[J-75-2019][M.O. - Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
EASTON AREA SCHOOL DISTRICT, : No. 13 MAP 2019
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 1897 CD
: 2017 dated 7/20/18 affirming the order
v. : of the Northampton County Court of
: Common Pleas, Civil Division, at No. C-
: 0048-CV-2017-5558 dated 12/1/17,
RUDY MILLER AND THE EXPRESS : exited 12/5/17
TIMES, :
:
Appellees : ARGUED: September 12, 2019
CONCURRING AND DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: June 18, 2020
As the majority observes, the District has maintained from the outset that, if it
were to release the requested video, it would risk the loss of funding under the federal
Family Educational Rights and Privacy Act (“FERPA”). See Majority Opinion, slip op. at
12. In particular, and as the majority develops, under Section 67.708(b)(1)(i) of the
Right to Know Law (the “RTKL”), see 65 P.S. §67.708(b)(1)(i), to show such a loss
could occur the District would have to demonstrate that releasing the video would
implicate certain aspects of FERPA relating to educational agencies which have a
“policy or practice” of releasing education records without the consent of the student’s
parents. See Majority Opinion, slip op. at 15 (quoting 20 U.S.C. §1232g(b)(1), (b)(2)(A)-
(B)). Although the majority ultimately determines that the video is, in fact, an education
record, see id. at 22, it finds that the District has failed to establish the policy-or-practice
prerequisite. In this respect, the majority notes that such phraseology “denotes
repeated or systematic violations of student privacy, as opposed to singular or
exceptional instances.” Id. at 17.
I have misgivings about this reasoning. It is true that courts have found an
absence of a policy or practice based on an isolated incident. See, e.g., Daniel S. v.
Bd. of Educ. of York Cmty. High Sch., 152 F. Supp. 2d 949, 954 (N.D. Ill. 2001) (finding
that a physical education teacher’s disclosure to his cross-country team that he had
dismissed two students from his gym class was an isolated incident “involving one
teacher,” rather than a systematic practice); Jensen v. Reeves, 45 F. Supp. 2d 1265,
1276 (D. Utah 1999) (same with regard to a principal’s one-time disclosure to several
parents of information regarding a student who had been accused of harassing their
children), aff’d, 3 Fed. Appx 905, 910 (10th Cir. 2001); cf. Weixel v. N.Y. City Bd. of
Educ., 287 F.3d 138, 151 (2d Cir. 2002) (same, where a school employee contacted a
student’s doctor, home instructor, and lawyer to provide inaccurate and defamatory
information about the student). In my view, however, this type of analysis should not be
applied to an assessment of how a school district responds to an RTKL request for
records, particularly where there is no indication the response is atypical.
As illustrated by the present matter, third parties sometimes request education
records without first obtaining the consent of the student’s parents. It seems, under the
majority’s reasoning, that an agency handling such records can never refuse a single
request along these lines on the basis that disclosure would place it at risk of losing
funds on account of a policy or practice – precisely because it was only a single
request. Put differently, the requester can always claim that it is only forwarding a
single records request, and hence, the District cannot show that any refusal is based on
a legitimate concern for being found to have a policy of practice of unconsented-to
[J-75-2019][M.O. – Dougherty, J.] - 2
disclosures. On the other hand, even one instance in which the agency accedes to a
records request without parental consent (and without a court directive) would comprise
evidence of a policy or practice along those lines, as no other basis for the release
would be apparent. Accordingly, I would find that, in order to give meaning to the
exemption appearing at Section 67.708(b)(1)(i) of the RTKL, see generally 1 Pa.C.S.
§1922(2) (reflecting a presumption that the General Assembly intends for every aspect
of a statute to have some effect), a school district can validly claim – as the District here
has done – that the record is exempt under that provision.
Finally, although redactions along the lines of those required by the majority may
be salutary, no issue concerning these types of changes is presently before this Court.
The only issue accepted for review is whether the unredacted video is exempt from
disclosure pursuant to FERPA. See Easton Area Sch. Dist. v. Miller, ___ Pa. ___, ___,
201 A.3d 721, 721-22 (Pa. 2019) (per curiam) (granting limited review). As I would find
that it is, I would reverse the order of the Commonwealth Court.
In sum, then, I agree with the majority’s determination that the video is an
education record, but I respectfully dissent from its decision to affirm the intermediate
court’s order with instructions.
Justice Mundy joins this concurring and dissenting opinion.
[J-75-2019][M.O. – Dougherty, J.] - 3