IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of Philadelphia, :

Appellant :

:

v. :

:

Jessica Calefati and the : No. 1285 C.D. 2020

Philadelphia Inquirer : Submitted: December 16, 2021

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: January 12, 2022

The School District of Philadelphia (District) appeals from the 

Philadelphia County Common Pleas Court’s (trial court) November 19, 2020 order 

that denied the District’s appeal from the Office of Open Records’ (OOR) Final 

Determination, affirmed the OOR’s Final Determination, and directed the District to 

produce the requested data with student identifiers redacted and in CSV2format or 

other machine readable or electronic format as maintained by the District. The 

District presents two issues for this Court’s review: (1) whether the trial court erred

by ordering the District to provide student-level attendance reports with student 

identifiers redacted when the District is incapable of generating the requested reports 

without direct student identifiers because the entirety of the attendance report is 

1 This matter was assigned to the panel before January 3, 2022, when President Judge 

Emerita Leavitt became a senior judge on the Court. 

2 CSV is a delimited text file that can be opened with Microsoft Excel. See

https://support.office.com/en-us/article/Import-or-export-text-txt-or-csv-files-5250ac4c-663c47ce-937b-339e391393ba (last visited January 11, 2022). 
2

exempt from disclosure under the Family Educational Rights and Privacy Act 

(FERPA);

3

and (2) whether the trial court erred by ordering the District to release

personally identifiable information contained in individual student-level attendance 

reports in contradiction with the United States (U.S.) Department of Education 

Guidance on FERPA finding that redaction alone does not sufficiently de-identify 

student-level data. After review, this Court affirms.

On June 13, 2019, the Philadelphia Inquirer and Jessica Calefati, a 

former newspaper reporter (collectively, Requesters), submitted to the District the 

following three Right-to-Know Law (RTKL)4requests (Requests), seeking:

Attendance Period Count Reports for all [D]istrict schools 

for the following school years: 2012-2013, 2013-2014, 

2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-

2019. Please provide a separate report for each term.

Each report should be grouped by period and include all 

grades. Each report should include all student[s] with 

student names redacted. Each report should include the 

statuses of absent, tardy and early release and include all 

excuse codes. Each report should include school name 

and school code. 

If possible, please provide the aggregated data contained 

in these reports in CSV format.

Reproduced Record (R.R.) at 1 (emphasis omitted).5

Attendance Period Count Reports for all [D]istrict schools 

for the following school years: 2012-2013, 2013-2014, 

3

20 U.S.C. § 1232g (relating to family educational and privacy rights).

4 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

5 The District’s Reproduced Record fails to comply with the Pennsylvania Rules of 

Appellate Procedure. See Pa.R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be 

numbered separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by 

a small a, thus 1a, 2a, 3a, etc.”). The District failed to include the small “a” with its record page 

numbers. However, for consistency of reference, the citations herein are as reflected in the 

Reproduced Record.
3

2014-2015, 2015-2016, 2016-2017, 2017-2018, 2018-

2019. 

Each report should be grouped by period and include all 

grades. Each report should include the statuses of absent, 

tardy and early release and include all excuse codes. Each 

report should include school name and school code. 

All data should be summarized at the school level for the 

full school year.

If possible, please provide the aggregated data contained 

in these reports in CSV format.

R.R. at 2 (emphasis omitted).

[Average Daily Attendance (]ADA[)] and [Average Daily 

Membership (]ADM[)] Detail Reports for all [D]istrict 

schools for the following school years: 2012-2013, 2013-

2014, 2014-2015, 2015-2016, 2016-2017, 2017-2018,

2018-2019. 

Please redact student names from the “detail” portion of 

each report. Each report should include school name and 

school code. 

If possible, please provide the aggregated data contained 

in these reports in CSV format.

R.R. at 3 (emphasis omitted).

On July 23, 2019, the District denied Requesters’ Requests. On August 

1, 2019, Requesters appealed to the OOR. During the proceedings before the OOR,

the District asserted for the first time that the attendance information Requesters 

sought was exempt from disclosure under FERPA.

