Central Dauphin SD v. v. Hawkins

C
                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Central Dauphin School District,                :
                  Appellant                     :
                                                :    No. 1154 C.D. 2017
                v.                              :
                                                :    Argued: March 15, 2021
Valerie Hawkins, Fox 43 News and                :
the Commonwealth of Pennsylvania,               :
Office of Open Records                          :


BEFORE:         HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE ELLEN CEISLER, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                                   FILED: April 22, 2021


                This Right-to-Know Law1 (RTKL) appeal is before the Court on remand
from the Pennsylvania Supreme Court for further consideration consistent with its
opinion in Easton Area School District v. Miller, 

232 A.3d 716

(Pa. 2020) (partial
plurality) (Easton II).2
                In our original opinion, we affirmed the Court of Common Pleas of
Dauphin County (trial court), which held that a school bus video of an incident
involving a Central Dauphin School District (School District) girls’ basketball player
and a parent was not protected from disclosure under section 708(b)(1)(i) of the RTKL,
65 P.S. §67.708(b)(1)(i). Central Dauphin School District v. Valerie Hawkins, Fox 43


       1
           Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

       2
          The Easton II decision was decided by the majority, in part, and a plurality, in part. Any
citations to Easton II are cites to majority holdings unless otherwise specified.
News and the Commonwealth of Pennsylvania, Office of Open Records, 

199 A.3d 1005

(Pa. Cmwlth. 2018), vacated, 

238 A.3d 337

(Pa. 2020). Section 708(b)(1)(i) of the
RTKL exempts from public access a record the disclosure of which “would result in
the loss of Federal or State funds by an agency or the Commonwealth.” 65 P.S.
§67.708(b)(1)(i). The School District argued that if it disclosed the video, it would lose
Federal funding under the Federal Family Educational Rights and Privacy Act
(FERPA), 20 U.S.C. §1232g(b)(1) and (2), which generally provides for the
withholding of Federal funding to educational agencies or institutions that have a
“policy or practice” of releasing “education records”3 and personally identifiable
information contained in those records unless certain conditions are present.4 Our


       3
         “Education record” is defined in 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) (emphasis added).

       4
           Section 1232g(b)(1) of FERPA 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, as
                defined in paragraph (5) of subsection (a)) of students without the
                written consent of their parents to any individual, agency, or
                organization, other than [those listed in subsections (A)-(L), which are
                not at issue in the case sub judice].

20 U.S.C. §1232g(b)(1) (emphasis added). Section 1232g(b)(2) of FERPA additionally provides for
exceptions where the student’s parent consents to disclosure or a court orders the disclosure:

                No funds shall be made available . . . 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
                . . . unless--

                       (A) there is written consent from the student’s parents
                specifying records to be released, the reasons for such release, and to
(Footnote continued on next page…)

                                                   2
original decision was based in large part on our conclusion that the bus video in
question was not an “education record” for purposes of FERPA’s privacy protections.
We concluded that, because the bus video was not an “education record,” the School
District would not lose funds under FERPA if it was released, and therefore, it was not
exempt from public disclosure under the loss of funds exception under section
708(b)(1)(i) of the RTKL, 65 P.S. §67.708(b)(1)(i).
              On remand, we reach the same result as we reached in our original opinion
and affirm the trial court, although our reasons for doing so have been modified to
conform to the rationale of Easton II.


                               Facts and Procedural History
               On February 23, 2016, Valerie Hawkins, on behalf of Fox 43 News
(Fox), submitted a written RTKL request to the School District that stated, in pertinent
part, as follows:

              [Fox] 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 [Central Dauphin] East girls’
              basketball [team] returned from a District 3 playoff game at
              Central Dauphin on Feb. 16 (see attached document). Rawls
              was cited with a summary count of harassment. We would

              whom, and with a copy of the records to be released to the student's
              parents and the student if desired by the parents, or

                       (B) . . . such information is furnished in compliance with
              judicial order, or pursuant to any lawfully issued subpoena, upon
              condition that parents and the students are notified of all such orders or
              subpoenas in advance of the compliance therewith by the educational
              institution or agency . . . .

