REPRODUCED RECORD2016 -CV -04401 -MP Central Dauphin School Districtvs.Valerie Hawkins, et al. 08/05/2016 RULE Upon consideration of the Petition of PA Media Group to Intervene, IT

REPRODUCED RECORD

TABLE OF CONTENTS

1. Certified Docket R. 001a

2. February 23, 2016 Right to Know Law Request ("RTKL") of Valerie Hawkins and Fox 43 News ("collectively Requester") R. 004a

3. District's Final Response to RTKL Request dated March 24, 2016. R. 006a

4. Requester's Appeal to the Office of Open Records ("OOR") dated March 24, 2016 R. 007a

5. OOR's Official Notice of the Requester's Appeal dated March 25, 2016 R. 008a

6. The District's Letter Brief in response to the Appeal dated April 1,

2016 R. 019a

7. OOR's Final Determination issued on May 19, 2016 at OOR Dkt# AP 2016-0583 R. 028a

8. The District's Petition for Review filed June 9, 2016 R. 037a

9. Rule to Show Cause dated June 27, 2016 R. 097a

10. Notice of Non -Participation of OOR filed July 8, 2016 R. 098a

11. Requester's Answer to the Petition for Review filed July 14, 2016 R. 103a

12. Motion to Order OOR to file a certified copy of the record on appeal filed August 4, 2016 R. 133a

13. Order dated August 11, 2016 R. 139a

14. Certification of Record from the Office of Open Records filed August 30, 2016 R. 140a

15. Order scheduling Status Conference filed October 12, 2016 R. 178a

i

16. Order scheduling Hearing filed January 5, 2017 R. 179a

17. Stipulations of Parties dated March 30, 2017 R. 180a

18. Transcript of Hearing held on March 30, 2017 and filed on April 25, 2017 R. 228a

19. The District's Post -Hearing Brief filed May 22, 2017; Ex. 1,

hearing transcript omitted here as it is included in No. 17 above at R. 225a R. 283a

20. The Requester's responsive Post -Hearing Brief filed June 21, 2017 R. 380a

21. The District's Post -Hearing Reply Brief filed July 6, 2017 R. 431a

22. Memorandum Opinion and Order dated August 1, 2017 R. 447a

23. Concise Statement of Matters Complained of on Appeal filed August 17, 2017 R. 464a

24. Statement in Lieu of Rule 1925(a) Opinion dated October 12, 2017 R. 470a

ii

Dauphin

ROA Listing

2016 -CV -04401 -MP

Central Dauphin School Districtvs.Valerie Hawkins, et al. Date Code 08/01/2017 OPINION 07/06/2017 BRIEF

06/21/2017 RESPONSE

05/22/2017 BRIEF

04/25/2017 TRANOPRO

03/31/2017 01/05/2017

REQTRANS HRHD HEARING

10/12/2016 HEARING

10/06/2016 ADMNAPP

08/30/2016 CERT

08/25/2016 ORDER

08/22/2016 ANSWER

08/11/2016 ORDER

Action Clerk Judge See Opinion of August 1, 2017, filed LGARCIA Tully, William T.

Post -Hearing Reply Brief, filed. AWELCOME No Judge R

Response of Valerie Hawkins and Fox 43 AWELCOME No Judge News to Petitioner's Post -Hearing Brief, filed. R

Post -Hearing Brief, filed. AWELCOME No Judge R

Transcript of Proceedings taken on AWELCOME Tully, William T. Thursday, March 30, 2017, before the R Honorable William T. Tully,filed. Request for Transcript or Copy, filed. Hearing Held. See ORDER, filed. Hearing scheduled for Hearing on March 30, 2017 at 1:00 PM in Courtroom 11. See Order, filed. Copies Distributed by Chambers on 1/5/17. Hearing scheduled for Status Conference on LGARCIA Tully, William T. December 20, 2016 at 9:00 AM in Chambers. See Order, filed. Copies Distributed by Chambers on 10/12/16. Administrative Application for Status Conference, filed. Certification of Record from the Office of AWELCOME No Judge Open Records, filed. R

Upon review of the Petition of PA Medical Group to Intervene and the Central Dauphin School District's Response thereto, IT IS HEREBY ORDERED that the Petition is DENIED. See ORDER filed. Copies dist on 8/25/16. Answer to petition of Pa Media Group to intervene/response to rule to show cause, filed.

Upon review of the Uncontested Motion to Order the Office of Open Records to File a Certified Copy of the Record on Appeal, IT IS HEREBY ORDERED that the Motion is GRANTED. The Commonwealth of Pennsylvania Office of Open Records shall provide the Court a certified copy of the record on appeal within twenty days of the date of this Order. See ORDER filed. Copies dist on 8/11/16.

SGRIFFITH Tully, William T.

LGARCIA Tully, William T.

SGRIFFITH Tully, William T.

AREDMOND Tully, William T.

SGRIFFITH No Judge


Page 1 of 3 08/09/2017 08:56 AM R.

