[J-75-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

EASTON AREA SCHOOL DISTRICT,

Appellant

v.

RUDY MILLER AND THE EXPRESS 

TIMES,

Appellees

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No. 13 MAP 2019

Appeal from the Order of the 

Commonwealth Court at No. 1897 

CD 2017 dated July 20, 2018 

Affirming the Order of the 

Northampton County Court of 

Common Pleas, Civil Division, at No. 

C-0048-CV-2017- 5558 dated 

December 1, 2017, exited December 

5, 2017.

ARGUED: September 12, 2019

Justice Dougherty delivers the Opinion of the Court with respect to 

Parts I, II, and III(A)(2), and announces the judgment of the Court. 

The opinion is joined in full by Justices Todd and Donohue. Justices 

Baer and Wecht join Part III(A)(2), and join the mandate to the extent 

it requires disclosure of the subject video, albeit they would favor 

disclosure in an unredacted form. Chief Justice Saylor and Justice 

Mundy join Part III(B) to the extent it determines the subject video 

was an education record. Chief Justice Saylor and Justice Mundy 

join the mandate to the extent it precludes disclosure of information 

that could reveal the identities of the students in the video.

OPINION

JUSTICE DOUGHERTY DECIDED: June 18, 2020

We granted discretionary review to consider whether the Commonwealth Court 

erred in determining a school bus surveillance video sought in a request for public records 
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pursuant to the Right-to-Know Law (RTKL), 65 P.S. §§67.101-67.3104,1is not exempt 

from disclosure under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 

§1232g. Although our rationale departs from the analysis of the Commonwealth Court, 

we affirm the court’s order, with instructions to redact students’ images from the video 

prior to disclosure. 

I. Background

On February 21, 2017, Rudy Miller, on behalf of The Express Times (collectively, 

Requester), submitted a RTKL request to the District. Therein, Requester sought

information in connection with an incident involving an elementary school teacher who, 

according to Requester, had roughly physically disciplined a child on a school bus outside 

of the school. See Letter of Rudy Miller to the District dated 2/21/2017. Relevant to this 

appeal, Requester specifically sought a copy of the surveillance video from the school 

bus security camera capturing the incident. Id. The District denied the request for the 

video, stating, in part, the video was exempt from disclosure under Subsection 

708(b)(1)(i) of the RTKL, which exempts from public record access a record whose 

disclosure would result in the loss of federal or state funds by an agency. Right-to-Know 

Response dated 3/29/2017; 65 P.S. §67.708(b)(1)(i). 

Requester appealed the District’s denial to the Office of Open Records (OOR), 

challenging the District’s decision to withhold the video, and further indicating the identity 

of the disciplined student was immaterial to the request. See Letter of Rudy Miller to the 

OOR dated 4/4/2017. According to the OOR, in addition to inviting the parties to 

supplement the record, it directed the District to notify any third parties of their right to 

participate in the appeal. In the matter of Miller v. Easton Area Sch. Dist., No. AP 2017-

 

1 Act of Feb. 14, 2008, P.L. 6.
[J-75-2019] - 3

0615, 2017 WL 2313147, at *2 (Pa. Off. Open Rec., filed May 24, 2017). The video itself 

is not in the certified record, and there is no indication the OOR viewed it.

The District submitted a supplemental response claiming, in pertinent part, it was 

entitled to application of the exemption set forth in Subsection 708(b)(1)(i) of the RTKL 

because the video constituted an education record under FERPA and its release would 

place the District at risk of losing federal funding pursuant to that Act. See District Letter 

dated 4/18/17. In support of this position, the District cited Subsections 1232g(b)(1)-(2) of 

FERPA, infra at pages 12-13, which generally provide for the withholding of federal 

funding to educational agencies or institutions that have a policy or practice of releasing 

education records and personally identifiable information contained in those records 

unless certain conditions are present. See id. at 2-3, citing 20 U.S.C. §1232g(b). Relying 

upon the definitions of “education record” and “personally identifiable information” as used 

in FERPA, the District contended the video was an education record because it enabled 

all viewers to identify the students depicted in it.2 The District also attached an attestation 

of John Castrovinci, the District’s Open Records Officer (ORO), to its supplemental 

response. Therein, the ORO stated: (1) “[a] video exists that would reflect an interaction 

between [a teacher] and a student within the range of dates set forth in the request;” (2) 

the video was being used as evidence in a pending disciplinary action against the teacher 

 

2 Subsection 1232g(a)(4)(A) of FERPA defines “education record” to include records and 

other materials that: “(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.” See also 34 C.F.R. §99.3 (defining “education record” in a substantially 

similar way). The District further cited to the provisions of FERPA’s regulations that define 

“personally identifiable information” as “information that, alone or in combination, is linked 

or linkable to a specific student that would allow a reasonable person in the school 

community, who does not have personal knowledge of the relevant circumstances, to 

identify the student with reasonable certainty” and “[i]nformation requested by a person 

who the educational agency or institution reasonably believes knows the identity of the 

student to whom the education record relates.” Id.
[J-75-2019] - 4

as well as a state investigation into the teacher’s misconduct; and (3) “[d]isclosure of the 

video . . . []will enable anyone viewing it to identify all students depicted in the video.” 

Attestation of John Castrovinci, 4/18/2017, at ¶¶4, 7, 9-10.

On May 24, 2017, the OOR issued a final determination granting Requester’s 

appeal to the extent that it sought disclosure of the video. Aptly, the OOR observed, 

“[r]ecords in possession of a local agency are presumed public unless exempt under the 

RTKL or other law or protected by a privilege, judicial order or decree.” In the matter of 

Miller, 2017 WL 2313147, at *3, citing 65 P.S. §67.305. Then, relying on case law from 

other jurisdictions, the OOR opined that only those records relating to student academics 

are education records under FERPA. Id. at *4-5. The OOR reasoned that, while the 

requested video “purportedly depicts the individual student” involved in the incident at 

issue, there was no evidence that it was part of the student’s permanent academic file. 

Id. at *5-6. The OOR thus concluded the video was not an education record under FERPA 

and, consequently, its disclosure would not threaten the loss of federal funding to the 

District. Id. at *6, n.2. Accordingly, the OOR held that the District failed to meet its burden 

of proof to withhold the video under Subsection 708(b)(1)(i) of the RTKL, and it ordered 

the District to disclose the video within thirty days. Id. 