On September 6, 2019, the OOR concluded that the requested records 

were not exempt under FERPA, and directed the District to disclose the records to 

Requesters. On October 4, 2019, the District appealed to the trial court. The trial 

court held a hearing on November 19, 2020, after which it denied the District’s 
4

appeal and directed the District to disclose the requested records. The District 

appealed to this Court.6, 7 

Initially, Section 1232g(b) of FERPA provides, in relevant part:

Release of education records; parental consent 

requirement; exceptions; compliance with judicial 

orders and subpoenas; audit and evaluation of 

federally-supported education programs;

recordkeeping

(1) 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 to any 

individual, agency, or organization, other than to the 

following--

. . . . 

(2) No funds shall be made available under any applicable 

program to any educational agency or institution which 

has a policy or practice of releasing, or providing access 

to, any personally identifiable information in education 

6 This Court’s “review of a trial court’s order in a[n] RTKL dispute is 

‘limited to determining whether findings of fact are supported by 

competent evidence or whether the trial court committed an error of 

law, or an abuse of discretion in reaching its decision.’” Butler Area 

Sch. Dist. v. Pennsylvanians for Union Reform, 172 A.3d 1173, 

1178 n.7 (Pa. Cmwlth. 2017) (quoting Kaplin v. Lower Merion 

Twp., 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011)). “The scope of 

review for a question of law under the [RTKL] is plenary.” SWB 

Yankees LLC v. Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 

2010) (quoting Stein v. Plymouth Twp., 994 A.2d 1179, 1181 n.4 

(Pa. Cmwlth. 2010), aff’d, . . . 45 A.3d 1029 ([Pa.] 2012)).

Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 178 n.8 (Pa. Cmwlth. 2019).

7 The Pennsylvania School Boards Association and the Pittsburgh School District filed 

amicus curiae briefs in support of the District, and the Pennsylvania NewsMedia Association, the 

Reporters Committee for Freedom of the Press, and seven media organizations filed an amicus 

curiae brief in support of Requesters.
5

records other than directory information,

[8] or as is 

permitted under paragraph (1) of this subsection, 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) except as provided in paragraph (1)(J), 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[.]

20 U.S.C. § 1232g(b) (italic emphasis added). Section 1232g(a)(4)(A) specifies: 

For the purposes of this section, the term “education 

records” means, except as may be provided otherwise in 

subparagraph (B), 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).

The District first argues that it is unable to generate a report of 

individual student-level data without including personally identifiable information 

in the report. The District contends that, under the plain language of Section 705 of 

the RTKL, 65 P.S. § 67.705, an agency is not required to create or format a record 

8

[T]he 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).
6

in a manner specified by a requester but, rather, an agency need only provide the 

information in the manner in which it currently exists.9 Requesters rejoin that neither 

extraction of information from a database, nor redaction of non-public information 

from a public record constitutes the creation of a record.

Section 705 of the RTKL provides: “When responding to a request for 

access, an agency shall not be required to create a record which does not currently 

exist or to compile, maintain, format or organize a record in a manner in which the 

agency does not currently compile, maintain, format or organize the record.” 65 P.S. 

§ 67.705. However, Section 706 of the RTKL clarifies: 

If an agency determines that a public record . . . contains 

information which is subject to access as well as 

information which is not subject to access, the agency’s 

response shall grant access to the information which is 

subject to access and deny access to the information which 

is not subject to access. If the information which is not 

subject to access is an integral part of the public record . . .

and cannot be 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. The agency 

may not deny access to the record if the information 

which is not subject to access is able to be redacted. . . . 