20 U.S.C. §1232g(b)(2)(A)-(B).



                                                  3
               like to obtain a video copy of the incident that was captured
               by the school bus video system.
(Reproduced Record (R.R.) at 5a.)
               The School District denied the request for the stated reason that disclosure
of the video would violate FERPA, and the potential loss of Federal funds under
FERPA exempted the video from disclosure under the RTKL’s loss of funds exemption
in section 708(b)(1)(i) of the RTKL,5 65 P.S. §67.708(b)(1)(i).6
               Fox appealed to the Office of Open Records (OOR). Before the OOR, the
School District submitted a sworn affidavit of Assistant Superintendent Karen
McConnell, its open records officer. The OOR determined that the school bus video
was not exempt and ordered its release. The School District appealed to the trial court,
which held an evidentiary hearing. Assistant Superintendent McConnell testified that
students are individually identifiable in the video by both facial recognition and by the
jersey numbers that are embroidered on their backpacks. (R.R. at 238a-39a.) She
further testified that the video was created (converted to a permanent form) for the
purpose of investigating student and staff conduct for safety and disciplinary purposes.
(R.R. at 236a-37a.) When asked whether the School District had the ability to redact
the video, Assistant Superintendent McConnell stated that the School District does not
have the capability of doing that. She testified in this regard, as follows:




       5
        Alternatively, the School District asserted that the video was a record “relating to” a
noncriminal investigation and, thus, exempt under section 708(b)(17) of the RTKL, 65 P.S.
§67.708(b)(17). That issue is not before us.

       6
          The exemption set forth in section 708(b)(1)(i) of the RTKL provides: “Except as provided
in subsections (c) and (d), the following are exempt from access by a requester under this act: (1) A
record, the disclosure of which: (i) would result in the loss of Federal or State funds by an agency or
the Commonwealth[.]” 65 P.S. §67.708(b)(1)(i).


                                                  4
              Q. Do you know whether or not the [School 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.

(R.R. at 241a.)
              The trial court affirmed the OOR, finding that the video was not an
“education record” under FERPA because it was not “part of a student’s permanent
academic record.” (Trial court op., 8/1/2017, at 12.) Concluding that disclosure of the
video would not jeopardize the School District’s Federal funding under FERPA, the
trial court held that the School District did not prove that the video was exempt under
the loss of funds exemption in section 708(b)(1)(i) of the RTKL, 65 P.S.
§67.708(b)(1)(i). Therefore, the trial court found that the video was a public record
pursuant to the RTKL.

Id. at 12, 16.

The School District appealed to this Court.


              A. Our Prior Opinion in the Case Sub Judice
              On December 10, 2018, this Court issued its opinion and order, affirming
the trial court. We agreed that the video at issue was not exempt from disclosure under
the loss of funds exemption contained in section 708(b)(1)(i) of the RTKL, 65 P.S.
§67.708(b)(1)(i). Relying on our decision in Easton Area School District v. Miller,

191 A.3d 75

(Pa. Cmwlth. 2018) (Easton I), aff’d Easton II, we concluded that the
video at issue was not an “education record” because the School District failed to
establish the first part of the “education record” definition in FERPA that the video be
“directly related” to a student.7 We noted that the video revealed nothing about a

       7
          In Easton I, we held that a school bus video showing a teacher physically disciplining a
student was not an “education record” because it did not “directly relate” to a student but rather
directly related to a teacher’s performance. However, at the time we rendered our decision in this
(Footnote continued on next page…)

                                                5
student-specific file, either academic or disciplinary in nature, and it was unknown
whether the School District used the video in the discipline of the unnamed student.
Central Dauphin School 

District, 199 A.3d at 1013-14

. Further, we found that the
School District failed to establish the second part of the definition that the video was
“maintained by the institution.”
               Because the School District did not prove that the video “directly relates”
to a student or that it is “maintained” in the manner contemplated by FERPA, we
affirmed the trial court, ruling that the school bus video is not an “education record”
for purposes of FERPA and, thus, not exempt from disclosure under section
708(b)(1)(i) of the RTKL, 65 P.S. §67.708(b)(1)(i).


               B. Remand
               On January 9, 2019, the School District petitioned the Pennsylvania
Supreme Court for allowance of appeal, arguing that we erred in our determination that
the video is not an “education record” under FERPA, 20 U.S.C. §1232g. Meanwhile,
on June 18, 2020, a plurality of the Supreme Court8 affirmed our decision in Easton I,


case, relying in part on our decision in Easton I, our decision in Easton I had not yet been reviewed
by the Supreme Court. As discussed infra, the Supreme Court rejected our reasoning as to why we
believed the video did not “directly relate” to the student. Whether the bus video is “directly related”
to the student is one of the issues we revisit on remand.

       8
         As noted, the decision of the Supreme Court in Easton II was not unanimous. Justice
Dougherty authored the opinion. A majority of the Justices agreed that although the video was an
education record under FERPA, it should be released. (Part III(A)(2) of the Opinion). However, the
Easton II decision did not carry a majority with respect to its requirement that the school district
redact the video (Part III(B)). Justices Dougherty, Todd and Donohue joined Part III(B) of the
Opinion that required the education record to be disclosed, in redacted form. Chief Justice Saylor
and Justices Baer, Wecht, and Mundy believed that it should be released in unredacted form because
the redaction question was not before the Supreme Court and declined to join that part of the decision.



