             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Easton Area School District,                     :
                 Appellant                       :
                                                 :
                 v.                              : No. 1897 C.D. 2017
                                                 : Argued: June 4, 2018
Rudy Miller and The Express Times                :


BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                         FILED: July 20, 2018

                 Easton Area School District (School District) appeals an order of the
Court of Common Pleas of Northampton County (trial court) granting a request
under the Right-to-Know Law1 for a school bus surveillance video. In doing so, the
trial court affirmed the determination of the Office of Open Records (OOR) that the
recording, which depicts a school teacher roughly disciplining a student on the
school bus, was disclosable. The School District contends that the video is an
exempt public record because its disclosure will lead to a loss of federal funding;
provides information on discipline, demotion or discharge of an agency employee;
and was admitted as evidence at an arbitration proceeding. For the following
reasons, we affirm the trial court.
                                          Background

                 On February 21, 2017, Rudy Miller, on behalf of The Express Times
(Requester), submitted a written request to the School District, which stated in
pertinent part:


1
    Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
             As per Pennsylvania’s right-to-know law I’m requesting
             information in connection with an incident on a school bus
             outside Paxinosa Elementary School, which is temporarily
             located in the rear of Easton Area Middle School in Forks
             Township. It’s come to my attention that elementary school
             teacher Aaron Dufour disciplined a child roughly on a school bus
             in front of the school on the morning of Feb. 8, 2017; Feb. 9,
             2017; or Feb. 10, 2017. It’s my understanding he grabbed a child
             and “slammed” him down in a bus seat. It’s my understanding
             that Mr. Dufour has either been suspended or terminated as a
             result of this incident.
                                             ***
             It’s my understanding that each school bus is outfitted with a
             security camera. I would like a copy of the surveillance video if
             any exists that captured this incident involving Mr. Dufour on
             the school bus in front of Paxinosa Elementary School on either
             Feb. 8, Feb. 9 or Feb. 10, 2017.

Reproduced Record at 9a (R.R. __). The written request also sought information
about Dufour’s employment status and his annual salary.
             The School District denied the request for the stated reason that
disclosure of the video would imperil federal funding and, thus, it was exempt under
Section 708(b)(1)(i) of the Right-to-Know Law, 65 P.S. §67.708(b)(1)(i). Requester
appealed to the OOR. The School District contended that disclosure of the video
would violate the federal Family Educational Rights and Privacy Act (Privacy Act),
20 U.S.C. §1232g, and, therefore, result in a loss of federal funding. Alternatively,
the School District argued that the video recording was exempt under Section
708(b)(7)(viii) of the Right-to-Know Law, 65 P.S. §67.708(b)(7)(viii), because the
video was used “in the pending action to discipline, demote or discharge [] Dufour.”
R.R. 15a. In support, the School District submitted an affidavit of John Castrovinci,
its human resources director and open records officer, which stated that Dufour was


                                         2
the subject of a disciplinary proceeding pending with the School Board and that the
video had been admitted into evidence in that proceeding.

                                OOR’s Final Determination

               On May 24, 2017, the OOR issued a final determination partially
granting Requester’s appeal. It held that the exemption under Section 708(b)(1)(i)
of the Right-to-Know Law was inapplicable because the video was not an “education
record” within the meaning of the federal Privacy Act. The OOR did not address
whether the exemption under Section 708(b)(7)(viii) of the Right-to-Know Law for
information concerning employee discipline applied to the video recording. On the
other hand, the OOR held that Requester’s questions about Dufour’s employment
status and salary, which were not put in the form of document requests, did not have
to be answered by the School District.2

                                    Trial Court Decision

               The School District appealed to the trial court, again relying on Sections
708(b)(1)(i) and 708(b)(7)(viii) of the Right-to-Know Law. The trial court affirmed
the OOR and held that the video recording is not an “education record” for purposes
of the federal Privacy Act. In so holding, the trial court relied upon a New York trial
court decision, Rome City School District Disciplinary Hearing v. Grifasi, 806
N.Y.S.2d 381 (N.Y. Sup. Ct. 2005). In Grifasi, a school district video camera
captured images of students involved in an altercation along with bystanders. A
student who was suspended for the incident subpoenaed the school district for copies




2
 Requester did not cross-appeal this part of the OOR’s final determination, and it is not before the
Court.
                                                 3
of the video recordings.3 The court rejected the school district’s argument that the
videotape was an educational record protected by the Privacy Act, stating:

              [The Privacy Act] is intended to protect records relating to an
              individual student’s performance. [It] is not meant to apply to
              records, such as the videotape in question which was recorded to
              maintain the physical security and safety of the school building
              and which does not pertain to the educational performance of the
              students captured on this tape….

