In today’s technological society most, if not all, school districts are equipped with video cameras within and outside school buildings. Questions have risen as to who has access to view these video recordings.
Recently, two court cases have been decided which shed some light on whether or not individuals have the ability to access these video recordings. Pursuant to these two decisions, parents would be permitted to have access to these videos under the Family Educational Rights and Privacy Act (FERPA) and under the Pennsylvania Right to Know law.
In regard to the video surveillance being subject to FERPA, the Utah Court of Appeals found a video is protected under FERPA and can only be disclosed under the requirements of this law. In Bryner v. Canyon School District, 2015 UT App 131 (May 29, 2015), the defendant filed a complaint in the trial court seeking to compel the school district to produce a copy of a video surveillance recording taken by a security camera at a school. The district determined that the video constituted an education record and the disclosure requirements of FERPA prohibited release of the record to the plaintiff without the consent of the parents of the other students shown in the video. The plaintiff filed a motion for summary judgment seeking a ruling that the video was not an education record within the meaning of FERPA.
The court denied the plaintiff’s motion, ruling the record sought was an education record, that it contained the personally identifiably information of other students, and that the video was therefore subject to disclosure requirements of FERPA. The trial court also ruled that the district had to produce a redacted version of the video, but only if the plaintiff paid the cost of the redaction. The plaintiff challenged this ruling on appeal. The Utah Court of Appeals agreed with the trial court that the video was subject to FERPA and the plaintiff’s motion for summary judgment was thus correctly denied. Because FERPA forbids release of the unredacted video, the court also agreed that the district may produce only a redacted copy and the plaintiff should bear the cost of that redaction. The Court went on to state in its analysis that due to the fact that the Family Policy Compliance Office of the United States Department of Education (which implements and oversees compliance with FERPA) determined that images of students involved in an incident caught on video do constitute education records of those students. Therefore, the video is nothing more than a record of the actions of the students involved in the video and therefore the students’ images in the video constitute information identifying the students. Accordingly, the video contained information “directly related to the students involved in the incident.” Since it was determined by the court that the video constituted information identifying the student, the protections were afforded under FERPA for disclosure.
School districts need to realize that parents do have the right to view videos of their children when the child is involved in an incident captured on video. However, under the ruling out of Utah, districts will also need to understand that, should a request from a parent and/or an outsider for release of information on a video surveillance is filed, the district may have to supply the video with redacted images for use. Without the redaction of certain parts of the video surveillance, which would identify other students, then the restrictions on disclosure under FERPA should be followed and parental permission is required in order to release the video in its entirety.
Recently, the Commonwealth Court of Pennsylvania decided in Pennsylvania State Police (PSP) v. Grove, No. 1146 C.D. 2014 – July 7, 2015, that a request by an individual for a video from the PSP should be provided. The Court concluded that such recordings of a police stop are not exempt from disclosure. The Court affirmed that the Office of Open Records Order requiring the PSP to provide a copy of the video recording, which contains no audio component, should be provided and that redaction of exempt information from the audio component of that recording should also be provided. This same interpretation can be used in the video surveillance for school districts.
The reason that this case is important is that a school district, like the Pennsylvania State Police, is a public agency. If you have a video recording of an incident, it may be subject to the Right To Know law, however school districts will need to evaluate the specific video and determine if redaction of that video is allowed to be released pursuant to the exemptions under the law. School districts can no longer flat out deny a request for a copy of a video recording. Districts will need to carefully evaluate the specific recording and determine if there is any need for redaction based on the protections under the law.
To summarize these cases, video recording of incidents occurring within school districts may be subject to disclosure and/or protections under the law. If the video recording is an incident involving a student, the district will need to determine if, pursuant to FERPA, permission is going to be needed to release the video and/or if the video can be released with proper redactions. Furthermore, a Right To Know Request for a video recording must be evaluated by the Right To Officer of the school district and the Right To Know Officer must determine if redaction is necessary under the exemptions afforded under the law. It is advised that if any school district receives a request for a copy of a video recording that the school district contact its solicitor.
This post was written by Benjamin L. Pratt, chair of CGA Law Firm’s School Law Practice Group. It was included in the October 2015 edition of CGA’s School Law Newsletter.