                                                   6
but its analysis significantly departed from our analysis. By Order dated September 1,
2020, the Supreme Court vacated our December 18, 2018 opinion and order in the case
sub judice and remanded for consideration of its opinion in Easton II.
               On December 14, 2020, we directed the parties to file supplemental
briefing to address the following issue:
               Whether the video recording is an education record under
               [FERPA], and, if so, whether the video recording is protected
               from disclosure under the [RTKL] or may be disclosed in
               redacted form.


                                             Analysis
               A. Easton II
               Because we have been directed to reconsider our decision in light of the
Supreme Court’s opinion in Easton II, we begin with an analysis of that case.9
               In Easton II, it was alleged that an Easton Area School District (district)
elementary school teacher physically disciplined a child on a school bus. Rudy Miller
and The Express Times (collectively, Miller) submitted a RTKL request to the district,
seeking a copy of the surveillance video from the school bus security camera capturing
the incident. Easton 

II, 232 A.3d at 719

. The district withheld the video under the loss
of funds exemption in section 708(b)(1)(i) of the RTKL, 65 P.S. §67.708(b)(1)(i).
Relying on the definitions of “education record” and “personally identifiable
information” as used in FERPA, the district argued that the video was exempt from
disclosure as an “education record.”

Id. Miller appealed to

the OOR.
               The OOR determined that only those records relating to student academics
are “education records” under FERPA and, because the video was not part of the

       9
          In support of the School District’s arguments, the Pennsylvania State Education Association
has filed an amicus curiae brief.


                                                 7
student’s permanent academic file, the video was not an “education record” under
FERPA. The OOR issued a final determination granting Miller’s appeal and ordered
the district to disclose the video within 30 days.

Id. at 720.

               The district appealed to the Court of Common Pleas of Northampton
County (common pleas court), which agreed with the OOR’s determination that the
video was not an “education record” under FERPA because the district failed to
establish that the video contained information depicting a student’s academic or
educational performance.

Id. Thereafter, the district

appealed to this Court.
               In a unanimous published decision, a three-judge panel of this Court
affirmed the common pleas court’s order. Contrary to the rationale of the lower
tribunals, we reasoned that FERPA did not require an “education record” to be related
exclusively to a student’s academic performance.

Id. at 721.

We emphasized that
FERPA required the information to be “directly related to a student” and because the
video was only “tangentially related” to students on the bus and instead “directly
related” to the teacher disciplining the student, the video was not an “education record.”


Id. Based on that

determination, we held, because the video did not constitute an
“education record” under FERPA, its disclosure would not subject the district to a loss
of federal funding. We thus concluded that the common pleas court did not err in
holding that the district failed to prove that the video was exempt from disclosure under
the loss of funds exemption of the RTKL, 65 P.S. §67.708(b)(1)(i). Easton 

II, 232
A.3d at 721

.
               The Supreme Court granted discretionary review to consider whether we
erred in determining that the video (itself a public record subject to disclosure under
the RTKL) was not exempt from disclosure under FERPA.




                                            8
             The Supreme Court held that the plain language of section 708(b)(1)(i) of
the RTKL, 65 P.S. §67.708(b)(1)(i), required the district to prove, by a preponderance
of the evidence, that disclosure of the video in fact “would result in the loss of Federal
. . . funds by an agency or the Commonwealth.” Easton 

II, 232 A.3d at 726

. The
Supreme Court explained, for the district to prove the applicability of that exemption,
it was required to establish all of the conditions set forth in FERPA that would result
in the loss of funding to the district stemming from its disclosure of the video.

Id.
Turning to the

conditions set forth in section 1232g(b)(1) of FERPA, the Supreme
Court identified two conditions the district was required to prove to establish that the
disclosure of the video would result in the loss of funding.
             First, the district must be an educational agency or institution that either
currently receives, or is eligible to receive, funding through an applicable program that
would be lost by the district’s violation of FERPA.

Id. at 726-27

(citing 20 U.S.C.
§1232g(b)(1) (“No funds shall be made available under any applicable program to any
educational agency or institution.”)). Second, to lose funding under FERPA, there
must be a “policy or practice” of “releasing,” “permitting the release of,” or “providing
access to” protected education records or personally identifiable information contained
in those records.

Id. at 727

(citing 20 U.S.C. §1232g(b)(1)-(2)).
             Regarding the threshold condition, i.e., the district’s Federal funding
eligibility, the Supreme Court concluded that the district was eligible to receive
applicable Federal funding and was, therefore, subject to FERPA’s requirements. The
Court pointed out that the district did not prove this requirement.