Id. at 383 (internal citation omitted).
              Relying on the Grifasi analysis, the trial court concluded that because
the video sought by Requester did not concern any student’s academic performance,
it was not an educational record. Accordingly, disclosure of the video would not
jeopardize the School District’s federal funding under the Privacy Act, and the
School District did not prove an exemption under Section 708(b)(1)(i) of the Right-
to-Know Law.
              The trial court also rejected the School District’s argument that the
video recording was exempt from disclosure under Section 708(b)(7)(viii) of the
Right-to-Know Law as “‘information regarding’ discipline, demotion or discharge
[of Dufour].” Trial Ct. Op. 12/1/2017, at 6 (citing 65 P.S. §67.708(b)(7)(viii)); R.R.
49a. In so ruling, the trial court found that “no final action resulting in demotion or
discharge has occurred.” Id.




3
 Notably, the Privacy Act authorizes the release of educational records without parental consent
where required by judicial order or lawfully issued subpoena. 20 U.S.C. §1232g(b)(2)(B).
                                               4
                                            Appeal

               The School District appealed to this Court.4 In this appeal, the School
District presents three issues for our consideration. The School District first argues
that the trial court erred in ruling that the video recording is not exempt from
disclosure under Section 708(b)(1)(i) of the Right-to-Know Law (loss of federal
funding). Second, the School District argues that the trial court erred in holding that
Section 708(b)(7)(viii) of the Right-to-Know Law (employee discipline) does not
apply to the video. Finally, the School District argues that the video is exempt from
disclosure under Section 708(b)(8)(ii) of the Right-to-Know Law (arbitration
evidence), 65 P.S. §67.708(b)(8)(ii). We address these issues seriatim.

                        I. Loss of Federal Funding Exemption

               The School District argues that the trial court erred in holding that the
video was not exempt because the Privacy Act prohibits disclosure of a student’s
education records without parental consent. The School District contends that
because the video depicts students on the school bus during the school day, it is an
“education record.” The School District argues that the trial court erred in holding
that the Privacy Act protects only those records that relate to a student’s academic
performance.
               The Right-to-Know Law requires state and local agencies to provide
access to public records upon request. Section 302 of the Right-to-Know Law, 65



4
  This Court’s review in a Right-to-Know Law appeal determines “whether the trial court
committed an error of law and whether its findings of fact are supported by substantial evidence.”
Paint Township v. Clark, 109 A.3d 796, 803 n.5 (Pa. Cmwlth. 2015). The statutory construction
of the Right-to-Know Law is a question of law subject to this Court’s plenary, de novo review.
Hearst Television, Inc. v. Norris, 54 A.3d 23, 29 (Pa. 2012).
                                                5
P.S. §67.302 (“A local agency shall provide public records in accordance with this
act.”). Section 102 of the Right-to-Know Law defines a “public record” as a

             record, including a financial record, of a Commonwealth or local
             agency that: (1) is not exempt under section 708[, 65 P.S.
             §67.708]; (2) is not exempt from being disclosed under any other
             Federal or State law or regulation or judicial order or decree; or
             (3) is not protected by a privilege.

65 P.S. §67.102. A “record” is further defined under the Right-to-Know Law as:

             Information, regardless of physical form or characteristics, that
             documents a transaction or activity of an agency and that is
             created, received or retained pursuant to law or in connection
             with a transaction, business or activity of the agency. The term
             includes a document, paper, letter, map, book, tape, photograph,
             film or sound recording, information stored or maintained
             electronically and a data-processed or image-processed
             document.

Id.
             The burden of proving that a “record” is exempt from public access is
placed on the “local agency receiving a request by a preponderance of the evidence.”
Section 708(a)(1) of the Right-to-Know Law, 65 P.S. §67.708(a)(1). By this
standard of proof, “the existence of a contested fact must be more probable than its
nonexistence.” Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435,
439 (Pa. Cmwlth. 2011) (quoting Department of Transportation v. Agricultural
Lands Condemnation Approval Board, 5 A.3d 821, 827 (Pa. Cmwlth. 2010)). In
addition, “the exceptions to disclosure of public records must be narrowly
construed.” Office of the Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Cmwlth.
2015).
             Section 708(b)(1)(i) of the Right-to-Know Law exempts from
disclosure “[a] record, the disclosure of which would result in the loss of Federal or
                                          6
State funds by an agency or the Commonwealth[.]” 65 P.S. §67.708(b)(1)(i). Here,
the School District argues that the Privacy Act forbids disclosure of the video
recording without first obtaining the consent of the parents of all students on the bus
that appear in the video. Without this consent, disclosure will cause the School
District to lose federal funding.
                 The Privacy Act prohibits schools receiving federal financial assistance
from disclosing “sensitive information about students” without parental consent.
Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426, 428 (2002).
Specifically, Section 1232g(b)(1) of the Privacy Act 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….