:1REDMOND

Dauphin

ROA Listing

2016 -CV -04401 -MP

Central Dauphin School Districtvs.Valerie Hawkins, et al. 08/05/2016 RULE Upon consideration of the Petition of PA

Media Group to Intervene, IT IS HEREBY ORDERED that (1) A RULE is issued upon Respondents Central Dauphin School District, Valerie Hawkins, Fox 43 News, and the Commonwealth of Pennsylvania Office of Open Records to show cause why the requested relief should not be granted. (2) Respondents are directed to file a response within fourteen (14) days of service of this Order. See RULE filed. Copies dist on 8/5/16.

Uncontested motion to order the Office of SGRIFFITH No Judge Open Records to file a certified copy of the record on appeal, filed.

Judge assigned to case.

08/04/2016 MOTION

08/03/2016 JUDGEADM

08/02/2016 PETITION

07/19/2016 ORDER

07/14/2016 ANSWER

PRCENT

ATTREC

ATTREC

ATTREC

MOTION 07/08/2016 NOTICE

Petition of PA Media Group to Intervene, filed. The Motion of Pa Group to Intervene filed July 14, 2016 will not be entertained. All parties are directed to Pennsylvania Rule of Civil Procedure 2328, which states that an application for leave to intervene shall be made by petition. The moving party is directed to review the rule referenced above and resubmit a filing in conformance with the referenced rule to the Prothonotary. See Order filed. Copies Dist by Ct Admin. 7/20/16 Answer of Respondents Fox 43 News and Valerie Hawkins to the Petition for Review filed by Petitioner Central Dauphin School District, filed.

Craig J. Staudenmaier, Esquire Joshua D. Bonn, Esquire and Nathaniel J. Flandreau, Esquire enters appearance on behalf of PA Media Group, See Praecipe, filed.

Defendant: Fox 43 News Attorney of Record: Joshua D Bonn

Defendant: Hawkins, Valerie Attorney of Record: Nathaniel J Flandreau Defendant: WPMT Attorney of Record: Craig J Staudenmaier Motion of PA Media Group to Intervene, filed. Notice of non -participation of the Office of Open Records. See PRAECIPE, filed.


LHAGENBU Tully, William T. CH

AWELCOME No Judge R

LGARCIA Bratton, Bruce F.

AWELCOME No Judge R

SGRIFFITH No Judge

Page 2 of 3 R. 0Q2a

08/09/2017 08:56 AM User IU: AREDMOND

Dauphin

ROA Listing

2016 -CV -04401 -MP

Central Dauphin School Districtvs.Valerie Hawkins, et al. 06/27/2016 RULE upon consideration of the Petition for Review LBECHTEL Bratton, Bruce F.

of a Final Determination of the Pennsylvania Office of Open Records that was filed by Petitioner Central Dauphin School District, a Rule is hereby issued upon Respondents, to show cause, if any it has, why the relief requested should not be granted. RETURNABLE in writing within 20 days from the date of service of this Rule. See Order filed. Copies Dist. on 6/24/2016.

06/10/2016 JUDGEADM Judge assigned to case.

06/09/2016 Z -DT -OT AOPC MONTHLY CIVIL COURT STATISTICAL REPORT DATA (AGING PURPOSES - CIVIL OTHER) Filing: Petition Paid by: Eckert Seamans Cherin & Mellott, LLC Receipt number: 0359916 Dated: 6/9/2016 Amount: $197.25 (Check) For: Central Dauphin School District (plaintiff)

CVCASE New Civil Case Filed This Date.

XAA-SA-O Notice of Appeal/Petition for Review, filed.

AOPC MONTHLY CIVIL COURT STATISTICAL REPORT DATA

ATTREC Plaintiff: Central Dauphin School District Attorney of Record: Michael McAuliffe Miller

LHAGENBU Bratton, Bruce F. CH

ADEETER No Judge

Page 3 of 3 R. 00_3a

08/09/2017 08:56 AM User IU: AREDMOND

Henry, Faith

From: Hawkins, Valerie <[email protected]>

Sent: Thursday, March 24, 2016 2:40 PM

To: DC, OpenRecords

Subject: F0X43 NEWS-->RTK appeal form

Attachments: Appeal_Form_Revised_2016-01-04 (Fillable)-1,pdf; Hawkins-Fox43 3-1-16.pdf; Hawkins-

Fox43 3-24-16.pdf; nontrafficcitatIonffledagainstericarawis.pdf

Good afternoon,

I am writing to file an appeal after my Right to Know request was denied by Karen L. McConnell, the Open Records

Officer for the Central Dauphin School District, on March 24,

Attached you will find a completed RTK appeal form, and supporting documents of correspondence between myself

and Ms. McConnell.

I filed a RTK request with the Central Dauphin School District on Feb. 23, 2016 to request a copy of the video that was

captured by a school bus camera system of an incident that occurred on Feb. 16, 2016. Erica Rawls, the wife of CD

East Principal Jesse Rawls, is accused of grabbing a 17 -year -old girl by the wrist after she boards the school bus upon

their return from a basketball game, Also attached to this email is a copy of the non -traffic citation which was filed

against Erica Rawls on Feb, 16, 2016 related to the incident aboard the school bus.

Below is email correspondence between myself and Ms. McConnell showing my initial request for the school bus

camera video:

From: Hawkins, Valerie Sent: Friday, February 26, 2016 4:24 PM

To: openrecordsofficer©cdschools.orq Subject: RE: F0X43 NEWS -->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23.