65 P.S. § 67.706 (emphasis added). 

The Pennsylvania Supreme Court addressed the interplay between

Sections 705 and 706 of the RTKL in Pennsylvania State Police v. Grove, 161 A.3d 

877 (Pa. 2017), wherein it explained:

[T]his issue involves the application and interplay of 

Sections 705 and 706 of the RTKL, which simultaneously 

9 The District cites Feldman v. Pennsylvania Commission on Crime & Delinquency, 208 

A.3d 167 (Pa. Cmwlth. 2019), to support its position. However, Feldman involved requests for an

agency to produce records in a different format than that maintained by the agency. The Feldman 

Court held that, where an agency showed requested information existed in three different charts,

it was not required to combine data into a single report. Accordingly, Feldman is inapposite.
7

prohibit the creation of “new records” while expressly 

requiring the release of redacted versions of agency 

records that contain both public and non-public 

information. In determining whether a court may order the 

redaction of certain portions of [requested records] 

without improperly resulting in the creation of a new 

record, we consider relevant principles of statutory 

construction. It is central to our analysis that “[e]very 

statute shall be construed, if possible, to give effect to all 

its provisions.” [Section 1921(a) of the Statutory

Construction Act of 1972 (SCA),] 1 Pa.C.S. § 1921(a). 

Further, in ascertaining the intent of a statute, we presume 

“the General Assembly does not intend a result that is 

absurd, impossible of execution or unreasonable.” 

[Section 1922(1) of the SCA,] 1 Pa.C.S. § 1922(1). We 

further presume “the General Assembly intends the entire 

statute to be effective and certain.” 1 Pa.C.S. § 1922(2). 

Construing Sections 705 and 706 of the RTKL with these 

principles in mind, while also giving effect to both statutes 

as we must, it is without question redaction of 

[requested records] under Section 706 [of the RTKL]

to protect exempt material does not result in the 

creation of a new record in violation of Section 705 [of 

the RTKL]. Adoption of [an] argument to the contrary 

would render Section 706 [of the RTKL] in derogation of 

the express principles of the [SCA], as it would result in 

the prohibition of redaction of otherwise publicly 

accessible records, and render public information exempt 

from disclosure.

Grove, 161 A.3d at 897 (emphasis added). Accordingly, because redacting 

identifiable information does not constitute the creation of a record, the District’s 

argument is without merit.

The District next asserts that records that are wholly exempt from 

disclosure under FERPA need not be redacted and released. The District contends 

that,since the requested student-level attendance reports are education records under 

FERPA, a federal law, the presumption under Section 305 of the RTKL, 65 P.S. § 

67.305, that agency records are public does not apply, and Section 306 of the RTKL, 

65 P.S. § 67.306, requires deference to FERPA’s privacy mandates. The District 
8

declares that, pursuant to FERPA regulations, the District may release only directory 

information without consent. See 34 C.F.R. § 99.31(b)(1). FERPA regulations 

generally define “directory information” as “information contained in an education 

record of a student that would not generally be considered harmful or an invasion of 

privacy if disclosed.” 34 C.F.R. § 99.3. “Directory information” includes “dates of 

attendance.” Id. The District emphasizes that FERPA regulations expressly exclude 

from the definition of “directory information” the “specific daily records of a 

student’s attendance at an educational agency or institution.” Id.

Requesters rejoin that the District’s argument improperly attempts to 

relieve the District of its burden under Section 708(b)(1) of the RTKL, 65 P.S. § 

67.708(b)(1), to prove a record is exempt from public disclosure.10 Moreover, 

Requesters retort that the Pennsylvania Supreme Court in Easton Area School 

District v. Miller, 232 A.3d 716 (Pa. 2020), a plurality opinion, addressed and 

rejected the District’s exact argument. Requesters maintain that this Court has 

subsequently adopted the Easton Court’s holding that FERPA does not categorically 

bar public disclosure of education records. See Cent. Dauphin Sch. Dist. v. Hawkins, 

253 A.3d 820, 834 (Pa. Cmwlth.), appeal granted (Pa. No. 287 MAL 2021, filed 

Nov. 30, 2021).