20 U.S.C. §1232g(b)(1) (emphasis added).
                 Section 1232g(a)(4)(A) of the Privacy Act defines “education records”
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.”5 20 U.S.C.
§1232g(a)(4)(A).


5
    Section 1232g(a)(4)(B) excludes the following from the definition of “education records”:
          (i) records of instructional, supervisory, and administrative personnel and
          educational personnel ancillary thereto which are in the sole possession of the
          maker thereof and which are not accessible or revealed to any other person except
          a substitute;
          (ii) records maintained by a law enforcement unit of the educational agency or
          institution that were created by that law enforcement unit for the purpose of law
          enforcement;
                                                 7
               The School District argues that the school bus video satisfies this
definition of “education record” because it contains personally identifiable
information about the students on the school bus and is maintained by the School
District.
               In support, the School District directs the Court to a decision of the
Court of Appeals of Utah, Bryner v. Canyons School District, 351 P.3d 852 (Utah
Ct. App. 2015), which involved a surveillance video capturing an altercation
between students.6 The school district declined to disclose the video, arguing that it
was an educational record under the Privacy Act. The court agreed, holding that the
term “education record” was not limited to academic records, and noting that
Congress had made no “content-based judgments with regard to its ‘education
records’ definition.” Id. at 857 (quoting United States v. Miami University, 294 F.3d


       (iii) in the case of persons who are employed by an educational agency or institution
       but who are not in attendance at such agency or institution, records made and
       maintained in the normal course of business which relate exclusively to such person
       in that person’s capacity as an employee and are not available for use for any other
       purpose; or
       (iv) records on a student who is eighteen years of age or older, or is attending an
       institution of postsecondary education, which are made or maintained by a
       physician, psychiatrist, psychologist, or other recognized professional or
       paraprofessional acting in his professional or paraprofessional capacity, or assisting
       in that capacity, and which are made, maintained, or used only in connection with
       the provision of treatment to the student, and are not available to anyone other than
       persons providing such treatment, except that such records can be personally
       reviewed by a physician or other appropriate professional of the student’s choice.
20 U.S.C. §1232g(a)(4)(B).
6
  The School District also directs the Court to an unpublished decision of the Connecticut Superior
Court in Goldberg v. Regional School District No. 18 (Conn. Super. Ct., No. KNL-CV-
1460200375, filed June 26, 2015), 2015 WL 4571079 (unreported). In a prior ruling, the
Connecticut court held that a video recording of students and a school bus driver bullying an
autistic child was an educational record protected by the Privacy Act. However, the reasons for
that holding are nowhere given in the subsequent decision cited by the School District, which
concerned only a bill of costs in a discovery dispute. Thus, Goldberg has no instructive value.
                                                 8
797, 812 (6th Cir. 2002)). The Bryner court held that the video fell within that
definition because the video contained information “identifying the student.” Id. at
858 (quoting United States v. Miami University, 91 F.Supp.2d 1132, 1149 (S.D.
Ohio 2000), aff’d, 294 F.3d 797 (6th Cir. 2002)). Bryner also cited guidance from
the United States Department of Education that videotapes of this type “do not
constitute the education records of students who did not participate in the altercation
[; however,] … the images of the students involved in the altercation do constitute
the education records of those students.” Bryner, 351 P.3d at 858 (quoting Opinion
of the Texas Attorney General, OR2006-07701 (July 18, 2006)).
               Requester counters that Congress did not intend the Privacy Act to
cover “all records pertaining to a school’s activities”; rather, the Privacy Act has
been more narrowly construed by various state and federal courts. Requester Brief
at 10 (citing, e.g., Ellis v. Cleveland Municipal School District, 309 F.Supp.2d 1019
(N.D. Ohio 2004)).
               In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), the United States Supreme Court outlined a two-step procedure
to determine Congressional intent in a statute. First, courts must determine “whether
Congress has directly spoken to the precise question at issue.” Id. at 842. If so,
courts “must give effect to the unambiguously expressed intent of the Congress.”7
Id. at 843. If the statute is silent or ambiguous with respect to the specific issue,
courts must defer to the agency’s interpretation as long as it is “based on a
permissible construction of the statute.” Id.