Id. However, because
neither

Miller nor the lower tribunals raised or disputed the district’s Federal funding
eligibility, and because such information was readily available in the public domain,
the Supreme Court accepted for purposes of its analysis that the district was in fact



                                            9
eligible to receive funding through an applicable program that could be lost by its
violation of FERPA. The Supreme Court cautioned, however, that because the burden
is on the party asserting the exemption, “such an omission may prove fatal to an
agency’s attempt to invoke FERPA as a basis for withholding records pursuant to a
RTKL request.”

Id.
With regard to

the second condition, that there be a “policy or practice”
of releasing protected education records, the Supreme Court noted that there was
nothing in the record to suggest the district had a “policy or practice” regarding the
release of or access to information covered by FERPA.

Id. The Court concluded

that
the district failed to demonstrate by a preponderance of the evidence that its disclosure
of the requested video would result in the loss of Federal funding under FERPA.

Id.
The Supreme Court

emphasized that the “policy or practice” language denotes that
there be “repeated or systematic violations of student privacy, as opposed to singular
or exceptional instances.”

Id. This, in the

Supreme Court’s view, precluded a finding
that the disclosure of the single requested video at issue qualified as a “policy or
practice” as contemplated by sections 1232g(b)(1)-(2) of FERPA.

Id. Highlighting
FERPA’s exceptions

in section 1232g(b)(2)(A) and (B), the Court further found that
the district’s disclosure of the video in that instance would be without consequence
because it would be at the direction of an OOR or judicial order.

Id. (citing 20 U.S.C.

§1232g(b)(2)(B)).     Thus, concluded the Supreme Court, the district failed to
demonstrate it would lose Federal funding under FERPA as a result of disclosing the
video, and therefore, it could not avail itself of the loss of funds exception to disclosure
found in RTKL section 708(b)(1)(i), 65 P.S. §67.708(b)(1)(i).
             The Supreme Court next examined whether the district could withhold the
video under sections 102 and 305(a)(3) of the RTKL, 65 P.S. §§67.102, .305(a)(3), as



                                            10
a record that is exempt under “any other state or [F]ederal laws or regulations.” Easton

II, 232 A.3d at 728

. As the Supreme Court observed, section 102 of the RTKL defines
a “public record,” in part, as a record that “is not exempt from being disclosed under
any other Federal . . . law or regulation.” 65 P.S. §67.102. Section 305(a)(3) of the
RTKL provides that a record in the possession of a local agency is presumed to be a
public record unless, inter alia, “the record is exempt from disclosure under any other
Federal . . . law or regulation.” 65 P.S. §67.305(a)(3). To avail itself of an exemption
from disclosure under these sections, the district had to demonstrate that the video was
exempt from disclosure under FERPA.
             Because FERPA forestalls funding to schools having a policy or practice
of releasing, or providing access to, any personally identifiable information in
“education records,” the Supreme Court addressed whether the video was an
“education record.”    FERPA defines “education record” 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) (emphasis added).
The Supreme Court, consulting the United States Department of Education’s (USDOE)
FAQs on Photos and Videos as guidance, found that the video was “directly related”
to the students depicted therein. As noted by the Supreme Court, the USDOE guidance
document explains the following factors should be considered in determining whether
a photo or video is “directly related” to a student:

             The educational agency or institution uses the photo or video
             for disciplinary action (or other official purposes) involving
             the student (including the victim of any such disciplinary
             incident); [and]

             The photo or video contains a depiction of an activity:


                                            11
             that resulted in an educational agency or institution’s use of
             the photo or video for disciplinary action (or other official
             purposes) involving a student (or, if disciplinary action is
             pending or has not yet been taken, that would reasonably
             result in use of the photo or video for disciplinary action
             involving a student) . . .

             that shows a student getting injured, attacked, victimized, ill,
             or having a health emergency . . . or

             [t]he audio or visual content of the photo or video otherwise
             contains personally identifiable information contained in a
             student’s education record.


Id. at 729

(citing USDOE FAQs on Photos and Videos under FERPA).
             The Supreme court observed that “[u]ndisputedly, the video here
‘reflect[s] an interaction between [a teacher] and a student’ which became the subject
of an investigation, and which was included in an inquiry regarding potential discipline
for the teacher.”

Id. at 730.

Further, the videographic images of students on a school
bus would allow a reasonable person in the school community viewing the video to
identify the students with reasonable certainty; thus, the Supreme Court concluded, the
video contained personally identifiable information regarding each of the school
students visible therein.

Id. According to the

Supreme Court,

             [a]s the student is the subject of some interaction with a
             teacher that warranted preservation of the video for an
             official purpose, whether the student is receiving discipline,
             or is the victim of some misconduct, or is one party in an
             innocuous interaction that was nevertheless part of an official
             inquiry, the video is as “directly related” to the student as
             much as it is related to the teacher.


Id.