Section 305(a) of the RTKL provides:

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 [S]ection 708 [of the 

RTKL];

(2) the record is protected by a privilege; or

10 The District does not argue to this Court that the exemption under Section 708(b)(1) of 

the RTKL applies herein.
9

(3) the record is exempt from disclosure under any other 

[f]ederal or [s]tate law or regulation or judicial order or 

decree.

65 P.S. § 67.305(a). Section 306 of the RTKL states: “Nothing in this act shall 

supersede or modify the public or nonpublic nature of a record or document 

established in [f]ederal or [s]tate law, regulation or judicial order or decree.” 65 P.S. 

§ 67.306. Pursuant to Section 708(b) of the RTKL, “the following are exempt from 

access by a requester under th[e] [RTKL]: (1) A record, the disclosure of which: (i) 

would result in the loss of [f]ederal or [s]tate funds by an agency or the 

Commonwealth[.]” 65 P.S. § 67.708(b).

The Easton Court explained:

[T]o avail itself of an exemption from disclosure under 

RTKL Subsection 305(a)(3), the District had the burden of 

proving the [requested records were] 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.

Easton, 232 A.3d at 730 (italics omitted). 

Section 93.31(b)(1) of FERPA’s Regulations provides:

De-identified records and information. An educational 

agency or institution, or a party that has received 

education records or information from education records 

under this part, may release the records or information 

without the consent required by [Section] 99.30 [of 

FERPA’s Regulations] 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, whether through single or multiple 

releases, and taking into account other reasonably 

available information.

34 C.F.R. § 99.31(b)(1) (emphasis added). The Easton Court clarified:
10

[A]s 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).

Easton, 232 A.3d at 730. 

Accordingly, a FERPA-compliant educational institution 

must not release the students’ personally identifiable 

information . . . to the extent the students are reasonably 

identifiable - to anyone other than the parent or eligible 

student, absent one of the conditions listed under [Section 

132g(b)(1) of] FERPA . . . (which do not include release 

of information to the press or a to [sic] public records 

requester), without proper consent, or a judicial order or 

subpoena. Yet, that same institution may release the

[requested records], despite [their] status as [] education 

record[s], once the students’ identifiable [information] 

ha[s] been redacted. We therefore conclude: [the 

requested records] 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 [requested 

records] can be redacted to remove their personally 

identifiably information, the [requested records are] 

not exempt, and [they] therefore must be disclosed. See

[Section 102 of the RTKL,] 65 P.S. §§ 67.102, 

67.305(a)(3).

Easton, 232 A.3d at 730-31. For the foregoing reasons, the District’s argument fails.

Alternatively, the District argues that, even if the student-level daily 

attendance records are not wholly exempt from public access, the trial court erred as 

a matter of law when it ordered the District to provide the requested data with student 

identifiers redacted. The District asserts that simple redaction does not sufficiently 

de-identify student-level daily attendance records, and an agency is not required to 

create a new record in order to de-identify information. The District contends that 
11

the redacted requested records would still include personally identifiable 

information as defined in FERPA’s Regulations.

11

 

Section 99.3 of FERPA’s Regulations defines “[p]ersonally 

[i]dentifiable [i]nformation” to include but not be limited to inter alia “[o]ther 

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 C.F.R. § 99.3 (italic and bold emphasis added). The 

District’s argument that the requested records in combination with other records 

would allow a reasonable person in the school community to identify the student 

with reasonable certainty only makes sense if the person in the school community 

has personal knowledge. Thus, if the person already has personal knowledge, “then 

withholding the [requested records] would not serve the purposes of protecting the 

privacy of the student under FERPA.” Hawkins, 253 A.3d at 834. Accordingly, the 

District’s alternative argument also lacks merit.

Finally, the District argues that Section 705 of the RTKL does not 

require the District to create a new record in order to adequately de-identify studentlevel attendance records, and cites to the U.S. Department of Education Privacy 

Technical Assistance Center (Guidelines) as support for its position.12 The District 

11 Requesters rejoin that the District is raising this “factual allegation[]” for the first time 

on appeal and, therefore, it is waived. Requesters’ Br. at 16. Requesters cite McKelvey v. 