The District then appealed to the court of common pleas. In addition to arguing the 

video met the RTKL Subsection 708(b)(1)(i) exception for loss of FERPA funds, the 

District further asserted that because the video was an educational record exempt from 

disclosure under FERPA, it was also exempt from disclosure under the RTKL Subsection 

305(a), which provides the public presumption of agency records does not apply if, inter 

alia, a Section 708 exception applies, or, if “the record is exempt from disclosure under 

any other Federal or State law or regulation or judicial order or decree.” District’s Brief in 

Support Appeal and Petition for Review of Decision of the OOR at 3-5, citing 65 P.S. 
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§67.305(a). The court agreed with the OOR’s determination the video was not an 

education record under FERPA because the District failed to establish that the video 

contained information regarding the depicted student’s academic or educational 

performance. The court held disclosure of the video would not jeopardize federal funding 

rendering it exempt under Subsection 708(b)(1)(i) of the RTKL, and thus ordered 

disclosure of the video to Requester.

3 Easton Area School District v. Miller and the 

Express Times, No. C-48-CV-2017-5558, unpublished order at 2-3 (C.P. Northampton 

County filed Dec. 1, 2017). Thereafter, the District appealed to the Commonwealth Court.

In a unanimous published opinion, a three-judge panel of the Commonwealth 

Court affirmed the common pleas court’s order.4 Easton Area Sch. Dist. v. Miller, 191 

A.3d 75 (Pa. Cmwlth. 2018). Contrary to the rationale of the lower tribunals, the 

Commonwealth Court reasoned that FERPA did not require an education record to be 

related exclusively to a student’s academic performance. Id. at 81. Nonetheless, the panel

emphasized that the statute required the information to be “directly related to a student[.]” 

Id. (referring to FERPA’s definition of “education record,” supra at page 3 n.2). 

 

3

Initially, the court observed, “[i]t is the burden of the School District to prove, by a 

preponderance of the evidence, that the [public] presumption does not apply by 

demonstrating that: ‘(1) the record is exempt under section 708; (2) the record is protected 

by a privilege; or (3) the record is exempt from disclosure under any other Federal or 

State law or regulation or judicial order or decree.’” Easton Area School District v. Miller

and the Express Times, No. C-48-CV-2017-5558, unpublished order at 2-3 (C.P. 

Northampton County filed Dec. 1, 2017), quoting 65 P.S. §67.305(a). The court analyzed 

whether the District met its burden under Subsection 305(a)(1) only. Id. at 4-5.

4 The Commonwealth Court did not refer to Section 305 of the RTKL regarding 

exemptions to the public presumption of records, but instead began its analysis with the 

nearly-identical text of RTKL Section 102, defining “public record,” noting: “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.” Easton Area 

Sch. Dist. v. Miller, 191 A.3d 75, 79 (Pa. Cmwlth. 2018).
[J-75-2019] - 6

The panel explained that, here, the requested video was only “tangentially related” 

to the students on the bus and instead “directly related” to the teacher disciplining a 

student. Id. at 82 (relying upon, inter alia, Ellis v. Cleveland Municipal Sch. Dist., 309 

F.Supp.2d 1019, 1022 (N.D. Ohio 2004) (explaining that, “[w]hile 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 FERPA to cover records directly related to 

teachers and only tangentially related to students” (internal citation and quotation 

omitted))).

The Commonwealth Court additionally reasoned that its interpretation of FERPA 

was consistent with guidance from the United States Department of Education providing, 

“[i]n 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 that certain types of photos and videos should be examined “on a 

case by case basis to determine if they directly relate to any of the students depicted

therein.” Id., quoting 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 April 20, 2020) (emphasis in original) (“USDOE FAQs on Photos and Videos

under FERPA”). The panel observed, “[s]tated 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. It is only an educational record with respect to a student in 

the video for whom the video may have consequences.” Id. (citation omitted).

Based on the foregoing, the Commonwealth Court held, because the video did not 

constitute an education record under FERPA, its disclosure would not subject the District 

to a loss of federal funding. Id. at 82-83. The Commonwealth Court thus concluded the 
[J-75-2019] - 7

common pleas court did not err in holding the District failed to prove that the video was 

exempt from disclosure under Subsection 708(b)(1)(i) of the RTKL. Id. at 83.

We accepted discretionary review of this matter to address the following issue, as 

stated by the District: “Whether the Commonwealth Court erred as a matter of law in 

determining that the requested video, which depicts children on a school bus during the 

school day, is not exempt from disclosure under [FERPA].” Easton Area Sch. Dist. v. 

Miller, 201 A.3d 721 (Pa. 2019) (per curiam). As this issue presents a question of law, our 

standard of review is de novo, and our scope of review is plenary. Pennsylvania State 

Police v. Grove, 161 A.3d 877, 887 (Pa. 2017).

II. Arguments

The District maintains the video is an education record exempt from unconsentedto disclosure under FERPA, it is thereby not a “public record” as defined by the RTKL, 

and thus it is exempt from disclosure under the RTKL. District’s Brief at 4-5, citing 65 P.S. 

§67.102 (defining “public record” as “[a] record . . . of a Commonwealth or local agency 

that [inter alia]: (1) is not exempt under section 708 [or] (2) is not exempt from being

disclosed under any other Federal or State law or regulation or judicial order or decree”)

(footnote omitted), §67.305(a) (“A record in the possession of a Commonwealth agency 

or local agency shall be presumed to be a public record. The presumption shall not apply 

if: (1) the record is exempt under section 708; . . . or (3) the record is exempt from 

disclosure under any other Federal or State law or regulation or judicial order or decree.”)

