On December 10, 2018, the Commonwealth Court issued a second opinion requiring the disclosure of bus videos as public records. This decision, Central Dauphin School District v. Hawkins, presents similar issues to those decided last July in the matter of Easton Area School District v. Miller.
Facts in the Case
In 2016, a television news reporter requested a copy of the bus camera video that captured an altercation between a student athlete and a parent. The District denied the request for two reasons. First, that the video was exempt from disclosure because it documents a noncriminal investigation of the incident. Second, the District claimed that that the video is an education record that cannot be disclosed without parental consent. Specifically, the District claimed that because the video contains personally identifiable information about the student involved in the altercation, disclosure is prohibited by a federal law, the Family Educational Rights and Privacy Act (“FERPA”).
The reporter appealed to Pennsylvania’s Office of Open Records, which determined that the District had not established that either exemption applied. The District appealed to the Dauphin County Court of Common Pleas, which affirmed the OOR decision following a hearing.
The Court’s Decision
The Commonwealth Court determined that the bus video was not an education record because it was not maintained as a permanent part of any student’s file. In so ruling, the Court found there was no evidence that tied the video to any specific student, and noted that it was maintained by the district’s Open Records Officer during this appeal. Further, the Court noted that videos are not records because the district does not have a maintenance protocol for them, and in fact discards them if they are not needed for a particular purpose.
Consistent with other recent decisions, the Court determined that the video was not an investigative record. The video does not document an investigation, but depicts an incident that is the subject of an investigation.
What This Means
Essentially, school district bus videos, and presumably, land-based surveillance, are public records subject to disclosure under the Right To Know Law. At least, this is the interpretation of the Commonwealth Court in this most recent Central Dauphin v Hawkins case and in its previous decision in the Easton SD v Miller case.
Outside of the FERPA argument, neither court decision makes any attempt to account for the privacy expectations of students or parents. Safety concerns over children possibly being followed by ill-intentioned persons would appear to be a major concern not addressed by the statute or given consideration by the courts.
While surveillance video tapes now unquestionably fall into the category of public records, serious questions remain. To begin with, how will student identification be addressed, especially for special needs students who have identity protection under both FERPA and IDEA.
Another legal conundrum yet to be solved concerns audio recordings. Under the Commonwealth Court’s reasoning in Hawkins and Miller, there would be no reason for exemption under the Right To Know Law. Yet the expectation of privacy for the spoken word would seem more compelling.
Bottom Line for Schools
Easton SD v Miller is currently pending a petition for appeal in the PA Supreme Court and Hawkins may soon follow, but currently, the state of the law requires disclosure of requests for bus surveillance. Because of the potential for unintended harm or embarrassment in the release of video surveillance until the law is made more clear, schools are well-advised to consult counsel before releasing video surveillance footage.
Other considerations may be to reduce storage time for videos or assert other exceptions as may be appropriate under the circumstances, such as where the tape is part of an investigation or compromises safety of buildings or specific students. Legislative attention to address the privacy and safety issues raised by these decisions is badly needed.
If your school has a question about bus recordings or the Right To Know Law, please contact your legal counsel or one of the attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.