                           [J-75-2019] [MO: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 July 20, 2018
               v.                                 :   Affirming the Order of the
                                                  :   Northampton County Court of
                                                  :   Common Pleas, Civil Division, at No.
 RUDY MILLER AND THE EXPRESS                      :   C-0048-CV-2017- 5558 dated
 TIMES,                                           :   December 1, 2017, exited December
                                                  :   5, 2017.
                      Appellees                   :
                                                  :   ARGUED: September 12, 2019


                      CONCURRING AND DISSENTING OPINION


JUSTICE BAER                                                     DECIDED: June 18, 2020

       In this appeal, the Easton Area School District (District) contends that it is entitled

to withhold from disclosure a school bus surveillance video, requested by Rudy Miller and

The Express Times (collectively, Requester), under Subsection 708(b)(1)(i) of the Right-

to-Know Law (RTKL), 65 P.S. § 67.708(b)(1)(i) (exempting from access “[a] record, the

disclosure of which[] … would result in the loss of Federal or State funds by an agency or

the Commonwealth”). I agree with the Majority that this contention fails because the

District has not met its burden to prove that disclosure of the video would result in the loss

of federal funding pursuant to the Family Educational Rights and Privacy Act (FERPA),

20 U.S.C. § 1232g, as it claims.

       More specifically, as explained by the Majority, Subsections 1232g(b)(1)-(2) of

FERPA generally provide that federal funding shall be made unavailable to educational

agencies or institutions that have a policy or practice of releasing certain information
outside of the manner in which FERPA prescribes. Maj. Op. at 3.1 Here, the District has

failed to establish that, inter alia, it has a policy or practice of releasing information--

through its release of the requested video or otherwise--in contravention of FERPA’s

provisions that would result in the loss of funding under that federal act.2 Accordingly, the

District has not met its burden under Subsection 708(b)(1)(i) of the RTKL, and thus cannot

refuse to release the video under that provision.        As the Majority as well as the

Commonwealth Court reached the same conclusion and because, in my view, the

District’s entitlement to application of Subsection 708(b)(1)(i) is the only issue properly

before this Court, I would affirm the order of the Commonwealth Court.

       The Majority, however, observes improperly that the issue upon which we granted

review additionally implicates whether the video constitutes a “public record” under

Section 102 of the RTKL and can be withheld under Subsection 305(a)(3) of the RTKL

because it is exempt from disclosure “under any other Federal … law or regulation,” i.e.,

FERPA. See 65 P.S. § 67.102 (defining a “public record,” in part, as a record that “is not

exempt from being disclosed under any other Federal … law or regulation”); id.


1 See Maj. Op. at pp. 14-16 for the relevant language and a fuller discussion of the
requirements regarding Subsections 1232g(b)(1)-(2).
2 The Majority also notes that the District has not alleged or demonstrated that it is an
educational agency or institution that receives, or is eligible to receive, funding through
an applicable program that is subject to loss under FERPA in the first instance. While the
Majority opines that “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,” it declines to view
the omission as fatal under the circumstances of this case, where neither Requester nor
the lower tribunals have noted the District’s failure and the information is available in the
public domain. Maj. Op. at 16. However, it is the District’s burden to prove its entitlement
to the RTKL exemption it claims, in its entirety, by a preponderance of the evidence. See
65 P.S. § 67.708(a)(1). Accordingly, unlike the Majority, I would not “accept for purposes
of this analysis that the District is eligible to receive applicable funding and is therefore
subject to FERPA’s requirements.” Maj. Op. at 16. Instead, I would hold that the District’s
omission serves as an additional basis for finding that it failed to meet its burden to show
its entitlement to withhold the requested video under Subsection 708(b)(1)(i) of the RTKL.


                            [J-75-2019] [MO: Dougherty, J.] - 2
§ 67.305(a)(3) (providing 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”). In doing so, the Majority proceeds to conclude that:

(1) FERPA prohibits the release of the student images depicted in the video, though not

the video itself, and (2) therefore, the RTKL also precludes those images from disclosure

pursuant to the provisions of Section 102 and Subsection 305(a)(3).

