From the Brechner Center for Freedom of Information:
Newsworthy video from school surveillance cameras can’t be withheld from the public on the grounds of student privacy, a group of open-government groups argues in a brief filed with a Pennsylvania appeals court.
The brief, authored by the Brechner Center’s Frank LoMonte and David Jadon, supports television journalists from Harrisburg who used their state’s Right-to-Know-Law to request footage of a school-bus security camera that captured an altercation between a parent and a student.
The Central Dauphin School District is withholding the video on the basis of the federal student privacy law, the Family Educational Rights and Privacy Act, because it contains identifiable images of students.
But in an August 2017 decision, a trial judge ordered the records released. The judge found that FERPA applies only to “education records” maintained centrally with the student’s permanent file, not to a security video that is typically held in the district’s transportation office for a brief period and then erased.
The amicus brief filed Jan. 30 by the Brechner Center for Freedom of Information, the Student Press Law Center, the National Freedom of Information Coalition and the Society of Professional Journalists argues that the trial court made the right call, and that FERPA is properly understood to apply only to centrally maintained academic records, not every record referencing a student.
“While privacy laws have a valid role in safeguarding the confidentiality of educational records in which there is no valid public interest, privacy laws cannot be interpreted as an all-encompassing secrecy blanket that conceals anything-and-everything about the operations of public schools,” said the brief, which was prepared and filed with the assistance of attorneys Mark Bailen and Chad Rutkowski of Baker Hostetler LLP, the firm that has long provided legal support to the SPJ.
The Pennsylvania Office of Open Records has issued a ruling supporting disclosure of the records to Harrisburg’s FOX 43 and its reporter, Valeria Hawkins.
LoMonte, professor of media law at the University of Florida and director of the Brechner Center, said overly broad interpretations of FERPA are a constant source of frustration for journalists and parents alike in attempting to obtain records needed to hold public schools and colleges accountable. The brief mentions several noteworthy instances in which families have been forced to take schools to court to obtain images of their own children because of misapplications of FERPA, including a Valdosta, Ga., family that was denied access to a security video needed to investigate their son’s mysterious death in a high-school gym.
The Brechner Center’s brief focuses on the School District’s claim that complying with the county court’s disclosure order would trigger federal financial sanctions, as FERPA empowers the U.S. Department of Education to declare violators ineligible for all federal funding.
The brief points out that, because such a penalty would be financially devastating and greatly disproportionate to the penalty for violating other federal education laws, FERPA can be intended to penalize only a total breakdown in recordkeeping security, not a one-time disclosure in response to a legally valid request.
“So many contingencies would have to be triggered – contingencies that, it bears emphasizing, have never happened in the 44-year history of the statute – as to make the loss of federal funding astronomically improbable,” says the brief, noting that U.S. Department of Education regulations in fact entitle FERPA violators to a warning before sanctions can even be contemplated.
Citing the U.S. Supreme Court’s partial invalidation of the federal “Obamacare” program in 2012, the brief argues that it would render FERPA unconstitutional to adopt the School District’s view that a single release of a public record will result in devastating federal penalties.
In its 2012 ruling, the Supreme Court held that Congress could not compel states to adopt an expansion of Medicaid by threatening to withhold all federal healthcare finding, because the Constitution forbids using federal spending power as a “gun to the head” giving states no choice but to comply.
By the same rationale, the brief argues, FERPA cannot be interpreted to result in total revocation of federal education money for a single public-records disclosure, which at Central Dauphin would be equivalent to a $2.6 million fine.
The case (Central Dauphin School District v. Hawkins) is pending with the Commonwealth Court of Pennsylvania, the state’s intermediate appellate court, and depending the outcome there, could be further appealed to the Pennsylvania Supreme Court.
Posted Feb. 1, 2018