, 2Q16,

setting forth its reason for the decision. Specifically, the OOR determined that (1) the

school bus video is not an education record and (2) the school bui video does not relate

to a noncriminal investigation. In determining that the school bus video is not an

education record, the ,OOR relied upon Owasso Indep. Sch. Dist. No. 1-011 v. Falvo, a

Page 2 of 17

R. 448a

United States Siipreme Court case which held that individual student papers are not

"education records" under FERPA because they were not maintained in a central file by

the official records custodian. 534 U.S. 426 (2002). The OOR lists a Sixth (6111) Circuit, as

well as a number of district court cases, that have similar holdings as Owasso.

Accordingly, it is the OOR's position that the case law clearly indicates that only those

records relating to student academics are "education records" protected by FERPA, and

the mere fact that a record involves a student does not automatically render a record an

"education record". Applying the law to the facts of this case, the OOR determined that

the school bus video is not part of a student's permanent academic file. Therefore, the

school bus video is not protected by FERPA, and disclosure would not result in the, loss

of federal funding.

The OOR also determined that the school bus video does not relate to a

noncriminal investigation. They note that the District is investigating an assault on a

student by the parent of another student. "This cannot be said to relate to the District's

core function of educating students, and can only be said to be "ancillary" to the District's

mission." Fox43 News v. Central. Dauphin School District, OOR Dkt. AP 2016-0583 at p.

5. Further, the OOR notes that the District failed to cite any legislatively -granted fact-

finding authority to conduct a noncriminal investigation. Alternatively, the OOR

determined that even if the District's "investigation" is considered a noncriminal

investigation for purposes of RTKL, "the mere fact that the video is being used in the

investigation, does not, in and of itself, mean that the video is'a record of a noncriminal

investigation." Fox43 News v. Central Dauphin School District,. OOR Dkt. AP 2016-0583

page 3 of 17

R. 449a

at p. 7. The OOR noted that there was no evidence that the existence of the video is

primarily for investigative purposes.

On June 9, 2016, the District appealed the Final Determination of the OOR

pursuant to 65 P.S. § 67.1302. Respondent filed an Answer on July 14, 2016. On July

19, 2016, PA Media Group filed a Petition to Intervene, which was subsequently denied

on August 25, 2016. The OOR filed a Certification of Record on August 30, 2016. A

status conference was conducted on December 20, 2016, wherein it was determined that

an evidentiary hearing would be necessary for the Court to make a decision.

EVIDENTIARY HEARING

An evidentiary hearing was held on March 30, 2017, before this Court. We heard

testimony from Karen McConnell, the District's Assistant Superintendent for Finance and

Administrative Operations, as well as the District's Office of Open Records Officer,

regarding how the school bus video recording system works and how videos may be

maintained. No other testimony was offered.

In her capacity as Assistant Superintendent for Finance and Administrative

Operations, Ms. McConnell is responsible for overseeing the District's transportation

function, i.e. the school buses. (Notes of Testimony, Evidentiary Hearing 3/30/17

(hereinafter "N.T.") at 6-7). Ms. McConnell stated that she was personally involved in the

investigation into staff and student discipline as a result of the conduct that was captured

on the school bus recording at issue. (N.T. at 10).

Each District school bus is equipped with two cameras. (N.T. at 7). The District

does not own the school bus, but it does own the video recording system. (N.T. at 20).

One camera is mounted over the driver's head and shows the front door of the school

Page 4 of 17

R. 450a

bus, as well as the area outside the front door. (bj.) This camera captures the students'

backs as they walk toward their seat, and their faces while sitting in their seats. (1,) The

other camera is mounted in the front of the bus and shows the length of the interior of the

bus from front to rear. (Id.) The cameras are high resolution and capture individuals that

get on and off of the bus. (Id.) However, the cameras are not focused on any specific

individual on the bus, and the driver does not have the ability to adjust the camera. (N.T.

at 29, 47). The cameras typically begin recording when the bus engine is turned on and

continue to record until twenty (20) minutes after the bus engine is turned off. (N.T. at 28).