I wanted to confirm that you received my request. Is there a time line available for when I should expect to

hear whether the request has been approved or denied?

Kind Regards,

Valerie Hawkins Planning Editor/ WPMT FOX43 / 717.814 ,559 9/ [email protected] 2005 South Queen Street, York, PA 17403

From: Hawkins, Valerie Sent: Tuesday, February 23, 2016 11:09 AM

To; openrecordsofficerPcdschools.orq

1

R. 004a

Cc: Smith, Paul Subject: FOX43 NEWS -->standard right -to -know request form

HI there,

My name is Valerie and I am the Planning Editor for F0X43 News.

I am emalling seeking a copy of an incident that was captured on a school bus video system on Feb. 16 after Erica Rawls

grabbed a 17 -year -old girl by the wrist following the Central Dauphin East girls' basketball team returned from a game at

Central Dauphin High School.

Date requested: 02/23/2016 Request Submitted by: E-mail

Name of Requester: Valerie Hawkins Street Address: 2005 South Queen Street City/State/County: York PA 17403

Telephone: 717-814-5599

Records requested: FOX43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on Feb.

16, 2016. According to paperwork filed at Magisterial District Judge Lowell Witmer's office, Erica Rawls grabbed the

wrist of a 17 -year -old girl after the CD East girls' basketball returned from a District 3 playoff game at Central Dauphin on

Feb. 16 (see attached docuMent), Rawls was cited with a summary count of harassment. We would like to obtain a video

copy of the incident that was captured by the school bus video system.

Do you want Copies: Yes

Do you want to Inspect the record: Yes

Do you want certified copies of the records: Yes

Please let me know what, if any fees are associated with obtaining a copy of the video.

Kind regards,

Valerie Hawkins Planning Editor/ WPMT FOX43 / 717,814.5599/ vwaltz2trIbunemedia.com 2005 South Queen Street, York, PA 17403 ,

Valerie Waltz Planning Editor/ WPMT FOX43 / 717.814.5599/ [email protected] 2005 South Queen Street, York, PA 17403

2

R. 005a

CENTRAL DAlj-PHiN SCHOOL 1)ISTRICf-

DistAct AdrninistratIon Office 600 Rutherford Rocrd .

401rriSbu.rg,.. PA 1.710 16.)ep non% (717) $451-479* Fax: (71;7.) 657;4.99.9

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The 'under$Igned 'One 00en :Recards:Officer: for Central 1pauphIn.,SChool DIstrict February 24; :20,16.,..theOpPn 'Re0crcis Offige received a request from .you fOr

F0)43 Igews.ls.:regOeSling a C-00 of the yle106-111OtAyds oraptike.0 school bus.corbbrd.#0614.0hot occurred on .reb, 20:13,

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could result in :the loss of state and/or:federal funding. Thereforeethe vreleals,alsexereVi pursuant to,65E,S; §67,790.(b).(1),(I) A record the,cilscipsyre of which would rult th loss

of Poderphpr:SttitO.funcis* /y an .c(gIney 0'01. Commonwe(fh In addition, it is exempt poilu'orif to 65 P §:47.708.(b)117):(410.0.SitcrtiVO materials riates; dOrtespohdehde and reportt.telotingskciirnort-drirrilharhivestfpOilort

Y9u1/0/WO'ligf.)t tb.c0P40:111P:OPrIkil Onnkr..00110r1,10 writhq tb: VAR :Arr.106r.r.t ce,CitINze 0.1rKtbrr, 000.0 Of 000h Re.0ord:S;COtrimPOWecilth KeystOne,44).11dirip.400N'Orth;Steet, Fourth FlOa,'HOrrls17,1;ir0;,. Ph 17120, You ent1.0.cosoWittirn.I5,:ktM1660 days ot the mailing date Of the -agency's response as outlIn'adin Sectibrr 1101, yrOlhe <?firce:ot Open Record's website cithttp:flopenrepordss.tOte:paAifor fprtherinflogrtotion;0011(Ing.0 oppedL, If yogtOye further questions./ please call icciren MOQ00hPil.

Sinter*Y;

*Karen L. M onriêli, MBA,CPA Open Records,Ofticer.:

KLM:law

R. 006a

VelvirAm.Omm9.Mlim

1111(17

pennsylvania OFFICE OF OPEN RECORDS

RIGHT -TO -KNOW LAW ("RTKL") APPEAL OF DENIAL, PARTIAL DENIAL, OR DEEM

Office of Open Records ("00R") Email: openreeords(@,pa.gov Fax: (717) 425-5343

Today's Date: 03/24/2016

Requester Name(s): Valerie Hawkins

RECEIVED MAR 2 4 2016

mcissup OPEN RECORDS

Commonwealth Keystone Building 400 North St,, 4th Floor

Harrisburg, PA 17120-0225

Address/City/State/Zip: 2005 South Queen Street York PA 17403

Email: maltz©fox43.com Phone/Fax: 717'814'5599 /717-814-5688

Request Submitted to Agency Via: DEmail ElMail OFax Din -Person (check only one)

Date of Request: 02/23/2016 Date of Response: 3/24/2016 OCheck if no response

Name of Agency: Central Dauphin School District

Address/City/State/Zip: 600 Rutherford Road Harrisburg PA 17109

Email: [email protected] Phone/Fax: 717-545-4703 / 717-657-4999

Name & Title of Person Who Denied Request (if any): Karen L. McConnell

I was denied access to the following records (REQUIRED, Use additional pages if necessary): video that

was captured by a school bus camera system that occurred on Feb. 16, 2016 involving' Erica Rawls.