(footnote omitted), and §67.708(b)(1)(i) (listing exceptions for public records, “the 

following are exempt from access by a requester under this act: [inter alia] A record, the 

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

the Commonwealth”). In support of its position FERPA prohibits the disclosure of 

education records without parental consent, the District cites the Commonwealth Court’s 
[J-75-2019] - 8

decision in Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011) (in RTKL 

appeal, FERPA precluded the release of education records without consent), appeal 

denied, 31 A.3d 292 (Pa. 2011) (Table). Id. at 4. The District further argues the videotape 

is an education record because it depicts personally identifiable information related to the 

students in their educational environment. Id. According to the District, because FERPA 

provides “[n]o 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 . . . )[,]”

and videotapes by their very nature include personally identifiable information about 

students, disclosure of the video risks the loss of federal funds, and it is therefore exempt 

from disclosure under the RTKL’s Subsection 708(b)(1)(i) exception. Id. at 4-6, , quoting

20 U.S.C. §1232g(b)(1)(emphasis in original); see also id. at 8,11.

In support of the District’s arguments in this regard, the Pennsylvania State 

Education Association5 provided an amicus curiae brief arguing the video is a student 

record protected from disclosure under FERPA, noting the federal statute’s primary goal 

is protecting student and parent privacy rights by prohibiting disclosure of student records

without consent. Amicus Brief at 5, citing 120 CONG. REC. 39,862 (1974) (Joint Statement 

in Explanation of Buckley/Pell Amendment). Amicus draws the Court’s attention to 

guidance and administrative decisions from the U.S. Department of Education (USDOE) 

relating to when a video depicting students should (and should not) be considered a 

protected education record under FERPA. Referring to the same USDOE guidance 

document as the Commonwealth Court, Amicus indicates the school entity may consider 

 

5 The Pennsylvania State Education Association (PSEA) is a statewide nonprofit 

membership organization of education professionals, “represent[ing] 181,000 members 

and is the parent organization of more than 1,000 local associations certified as exclusive 

bargaining agents of public employees under the Public Employe Relations Act[.]” Amicus 

Brief at 1.
[J-75-2019] - 9

a video maintained by the school as directly related to a student, and thus an education 

record, if the video is used in disciplinary action or other purposes involving the student 

(including the victim of a disciplinary incident), or if the video shows a student involved in 

an altercation. Id. at 6-7, citing UDSOE FAQs on Photos and Videos under FERPA; id. at 

10-11, citing Letter to Wachter (USDOE Office of the Chief Privacy Officer, December 7, 

2017) (surveillance video depicting hazing incident was education record of students who 

were disciplined and students who were victims). According to Amicus, as the video here 

involved some type of altercation between a teacher and a student, it is directly related to 

the student receiving the discipline. Id. at 7. 

The District additionally claims an analysis must be conducted “to determine 

whether the right to privacy in the educational setting is outweighed by the public’s interest 

in the release of information[,]” that the Commonwealth Court failed to conduct this 

balancing test, and that the balance of the interests here should weigh against public 

disclosure. District’s Brief at 5, 12-14, citing, inter alia, Reese v. Pennsylvanians for Union 

Reform, 173 A.3d 1143, 1159 (Pa. 2017) (explaining the balancing test set forth in 

Pennsylvania State Educ. Ass’n v. Commonwealth, Dep’t of Cmty. & Econ. Dev., 148 

A.3d 142 (Pa. 2016) (“PSEA”), “is applicable to all government disclosures of personal 

information”).

Requester observes, under the RTKL, the District is an agency whose records are 

presumed public, and contends the District did not meet its burden to establish by a 

preponderance of the evidence that the video was exempt from disclosure under FERPA, 

primarily because the text of FERPA indicates funding is only withheld where an 

educational agency has a “policy or practice” of granting access to student information in 

education records, as opposed to an isolated incident pursuant to a court order granting 

an open record request as here. Requester’s Brief at 3-5, 11, citing 65 P.S. §67.708(a)(1)
[J-75-2019] - 10

(agency’s burden to prove record not public is preponderance of the evidence) and 20 

U.S.C. §1232g(b) (“No funds shall be made available . . . 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 . . . .”) (emphasis 

added). Further noting FERPA defines “education record” as records 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[,]” Requester claims the 

District has established neither prong. Id., quoting 20 U.S.C. §1232g(a)(4)(A). Similar to 

the Commonwealth Court, Requester relies on, inter alia, Ellis, a federal case from the 

Northern District of Ohio, for the proposition that the video depicts teacher misconduct 

and is only tangentially related to students, thus it is not “directly related to a student,” 

and is not an education record. Id. at 11-12, citing 309 F.Supp.2d at 1022. Requester 

further claims the District provided no evidence to show the video was a centrallymaintained record kept by a single central custodian, which, according to requester, is 

required to show the record is “maintained by an education agency” pursuant to the United 

States Supreme Court’s interpretation of “educational record.” Id. at 8-9, citing Owasso 

Independent Sch. Dist. v. Falvo, 534 U.S. 426, 435 (2002) (peer-graded assignments not 

collected by teacher for grading are not “maintained” within the meaning of FERPA, and 

are not education records as defined by FERPA; “FERPA implies that education records 

are institutional records kept by a single central custodian, such as a registrar, not 

individual assignments handled by many student graders in their separate classrooms.”). 

Finally, Requester asserts the District’s arguments regarding students’ privacy 

rights are outside of the scope of the appeal. Id. at 12. Requester underscores it 

requested the video “for purposes of investigating allegations of an incident involving a 

teacher and an unidentified student on a school bus[, and d]isclosure of the [v]ideo is not 
[J-75-2019] - 11

sought for purposes of identifying the student or any other student that was on the bus at 

the time.” Id. at 16. 

III. Discussion

To the extent the relevant provisions of the RTKL are not clear and unambiguous,

this Court must engage in statutory construction to resolve the dispute before us; the 

Statutory Construction Act, 1 Pa.C.S. §§1501-1991, guides our analysis. The Act directs 

that the objective of statutory construction is to ascertain and effectuate legislative intent. 

Miller v. County of Centre, 173 A.3d 1162, 1168 (Pa. 2017), citing 1 Pa.C.S. §1921(a). 

To that end, we look to the statute’s plain language, which generally gives the best 

indication of legislative intent. Id. Only when the words of a statute are not explicit do we 

resort to other considerations in discerning the intent of the legislature. Hearst Television, 

Inc. v. Norris, 54 A.3d 23, 32 (Pa. 2012).

Under Pennsylvania’s RTKL, local agencies, such as school districts, are required 

to provide access to public records in accordance with its provisions. 65 P.S. §67.302(a). 