Pennsylvania Department of Health, 255 A.3d 385 (Pa. 2021), to support their position. However,

the McKelvey Court specifically referred to withholding evidence and then supplementing the 

record with new evidence at later stages of the proceedings. See id. Because Requesters do not 

claim, and the District did not “withhold evidence, [and] then introduce new evidence” at the 

appeal stage, the District did not waive this argument. McKelvey, 255 A.2d at 409. To the extent 

Requesters contend the District cannot now rebut Requesters’ evidence before the trial court with 

new allegations, this Court agrees, and has not considered any new information in this decision.

12 The U.S. Department of Education established the Privacy 

Technical Assistance Center (PTAC) as a “one-stop” resource for 
12

declares that, because providing fully de-identified information would require 

creation of a new record, the District properly denied the Requests, and the OOR’s

Final Determination ordering release of partially de-identified individual studentlevel data should be reversed. Requesters rejoin that those Guidelines provide that 

“de-identification is considered successful when there is no reasonable basis to 

believe that the remaining information in the records can be used to identify an 

individual.” Data De-Identification: An Overview of Basic Terms

https://studentprivacy.ed.gov/sites/default/files/resource_document/file 

data_deidentification_terms.pdf (last visited Dec. 17, 2021). The District, which has 

the burden of proof, presented no evidence to establish how the requested student 

attendance data, with student identifiers redacted, could be used to identify students.

After conducting an evidentiary hearing, the trial court concluded:

Given that [the District] was capable of making such 

information publically [sic] available on its website in 

redacted form for an instruction manual for teachers, staff, 

and parents to access, it is unclear why the same 

information could not be made readily available on a wider 

basis for the general student population in a given school 

district. Further, because a large portion of the

information sought had already been made readily 

available by [the District] in the form of its instruction 

manual for the [] District’s Master Schedule Attendance 

Report System, it is also unclear as to why [the District] 

education stakeholders to learn about data privacy, confidentiality, 

and security practices related to student-level longitudinal data 

systems. PTAC provides timely information and updated guidance 

on privacy, confidentiality, and security practices through a variety 

of resources, including training materials and opportunities to 

receive direct assistance with privacy, security, and confidentiality 

of longitudinal data systems.

Data De-Identification: An Overview of Basic Terms

https://studentprivacy.ed.gov/sites/default/files/resource_document/file/data_deidentification_ter

ms.pdf (last visited January 11, 2022). 
13

now claims it cannot produce virtually the same 

information on a much wider student basis to meet the 

needs [of] [Requesters’] RTKL [R]equest[s].

It should be noted that at the November 19, 2020[]

hearing, [the District] offered no direct rebuttal to the 

exhibit produced by [Requesters] or explanation as to why 

the student identifiers could not be redacted for 

[Requesters] in the same manner as they had been redacted 

in the sample attendance reports contained in [Requesters’ 

exhibit]. Given [the District’s] failure to adequately 

explain how or why it could not produce the same 

attendance reports with student identifiers redacted for

[Requesters], while at the same time making that exact 

type of information for an instruction manual publically 

[sic] available on its website, [the trial c]ourt was unable 

[to] find [the District’s] claims [that] it was incapable of 

generating the reports credible. As such, [the trial c]ourt 

properly denied [the District’s] appeal and affirmed the 

decision of the OOR. 

R.R. at 32 (Trial Ct. Op. at 7). This Court sees no error in the trial court’s reasoning. 

Accordingly, the District’s argument cannot stand. 

For all of the above reasons, the trial court’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of Philadelphia, :

Appellant :

:

v. :

:

Jessica Calefati and the : No. 1285 C.D. 2020

Philadelphia Inquirer :

O R D E R

AND NOW, this 12th day of January, 2022, the Philadelphia County 

Common Pleas Court’s November 19, 2020 order is affirmed.

_________________________________

ANNE E. COVEY, Judge