12

             The Supreme Court concluded that the video, which was generated and
possessed by the district and depicted a student on a school bus interacting with a
school teacher in the presence of other students, was a record both “maintained” by the
school and “directly related” to the student who was the subject of the interaction, and
was therefore an “education record” of that student within the meaning of FERPA.

Id.
However, this did

not end the Supreme Court’s inquiry.
             The Supreme Court next observed that, even though the video is deemed
an “education record,” it could nevertheless still be released under FERPA as a “public
record” in redacted form.

Id. “FERPA regulations do

allow schools to release
education records or information without consent when the records have been ‘de-
identified,’ that is, when all personally identifiable information has been removed.”

Id.
at 729

-30 (citing 34 C.F.R. §99.31(b)(1)). The Supreme Court observed that redaction
of the students’ identities in the video would eliminate the potential privacy harm which
the FERPA prohibition seeks to prevent and would eliminate the need for parental
consent as well.

Id. The Supreme Court

held that once redacted, the video would not
run afoul of FERPA’s coverage and thus would remove any argument that the video
was not a public record and would further eliminate 65 P.S. §67.305(a)(3) as a basis
for exemption, as it no longer would be exempt under Federal law or regulation.

Id. at
731.

             The Supreme Court further recognized that its holding in this regard was
consistent with the provisions of the RTKL requiring redaction when a public record
contains both information subject to disclosure and information not subject to release.

             Furthermore, the RTKL specifically provides, where a record
             contains information which is subject to access along with
             information which is not subject to access and the two cannot
             be physically separated, “the agency shall redact from the
             record the information which is not subject to access, and the

                                           13
                 response shall grant access to the information which is
                 subject to access.” [Section 706 of the RTKL,] 65 P.S.
                 §67.706.[10] Thus, insofar as the video itself is a public record
                 subject to disclosure under the RTKL but contains the images
                 of school students which are not subject to disclosure, which,
                 in our view, it is and does, the [d]istrict is obligated to redact
                 [the] students’ images by, for example, blurring or darkening
                 portions of the video revealing the students’ identities, and to
                 subsequently provide access to the redacted video.


Id.
Finally, the Court

addressed the privacy interests of third-party students
(not to have their identity or locations revealed) implicated by disclosure of the video.


Id. at 731.

As required by Pennsylvania State Education Association v. Commonwealth
Department of Community and Economic Development (PSEA), 

148 A.3d 142

(Pa.
2016), the district was obligated to balance the students’ and their parents’ interests in
controlling access to disclosure and dissemination of the children’s images in the video
against the public’s interest in dissemination of those images, and to redact the video
as necessary to protect those informational privacy interests. Easton 

II, 232 A.3d at
733

. However, because Miller expressly disclaimed any public interest in disclosure
of the identities of the students depicted in the video, the district could disclose the
video without violating their informational privacy rights by redacting their images in
the video.

Id. at 733.

10

            Section 706 of the RTKL concerns redaction of records, and provides in pertinent part:

              If the information which is not subject to access is an integral part of
              the public record, legislative record or financial record and cannot be
              separated, the agency shall redact from the record the information
              which is not subject to access, and the response shall grant access to the
              information which is subject to access. The agency may not deny access
              to the record if the information which is not subject to access is able to
              be redacted.
65 P.S. §67.706.


                                                  14
                Applying these precepts, the Supreme Court concluded this Court did not
err in ordering disclosure of the requested video (albeit based on an entirely different
rationale) and directed that the district may release the video, despite its status as an
education record, provided that the students’ personally identifiable information was
redacted before the video was released.11

Id. at 734.

                B. Application of Easton II to the Case Sub Judice
                The burden to prove the applicability of an exemption rests with the
School District under 65 P.S. §67.708(a). “Importantly, the local agency has the burden
of proving that a record is exempt from public access ‘by a preponderance of the
evidence.’” Easton 

II, 232 A.3d at 724

.
                Easton II teaches that Pennsylvania’s RTKL provides two possible
exceptions pursuant to which the video may be exempt from disclosure: (1) RTKL
section 708(b)(1)(i) (disclosure would result in the loss of Federal funding); and (2)
RTKL section 305(a)(3) (record exempt from disclosure under Federal law). Analysis
of either exception requires a preliminary determination of whether the video
constitutes an “education record” protected under FERPA. As such, it must first be
determined whether the video recording is an “education record” under FERPA.
                1. Whether the Video is an “Education Record” under FERPA
                To establish that a document is an “education record” under FERPA, the
document must “directly relate[] to a student” and be “maintained” by the school. 20
U.S.C. §1232g(a)(4)(A).
                        a. Directly Related
                Pursuant to Easton II, a video is “directly related” to a student when the
school uses it for disciplinary action (or other official purposes) involving the student