A “public record” is defined as, inter alia, “[a] record . . . of . . . a local agency that[] . . . (1) 

is not exempt under section 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.”6Id. §67.102. Under the RTKL, 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 Section 708, id. §67.305(a)(1), or the record is exempt from disclosure under any 

other federal or state law or regulation, id. §67.305(a)(3). Importantly, the local agency 

has the burden of proving that a record is exempt from public access “by a preponderance 

 

6 The RTKL further defines a “record” as “[i]nformation, 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.” 65 P.S. §67.102. The term includes a film recording. Id.
[J-75-2019] - 12

of the evidence,” id. §67.708(a)(1), which is “tantamount to a ‘more likely than not’ inquiry.”

Popowsky v. Pa. Public Util. Com’n, 937 A.2d 1040, 1055 n.18 (Pa. 2007). In addition, 

“[c]onsistent with the RTKL’s goal of promoting government transparency and its remedial 

nature, the exceptions to disclosure of public records must be narrowly construed.” Grove, 

161 A.3d at 892 (citations omitted). 

FERPA, together with its regulations, 34 C.F.R. §§99.1-99.67, serves the dual 

purpose of ensuring parents and students have access to student education records, and 

protecting student and parent privacy by prohibiting disclosure of student records without 

consent. 20 U.S.C. §§1232g(a),(b). Enacted under Congress’s Spending Clause 

authority, FERPA achieves these objectives by conditioning federal funding to 

educational agencies, including public school districts, upon those agencies’ compliance 

with the rules provided therein delineating the circumstances under which the disclosure 

of student information is permissible. See id.; 34 C.F.R. §99.2; see also USDOE, 

description of Family Educational Rights and Privacy Act, accessible at 

https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html (accessed April 20, 2020)

(“[FERPA] is a [f]ederal law that protects the privacy of student education records. The 

law applies to all schools that receive funds under an applicable program of the U.S. 

Department of Education.”). 

The central aspect of the District’s argument for withholding the video has been its 

claim disclosure of the video would result in the District’s loss of federal funds pursuant 

to FERPA, thereby meeting the criteria for the RTKL exception found in Subsection 

708(b)(1)(i). See 65 P.S. §67.708(b)(1)(i). The crux of the antecedent litigation has turned 

on whether the video constitutes an “education record” protected under FERPA, and the 

issue we accepted for review — whether the video is exempt from disclosure under 

FERPA — additionally implicates the very definition of “public record” pursuant to Section 
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102, as well as the RTKL’s disclosure exemption for records exempt under other federal 

and state laws or regulations pursuant to Subsection 305(a)(3).7 See id. §§102, 305(a)(3); 

see also Sherry, 20 A.3d at 524-25 (holding FERPA exempts students’ personally 

identifiable information from disclosure to a right-to-know requester pursuant to RTKL 

Subsection 305(a)(3)). Furthermore, as the District contends to this Court, albeit without 

raising it in its letters and briefs to the tribunals below, the disclosure of the video may 

also implicate the constitutional privacy rights of third parties — specifically, minor school 

children. We address each of these arguments in turn. 

A. RTKL Subsection 708(b)(1)(i)

The exemption set forth in Subsection 708(b)(1)(i) of the RTKL provides:

(b) Exceptions.—Except as provided in subsections (c) and (d),[

8

] the

following are exempt from access by a requester under this act: (1) A 

record, the disclosure of which: (i) would result in the loss of Federal 

or State funds by an agency or the Commonwealth[.]

Id. § 67.708(b)(1)(i).

 

7 While Justice Baer views our analysis of this issue as “improper,” Concurring and 

Dissenting Opinion, slip op. at 2 (Baer, J.), we note the definition of a public record 

pursuant to Section 102, and the exemptions to the public presumption pursuant to 

Section 305, are typically foundational issues in RTKL litigation, recognized in this case 

by each of the tribunals below through their citations to either Section 102 or Section 305. 

See In the matter of Miller, 2017 WL 2313147, at *3, citing 65 P.S. §67.305 (“Records in 

possession of a local agency are presumed public unless exempt under the RTKL or 

other law or protected by a privilege, judicial order or decree.”) (emphasis added); Easton 

Area School District v. Miller and the Express Times, No. C-48-CV-2017-5558, 

unpublished order at 2-3 (C.P. Northampton County filed Dec. 1, 2017) (quoting 65 P.S. 

§67.305(a) in its entirety; Easton Area Sch. Dist. v. Miller, 191 A.3d 75, 79 (Pa. Cmwlth. 

2018) (quoting 65 P.S. §67.102 definition of “public record”). We do not view the lack of 

analysis regarding the federal law exemption by the tribunals below as a limitation on our 

resolution of the issue we accepted for review, which is not merely whether the District 

met its burden to prove the exception in Subsection 708(b)(1)(i), but more broadly 

whether, in the context of a request for public disclosure pursuant to the RTKL, a record 

is exempt pursuant to FERPA, a federal law.

8 Subsection 708(c), relating to financial records, and Subsection 708(d), relating to 

aggregated data, are inapplicable to this matter.
[J-75-2019] - 14

In accordance with this provision of the RTKL, the District had the burden to prove 

by a preponderance of the evidence that disclosure of the requested video would result 

in the loss of federal funding under FERPA, as it claims. The tribunals below concluded 

the District did not meet this burden because it failed to demonstrate that the requested 

video qualified as an education record under FERPA in the first place, either because it 

was not related to the student’s academics (as determined by the OOR and trial court) or 

because it was only tangentially, as opposed to directly, related to a student (as 

determined by the Commonwealth Court). Because the requested video did not fall within 

the ambit of material that, if disclosed, would subject the District to the loss of federal 

funding, the tribunals below ended their inquiry.

However, a conclusion that the video qualifies as an education record under 

FERPA does not necessarily render the video exempt from disclosure under Subsection 

708(b)(1)(i) of the RTKL. Instead, to establish that the requested video is excludable 

under the RTKL, the plain language of Subsection 708(b)(1)(i) required the District to 

prove, by a preponderance of the evidence, that disclosure of the video in fact “would 

result in the loss of Federal . . . funds by an agency or the Commonwealth.” Id. Thus, for 

the District to prove the applicability of that exemption, it had to establish all of the 

conditions set forth in FERPA that would result in the loss of funding to the District 

stemming from its disclosure of the video. For the reasons that follow, we conclude the 

District failed to meet this burden.

Subsection 1232g(b)(1) of FERPA 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,[

9

] as 

 

9 Subsection 1232(g)(a)(5)(A) provides: 
[J-75-2019] - 15

defined in paragraph (5) of subsection (a)) of students without the 

written consent of their parents to any individual, agency, or 

organization, other than [those listed in subsections (A)-(L), which are 

not at issue in the case sub judice].