7
   Similarly, Pennsylvania rules of statutory construction provide that “[t]he object of all
interpretation and construction of statutes is to ascertain and effectuate the intention of the General
Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.
C.S. §1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it
is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C.S. §1921(b).
                                                  9
             The trial court found that the school bus video was not an “education
record” under the Privacy Act simply because it captured a teacher’s misconduct that
was irrelevant to the academic performance of any student on the bus. Section
1232g(a)(4)(A) of the Privacy Act defines “education records” as those that “contain
information directly related to a student[.]” 20 U.S.C. §1232g(a)(4)(A). The statute
does not require an educational record to be related to a student’s academic
performance, but it does require the information to be “directly related to a student.”
“Directly” means “in a direct manner.”           MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 327 (10th ed. 2001).
             The video captured images of the students who were on the bus, but it
is not directly relevant to those students. Rather, it is directly relevant to the
teacher’s performance, who roughly disciplined a child. Several federal court
decisions have held that a video recording that concerns a teacher, not a student, is
not an “education record” under the Privacy Act.
             In Young v. Pleasant Valley School District (M.D. Pa., No. 3:07-CV-
854, filed June 26, 2008), 2008 WL 11336157 (unreported), a school teacher was
charged with giving students sexually offensive materials. The parents of one minor
student sought emails sent to the school district by other parents with complaints
about the teacher. The school district argued, inter alia, that the emails were
educational records within the meaning of the Privacy Act and could not be disclosed
without consent of all other parents. The United States District Court for the Middle
District of Pennsylvania rejected the district’s argument, stating:

             The records in question here – e-mails containing complaints
             about a teacher’s performance – do not appear to be the types of
             records covered by [the Privacy Act]. Those complaints do not
             necessarily contain any information directly related to a student.
             Instead, they are directly related to a teacher and only

                                          10
             tangentially related to the student…. As such, we could
             probably conclude after examining the e-mails that they are not
             an educational record and not subject to [the Privacy Act’s]
             requirement.

Id. at *7 (emphasis added).
             Likewise, in Ellis, 309 F.Supp.2d 1019, the plaintiff sought discovery
of “incident reports related to altercations between substitute teachers and students,
student and employee witness statements related to these incidents, and information
related to subsequent discipline, if any, imposed on the substitute teachers[.]” Id. at
1021. The United States District Court for the Northern District of Ohio ruled that
the Privacy Act did not prohibit disclosure of the information sought by the plaintiff:

             First, [the Privacy Act] applies to the disclosure of student
             records, not teacher records. While it is clear that Congress
             made no content-based judgments with regard to its “education
             records” definition, … it is equally clear that Congress did not
             intend [the Privacy Act] to cover records directly related to
             teachers and only tangentially related to students.

Id. at 1022 (emphasis added) (internal quotations omitted).
             Here, as in Young and in Ellis, the video recording is “directly related”
to the teacher disciplining a student and is only “tangentially related” to the students
on the bus. Bryner is inapposite because the video contained information directly
related to the students committing misconduct. By contrast, here, the video depicts
a teacher’s alleged misconduct. The Privacy Act does not apply to the disclosure of
teacher records.
             This interpretation of the Privacy Act is consistent with guidance from
the U.S. Department of Education, which addresses when a photo or video of a
student constitutes an “education record” under the Privacy Act:



                                          11
             [The Privacy Act] regulations do not define what it means for a
             record to be “directly related” to a student. In the context of
             photos and videos, determining if a visual representation of a
             student is directly related to a student (rather than just
             incidentally related to him or her) is often context-specific, and
             educational agencies and institutions should examine certain
             types of photos and videos on a case by case basis to determine
             if they directly relate to any of the students depicted therein.

FAQs on Photos and Videos under FERPA, U.S. DEPARTMENT OF EDUCATION,
https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa (last visited
June 12, 2018) (emphasis in original). Stated otherwise, a video does not become
an educational record simply because it captures images of students who are
bystanders at an event recorded on video. Bryner, 351 P.3d at 858. It is only an
educational record with respect to a student in the video for whom the video may
have consequences.
             Because the video recording sought by Requester is not an “education
record” for purposes of the Privacy Act, its disclosure will not subject the School
District to a loss of federal funding. The trial court did not err in holding that the
School District did not prove that the video is exempt from disclosure under Section
708(b)(1)(i) of the Right-to-Know Law.