      11
           Again, only a plurality of the Court joined the decision requiring redaction of the video.


                                                  15
(including the victim of any such disciplinary action), or when the video contains a
depiction of an activity that resulted in use of the video for disciplinary action (or other
official purposes) involving the student, or that shows a student getting injured,
attacked, victimized, becoming ill, or having a health emergency, or when the video
otherwise contains personally identifiable information contained in a student’s
education record. Easton 

II, 232 A.3d at 729

(quoting USDOE FAQs on Photos and
Videos under FERPA).
             Applying Easton II, we find the video in question is “directly related” to
the student because it shows the student involved in an altercation with a parent, and
this warranted preservation of the video for purposes of disciplining the student.
Easton 

II, 232 A.3d at 730

. Assistant Superintendent McConnell established that the
video captured what happened on the bus during the February 16, 2016 physical
confrontation between a student and a parent. The School District downloaded the
video for the purpose of investigating each student on the bus to determine whether it
should discipline any of the students involved. The video was relied upon during the
School District’s investigation of the incident and the disciplinary action ultimately
imposed against several students and a staff member. (R.R. at 239a; 267a-68a.)
                    b. Maintained
             The School District also established that the video was “maintained” by
it. FERPA requires that the putative record be “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). In Easton II, the Supreme Court did not require any specific
maintenance protocol for the video and recognized that, so long as “the [d]istrict does
not dispute that it maintained the video,” this was sufficient to establish the video was
“maintained by” the district. Easton 

II, 232 A.3d at 730

n.14. Here, the record



                                            16
establishes the video is maintained by the School District in a single location and as
part of its permanent records. Assistant Superintendent McConnell was charged by the
School District with maintaining the video. (R.R. at 25a-26a, 240a, 265a.) She testified
that the video was maintained in a fireproof safe locked in the desk inside her office.
The video is, therefore, “maintained by” the School District pursuant to Easton II.
               Because the School District established that the video is both “directly
related” to a student and “maintained by” the School District, we find that the video is
an “education record” under FERPA and pursuant to Easton II.12

               2. Whether the School District Established the Loss of Funds
                  Exemption Under RTKL Section 708(b)(1)(i)
               A finding that the video is an “education record” does not end the inquiry.
To avail itself of the loss of funds exemption under section 708(b)(1)(i) of the RTKL,
the School District had the burden to prove by a preponderance of the evidence that
disclosure of the video “would result in the loss of Federal or State funds.” 65 P.S.
§67.708(b)(1)(i). It failed to do so.
               As explained in Easton II, for a school district to lose funding under
FERPA, two conditions must be met. The school district must currently receive, or be
eligible to receive, funding through an applicable program that would be lost by its
violation of FERPA, and the school district must have a “policy or practice” of
“releasing,” “permitting the release of,” or “providing access to” protected education
records or personally identifiable information contained in those records. Easton 

II,
232 A.3d at 727

(citing 20 U.S.C. §1232g(b)(1)-(2)).
               First, as in Easton II, the first condition is not at issue. Neither Fox, nor
any of the tribunals below, raised or disputed the School District’s Federal funding

       12
          Fox does not dispute that, under the Supreme Court’s holding in Easton II, the video at issue
is an “education record.” (Fox’s Suppl. Br. at 5.)


                                                 17
eligibility. Accordingly, we conclude that the first condition, i.e., that the School
District was eligible to receive applicable Federal funding, was established.
             However, the same is not true with respect to the second condition. The
School District argues that disclosure of the “education record” (i.e., the video) under
these circumstances would amount to a “policy or practice” that would result in its loss
of Federal funding under FERPA. (School District’s Suppl. Br. at 34.) In other words,
it is the School District’s position that it will lose Federal funding under FERPA if it
was ordered to disclose the video in these RTKL proceedings. We are not convinced.
             To lose available funds under FERPA, the school district must engage in
repeated or systematic violations of student privacy. Easton 

II, 232 A.3d at 727

. The
School District argues that it should not be required to establish a “policy or practice”
in order to invoke the exemption in section 708(b)(1)(i) of the RTKL. (School District’s
Suppl. Br. at 33.) However, we do not read Easton II as requiring a school district
which is the subject of a RTKL request to prove it systematically and repeatedly
engages in such practice in order to successfully invoke the loss of funds exemption
under section 708(b)(1)(i) of the RTKL. When discussing the “policy or practice”
condition, the Easton II Court was explaining what type of conduct could cause a
school district to lose available funds under FERPA, while making clear that a single
or exceptional instance does not qualify as a “policy or practice” as contemplated by
section 1232g(b)(1)-(2) of FERPA. Easton 

II, 232 A.3d at 727

-28. According to
Easton II, there must be systematic and repeated instances of releasing private student
information without parental consent to lose funding. In other words, under FERPA,
the punishment for the repeated disclosure of private education records without
parental consent is the loss of Federal funding. This is the sort of conduct that could
result in a school district losing funding under FERPA – as opposed to a one-time order



                                           18
to release a video in a RTKL dispute. Furthermore, as the Easton II Court observed,
the School District’s disclosure of the video in this instance would be without
consequence because it would be at the direction of the OOR or a judicial order.