She is accused of grabbing a 17 -year -old girl by the wrist after the team returned from .a game at CD High School,

I requested the listed records from the Agency named above. By signing below, I am appealing the Agency's

denial, partial denial, or deemed denial because the requested records are public records in the possession,

custody or control of the Agency; the records do not qualify for any exemptions under § 708 of the RTKL,

are not protected by a privilege, and are not exempt under any Federal or State law or regulation; and the

request was sufficiently specific, omen (mewling the *leo

I am also appealing for the following reasons (Optional, Use additional pages If necessary), c'mr

Is for the actions of the adult, Erica Rawls, who was charged by police and Is the wife of CD East Principal Jesse Rawls,

[II have attached a copy of my request for records, (REQUIRED)

Eli have attached a copy of all responses from the Agency regarding my request. (REQUIRED)

have attached any letters or notices extending the Agency's time to respond to my request.

[II hereby agree to permit the OOR an additional 30 days to issue a final order,

DI am interested in resolving this issue through OOR mediation. This stays the initial OOR deadline for

the issuance of a final determination, If mediation is unsuccessfil, the OOR has 30 days from the

conclusion of the mediation process to issue a final determination.

Respectfully submitted, Valerie Hawkins (SIGNATURE REQUIRED)

You should provide the Agency with a copy of this form and any documents you submit to the 00R, 005 Appeal Form- Revised January 4, 2016

R. 007a

pennsylvania vat OFFICE OF OPEN RECORDS

Via E -Mail only:

Valerie Hawkins 2005 South Queen Street York, PA 17403 ywaltzefox43.com

March 25, 2016

Via E -Mail only:

Karen L. McConnell Open Records Officer Central Dauphin School District 600 Rutherford Road Harrisburg, PA 17109 openrecordsofficer@cdschools,org

RE: OFFICIAL NOTICE OF APPEAL - DOCKET MAP 2016-0583

Dear Parties:

Please review this information carefully as it affects your legal rights,

The Office of Open Records ("OOR") received this appeal under the Right -to -Know Law ("RTKL"), 65 P.S. §§ 67.101, et seq. on March 24, 2016, This letter describes the appeal

process, A binding Final Determination will be issued pursuant to the timeline required by the

RTKL. In most cases, that means within 30 calendar days.

0011 Mediation: This is a voluntary, informal process to help parties reach a mutually

agreeable settlement on records disputes before the 00R, To participate in mediation, both

parties must agree in writing. If mediation is unsuccessful, both parties will be able to make

submissions to the OOR, and the OOR will have 30 calendar days from the conclusion of the

mediation process to issue a Final Determination.

Note to Parties: Statements of fact must be supported by an affidavit or attestation made under penalty of perjury by a person with actual knowledge. Any factual statements or

allegations submitted without an affidavit will not be considered. The agency has the burden of proving that records are exempt from public access (see 65 P.S. § 67.708(a)(1)). To meet this burden, the agency must provide evidence to the OOR. The law requires the agency position

to be supported by sufficient facts and citation to all relevant sections of the RTKL, case law,

and OOR Final Determinations. An affidavit or attestation is required to show that records do not

exist. Blank sample affidavits are available on the OOR's website.

Submissions to OOR: Both parties may submit information and legal argument to

support their positions by 11:59:59 p.m. seven (7) business days from the date of this letter. Submissions sent via postal mail and received after 5:00 p.m. will be treated as having been

received the next business day. The agency may assert exemptions on appeal even if it did not

assert them when the request was denied (Levy v. Senate of Pa,, 65 A,3d 361 (Pa, 2013)),

Commonwealth Keystone Building 1400 North Street, 4th Floor I Harrisburg, PA 17120-0225 I 717346.99W P 717,425.5343 I http://openrecords.pa.gov

R. 008a

Include the docket number above on all submissions related to this appeal, Also, any information you provide to the OOR must be provided to all parties involved in this appeal. Information shared with the OOR that. is not also shared with all parties will not be

considered.

Agency Must Notify Third Parties: If records affect a legal or security interest of an

employee of the agency; contain confidential, proprietary or trademarked records of a person or

business entity; or are held by a contractor or vendor, the agency must notify such parties of

this appeal immediately and provide proof of that notice to the OOR within seven ('7)

business days from the date on this letter, Such notice must be made by (1) providing a copy

of all documents included with this letter; and (2) advising that interested persons may request to

participate in this appeal (see 65 P.S. § 67,1101(c)).

Commonwealth Court has held that "the burden [is] on third -party .contractors ... to

prove by a preponderance of the evidence that the [requested] records are exempt," (Allegheny

County Dep't of Admin. Servs. v. A Second Chance, Ina, 13 A,3d 1025, 1042 (Pa. Commw. Ct.