                       II. Employee Discipline Exemption

             The School District argues, next, that the trial court erred in holding
that the video was not exempt under Section 708(b)(7)(viii) of the Right-to-Know
Law because the video is “[i]nformation regarding discipline, demotion or discharge
contained in [Dufour’s] personnel file.” School District Brief at 13. Requester
counters that it is unfair to allow the School District to “indefinitely or permanently
deny access to the [v]ideo under the Right-to-Know Law simply by placing the
[v]ideo into the employee’s personnel file.” Requester Brief at 17. In any event,
                                          12
Requester maintains that the video is not exempt from disclosure under Section
708(b)(7)(viii) because it does not relate to the discipline, demotion or discharge of
Dufour.
             Section 708(b)(7)(viii) of the Right-to-Know Law states, in pertinent
part, as follows:

             (b) Exceptions. – Except as provided in subsections (c) and (d)
             [regarding financial records and aggregated data], the following
             are exempt from access by a requester under this act:
                                               ***
                    (7) The following records relating to an agency
                    employee:
                                               ***
                          (viii)      Information       regarding
                          discipline, demotion or discharge
                          contained in a personnel file. This
                          subparagraph shall not apply to the
                          final action of an agency that results in
                          demotion or discharge.

65 P.S. §67.708(b)(7)(viii) (emphasis added).
             Contrary to the School District’s assertion, it has not been established
that the video is contained in Dufour’s personnel file. The affidavit of the district’s
open records officer, John Castrovinci, states that the video was “admitted into
evidence in the pending action to discipline, demote or discharge [] Dufour.”
Castrovinci Affidavit ¶7; R.R. 18a. It further states that “[r]ecords responsive to the
first part of [the Requester’s] request are maintained in [] Dufour’s personnel file.”
Castrovinci Affidavit ¶3; R.R. 17a. “The first part of the request,” as Castrovinci
cited in his affidavit, concerned Requester’s questions about Dufour’s employment
status and annual salary, which is not an issue on appeal. R.R. 17a.
                                          13
               Further, although the video was admitted into evidence in the pending
action to discipline, demote or discharge Dufour, the affidavit also states that “no
final agency action has been taken with regard to [] Dufour’s employment as a result
of the incident referred to in this request.” Castrovinci Affidavit ¶¶7-8; R.R. 18a.
In other words, at the time the School District declined Requester access to the video
recording, Dufour had not been disciplined, demoted, or discharged. The video,
therefore, is not itself “information regarding discipline, demotion or discharge” of
Dufour.8
               The local agency bears the burden of proving that a record is exempt
from public access “by a preponderance of the evidence.” 65 P.S. §67.708(a)(1).
Because the School District did not satisfy its burden of proving that the video was
contained in Dufour’s personnel file and was information regarding discipline,
demotion or discharge of Dufour, we hold that the trial court did not err by
concluding that Section 708(b)(7)(viii) of the Right-to-Know Law does not apply to
the video.

                                III. Arbitration Evidence

               Finally, the School District argues that the video is exempt from
disclosure under Section 708(b)(8)(ii) of the Right-to-Know Law because it is
evidence presented at an arbitration proceeding. “[A]n agency must raise all its
challenges before the fact-finder closes the record.” Levy v. Senate of Pennsylvania,



8
  Section 708(b)(17)(ii) of the Right-to-Know Law exempts from disclosure “[a] record of an
agency relating to a noncriminal investigation, including … [i]nvestigative materials, notes,
correspondence and reports.” 65 P.S. §67.708(b)(17)(ii); see also California Borough v. Rothey,
185 A.3d 456 (Pa. Cmwlth. 2018). Here, the School District did not assert that the video is exempt
as a noncriminal investigative record under Section 708(b)(17)(ii) of the Right-to-Know Law.
Accordingly, we do not consider the issue here.
                                               14
94 A.3d 436, 441 (Pa. Cmwlth. 2014). Because the School District has raised this
issue for the first time on appeal to this Court, the issue is waived.

                                     Conclusion

             For the reasons stated above, we conclude that the trial court did not err
in ruling that the video recording is not exempt from disclosure under either Section
708(b)(1)(i) or 708(b)(7)(viii) of the Right-to-Know Law. Further, we determine
that the School District waived the issue that the video is exempt from disclosure
under Section 708(b)(8)(ii) of the Right-to-Know Law. Accordingly, we affirm the
trial court’s December 1, 2017, order.

                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge




                                          15
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Easton Area School District,         :
                 Appellant           :
                                     :
            v.                       : No. 1897 C.D. 2017
                                     :
Rudy Miller and The Express Times    :


                                ORDER

            AND NOW, this 20th day of July, 2018, the order of the Court of
Common Pleas of Northampton County dated December 1, 2017, in the above-
captioned matter is AFFIRMED.
                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge
