Samuel A. Hornak senior attorney of Clark Hill.

For decades, Americans have debated the contours and existence of a constitutional right to privacy, and the courts are often called to balance public values with private concerns. Increasingly, these disputes have found their way through the schoolhouse door. In Pennsylvania, efforts to balance public disclosure with personal privacy have followed teachers to their homes and joined students on the school bus. For the second time in five years, the Pennsylvania Supreme Court has issued a major opinion relating to the right to privacy in Pennsylvania schools.

In early 2017, a journalist submitted a public records request to an Allentown area school district for a copy of school bus surveillance footage. The journalist wanted to review video that allegedly depicted a teacher's rough, physical discipline of a student. While the focus of the request was upon the teacher's behavior and the school district's reaction, the footage also depicted the student in question—as well as other students riding on the bus. In its June 18 opinion, the court held that surveillance video of students riding on a school bus was subject to disclosure under the "Right to Know Law" (RTKL), subject to some limitations. See Easton Area School District v. Miller, No. 13 MAP 2019, (Pa. 2020). The Easton decision follows the court's earlier decision in Pennsylvania State Education Association v. Commonwealth, Department of Community and Economic Development, 148 A.3d 142 (PA. 2016) (PSEA)—which held that school teachers enjoy a constitutional right to privacy in their home addresses, even where Pennsylvania's open records law might suggest otherwise.

Under the Pennsylvania Right to Know Law, 65 P.S. Sections 67.101 et seq., public agencies—such as public school districts—are required to disclose most records in their possession, unless one or more limited exceptions apply. 65 P.S. Section 67.302(a) and Section 708. The RTKL is a powerful tool for anyone seeking information from a public entity, and the courts apply exceptions to disclosure only sparingly. However, in both the PSEA and Easton decisions, the courts fought to protect the privacy rights of individual citizens, even where the technical requirements of the RTKL seemed to require disclosure to the public.

The RTKL is an unforgiving statute. It imposes strict and short response times for public agencies that are often ill-equipped to handle numerous requests at once. The statute imposes no "reasonableness" requirement on requests—requestors can seek broad swaths of information and need not state the reason for their requests. The Supreme Court's decisions in PSEA and Easton are remarkable for the humane balances that they strike between the competing imperatives of public openness and personal privacy. In both decisions, the Supreme Court used a constitutional right to privacy to protect the rights of students and teachers where the text of the RTKL offered few safeguards.

Several years ago, in the PSEA case, the court found a "constitutional right to privacy in one's home address in connection with RTKL requests." In Pennsylvania, this constitutional right "may not be violated unless outweighed by a public interest favoring disclosure." The court did not limit the scope of the constitutional protection to teachers' addresses. However, its holding is particularly important to public education. Public school districts receive many RTKL requests for matters of true public concern, but often responsive documents may reveal information about students and teachers that has no relation to contract negotiations or the district's finances. In its recent decisions, the Pennsylvania Supreme Court protected teachers and students from the consequences of their working and studying in school funded by public money. After all, the PSEA court reasoned, "public school employees just want to work, and should not be required to forfeit their privacy merely as a precondition to, or by virtue of, their decision to be employed as public school employees." Public employees everywhere can be thankful for the PSEA decision.

This June, in Easton, the school district initially denied access to the school bus video on the basis that its production could threaten the district's federal funding under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. Section 1232(g). After taking appeals through the Pennsylvania Office of Open Records and the courts, the Pennsylvania Supreme Court ultimately held that the surveillance video is a public record subject to disclosure under the RTKL, and that releasing the video would not threaten federal funding under FERPA.

The ultimate holding in the Easton case—that the school district was required to produce the video–was driven by a technical analysis of the RTKL and FERPA, as well as the intricacies of the litigation positions that the parties took throughout the appeals. But the most significant aspect of the Easton decision is the continuing concern that the court displayed for the rights of students, and the efforts the court took to protect the rights of the students who were not party to the case.

The Supreme Court recognized that a technical reading of the RTKL may "subject any school surveillance to disclosure, without parental consent, to any resident of the commonwealth who makes a request pursuant to the RTKL." The court observed that "in the case of a school bus surveillance video, such 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." The court noted the "obvious safety concerns" of such disclosure, and then built on its earlier PSEA decision by noting that students on a school bus also have a constitutional right "to control access to, or the dissemination of, personal information about himself or herself."

The compromise framing both decisions is clerical, but powerful: the right to redact. The RTKL provides that where information subject to disclosure is combined with information exempt from disclosure, the public entity should balance the right of the public to access records and information with individual citizens' right to privacy by providing redacted records. In Easton, the court explicitly required that the surveillance video be redacted, to allow the disclosure of public content, without revealing the identities of the students depicted in the footage. Similarly, the PSEA decision implies that redaction of addresses is an efficient way to produce nonexempt public records without endangering teachers or violating their right to privacy. This balancing act generally prevents the disclosure of citizens' home addresses—both in the education context and for society at large.

The practical implications of both the PSEA and the Easton decisions are important for anyone affiliated with a public agency—or who requests records from one. Any person submitting a records request should consider allowing for redacted records. Particularly where a requestor is not seeking specific information about employees, students or individual people, this concession will give the public entity fewer ways to prevent disclosure under the RTKL. Similarly, any public entity subject to the RTKL (especially school districts) should consider redaction of records to serve the twin public interests of promoting open government and protecting the rights of private individuals.

But the broader legacy of the Supreme Court's decisions in PSEA and Easton is the court's ongoing effort to read practicality to a statute that is so rigid in application. This line of cases has the potential to serve both individuals and the general public by protecting individual rights, even as it allows expanded, targeted disclosures related to matters of true public concern.

Samuel A. Hornak is a senior attorney at Clark Hill. His practice includes the representation of corporations, governments, and individuals before federal and state courts, and it involves a diverse array of legal issues—ranging from commercial contractual disputes to real estate development and tenancy matters. Contact him at [email protected].