2011)), Failure of a third -party contractor to participate in an appeal before the OOR may

be construed as a waiver of objections regarding release of the requested records,

Law Enforcement Records of Local Agencies: District Attorneys must appoint Appeals

Officers to hear appeals regarding criminal investigative records in the possession of a local law

enforcement agency. If access to records was denied in part on that basis, the Requester should

consider filing a concurrent appeal with the District Attorney of the relevant county.

If you have any questions about the appeal process, please contact the assigned Appeals

Officer (contact information is enclosed) - and he sure to provide a copy of any correspondence

to all other parties involved in this appeal.

Sincerely,

//e 4. Erik Arneson Executive Director

Erie,: Assigned Appeals Officer contact information Entire appeal as filed with OOR

R. 009a

REQUEST TO PARTICIPATE BEFORE THE OOR

Please accept this as a Request to Participate in a currently pending appeal before the Office of Open Records. The statements made herein and in any attachments are true and correct to the best of my

knowledge, information and belief. I understand this statement is made subject to the penalties of 18 Pa.C.S.

§ 4904, relating to unsworn falsifications to authorities,

NOTE: The requester filing the appeal with the OOR is a named party in the proceeding and is NOT required to complete this form.

OOR Docket No: Today's date:

Name:

IF YOU ARE OBJECTING TO THE DISCLOSURE OF YOUR HOME ADDRESS, DO NOT PROVIDE THE OFFICE OF OPEN RECORDS WITH YOUR HOME ADDRESS. PROVIDE AN ALTERNATE ADDRESS

11! YOU DO NOT HAVE ACCESS TO E-MAIL.

Address/City/State/Zip

E-mail

Fax Number:

Name of Requester:


Telephone/Fax Number:

E-mail

Name of Agency:



E-mail

Record at issue:

I have a direct interest in the record(s) at issue as (check all that apply):

An employee of the agency

The owner of a record containing confidential or proprietary information or trademarked records

A contractor or vendor

Other: (attach additional pages if necessary)

I have attached a.copy of all evidence and arauments I wish M submit in support of my position.

Respectfully submitted, (must be signed)

Please submit this form to the Appeals Officer assigned to the appeal. ,Remember to copy all parties on this correspondence. The Office of Open Records will not consider direct interest filings submitted after a Final Determination has been issued in the appeal.

R. 010a

4,T., ri


APPEALS OFFICER: Charles Rees Brown, Esquire

CONTACT INFORMATION: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North' Street, 4th Floor Harrisburg, PA 17120-0225

PHONE: (717) 346-9903

FACSIMILE: (717) 425-5343

E-MAIL: [email protected]

Preferred method of contact and submission of information: EMAIL

Please direct submissions and correspondence related to this appeal to the above Appeals Officer. Please include the case

name and docket number on all submissions.

You must copy the other party on everything you submit to the OOR.

The OOR website, http://openrecords.pa.gov, is searchable and both parties

are encouraged to review prior final determinations involving similar records and fees that may impact this appeal.

R. 011a

Ti>4

pennsyLvania OFFICE OF OPEN RECORDS

IN THE MATTER OF

FOX 43 NEWS Requester,

v. Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT Respondent.

16

This correspondence confirms the above -referenced Requester's agreement to an additional

thirty (30) day extension of time to issue a Final Determination in this matter as indicated in the

Requester's appeal form. Accordingly, pursuant to 65 P.S. § 67,1101(b)(1), the Office of Open

Records will now issue a Final Determination in the above -captioned matter on or before

May 23, 2016,

R. 012a

pennsytvania OFFICE OF OPEN RECORDS

RIGHT -TO -KNOW LAW ("RTKL") APPEAL OF DENIAL, PARTIAL DENIAL, OR DEEM

Office of Open Records ("00R") Email: openrecordsOpa.gov Fax: (717) 425-5343



RECEIVED

MAR 2 4 2016

ED El OPEN RECORDS

Commonwealth Keystone Building 400 North St., 4th Floor


Address/City/State/Zip: 2005 South Queen Street York PA 17403 -


Request Submitted to Agency Via: EEmail OMail Fax in -Person (check only one)

Date of Request: 02/23/2016 Date of Response: 3/24/2016 Check if no response



Email: openrecordsofficer@cdschools,org Phone/Fax: 717-545-4703 / 717-667-4999

Name (if any): Karen L. McConnell

I was denied access to the following records (REQUIRED,: Use additional pages if necessary): video that

was captured by a school bus camera system that occurred on Feb. 16, 2016 involvingErica Rawls.

She Is accused of grabbing a 17 -year -old girl by the wrist after the team returned from .a game at CD High School.

I requested the listed records from the Agency named above. By signing below, I am appealing the Agency's




request was sufficiently specific. Our romson for wanliog Ihm vklmo

I am also appealing for the following reasons (Optional, Use additional pages if necessary):

Is for the actions of the adult, Erica Rawls, who was charged by police and is the wife of CD East Principal Jesse Rawls,

Eh have attached a copy of my request for records, (REQUIRED)

DI have attached a copy of all responses from the Agency regarding my request. (REgUIRED)

DI have attached any letters or notices extending the Agency's time to respond to my request.