They are programed to record over already recorded content every ten (10) to fourteen

(14) days. (N.T. at 7-8).

Video. recordings are only extracted into a permanent form when there is a

particular reason for the District to pull and download a recording. (Id.) The video

recordings may be created for several purposes - student discipline, reviewing staff

members' performance, and to monitor safety issues. (N.T. at 9). The typical process for

obtaining a school bus video recording is to contact the Director of Transportation and to

indicate that there was -an issue on a bus. (N.T. at 8). Typically, principals are the

individuals making the request. (Id.) The Director of Transportation would then go to that

particular bus, remove the drive, and review the video footage to capture that section

which was requested. (Id.) Once the section of the video is captured, it is maintained by

the Director of Transportation. (N.T. at 13). Although the District has a police force, the

police do not maintain possession of the recordings. (Id.) Further, they must follow the

same process as outlined above in order to obtain a school bus video recording. (Id.)

Page 5 of 17

R. 451a

The school bus video at issue in this case was recorded on February 16, 2016.

The District received a number of concerns and complaints from parents via electronic

mail regarding the incident. (N.T. at 1.0, 30). Thereafter, the District began an

investigation to determine if there should be student or staff discipline. (N.T. at 12). As a

result of the investigation, at least one (1) student and one (1) staff member were

disciplined. (N.T. at 12, 42). The school bus was located in front of Central Dauphin High

School following a Central Dauphin East High School girls' basketball game in the public

area of the school parking lot. (N.T. at 17-19). The school bus video includes footage of

a confrontation between Erica Rawls, the wife of the Central Dauphin East High School

principal and a parent of a student, and a member of CD East's girls' basketball team.

(N.T. at 50). The incident on the video actually began outside the school bus in a public

area and continued onto the bus. (N.T. at 21, 24). The relevant portion of the school bus

video, is approximately twenty (20) minutes total - approximately ten (10) to twelve (12)

minutes on each camera. (N.T. at 47).

Although Ms. McConnell testified that the Director of Transportation maintains any

recordings in permanent form, the school bus video at issue is being maintained solely

by Ms. McConnell in a fireproof safe in her office. (N.T. at 13). Ms. McConnell provided

no explanation for the deviation from the standard procedure in this particular instance

except to say that she is maintaining the school bus video as the open records officer.

(N.T. at 38). The school bus video is not being kept in any student file. (N.T. at 39).

Although Ms. McConnell testified on direct examination that she is responsibile for student

and staff discipline (N.T. at 7), she admitted on cross-examination that she is "very rarely"

involved in a case of student discipline. (N.T. at 40). Further, she is not charged with

Page 6 of 17

R. 452a

maintaining student files, and does not know whether academic and discipline files are

kept together. (N.T. at 42). She was also not involved in deciding disciplinary issues in

this particular case. (N.T. at 41).

As a result of this incident, Mrs. Rawls was charged with summary harassment. A

portion of the subject video recording was played during Mrs. Rawls' trial before

Magisterial District Justice ("MDJ") Dominic Polinio1. The names of the student and adult

involved in the incident are known to the public, and they both testified during the trial.

The charge was subsequently dismissed by MDJ Polinio.2

DISCUSSION

Pennsylvania's RTKL provides that records possessed by agencies are presumed

to be public records, but this "presumption shall not apply if: (1) the record is exempt

under section 708; (2) the record is protected by a privilege; or (3) the record is exempt

from disclosure under any other Federal or State law or regulation or judicial order or

decree." 65 P.S. § 67.305(a). The relevant portions of Section 708 states that "[al record,

the disclosure of which: (i) would result in the loss of Federal or State funds by an agency

or the Commonwealth" and a record relating to a noncriminal investigation are exempt

from disclosure. 65 P.S. § 67.708(b)(1), (17). The District has the burden of proving by a

preponderance of the evidence that the record is exempt from disclosure, noting

exemptions from disclosure are to be narrowly construed. Pa. State Police v. Grove, 2017

WL 2645401 at 4 (2017); citing Pa. State Police v. McGill, 83 A.3d 476, 479

I The case was originally filed in MDJ Lowell Witmer's office, but was subsequently transferred. See MJ-

12305-NT-54-2016 and MJ-12304-NT-140-2016. 2 See Matt Miller, Judge Dismisses Harassment Charge Against CD East Principal's Wife, Penn Live (May

25, 2016 5:19 PM, updated May 25, 2016, 5:28 PM), http://www, pennlive.cominews/2016/05/judg e_d ism isses_ha rassmentsha. html.

Page 7 of 17

R. 453a'

(Pa.Commw.Ct. 2014) (en banc). Conclusory statements are not sufficient to justify an

exemption. West Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 393 (Pa.Commw.Ct.

2015). "The evidence must be specific enough to permit [the court] to ascertain how

disclosure of the [video] would reflect that the records sought fall within the proffered

exemptions." Id.

The District maintains that the school bus video is exempt from disclosure because

it is considered an education record under FERPA, therefore is not a public record under

the RTKL. Additionally, the District maintains that the school bus video is exempt because

disclosure of the video would result in a loss of federal funding (FERPA). Alternatively,

the District asserts that the school bus video is a record relating to a noncriminal

investigation and is therefore exempt from disclosure pursuant to Section 708(b)(17).

FERPA

Under FERPA, "education records" are 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). However, "FERPA does not protect

information which might appear in school records but would also be known by members

of the school community through conversation and personal contact." Daniel S. v. Bd. of

Educ. of York Cmtv. High Sch., 152 F.Supp.2d 949, 954 (N.D.I.L. 2001) citing Frasca v.

Andrews, 463 F.Supp. 1043, 1050 (E.D.N.Y. 1979) (internal citations omitted).

To qualify as an education record, the video recording must first contain

information "directly related" to a student. The District asserts that the school bus video

is directly related to a student and cites Bryner v. Canyos Sch. Dist., 351 P.3d 853 (Ct.

Page 8 of 17

R. 454a

App. Utah 2015) for support. "Records ... directly relate to a student if the matters

addressed in the ... records pertain to actions committed or allegedly committed by or

against the student and contain information identifying the student." Bryner, 351 P.3d at

858 citing United States v. Miami Univ., 91 F.Supp.2d 1132, 1149 (S.D. Ohio 2000)

(internal citations omitted). Despite finding that the record in Bryner was directly related

to a student, the court permitted a redacted copy of the video to be disclosed.

The District also cites to Medley v. Bd. of Educ. Of Shelby Cnty., 168 S.W.3d 398,

404 (Ky. Ct. App. 2005) and Rhea v. Dist. Bd. of Trustees of Santa Fe Coll., 109 So.3d

851, 858 (Fla. Dist Ct. App. 2013). In Medley, a teacher requested a copy of a video

recording from a camera in her classroom. The camera was placed in her classroom

after students complained of inappropriate treatment. The Medley court found that

although the video recordings were education records, the request was not being made

by a member of the public.. Rather, the request was made by a teacher and as such, the

video recordings would not be exempt from disclosure so long as a legitimate education

interest is established. Since the lower court did not make a determination as to whether

the teacher requested the video recordings for a legitimate education interest, the case

was remanded.

In Rhea, a professor requested a copy of an e-mail written by a student regarding

inappropriate classroom behaVior on behalf of the professor. The professor was provided

with a copy of the e-mail with the student's name redacted. However, the request for

disclosure of the student's name was denied. The Rhea court held that while it is clear -

that employee records are not included in the definition of an education record, those

employee records must relate exclusively to the employee in his or her capacity as an.

Page 9 of 17

R. 455a

employee. Therefore, the content of the e-mail was considered a public record, but the

name of the student who authored the e-mail was not.

In the instant case, Respondent is requesting a copy of the school bus video from

February 16, 2016. Specifically, Respondent asserts that it is most interested in the

actions of the adult portrayed in the school bus video, not necessarily the actions of the

student. In both Rhea and Bryner, the court'permitted an education record to be disclosed

so long as the identifying information was redacted. Although Ms. McConnell testified

that the District did not have the capability to blur out individual students (N.T. at 14), it is

not impossible to do so. There are several video editing software and/or programs that

would allow for portion of a video recording to be blurred, i.e. student faces and identifying

information. Even if this Court were to find that the school bus video at issue is an

education record, it is clear that it is permissible to disclose a redacted copy of the video.

Additionally, the case law cited above indicates that FERPA does not protect

information that may be in a school record, but is known by members of the school

community through conversation and personal contact. Here, the incident which is the

subject of the video recording was covered by several news media outlets from the outset.

Following an MDJ hearing on Mrs. Rawls' harassment charge, PennLive published a

news article that includes the name of the adult, as well as the student involved in the

incident.3 Further, it is hard for this Court to believe that the incident and the names of

those individuals involved did not spread through the high school gossip channels.

3 See Matt Miller, Judge Dismisses Harassment Charge Against CD East Principal's Wife, PennLive (May

25, 2016 5:19 PM, updated May 25, 2016, 5:28 PM),

http://www.pennlive.cominews/2016/05/judge_dismisses_harassment_cha.htmi.

Page 10 of 17

R. 456a

Respondent cites Ellis v. Cleveland Mun. Sch. Dist., 309 F.Supp.2d 1019 (N.D.

Ohio 2004) to support its contention that the school bus video is not an education record

exempt from disclosure. In Ellis, the requester sought incident reports related to

altercations between substitute teachers and students, including witness statements.

Even though the records sought "clearly involve students as alleged victims and

witnesses," the court held that they "do not implicate FERPA because they do not contain

information directly related to a student." Ellis, 309 F.Supp.2d at 1023. The Court further

noted that even if the records were considered education records, "FERPA is not a law

which absolutely prohibits the disclosure of educational records; rather, it is a provision

which imposes a financial penalty for the unauthorized disclosure of educational records."

Id.

The second part of the definition of an "education record" requires the record to be

maintained by an educational agency or institution or by a person acting for such an

agency or institution. "The word 'maintain' suggests FERPA records will be kept in a filing

cabinet in a records room at the school or on a permanent secure database, perhaps

even after the student is no longer enrolled." Owasso Indep. Sch. Dist. v. Falvo, 534 U.S.

426, 433 (2002). Other courts have made it clear that only those records relating to a

student's academic performance are "education records" for purposes of FERPA. Bd. of

Educ. of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011)

(tally sheets denoting student's daily activities for purposes of compiling the student's

official progress reports are not "education records" because the records were not part of

the student's permanent file); Pollack v. Regional Sch. Unit 75, 2015 WL 1947315 (D.

Me. 2015) (holding that "educational records" are those records iii a central record which

Page 11 of 17

R. 457a

follow a student from grade to grade and school to school); S.A. v. Tulare Cnty. Office of

Educ., 2009 WL 3296653 (E.D. Cal. 2009) (e -mails mentioning a student's name are not

"education records" because they are not part of the student's permanent file).

In the instant case, Ms. McConnell testified that the school bus video at issue is

being kept in a fireproof box in her office. (N.T. at 13).. There is no evidence that the

school bus video is part of a student's permanent academic record. (N.T. at 39). Further,

the school bus video recording system is not generally kept in permanent form and is

overwritten approximately every two (2) weeks. (N.T, at 7-8). If a particular video

recording is converted to a permanent form, it is generally maintained by the Department

of Transportation - not in any student file. (N.T. at 13). Even if this Court were to agree

that video recordings in permanent form are maintained in a central location, the video

recording at issue here is not. For whatever reason, it is separately maintained by Ms.

McConnell in her capacity of open records officer.

Accordingly, this Court finds that the school bus video recording is not an education

record protected from disclosure by FERPA. Therefore, the school bus video recording

is a public record pursuant to the RTKL. The Court notes, however, that 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.

Noncriminal Investigation

Alternatively, the District contends that the school bus video is exempt from

disclosure as it relates to a noncriminal investigation into the incident depicted on the

video. Section 708(b)(17) of the RTKL exempts from disclosure:

A record of an agency relating to noncriminal investigations, including:

Page 12 of 17

R. 458a

(i) Complaints submitted to an agency.

(ii) Investigative materials, notes, correspondence and reports.

(iii) A record that includes the identity of a

Confidential source, including individuals subject to ... the Whistleblower Law.

(iv) A record that includes information confidential by law.

(v) Work papers underlying an audit.

(vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of an agency. investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a

license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court.

(B) Deprive a person of the right to an impartial adjudication.

(C)Constitute an unwarranted invasion of privacy.

(D) Hinder an agency's ability to secure an administrative or civil sanction.

(E) Endanger the life or physical safety of an individual.

65 P.S. § 67.708(17). The term 'noncriminal' is "intended to signal that the exemption is

applicable to investigations other than those which are criminal in nature." Sherry v.

Radnor Twp. Sch. Dist., 20A.3d 515, 522 (Pa.Commw.Ct. 2011) citing Pa. Dept. of Health

v. Office of Open Records, 4 A.3d 803, 810-811 (Pa.Commw.Ct. 2010). The term

'investigation' means "a systematic or searching inquiry, a detailed examination, or an

Page13 of 17

R. 459a

official probe." Id. For the exemption to be applicable, the investigation must be.

conducted as part of an agency's official duties. Pa. Dep't of Health, 4 A.3d at 814.

Furthermore, "[a]n official probe only applies to noncriminal investigations conducted by

an agency acting within its legislatively granted fact-finding and investigative powers." Pa.

Dep't of Pub. WeIf. v. Chawaga, 91 A.3d 257, 259 (Pa.Commw.Ct. 2014).

The District asserts that the school bus video is part of a noncriminal investigation

of student and staff conduct for safety and discipline after receiving reports of the incident.

(N.T. at 12). The District does not state the date on which the reports were received, nor

the date on which their investigation began. Further, as Respondent notes in their brief,

the District fails to specify which provision of 65 P.S. § 67.708(b)(17) it believes applies

to the school bus video at issue. The request is specifically seeking the raw video which

captured the incident. It does not appear to request any of the complaints allegedly

received by the District, any records into the investigation of the incident, the identity of a

confidential source, and the school bus video itself would not reveal any progress in or

result of an investigation conducted by the District. The only exception that could apply

is that disclosure of the school bus video constitutes an unwarranted invasion of privacy.

Even if that exception was applicable, it could easily be remedied by redacting any

identifying information.

The District contends that but for their investigation, the school bus video at issue

would not exist in permanent form as it would have been recorded over. This Court

disagrees with that assertion. The RTKL request was made on February 23, 2016; seven

(7) days after the incident on February 16, 2016. Based on the present request, this Court

concludes that the District would have gone to the specific bus, pulled the video recording,

Page 14 of 17

R. 460a

found the portion requested, and converted into a permanent form in order to process the

RTKL request. Therefore, it is disingenuous for the District to argue that the school bus

video would not exist but for their internal investigation.

Additionally, the District asserts that the school bus video is exempt because it

was utilized during the course of their investigation. According to the testimony of Ms.

McConnell, the District conducted a lengthy investigation that included reviewing the

video, interviewing students and staff, and speaking with parents. (N.T. at 10-11).

However, as noted above, Ms. McConnell first testified on direct examination that she is

responsible for student and staff discipline. (N.T. at 7). Subsequently on cross-

examination, Ms. McConnell testified that she is very rarely involved in student and staff

discipline because she is on the finance and operations side of the District. (N.T. at 39-

40). Although Ms. McConnell testified that she was personally involved with the

investigation, based upon her inconsistent statements, this Court is unsure as to how or

why an employee in the finance and operations side of the District would be involved in

an investigation regarding staff and student conduct. Further, when specifically asked on

cross-examination as to how many student discipline issues in the past year she had

been involved in, Ms. McConnell responded "I can't think of any". (N.T. at 40). Therefore,

this Court finds Ms. McConnell's testimony regarding the alleged investigation not

credible.

Even if this Court determined that the District's investigation into the incident is a

noncriminal investigation for RTKL purposes, the mere fact that the video is being used

in the investigation, does not, in and of itself, mean that the video is being used in the

investigation. Pa. State Police v. Grove, 2017 WL 2645401 (2017). In Grove, the

Page 15 of 17

R. 461a

requester sought a copy of a dash -cam video recording of a motor vehicle accident. The

Pennsylvania State Police ("PSP") denied access because the video documented the

results of a criminal investigation, and therefore, was exempt from disclosure. Id. The

dash -cam videos were created when two troopers arrived on scene of the accident. Id.

Neither video showed the accident as it occurred. Id. One of the videos contained video

only and showed a trooper speaking to individuals involved in the accident, examining the

vehicles, directing traffic, and relaying information to his partner. Id. The other video

contained audio and video recordings of his interviews with the two drivers, as well as

bystanders. Id. The Supreme Court of Pennsylvania held that motor vehicle recordings

("MVR") do not always contain criminal investigative materials and are not automatically

exempt. Id. The determination of whether a particular MVR contains criminal investigative

material must be on a case -by -case basis. Id. The Court further held that the video

aspects of both MVR's were not exempt from release because the PSP failed to explain

how the video portion captured any criminal investigation. Id.

Similarly, the school bus video at issue does not contain any investigative

materials. It merely shows an altercation that began outside of the bus, moved onto the

bus, and other individuals getting on and off of the bus. The District has failed to explain

how the school bus video, once redacted for identifying information, contains noncriminal

investigative materials.

CONCLUSION

Based upon the foregoing, this Court finds that the District has failed to meet its

burden in proving by a preponderance of the evidence that the school bus video is exempt

Page 16 of 17

R. 462a

from disclosure under FERPA, or any of the enumerated exceptions outlined in Section

708 of the RTKL.

Accordingly, the District'sPetition to Vacate the Final Determination of the OOR is

DENIED.

BY THE COURT:

William T. Tully, J.

DISTRIBUTION: Michael McAuliffe Miller, Esquire & Tricia S. Lontz, Esquire, 213 Market Street, 8th Floor,

Harrisburg, PA 17101 Craig J. Staudenmaier, Esquire & Joshua D. Bonn, Esquire, 200 North Third Street, 18th

Floor, P.O. Box 840, Harrisburg, PA 17108 Court Administration FILE

Page 17 of 17

R. 463a

0

Michael McAuliffe Miller, Esquire (PA I.D. 78507) Tricia S. Lontz, Esquire (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected]

11111 AU; 17 Ail 10: 41

...," Y

IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA

CENTRAL DAUPHIN SCHOOL DISTRICT,

Petitioner NO. 2016 -CV -4401 -MP

vs. : STATUTORY APPEAL - OPEN RECORDS


Respondents

CONCISE STATEMENT OF THE MATTERS COMPLAINED OF ON APPEAL

Pursuant to Local Rule 227.1A, Petitioner, Central Dauphin School District (the

"District"), by and through their counsel Eckert Seamans Cherin & Mellott, LLC, submits this

Concise Statement of the Matters Complained of and Intended to be Argued on Appeal, and state

as follows:

1. The trial court abused its discretion and/or committed an error of law by concluding that

the school bus video recording at issue is not an education record protected from

disclosure by the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §

1232g, and therefore not exempt from disclosure under Pennsylvania Right to Know Law

("RTKL"), 65 P.S. § 67.101 et seq.

(L06963 74.1)

R. 464a

2. The trial court abused its discretion and/or committed an error of law by failing to find

that the school bus video recording contains information directly related to a student or

students.


FERPA does not protect a record because there is information in the school record that is

known by members of the school community through conversation, personal contact,

media reports, or gossip channels.


that the District met its burden of proof establishing that the video recording was not

capable of redaction.


that redaction was, in any event, not sufficient to remove all personally identifiable

information from the video recording.

