A surveillance video that captured an altercation between a high-school student and an adult volunteer is a public record that must be turned over to journalists, a Pennsylvania appeals court ruled Monday, turning aside the school district’s claim that federal privacy law required keeping the footage confidential.

In a 3-0 ruling, the Commonwealth Court of Pennsylvania found that the state’s Right-to-Know-Law applies to videos from school-bus security cameras, even when those videos depict identifiable students. The case is Central Dauphin School District v. Hawkins.

The issue of public access to school surveillance videos has been an increasingly contentious one across the country, including in South Florida, where news organizations were forced to sue to obtain camera footage showing how officers responded to February 2018 Parkland school shooting.

The Brechner Center authored a friend-of-the-court brief, joined by three other open-government organizations, supporting the arguments of Fox 43 News and its reporter, Valerie Hawkins. The brief explains how schools routinely over-categorize public records as confidential under federal student privacy law, even when the records are not confidential because — as in the case of school-bus videos — they depict events visible to bystanders.

A pivotal issue in the case is whether images from a security camera qualify as confidential “education records” under the federal Family Educational Rights and Privacy Act (“FERPA”). The Central Dauphin school district argued that its duty to safeguard students’ FERPA records trumps the public’s right of access under state freedom-of-information law.

But the court, in an opinion by Judge Mary Hannah Levitt, disagreed. The judges relied on the U.S. Supreme Court’s interpretation in a 2002 case that FERPA applies only to “centrally maintained” records that are retained in a filing system that corresponds to individual students, so that the record would be retrieved if a student or parent asked to inspect that student’s file. A school bus video, the judges explained, is not “maintained” in any routine way, and is fact is often erased after a few days.

The court also rejected the school district’s argument that the video could be withheld under an exemption in the state open-records law for records of noncriminal investigations. The district argued that the video was used in investigating potential misconduct by an unidentified school employee, but the court was unconvinced. The “investigative records” exemption, the court explained, normally applies to records that actually capture the substance of the investigation. A school security video, Judge Levitt wrote, is not an “investigative” record because it is exists for multiple purposes having nothing to do with investigations, including deterring student misbehavior.

Monday’s ruling upholds earlier decisions by Pennsylvania’s Office of Open Records and a trial-court judge, both directing the school district to turn over the footage as a public record. The district could still ask the Pennsylvania Supreme Court to hear the case.

Journalists sought access to the video as part of covering a news story about a harassment complaint lodged against the wife of a high-school principal, who was accused of grabbing a 17-year-old high-school basketball player while the two were returning by bus from a road game. The harassment charge was dismissed by a judge, and the video was played as part of the evidence at a court hearing, where the student-athlete openly testified.

Posted: December 10, 2018
Category: Brechner News
Tagged as: Commonwealth Court of Pennsylvania, FERPA, Pennsylvania Right-to-Know Law, school bus video, student privacy