DI hereby agree to permit the OOR an additional 30 days to issue a final order,

Eli am interested in resolving this issue through OOR mediation. This stays the initial OOR deadline for

the issuance of a final determination. If mediation is unsuccessful, the OOR has 30 days from the



You should provide the Agency with a copy of this form and any documents you submit to the OOR.

OOR Appeal Form - Revised 'January 4, 2016

R. 013a

CENTRAL DAL101)N SCHOOL DISTRICT liff

- i Distlict Administration Office 600 Ruthetfoid Road 14arrisburg; PA 1109 relplohonel (717) 6:46474 FaX (717j 6674999 Kareli L. 1\4CCOn'nell., :MBA, CPA .

op enrecor.dsioffiCerqtdsOh'ools..arg_r_ _

..(51....1,_IS 0 * i - i

ReitrionseEo

March.24, 2016

'Vlik:EMAIL:'wvailtz0foR4A...corn:

2005'300h Queen 'Street Yorlc.RA 17:40

Dear tkilLI-lboi.1.4r:'

The undersigned Open:Records:Officer:for Central Dauphin..5chool biStriat ..On

February 2% 'MI6,: treppen 'Regards .0fIce received .reaQesi frOrn.yeu ft fO)(43 News. is.:reqUestiri9 dapycV the yldealtlatieYa$ capt1tOal Ord: school ED us.corrterd*Sterb:sthat occurred:On Feb, 13, 2013;

"We rosportd9aWif.nin fNY,P3.4ed.flye (6).:bytiness oldy.sradViSlrig14 additional tlitowasi heeded 'far epylovvan10-10.,:ptsfriOtw6is instOkrn0 its riOhrt4a $o-actiy O4Onsi-an...

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could res.ultin The loss of state and/or federal funding. Therefaro,..1he vkleals:41§c..eXornpf pursuant ta.65P,S; &677p(31b).(.1.) 0) A record the-,,disafasyro of -v.vnterivaq1a*Jra.40,1f.':10 Inolass of Federcil or .Stote fvrds y 0(1 .cigefiey artho .In addillon,It'fisaxaetipt: borsuaritto.65.M. §:47.708.(b) t'l 7.).0).10.0.010.dtiVO. MatOtiais, rieites; dOrrepohdehde and reptirtS.reIdting:Itid.hon.-dtirriinatinvesttgOilori,

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SindetelY,

(W40i--

:Katen L. McConnell, MBA ,,CPA open Records.Oflicer.

KLMIlaw

R. 014a

CENTRAL DAUPHIN SCHOOL DISTRICT 1 District AdrriinktrcitroliOffice 600 IRtehQrforcl Rocid CD HairrisbutO, PA 1710?. ,i, Te16phorief. (.17). 54&-410$ Fpx: (717).657-09? Kdren L.. MeCtrinelli, MBA,. CPA apenrecortistiffi0104cdtthocils:60 .OperileciarciS Officer ,-....______,

,R14114146,(Know'Restioriselotht

March 1,20.T6

VtA:EMAIL;VVititfizgfox43.com.

Valerie lionAlels 2005. South QUeenSfreet York,

Dear Ms. HOw.14ns:

Tho uncjerstgned is:the Open Records OffiefforCenti'di: ID:cittprilh-Sdhool DiStriCLOn FelDruoiy 4; 2oT:4,1!10,0pon. Record's. Office. roceivecta rocluest from you for -the f011owth9:

FOX43. NeWS is tOtttiOStiriQ ct coy of the'Viciqdfi.10twq:s'bopture.el..b..Y,P1

school' but cdrilerti syaern thotoddurreti örj'ffb 16,2016.

Piease necesscpry to determine whether the requested record Co.n:stil.qie crOJAIld record yridr the ighttonow Lw Ap.:oorOihqly),the District is

invoking its right lcti.oh additional 30:ActqV period in which to..otkailYZO 0.101VPand::igyogr request; See 63 P. § 67.9f02TIV. You Can 64i0o.t.ti response to,-VdO.r roOiett:Withth:SO days:

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Sinceroly, 4 4. y

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Karen L. MCQohnell, M$A,..:tPA 'Open Reth6,rdit,.0btticer

R. 015a

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N. . AOPO 0745 (REV. 001 PUBLIC ACCESS COPY

R. 016a

Henry, Faith



To: DC, OpenRecords Subject: F0X43 NEWS-->RTK appeal form

Attachments: Appeal_Form_Revised_2016-01-04 (Fillable)-1.pdf; Hawkins-Fox43 3-1-16.pdf; Hawkins-

Fox43 3-24-16.pdf; nontrafficcitationfiledagainstericarawls,pdf

Good afternoon,




and Ms. McConnell.




their return from a basketball game. Also attached to this email is a copy of the non -traffic citation which was filed

against Erica Rawls on Feb. 16, 2016 related to the incident aboard the school bus.


camera video:


To: openrecordsofficercdschools,orq Subject: RE: FOX43 NEWS -->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23,



Kind Regards,

Valerie Hawkins Planning Editor/ WPMT FOX43 / 717.814.5599/ [email protected] 2005 South Queen Street, York, PA 17403


To: g_pen recordsofficer(acdschools,orq

R. 017a

- ,,,,, ,, ,,,, r14


Hi there,

My name is Valerie and I am the Planning Editor for F0X43 News.