       However, in this appeal, the District has failed to present a developed claim that it

is entitled to withhold the video or any component thereof from disclosure on the discrete

bases of Section 102 and Subsection 305(a)(3) of the RTKL as cited above. Additionally,

the lower tribunals did not address the applicability of those provisions to the requested

video. Further, I find it questionable that FERPA operates to prohibit disclosure of the

information it covers outright, rather than protect it through the mechanism of withholding

federal funding from entities that disclose that information.3 See, e.g., Nat’l Collegiate

Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1210 (Fla. Dist. Ct. App. 2009) (“By

its terms, FERPA does not prohibit the disclosure of any educational records. Instead, it

operates to deprive an educational institution of its eligibility for federal funding if its

policies or practices run afoul of the rights of access and privacy protected by the law.”).

Given these circumstances, I would not reach the issue in the case sub judice.

       Finally, after concluding that Section 102 and Subsection 305(a)(3) of the RTKL

operate to preclude disclosure of the student images depicted in the video, the Majority

proceeds to discuss the balancing test set forth in Pa. State Educ. Ass’n v. Comm., Dep’t

of Cmty. & Econ. Dev., 148 A.3d 142 (Pa. 2016) (PSEA). As the Majority acknowledges,


3 The Majority’s decision is particularly problematic in this regard, as it fails to explain in
its analysis under Section 102 and Subsection 305(a)(3) of the RTKL precisely how
FERPA prohibits release of protected information altogether, as opposed to merely
depriving an educational institution of federal funding upon violation of its provisions.


                            [J-75-2019] [MO: Dougherty, J.] - 3
however, the District did not raise this issue below, see Maj. Op. at 13, and the

Commonwealth Court never discussed it. Given the District’s omission in this respect

and my view that the applicability of the PSEA balancing test is, in any event, outside of

the scope of the issue upon which we granted review, I would likewise abstain from any

discussion of that test.

       Ultimately, I view this case as one concerning only whether the District met its

burden of establishing that it is entitled to withhold the requested video under Subsection

708(b)(1)(i) of the RTKL because release of the video would result in the loss of federal

funds. As noted, under the facts and circumstances of the case actually before us, I

conclude that the District has not met its burden. This is not to say, however, that this

burden could not be met in another case. Further, my position should not be interpreted

as one foreclosing the possibility that other RTKL provisions or legal principles, not

presently before the Court, may apply to exempt from disclosure a record such as the

requested video in this matter. See, e.g., 65 P.S. § 67.708(b)(1)(ii) (exempting records

from access when their disclosure “would be reasonably likely to result in a substantial

and demonstrable risk of physical harm to or the personal security of an individual”).

However, as no other provisions or means to withhold the video from disclosure are

properly before us, and because the Commonwealth Court also concluded that the

District failed to meet its burden under Subsection 708(b)(1)(i) of the RTKL, I would affirm

the order of that Court.

       Based on the foregoing, I agree with the Majority Opinion to the extent it concludes

that the District failed to meet its burden under Subsection 708(b)(1)(i) of the RTKL and

that the Commonwealth Court did not err in ordering disclosure of the requested video.

However, for the reasons stated, I dissent from the opinion insofar as it directs that the




                           [J-75-2019] [MO: Dougherty, J.] - 4
student images contained in the video be redacted pursuant to Section 102 and

Subsection 305(a)(3) of the RTKL, and the PSEA balancing test.4

       Justice Wecht joins this concurring and dissenting opinion.




4 As a final point, while I find no legal basis in this case upon which to conclude that the
student images must be redacted from the requested video, I nonetheless see no
obstacle to redaction given that, as noted by the Majority, Requester does not seek
disclosure of the identity of the student(s) involved.


                           [J-75-2019] [MO: Dougherty, J.] - 5