20 U.S.C. §1232g(b)(1) (emphasis added). Subsection 1232g(b)(2) additionally provides, 

in relevant part:

No funds shall be made available . . . to any educational agency or 

institution which has a policy or practice of releasing, or providing 

access to, any personally identifiable information in education records 

. . . unless--

(A) there is written consent from the student’s parents specifying 

records to be released, the reasons for such release, and to 

whom, and with a copy of the records to be released to the 

student's parents and the student if desired by the parents, or 

(B) . . . such information is furnished in compliance with judicial 

order, or pursuant to any lawfully issued subpoena, upon 

condition that parents and the students are notified of all such 

orders or subpoenas in advance of the compliance therewith by 

the educational institution or agency . . . .[

10]

Id. §1232g(b)(2)(A)-(B).

Thus, pursuant to FERPA as applied with regard to the RTKL, the District must be

an educational agency or institution that either currently receives, or is eligible to receive, 

funding through an applicable program that would be lost by the District’s violation of 

FERPA. See 20 U.S.C. §1232g(b)(1) (“No funds shall be made available under any 

 

the term ‘directory information’ relating to a student includes the following: the 

student's name, address, telephone listing, date and place of birth, major field of 

study, participation in officially recognized activities and sports, weight and height 

of members of athletic teams, dates of attendance, degrees and awards received, 

and the most recent previous educational agency or institution attended by the 

student. 

20 U.S.C. §1232g(a)(5)(A).

10 Not relevant to this appeal, excepted from Subsection 1232g(b)(2)(B) are certain 

records relating to disclosures for certain law enforcement purposes, and parental notice 

requirements where the student’s parent is a party in abuse, neglect, or dependency 

proceedings as described therein. See 20 U.S.C. §1232g(b)(2)(B).
[J-75-2019] - 16

applicable program to any educational agency or institution ....”); id. §1232g(b)(2) (same). 

Additionally, the District had to establish that it has a “policy or practice” of “releasing,” 

“permitting the release of,” or “providing access to” protected education records or 

personally identifiable information contained in those records. Id. §1232g(b)(1)-(2). 

Finally, the District had to prove that this policy or practice entails the release of protected 

information without parental consent to unauthorized entities as specified under 

Subsection 1232g(b)(1), or without parental consent or in the absence of judicial order or 

lawfully issued subpoena under Subsection 1232g(b)(2).

1. Federal funding eligibility

Regarding the District’s federal funding eligibility, our review of the record in this 

matter reveals the District has not alleged it is an educational agency or institution that 

currently receives or is eligible to receive funding through any applicable program that 

would be lost through a violation of FERPA; nor does the certified record disclose support 

for this requirement. As the burden is on the educational agency to prove its entitlement 

to an exemption set forth in Subsection 708(b)(1)(i) of the RTKL, we note 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. Here, however, where neither Requester 

nor any of the three tribunals below have raised or disputed the District’s federal funding 

eligibility, and such information is readily available in the public domain,11 we accept for 

purposes of this analysis that the District is eligible to receive applicable funding and is 

therefore subject to FERPA’s requirements.

 

11 See, e.g., U.S. Dep’t of Educ., Estimated ESEA Title I LEA Allocations—FY 2018, 

https://www2.ed.gov/about/overview/budget/titlei/fy18/index.html (last viewed Apr. 21, 

2020) (listing federal Title I school funding grant recipients and allocations).
[J-75-2019] - 17

2. FERPA “policy or practice”

Nevertheless, as highlighted by the Requester in its brief to this Court, neither does 

anything in the record suggest the District has a “policy or practice” regarding the release 

of or access to information covered by FERPA — where such language necessarily 

denotes repeated or systematic violations of student privacy, as opposed to singular or 

exceptional instances — nor has the District claimed that disclosure of the single 

requested video at issue herein, either of its own volition or at the direction of OOR or the 

courts, would qualify as a “policy or practice” as contemplated by Subsections 

1232g(b)(1)-(2) of FERPA. To the contrary, upon proper notice to the students’ parents, 

the lower courts’ orders would operate to excuse any confidentiality obligation of the 

District without consequence to its funding, consistent with Subsection 1232g(b)(2)(B)’s 

exception for information that is furnished pursuant to judicial order. 20 U.S.C. 

§1232g(b)(2)(B). Based on the foregoing, we conclude the District has not shown by a

preponderance of the evidence that its disclosure of the requested video would result in

the loss of federal funding rendering the video exempt under Subsection 708(b)(1)(i) of

the RTKL. We emphasize that “[t]he RTKL is designed to promote access to official 

government information in order to prohibit secrets, scrutinize the actions of public 

officials, and make public officials accountable for their actions.” PSEA, 148 A.3d at 155. 

In furtherance of that policy, it is incumbent on OOR and the courts to require a local or 

government agency claiming an exemption from disclosure under Subsection 708 of the 

RTKL to prove the applicability of that exemption by a preponderance of the evidence. 

We hold the District failed to meet this burden.
[J-75-2019] - 18

B. RTKL Section 102 and Subsection 305(a)(3)

Local agency records which are exempt from disclosure under other state or 

federal laws or regulations are, in turn, excluded from the RTKL’s definition of “public 

record,” and are exempt from disclosure under the RTKL. 65 P.S. §§102, 305(a)(3). 

Our review of FERPA reveals the federal law provides a right to inspect education 

records to parents and eligible students only, and requires parental consent to release 

information unless certain specified conditions are present such as, inter alia, transfer to 

subsequent schools, financial aid processing, request by authorities within a juvenile 

justice system, research, or a judicial order or lawfully issued subpoena. See 20 U.S.C. 

§§1232g(a)(1)(A), (b)(1); 34 C.F.R. §§99.30-31. More specifically, as described in our 

analysis supra, FERPA forestalls funding to schools having “a policy or practice of 

releasing, or providing access to, any personally identifiable information in education 

records” other than directory information,

12 or as is permitted under the special conditions 

described in Section 1232g(b)(1), absent written parental consent or a court order or 

subpoena.13 See 20 U.S.C. §1232g(b)(2) (emphasis added). As defined within FERPA’s 

regulations, “personally identifiable information” includes “information that, alone or in 

combination, is linked or linkable to a specific student that would allow a reasonable 

person in the school community, who does not have personal knowledge of the relevant 

circumstances, to identify the student with reasonable certainty[.]” 34 CFR §99.3, 

definition of “personally identifiable information” at (f). While different jurisdictions have 

 

12 See supra n.6. The Department of Education regulations further provide “[d]irectory

information means information contained in an education record of a student that would 

not generally be considered harmful or an invasion of privacy if disclosed.” 34 CFR §99.3. 