I am emallIng seeking a copy of an incident that was captured on a school bus video system on Feb. 16 after Erica Rawls




Name of Request= Valerie Hawkins Street Address: 2005 South Queen Street City/State/County: York PA 17403

Telephone: 717-814-5599




Feb. 16 (see attached docuMent). Rawls was cited with a summary count of harassment. We would like to obtain a video






Kind regards,

Valerie Hawkins Planning Editor/ WPMT FPX43 / 717.814.5599/ [email protected] 2005 South Queen Street; York, PA 17403


2

R. 018a

Eta ATTORNEYS AT LAW

April 1, 2016

VIA EMAIL and U.S. MAIL

Charles Rees Brown, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 41h Floor Harrisburg, PA 17120-0225

Eckert Seamans Cherin & Mellott, LLC 213 Market Street 80 Floor Harrisburg, PA 17101

Re: Rijihi to Know Request Anneal Docketed at # AP 2016-0583

Dear Mr. Brown:

Kindly permit this letter to respond to the above docketed appeal.

TEL 717 237 6000 FAX 717 237 6019 www.eckertseamans.com

Michael McAuliffe Miller 717.237.7174 mmiller@eckertseamans,com

By way of background, on February 23, 2016, the Requestor sought the following: "FOX43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on February 16, 2016," The District's Open Records Officer invoked the District's right to an additional 30 -day period to respond to the Request. The District submitted a timely response on March 24, 2016, denying the request. This Appeal followed.

The District properly denied the request because the requested video recording is an "education record" under the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and is therefore (and otherwise) exempt from disclosure under Pennsylvania's Right to Know Law, 65 P.S. § 67.101 et seq; ("RTKL").

The District's position is consistent with the Office of Open Records' (OOR) decisions as the OOR has regularly held that education records covered under FERPA are not public records, including denying a request for a school bus video recording nearly identical to the request here. See In the Matter of Jeff Remling v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021; see also In the Matter of Larry Fieber v. New Hope-Solebury Sch. Dist., OOR Dkt. 2013-1020; Hocker v. Owens J. Robert Sch. Dist., OOR DM. AP 2011-0302; In the Matter of Robert Robinson v. Phila. City Sch. Dist., OOR Dkt, AP 2010-0917.

(L0631216.1)

R. 019a

Charles Rees Brown, Esquire April 1, 2016 Page 2

ATTORNEYS AT LAW

Section 305(a) of the RTKL provides that records possessed by agencies are presumed to be public records, but that this "presumption shall not apply if: (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, regulation or judicial order or decree."' 65 P.S. §

67.305(a). Section 306 of the RTKL further provides that "[n]othing in this act shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial or decree." 65 P.S. § 67.306.

This appeal should be denied because: (1) the requested record is not public and is exempt under FERPA; (2) disclosure of the requested record would result in the loss of federal or state funding; and (3) the record is a record relating to a noncriminal investigation exempt under Section 708(b)(17). Thus, the requested record is not subject to disclosure under the RTKL.

(I) The Video Recording is Not Public and is Protected from Disclosure under FERPA

The video recording is an "education record" containing personally identifiable information under FERPA. FERPA defines "education records" 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." 33 C.F.R. § 99.3; 20 U.S.C. § 1232g(a)(4)(A), A record includes "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and microfiche, 33C.F.R. § 99.3.

First, the videotape at issue contains information directly related to students. "Information that is directly linked to a student or renders the identity of a student traceable is clearly protected under FERPA." In the Matter of Jeff Remling, supra. The video recording at issue depicts which students were present on the bus in question on February 16, 2016 and which students were involved or not involved in the interaction at issue. Thus, the video recording contains information that is directly related to the students.

Further, the information that is directly related to the students also contains "personally identifiable information." Personally identifiable information includes "[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; or ... ['information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record related." 33 C.F.R. § 99.3, The video recording contains "personally identifiable information" because it is traceable to the students depicted. The video

If any of these circumstances are met, the record is not a "public record" as defined by the RTICL. 65 P.S. § 67.102.

(L0631216,1)

R. 020a


ATTORNEYS AT LAW

plainly shows and identifies the students present on the bus and those involved or not involved in the interaction at issue.

As to the second factor, the Open Records Officer has confirmed in the attached Affidavit that the video recording is maintained by the School District.

Because the video recording contains (i) personally identifiable information directly related to students (ii) that is maintained by the School District, the video recording constitutes an "education record" as defined by FERPA. Under FERPA, such records are protected and confidential. This exact result was reached by the OOR in its Final Determination issued in In the Matter of Jeff Remling v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021. In Remling, the OOR denied the requestor's appeal seeking access to a school bus videotape because the videotape was an "education record" of the school district protected by FERPA. Similarly, the school bus video recording here is not subject to disclosure under FERPA. Therefore, the video recording is exempt from disclosure under Section 305(a)(3) and Section 306 of the RTKL.