Id.
(citing 20 U.S.C.

§1232g(b)(2)(B)).
             Instantly, for the exemption under section 708(b)(1)(i) of the RTKL to
apply, it was incumbent upon the School District to establish that it will lose Federal
or state funds if it releases the video to Fox in these RTKL proceedings. 65 P.S.
§67.708(b)(1)(i). Like the school district in Easton II, the School District here relied
on FERPA as the basis for its claim that it will lose available funds. However, to lose
funds under FERPA, a school district must have, inter alia, engaged in a “policy or
practice” of disclosing private student information without parental consent. There is
nothing in the record which established that the School District has a policy or practice
of releasing private school records without parental consent.         In fact, Assistant
Superintendent McConnell testified that the School District has never been penalized
by the USDOE for a violation of FERPA. (R.R. at 274a.) Because a public disclosure
of the video at the behest of the OOR or a court would not result in loss of funds under
FERPA, we must conclude that the School District failed to establish that it was entitled
to withhold public release of the video under the loss of funds exemption in section
708(b)(1)(i) of the RTKL, 65 P.S. §67.708(b)(1)(i).

             3. Whether the Video is a Public Record Exempt from Disclosure
                Under RTKL Sections 102 and 305(a)(3)
             Next, the School District argues that the video may be withheld under
section 305(a)(3) of the RTKL, 65 P.S. §67.305(a)(3) (exempting from disclosure
records that are exempt from disclosure under any other Federal . . . law or regulation)




                                           19
on the basis that it is exempt from disclosure under Federal law or regulation, i.e.,
FERPA.13 Again, we disagree.
               As Easton II teaches, not all “education records” are automatically
protected from disclosure under FERPA. FERPA regulations allow schools to release
“education records” or information without consent when all personally identifiable
information has been removed. 34 C.F.R. §99.31(b)(1) (“An educational agency . . .
may release the records or information without the consent required by [section] 99.30
. . . after the removal of all personally identifiable information.”). Easton 

II, 232 A.3d
at 729

-30. Redaction of the students’ identities eliminates the potential privacy harm
that the FERPA prohibition seeks to protect and eliminates the need for parental
consent as well.

Id. Once redacted, the

video does not run afoul of FERPA’s coverage
and thus eliminates 65 P.S. §67.305(a)(3) as a basis for exemption, as it no longer
would be exempt under Federal law or regulation.14
               Accordingly, redacting students’ images removes any argument that the
video is a public record and exempt under Federal law or regulation, and thus removes
any argument by the School District that it is exempt under 65 P.S. §67.305(a).

       13
         Because the parties did not raise it, we did not address whether the video was a public record
exempt from disclosure under RTKL sections 102 and 305(a)(3) in our original opinion.
Nevertheless, because the Supreme Court included the discussion as part of its analysis in Easton II,
we directed the parties to provide supplemental briefing on the issue so that we could address it on
remand.

       14
          The School District urges us not to follow Easton II because the Supreme Court did not
reach a majority regarding the disclosure of a video that is capable of being redacted. Only three
Justices opined it was “clear from the regulations promulgated pursuant to FERPA [that] even an
education record ordinarily protected from disclosure . . . may be disclosed without consent if the
student’s personally identifiable information has been removed.” Easton 

II, 232 A.3d at 730

(citation
omitted). The remaining Justices opined that the redaction question was not before the Court and
they declined to join that part of the decision.

Id. at 731, 735-37.

Regardless of whether the issue
was properly before the Supreme Court, the School District has advanced nothing to suggest that the
Supreme Court’s plurality’s analysis of the substantive merits of the issue was incorrect.