13 In the event a court order or subpoena compels release of student information, access 

is permitted only “upon condition that parents and the students are notified . . . in advance 

of the compliance therewith by the educational institution or agency.” 20 U.S.C. 

§1232g(b)(2)(B). 
[J-75-2019] - 19

interpreted the scope of “educational records” more broadly or more narrowly within the 

context of individual cases, the statute’s text defines the term 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.” 20 U.S.C. §1232g(a)(4)(A). 

With specific regard to videos, which may contain the images and personally 

identifiable information of multiple students (as the District alleges is the case here), 

USDOE guidance is instructive as to whether the record is “directly related” to the 

students therein, and therefore an education record (so long as it is also “maintained by” 

the educational agency). In addition to the portion of the USDOE FAQs on Photos and 

Videos under FERPA cited by the Commonwealth Court (i.e., noting the determination is 

often context-specific and thus should involve a case by case basis examination), the 

guidance document also explains the following factors should be considered in 

determining whether a photo or video is “directly related” to a student: 

The educational agency or institution uses the photo or video for 

disciplinary action (or other official purposes) involving the student 

(including the victim of any such disciplinary incident);

The photo or video contains a depiction of an activity: 

that resulted in an educational agency or institution’s use of the 

photo or video for disciplinary action (or other official purposes) 

involving a student (or, if disciplinary action is pending or has not 

yet been taken, that would reasonably result in use of the photo or 

video for disciplinary action involving a student); . . .

that shows a student getting injured, attacked, victimized, ill, or 

having a health emergency; . . . or

The audio or visual content of the photo or video otherwise contains 

personally identifiable information contained in a student’s education 

record.

USDOE FAQs on Photos and Videos under FERPA. 
[J-75-2019] - 20

The guidance document further provides that “[a] photo or video should not be 

considered directly related to a student in the absence of these factors and if the student’s 

image is incidental or captured only as part of the background, or if a student is shown 

participating in school activities that are open to the public and without a specific focus on 

any individual.” Id. In addition, the USDOE guidance provides a list of examples of videos 

considered education records, specifically stating “[a] school surveillance video showing 

two students fighting in a hallway, used as part of a disciplinary action, is directly related 

to the students fighting.” Id. Incorporating its administrative determination in Letter to 

Wachter, the guidance further indicates school surveillance video depicting an altercation, 

in that case a hazing incident, is an education record directly related to both the 

perpetrators and the victims. Id. citing Letter to Wachter at 4 (USDOE Office of the Chief 

Privacy Officer, Dec. 7, 2017). Regarding requests for access to videos depicting the 

images of multiple students, and providing access to such video — to the student or 

subject student’s parent — the guidance instructs, “[i]f the educational agency or 

institution can reasonably redact or segregate out the portions of the video directly related 

to other students, without destroying the meaning of the record, then the educational 

agency or institution would be required to do so prior to providing the parent or eligible 

student with access.” Id.

Furthermore, even in the limited set of prescribed circumstances where education 

records may be disclosed without consent, FERPA provides, “personal information shall 

only be transferred to a third party on the condition that such party will not permit any 

other party to have access to such information without the written consent of the parents 

of the student” and, in the case of organizations conducting research, information 
[J-75-2019] - 21

containing personal identification of students or parents must be destroyed following its 

use. Id. at §§1232g(b)(4)(B), (b)(1)(F). However, and importantly, notwithstanding all of 

these conditions, FERPA regulations do allow schools to release education records or 

information without consent when the records have been “de-identified,” that is, when all 

personally identifiable information has been removed. 34 C.F.R. §99.31(b)(1) (“An 

educational agency . . . may release the records or information without the consent 

required by §99.30 [requiring consent for disclosure of personally identifiable information 

from student’s education records] after the removal of all personally identifiable 

information provided that the educational agency or institution or other party has made a 

reasonable determination that a student's identity is not personally identifiable . . . .”). 

Here, to avail itself of an exemption from disclosure under RTKL Subsection 

305(a)(3), the District had the burden of proving the school bus surveillance video was 

exempt from disclosure to a public record requester under FERPA, which requires a 

context-specific (i.e., fact-sensitive) assessment constrained by competing obligations to 

maintain student confidentiality alongside public transparency, notwithstanding its own 

interests. 

Undisputedly, the video here “reflect[s] an interaction between [a teacher] and a 

student” which became the subject of an investigation, and which was included in an 

inquiry regarding potential discipline for the teacher. See Attestation of John Castrovinci, 

4/18/2017, at ¶¶4-7. Furthermore, the videographic images of students on a school bus 

would allow a reasonable person in the school community viewing the video to identify 

the students with reasonable certainty; thus, the video contains personally identifiable 

information regarding each of the school students visible therein. See 34 CFR §99.3. 
[J-75-2019] - 22

In light of the USDOE guidance, we reject the notion espoused by the 

Commonwealth Court that such a recorded interaction involving a teacher’s conduct 

directly relates solely to the teacher, and is only “tangentially related” to the student. As 

the student is the subject of some interaction with a teacher that warranted preservation 

of the video for an official purpose, whether the student is receiving discipline, or is the 

victim of some misconduct, or is one party in an innocuous interaction that was 

nevertheless part of an official inquiry, the video is as “directly related” to the student as 

much as it is related to the teacher. The video recording, then, which is generated and 

possessed by the school and depicts a school student on a school bus interacting with a 

school teacher in the presence of other students, is a record both maintained by the 

school and directly related to, at the very least, the student who is the subject of the 

interaction, and is therefore an education record of that student within the meaning of 

FERPA.

