                             [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