6. The trial court abused its discretion and/or committed an error of law by relying on

newspaper articles and extraneous evidence, including the trial court's unsupported and

unsubstantiated suggestion that editing software and/or programs exist that would allow

for redaction under the circumstances here.

7. The trial court abused its discretion and/or committed an error of law by requiring the

District to purchase technology, if it even exists, that would allow the District to redact

the video recording in accordance with the trial court's order.

8. The trial court abused its discretion and/or committed an error of law by requiring the

District to purchase redaction technology because requiring the District to purchase

[L0696374.1} 2

R. 465a

technology to redact the video recording would require the District to create a record in

violation of 65 P.S. § 67.705.


that the school bus video recording was maintained by persons acting for the District.


Karen McConnell's maintenance of the school bus video recording in her office, in her

capacity as open records officer, does not qualify as being maintained by persons acting

for the District under FERPA.


that disclosure of the school bus video recording would result in a loss of federal funds by

the District and is therefore exempt from disclosure under Section 708(b)(1) of the

RTKL.


the school bus video recording is not a record relating to a noncriminal investigation

exempt from disclosure under Section 708(b)(17) of the RTKL.

13. The trial court's finding that the District did not specify which provisions of Section

67.708(b)(17) it believed applied to the school bus video recording is not supported by

competent evidence as the District cited to both subsections (ii) and (iv) in its opening

brief (Brief of Petitioner, at 30), and again pointed out the same in response to

Respondent's erroneous assertion in its reply brief (Reply Brief, at 11).

14. The trial court abused its discretion and/or committed an error of law by finding that this

school bus video recording would have been created even absent the District's non -

{L0696374.1} 3

R. 466a

criminal investigation into the incident captured on the recording, and this finding of fact

is also not supported by competent evidence.


Karen McConnell's testimony regarding the non -criminal investigation was not credible,

and these findings of fact are not supported by competent evidence.

16. The trial court's finding of fact that the Assistant Superintendent of the District cannot be

involved in a particular, sensitive non -criminal investigation of the District if she is not

regularly involved in investigations related to student discipline is not supported by

competent evidence, and this conclusion is also an abuse of discretion and/or an error of

law.


the school bus video recording does not contain any investigative materials when the

basis of the investigation was the actions and conduct of the adult and the students on the

bus.

18. The trial court's findings of fact that the school bus video recording does not contain any

investigative materials is not supported by competent evidence.


the District failed to meet its burden of proof to establish that the school bus video

recording contains noncriminal investigative material.

{L0696374.1} 4

R. 467a



ic (6,t-criet-/talZ (e\ Michael McAuliffe Miller, Esq ire (I.D. No. 78507) Tricia S. Lontz, Esquire (I.D. No. 316052)

Date: August 17, 2017 Counsel for Central Dauphin School District

{W696374.1} 5

R. 468a

r


I hereby certify that I have served a true and correct copy of the foregoing Concise

Statement of Matters Complained of on Appeal upon the parties listed below by United States

Postal Service First Class Mail, postage prepaid, as follows:

August 17, 2017

(LDE96316.1]






R. 469a

CEINITRAL DAUPHIN SCHOOL DISTRICT,

Petitioner/Appellant

v.

VALERIE HAWKINS, FOX 43 NEWS, and the COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Respondents/Appellees

Copies Distributed

!r.nitials ti : IN THE COURT OF COMMON PLEAS OF : DAUPHIN COUNTY, PENNSYLVANIA

: NO. 1154 CD 2017

: TRIAL COURT NO. 2016 CV 4401 MP

STATEMENT IN LIEU OF RULE 1925(a) OPINION

Presently before the Commonwealth Court of Pennsylvania is the appeal of

Central Dauphin School District (hereinafter "CD" or "Appellant") from the Memorandum

Opinion and Order of August 1, 2017, denying Appellant's Petition to Vacate the Final

Determination of the Office of Open Records ("OOR").