14

However, as is clear from the regulations promulgated pursuant to FERPA, even 

an education record ordinarily protected from disclosure to all but an eligible student or 

her parent may be disclosed without consent if the student’s personally identifiable 

information has been removed. See 34 C.F.R. §99.31(b)(1). And, as USDOE guidance 

further suggests, where a FERPA-governed educational agency must provide access to 

an education record containing other students’ images, a FERPA-compliant school is 

 

14 As the District does not dispute that it maintains the video — and, in any event, it is 

difficult to fathom how the District would furnish disclosure of a record it did not maintain 

— we decline to engage Requester’s argument the video is not a record “maintained by” 

the District. 
[J-75-2019] - 23

required to redact those portions of the video relating to the other students. See USDOE 

FAQs on Photos and Videos under FERPA. 

Accordingly, a FERPA-compliant educational institution must not release the 

students’ personally identifiable information — that is, the students’ images on the 

video to the extent the students are reasonably identifiable — to anyone other than the 

parent or eligible student, absent one of the conditions listed under FERPA §1232g(b)(1) 

(which do not include release of information to the press or a to public records requester), 

without proper consent, or a judicial order or subpoena. Yet, that same institution may 

release the video, despite its status as an education record, once the students’ identifiable 

images have been redacted. We therefore conclude: the students’ images in the bus 

surveillance video are exempt from disclosure under FERPA and its regulations, and are 

thereby excluded from the RTKL’s disclosure requirements pertaining to public records; 

however, insofar as the students’ images can be redacted to remove their personally 

identifiably information, the video itself is not exempt, and it therefore must be disclosed. 

See 65 P.S. §§67.102, 67.305(a)(3). 

Furthermore, the RTKL specifically provides, where a record contains information 

which is subject to access along with information which is not subject to access and the 

two cannot be physically separated, “the agency shall redact from the record the 

information which is not subject to access, and the response shall grant access to the 

information which is subject to access.” 65 P.S. §67.706. Thus, insofar as the video itself 

is a public record subject to disclosure under the RTKL but contains the images of school 

students which are not subject to disclosure, which, in our view, it is and does, the District 

is obligated to redact students’ images by, for example, blurring or darkening portions of 
[J-75-2019] - 24

the video revealing the students’ identities, and to subsequently provide access to the 

redacted video.15

C. Students’ Interests

The overlooked yet implausible ramification of the Commonwealth Court’s decision 

below is its potential to subject any school surveillance to disclosure, without parental

consent, to any resident of the Commonwealth who makes a request pursuant to the 

RTKL. In the case of a school bus surveillance video, such a disclosure could reveal the 

identity of minor students; their clothing, behaviors, or disabilities; the specific bus they 

take; and the geographical location where they exit the bus. In addition to obvious safety 

concerns, such a disclosure also necessarily implicates the students’ right to informational 

privacy — that is, “the right of the individual to control access to, or the dissemination of, 

personal information about himself or herself” — which this Court has explicitly held must 

be considered and balanced against the public interest when individuals who are not 

themselves a party to the request for access appear in the content of records subject to 

public disclosure under the RTKL. PSEA, 148 A.3d at 150, 158 (holding the right to 

informational privacy is guaranteed by the Pennsylvania Constitution, and may not be 

violated unless outweighed by a public interest favoring disclosure); Reese v. 

Pennsylvanians for Union Reform, 173 A.3d 1143, 1159 (Pa. 2017) (same; directing 

agency possessing public record to conduct PSEA balancing test prior to disclosure of 

any personal information); City of Harrisburg v. Prince, 219 A.3d 602, 618-19 (Pa. 2019) 

(donors listed in public financial record, who had not been notified of right to object to 

disclosure of their personal information during pendency of litigation, must be afforded 

 

15 We do not suggest the District is obligated to finance such redaction, which 

responsibility may fall either to the District or to the Requester depending upon other laws, 

policies, or legal directives that are not before the Court in the present appeal. 
[J-75-2019] - 25

notice and opportunity to be heard, and agency disclosing record must perform balancing 

test prior to disclosure).

Requester urges us not to address the students’ privacy interests, asserting the 

District’s argument the Commonwealth Court erred by not conducting a balancing test is 

beyond the scope of the question accepted for review. Had the District been the party 

whose privacy rights were allegedly violated, we would indeed be constrained to apply 

principles of waiver on this point. However, the present factual scenario, in which the 

privacy rights of third party individuals are implicated in RTKL requests, but no party to 

the RTKL litigation bears the responsibility to advocate for them, leaves legitimate privacy 

rights insufficiently protected. 

This circumstance is not unique to this case. In PSEA, we observed in detail the 

significant administrative hurdles and extensive litigation history — including three 

appeals to this Court — faced by third-party public school employees who simply raised 

a claim for some form of redress from an OOR decision allowing public disclosure of a 

school district record containing their home addresses.16 148 A.3d at 144-48. Here, 

though the OOR directed the District to notify any third parties of their ability to participate 

in the appeal pursuant to RTKL Subsection 1101(c), see In the matter of Miller, 2017 WL 

2313147, at *1, there is no indication in the record that such notice was provided or 

attempted, or that any student or student’s parent otherwise had knowledge of the record 

request and ensuing appeal. See 65 P.S. §67.1101(c) (third party with direct interest in 

the record subject to an appeal may request to appear or provide information to appeals 

 

16 It is surely worth noting, while the public school employees in PSEA and its preceding 

cases were ultimately afforded access to the courts and granted constitutional protection 

for their home address information, their interests were advanced collectively by their 

union; obviously, not all third parties implicated by right-to-know requests will have such 

resources at their disposal to protect their constitutional informational privacy interests 

when an agency advancing its own interests fails to do so.
[J-75-2019] - 26

officer prior to hearing and entry of order). Furthermore, while other avenues likely exist 

that might also serve to protect students’ sensitive information — such as other RTKL 

exceptions,17 or requests for guidance from the USDOE’s Family Policy Compliance 

Office and/or Student Privacy Policy Office — here, the District’s misplaced focus on

Subsection 708(b)(1)(i) serves to emphasize and underscore how the District’s 

necessarily self-interested advocacy might fail to adequately advance the discrete rights 

of students. 

The informational privacy rights of public school students and their parents — who 

are not afforded a choice about whether children go to school, how they travel there, or 

whether they are subject to videotaping by the school — are particularly and palpably 

vulnerable to violation both in the present case and within the context of right-to-know 

requests in general. For this reason, we have addressed the students’ informational 

privacy interests pursuant to PSEA. 

