Commonwealth Court Holds That School Surveillance Videos Showing Interactions Between Adults And Students Are Not Education Records Under FERPA and Are Public Records Under The RTKL

Easton Area Sch. Dist. v. Miller, 191 A.3d 75 (Pa. Cmmw. 2018).  The Commonwealth Court holds that a school bus surveillance video that depicted a school teacher roughly disciplining a student was not an “education record” under the federal Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g because the video directly related to the teacher, not the students. Central Dauphin School District v. Hawkins, 2018 WL 6441638 (Pa. Commw. December 10, 2018).  The Commonwealth Court holds that school bus surveillance video that recorded a confrontation between a student and a parent of another student was not an “educational record” of the student under FERPA because it was not directly related to the student or maintained by the District

SUMMARY AND FACTUAL BACKGROUND

In each case, a requester submitted a request  to a school district (“District”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., for a video from a District school bus security camera.  In Miller, the video depicted a teacher roughly disciplining a student.  In Hawkins, the video depicted a confrontation between a student and a parent of another student.

In both cases, the Districts denied the requests, arguing that the videos were exempt because they were education records of the students depicted in the videos under FERPA.  The Office of Open Records (“OOR”) held that the requested videos were not education records under FERPA and ordered the Districts to release the video.  On appeal, the trial courts affirmed the OOR’s holdings.

DISCUSSION

FERPA prohibits schools receiving federal financial assistance from disclosing “sensitive information about students” without parental consent.  Specifically, Section 1232g(b)(1) of FERPA provides no federal funds shall be made available to a school district that has a policy or practice of permitting the release of education records (or personally identifiable information contained therein) without the consent of  the students’ parents.  20 U.S.C. § 1232g(b)(1).

Under FERPA, education records are defined as materials that: 1) contain information directly related to a student; and 2) are maintained by a school district.  20 U.S.C. § 1232g(a)(4)(A).  A record must meet both parts of the definition to qualify as an education record.

In Miller, the court held that while an “education record” has a reach beyond a student’s academic transcript, the video at issue was not an educational record because it depicted the teacher abusing the student and only tangentially related to the student.   The Miller court explained that a video “is only an educational record with respect to a student in the video for whom the video may have consequences.”  Therefore, the Miller court held that the video did not meet the “directly related” prong of the definition of education record and ordered that the video be disclosed.

In Hawkins, the video recorded a confrontation between a student and a parent.  While the parent was criminally charged for her conduct, the District did not submit any evidence regarding whether the video was used to discipline the unnamed student.  Accordingly, consistent with its holding in Miller  the court found that the District failed to demonstrate that the video directly related to the student.

The Hawkins court examined the second part of the definition and found that the video was not an education record because it was not “maintained” by the District.  Relying on Owasso Independent School District No. I-011 v. Falvo,, 534 U.S. 426, 433, 122 S.Ct. 934, 151 L.Ed.2d 896 (2002), wherein the Supreme Court explained that to meet the “maintained” prong of the definition, a record must be kept in a filing cabinet in a records room at the school or on a permanent secure database and be subject to a maintenance protocol, the Hawkins court found that the video was not “maintained” by the District because the District did not have a maintenance protocol for school bus videos and that such videos were not permanently maintained.

CONCLUSION

Though the Commonwealth Court narrowed the FERPA exception in the Miller and Hawkins decisions, the court did not hold that every school bus video is a public record and not subject to the protections of FERPA.

For example, the Miller court distinguished its holding from another case, Bryner v. Canyons School District, 351 P.3d 852 (Utah Ct. App. 2015), which involved a surveillance video capturing an altercation between students.  The Miller court stated Bryner was inapposite because the video in that case contained information directly related to the students committing misconduct whereas the video in this case depicted a teacher’s alleged misconduct.

Moreover, the Commonwealth Court asserted that both decisions are consistent with guidance issued by Department of Education on its website.  This guidance provides that a surveillance video showing two students fighting in a hallway that is used as part of a disciplinary action is “directly related” to the students fighting.  Moreover, this guidance explains that, with respect to the maintenance requirement, that a photo or video that shows two students fighting which is maintained in the students’ disciplinary records is “maintained” by the District under FERPA.

Accordingly, a school district should always consult with its solicitor before releasing a video involving a student pursuant to a RTKL request because determining whether a video is an education record of a student can be a difficult, fact-sensitive determination.