                                                 20
Furthermore, as in Eason II, Fox has indicated that it has no interest in the identity of
the other “non-involved” third-party students. (Fox’s Suppl. Br. at 14.) Therefore, it
is unnecessary for the School District to conduct the balancing test espoused in PSEA
to weigh these students’ rights to privacy against the public’s right to know. See Easton

II, 232 A.3d at 733

. Personally identifiable information must be redacted.
             4. Redaction
             Finally, the School District argues that, even if the video was redacted to
blur the identity of the student who was involved in the fracas – everyone would know
exactly who the student is because the news coverage and public legal filings identify
the involved student and the adult by name. The School District argues that redaction
would, therefore, not cleanse the video as contemplated by FERPA and the video’s
disclosure in redacted form would be tantamount to releasing an un-redacted and fully
identified education record in violation of FERPA. Therefore, the School District
posits, because the video cannot be successfully redacted, it should be exempt from
disclosure under FERPA, and the exemption in section 305(a)(3) of the RTKL (record
is exempt from disclosure under Federal law) is triggered. 65 P.S. §67.305(a)(3).
             We find the argument to be somewhat circular. As the Supreme Court
observed in Easton II, the purpose of the protective provisions of FERPA is to allow
access by parents to the student records and to provide a measure of privacy in those
records. Easton 

II, 232 A.3d at 724

. If, as the School District alleges, the student
involved has already been publicly identified, both in a public hearing and in the press
along with the adult involved, then withholding the video would not serve the purposes
of protecting the privacy of the student under FERPA. It is thus a stretch on the part
of the School District to argue that the video would be exempt from disclosure under
FERPA for the reason that the identity of the student is already known.



                                           21
               Alternatively, the School District argues that, even if redaction could
remove all personally identifiable information, redaction is not appropriate because the
School District established it does not have the technological capability to do so. The
School District points out that Assistant Superintendent McConnell testified that the
School District does not have the capability to redact, pixelate, or do anything to
obscure the images of students on any individual video. (R.R. at 241a.) Therefore, the
School District claims, “it has been well-established in the record from the inception
of this case that [it] does not have the technological capability to redact the video
recording.” (School District’s Br. at 28.) However, this argument ignores that the trial
court did not credit Assistant Superintendent McConnell’s testimony that redactions
were technologically or financially unachievable. The sole evidence of record to
support the claim is the single, unsupported statement of the School District’s witness,
Assistant Superintendent McConnell, who testified that the School District did not have
the ability to redact, pixelate, or do anything to obscure the images of students on any
individual video. (R.R. at 241a.). The School District submitted no other testimony
nor evidence in support of that statement including on what basis Assistant
Superintendent McConnell came to that conclusion. There was no testimony that she
had personal knowledge of the technological capabilities of the School District nor that
she had consulted with its IT Department to explore what was and was not possible in
that regard.    In fact, the trial court held that “[a]lthough [Assistant Superintendent
McConnell] testified that the [School] 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.” (Trial court op., 8/1/17 at
10) (emphasis added).



                                           22
              The trial court’s observations in this regard are consistent with a Federal
circuit court of appeals, which was recently presented with a similar argument in a case
under the federal Freedom of Information Act, 5 U.S.C. §552. In Evans v. Federal
Bureau of Prisons, 

951 F.3d 578

(D.C. Cir. 2020), the government claimed it could not
segregate out of a prison surveillance video information of non-involved individuals.
However, the court was skeptical that the task was impossible and did not accept the
evidence:

              [I]t is not at all clear from the government’s affidavit why it
              cannot segregate the portions of the record that do not do so.
              More specifically, we live in an era in which teenagers
              regularly send each other screenshots from all sorts of video
              media. Presumably, most of these teenagers have fewer
              resources than the United States government. It is not at all
              clear why the government could not at least isolate some
              screenshots that would meet the same sort of segregability
              standards typically applied to printed material.

              The government further does not explain why it cannot by
              use of such techniques as blurring out faces, either in the
              video itself or in screenshots, eliminate unwarranted
              invasions of privacy. The same teenagers who regale each
              other with screenshots are commonly known to revise those
              missives by such techniques as inserting cat faces over the
              visages of humans. While we do not necessarily advocate
              that specific technique, we do hold that the government is
              required to explain why the possibility of some similar
              method of segregability is unavailable if it is to claim the
              protection of the exemption.

Id. at 587.

              Here, the trial court, as factfinder, concluded that redaction was “not
impossible.” This Court will not disturb that finding.




                                            23
                                      Conclusion
             Due consideration having been given to the Supreme Court’s decision in
Easton II, we affirm the order of the trial court and remand the matter with instructions
to redact the personally identifiable information of all students depicted in the video.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge



Judge Fizzano Cannon did not participate in this decision.




                                           24
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Central Dauphin School District,          :
                  Appellant               :
                                          :    No. 1154 C.D. 2017
             v.                           :
                                          :
Valerie Hawkins, Fox 43 News and          :
the Commonwealth of Pennsylvania,         :
Office of Open Records                    :


                                      ORDER


             AND NOW, this 22nd day of April, 2021, the August 1, 2017 order of
the Court of Common Pleas of Dauphin County is hereby AFFIRMED. The matter
is remanded with instructions to redact the personally identifiable information of all
students depicted in the school bus video before disclosing it to Valerie Hawkins,
Fox 43 News.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge

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