As indicated supra, in PSEA, this Court examined Pennsylvania’s constitutional 

protections for informational privacy and reaffirmed that the citizens of the 

Commonwealth, pursuant to Article I, Section 1 of the Pennsylvania Constitution, have a 

right to informational privacy — i.e., to control access to and dissemination of their 

personal information. PSEA, 148 A.3d at 150. Third parties whose personal information 

is contained within a public record must be afforded notice and an opportunity to be heard 

in a record request proceeding. Prince, 219 A.3d at 619. Before the government may 

release personal information, it must conduct a balancing test to determine whether the 

 

17 See, e.g., 65 P.S. §§67.708(b)(15)(i) (preventing disclosure of academic transcripts); 

67.708(b)(30) (preventing disclosure of certain identifying information concerning 

minors); 67.708(b)(5) (protecting records of disability status and medical and 

psychological records, including evaluations and treatment); 67.708(b)(28) (protecting 

records related to the receipt of social services).
[J-75-2019] - 27

right of informational privacy outweighs the public’s interest in dissemination. PSEA, 148 

A.3d at 144. It is the obligation of the agency disseminating the requested record to 

perform the balancing test, unless legislative pronouncements or prior decisions of 

Pennsylvania courts have already done so. Reese, 173 A.3d at 1159; Prince, 219 A.3d 

at 619. Pursuant to a PSEA balancing test, constitutional considerations may necessitate 

redaction of personal information not otherwise permissible under the RTKL. Reese, 173 

A.3d at 1159. 

Accordingly, though we have established the video itself is a public record subject 

to disclosure, it remains the obligation of the District to balance the students’ and their 

parents’ interests in controlling access to and dissemination of the children’s images in 

the video against the public’s interest in dissemination of those images, and to redact the 

video as necessary to protect those informational privacy interests. Because Requester 

here expressly disclaims any public interest in disclosure of the identities of the students 

depicted in the video,18 the District need not weigh any further; it can effectuate access 

to the requested record without violating the children’s informational privacy rights by 

redacting their images in the video. 

Lastly, we note this constitutional balancing test is a common law principle and not 

a statutory requirement, but is frequently implicated within RTKL record requests and 

litigation. As discussed supra, subsequent to PSEA, the agency responsible for 

disseminating a public record should perform the balancing test, though the test may also 

be subsumed within a legislative pronouncement or decision of court. See, e.g., Prince, 

219 A.3d at 619. As is evident from a review of Reese, Prince, and the present case, 

there appears to remain some confusion regarding how and when such balancing should 

occur, who must be notified of a right to object to disclosure of personal information, and 

 

18 See Letter of Rudy Miller to the OOR dated 4/4/2017; Requester’s Brief at 16.
[J-75-2019] - 28

under what circumstances courts should perform a balancing test in the absence of one 

taking place below. See also, e.g., District’s Brief at 5, 12-14 (arguing Commonwealth 

Court erred by not performing balancing test); Governor’s Office of Admin. v. Campbell, 

202 A.3d 890, 893-94 (Pa. Cmwlth. 2019) (en banc) (presuming authority to perform 

PSEA balancing test on appeal rather than remand in interest of judicial economy). 

Ideally, when third parties’ informational privacy interests are implicated by record 

requests, the agency will have received all relevant information from interested parties 

and performed such balancing as necessary on its initial review. Yet, until such processes 

are clearly established, it appears likely that third parties’ informational privacy rights will 

remain merely incidental to right-to-know litigation, and protected only insofar as they are 

adequately raised by the agency or identified and addressed by the courts. We recognize

the establishment of such procedures is a task within the legislative bailiwick, and we

therefore urge the General Assembly to undertake a review of the RTKL’s procedural 

provisions and related policy and protocols, in order to adopt such additional procedures 

as are necessary to ensure the protection of the constitutional informational privacy rights

of third parties — in particular, those rights of public school students — when they are 

implicated by right-to-know requests.19

 

19 It bears repeating, we have previously issued such entreaties to the General Assembly

regarding confusing elements of the RTKL in need of clarification, particularly with regard 

to third party notice and opportunity to be heard. See, e.g., PSEA, 148 A.3d at 159-60

(noting “the breadth of the disclosure anticipated by the RTKL and the public’s 

demonstrated appetite for information from and about the government[;]” “we reiterate to 

the OOR, and to the General Assembly, our . . . concerns regarding the disjointed and 

scant procedural protections at both the request and appeal stages of the RTKL.”); Prince, 

219 A.3d at 619 n.22 (“Despite our repeated alerts to these due process deficiencies, 

neither the General Assembly nor the OOR has implemented improved procedural 

protections for individuals whose personal information may be subject to disclosure in 

violation of their constitutional right to privacy.”). See also, e.g., Bowling v. Office of Open 

Records, 75 A.3d 453, 478, 480 (Pa. 2013) (Castille, C.J., dissenting) (“In my tenure on 

the Court, it is difficult to recall a statute that has so quickly generated so much litigation 
[J-75-2019] - 29

IV. Conclusion

For the foregoing reasons, we conclude the District did not demonstrate it would 

lose federal funding as a result of disclosing the video, and therefore, under the present 

circumstances, we hold the District may not avail itself of the exception to disclosure found 

in RTKL Subsection 708(b)(1)(i). We further hold the video itself is a public record subject 

to disclosure, but the images the video contains depicting the personally identifiable 

information of students are exempt from public disclosure pursuant to FERPA, and 

therefore also exempt from public disclosure under RTKL Subsection 305(a)(3). 

Accordingly, the Order of the Commonwealth Court is affirmed, with instructions to the 

District to redact the students’ images prior to disclosure.

Justices Todd and Donohue join the opinion.

Justices Baer and Wecht join Part III(A)(2), and join the mandate to the extent it 

requires disclosure of the subject video, albeit they would favor disclosure in an 

unredacted form.

Chief Justice Saylor and Justice Mundy join Part III(B) to the extent it determines 

the subject video was an educational record, and join the mandate to the extent it 

precludes disclosure of information that could reveal the identities of the students in the 

video.

Chief Justice Saylor files a concurring and dissenting opinion in which Justice 

Mundy joins.

Justice Baer files a concurring and dissenting opinion in which Justice Wecht joins.

 

involving seemingly overlooked foundational matters. . . . What is plain beyond question 

is that the statute is in need of significant revision and refinement.”).