Appellant raises a total of nineteen (19) issues for appellate review. This Court

believes that our Memorandum Opinion and Order of August 1, 2017 thoroughly articulate

the reasons for our decision. Therefore, this Court respectfully directs the Commonwealth

Court's attention to our Memorandum Opinion and Order. In addition, this Court will clarify

our position regarding redaction - Appellant's Statement of Matters Complained of on

Appeal, paragraphs four (4) through eight (8).

In our Memorandum Opinion, we found the school bus video recording is not an

educational record protected from disclosure by the Family Educational Rights and

Privacy Act ("FERPA"), 20 U.S.C. § 123g, 34 CFR Part 99. At the end of the paragraph,

we stated that prior to disclosure, any identifying information would have to be redacted

in accordance with 65 P.S. § 67.706. We wish to clarify our position. The statement was

not intended to be a finding of this Court. Rather, it was a statement of the law regarding

Page 1 of 4

R. 470a

disclosure. Further, this Court does not believe the school bus video recording contains

identifying information required to be redacted.

The incident happened on a school bus following a high school girls' basketball

team. On the bus were the players of Central Dauphin East High School girls' basketball

team, as well as a few adult coaches and chaperones. Appellant maintains that because

the students were wearing their basketball jerseys, which have their names on them,

there is identifying information on the video. However. Karen McConnell, the Assistant

Superintendent for Finance and Operations, testified during our hearing that the school

hands out programs with the students name and jersey number to every person who

attends the game. In addition, Appellant's website contains pictures and videos, as well

an information on each student -player, for the girls' basketball team.

Accordingly, this Court finds that the school bus video recording is not an education

record protected from disclosure under FERPA. Since this Court did not view the school

bus video recording itself, we are unable to say whether or not there is identifying

information on the video. However, as far as the students wearing jerseys with their name

and number on them, this Court finds that is not identifying information which is required

to be protected for the reasons set forth above.

Lastly, the Court notes that Appellant asserts that this Court erred in finding that

information in a school record which is known by members of the school community

through conversation, personal contact, media reports, or gossip channels is not

protected from disclosure. The citation for that proposition was inadvertently omitted. We

relied on guidance from the United States Department of Education's Family Policy

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R. 471a

Compliance Office (the FPCO), which implements and oversees institutional compliance

with FERPA. Specifically, the guidance states:

FERPA does not protect the confidentiality of information in general, and therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exists which contain that information. As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.

See, e.g., Letter to Montgomery County Public Schools (MD) re: Law Enforcement Unit,

February 15, 2006. As discussed in our Memorandum Opinion, the incident was covered

by several local news media outlets, and the name of the student involved in the incident

was subsequently printed in a news article. This is one of many reasons why this Court

found the school bus video recording was not an education record protected from

disclosure by FERPA.

Appellant's remaining issues were thoroughly addressed in our Memorandum

Opinion, therefore decline to provide additional explanation. Accordingly, we ask the

Superior Court to affirm the Order of August 1. 2017, denying Appellant's Petition to

Vacate Final Determination of the 00R, and dismiss the appeal in this matter.

Date: /0

(Distribution on following page.)

Respectfully submitted:

Page 3 of 4

William T. Tully, J

R. 472a

DISTRIBUTION: Michael McAuliffe Miller, Esquire, & Tricia S. Lontz, Esquire, 213 Market Street, 8th Floor,

Harrisburg, PA 17101 Craig J. Staudenmaier, Esquire, & Joshua D. Bonn, Esquire, 200 North Third Street, 18th

Floor, P.O. Box 840, Harrisburg. PA 17108 Court Administration FILE

Page 4 of 4

R. 473a


I hereby certify that I am this day serving two copies of the Reproduced

Record upon the persons and in the manner indicated below, which service

satisfies the requirements of Pa.R.A.P. 121.

Service by first class mail addressed as follows:

Craig J. Staudenmaier Nauman, Smith, Shissler & Hall, LLP

200 N. 3rd Street, 18th Floor Harrisburg, PA 17101

/s/ Tricia S. Lontz

Tricia S. Lontz

Attorney for Appellant

Date: December 28, 2017

{L0737437.1}