In addition, the education record at issue cannot be disclosed pursuant to the law enforcement unit exception under FERPA. Under FERPA, the term "education records" does not include "records maintained by a law enforcement unit of the educational agency.or institution that were created by that law enforcement unit for the purpose of law enforcement," 20 U.S.C. §

1232g(a)(4)(b). As stated by the District's Open Records Officer in the attached Affidavit, the video recording at issue is, and was, not maintained by a law enforcement unit of the School District and not created by a law enforcement unit of the School District for law enforcement purposes. Rather, the video recording was created by the School District itself, separate and apart from any law enforcement unit of the School District. Therefore, the video recording cannot be disclosed pursuant to the law enforcement unit exception under FERPA.

Moreover, the video recording caimot be disclosed in a redacted form without violating FERPA's disclosure protections. First, the video recording is not capable of being redacted. As stated by the Open Records Officer, the School District does not have the technological capability of redacting the video recording to remove personally identifiable information.

Second, even if the School District had the technological ability to redact the video recording, such redaction would be insufficient to remove all personally identifiable information from the video as FERPA requires, See Sherry v. Radnor Twp. Sch, Dist., 20 A.3d 515, 525 (Pa, Cmwlth. 2011); In the Matter of Larry Fieber v. New Hope-Solebury Sch. Dist,, OOR Dtk, AP 2013- 1020. In both Sherry and Fieber, it was recognized that under certain circumstances even redaction cannot eliminate all personally identifiable information because the document would still contain elements which could be used to identify the students involved. Specifically, in Fieber, the identity of the student involved could not be withheld through redaction because reports in the local newspapers made reference to the student who was the subject of the record.

(L0631216.1)

R. 021a


ATTORNEYS AT LAW

Therefore, even if the student's name was redacted from the document, the student's identity would be known to the requestor in violation of FERPA.

Likewise, here, there have been numerous media reports regarding the circumstance surrounding the video recording. The reports identify the involved students as members of the girls' basketball team. Therefore, even if the students' faces and other identifying characteristics could be redacted from the videotape, the students' identities will still be known to, or reasonably discoverable by, the Requestor in violation of FERPA.

The video recording at issue is an education record protected by FERPA. Because the video recording is protected by FERPA, it is exempt from disclosure under the RTKL. This Appeal should therefore be denied,

(2) Disclosure of the Video Recording Would Result in the Loss of Federal Funding

In addition to the basis for denial above, the video is also exempt from disclosure under Section 708(b)(1) of the RTKL, Under Section 708 of the RTKL, a record, the disclosure of which "would result in the loss of Federal or State funds by an agency or the Commonwealth" is exempt from disclosure. 65 P.S. § 67,708(b)(1)(i), FERPA expressly indicates that it financially penalizes school districts "which [have] a policy or practice of permitting the release of education records , of students without the written consent of their parents." 20 U.S.C, §

1232g(b)(1).

Therefore, FERPA protects education records from disclosure and financially penalizes school districts that lack apolicy for protecting such records, Because the disclosure of the video recording at issue would result in the loss of Federal funds by the School District, the record is also exempt from disclosure under Section 708(b)(1)(i) of the RTKL, This Appeal should be denied on this basis as well.

(3) The Video Recording Constitutes a Record Relating to a Non -criminal Investigation.

The video recording also constitutes a record relating to a noncriminal investigation. Section 708(b)(17) of the RTKL, specifically exempts from disclosure a record of an agency relating to a noncriminal investigation. The RTKL defines records relating to a noncriminal investigation as including:

(i) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports. (iii) A record that includes the identity of a confidential source (iv) A record that includes information made confidential by law. (v) Work papers underlying an audit, (vi) A record that, if disclosed, would do any of the following:

(L001216.1)

R. 022a

,V3

AfilANS ATTORNEYS AT LAW


(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court.

(B) Deprive a person of the right to an impartial adjudication. (C) Constitute an unwarranted invasion of privacy. (D) Hinder an agency's ability to secure an administrative or civil

sanction. (E) Endanger the life or physical safety of an individual.

65 P.S. § 67.708(b)(17).

The Commonwealth Court examined this RTKL exception as it pertains to "education records" in Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa, Cmwlth. 2011). In Sherry, the Commonwealth Court affirmed the denial of a request to inspect de -identified records of honor code violations maintained by the district because it determined the records were exempt from disclosure under the RTKL as noncriminal investigation records. The Court found that the records were evidence of the district's official probe into a purported rule violation on the district's premises, contained a description of the violative conduct, contained witness/teacher statements, and contained a description of the course and result of the investigation. Id. at 523- 24. Thus, the Court found the records constituted noncriminal investigation records and were exempt pursuant to this exception, Id. at 524.

Here, the video recording contains information relating to an incident on a school bus which involved students and a parent of a student. The video recording documents activities that were noncriminal in nature (even if certain events are alleged to be criminal in nature). As affirmed by the Open Records Officer, the School District is conducting a detailed examination and official probe into the incident which occurred on the District's premises and in District property. The video recording contains an actual depiction of the events in question and is evidence of the conduct subject to the investigation. Thus, the record relates to a noncriminal investigation because it constitutes "investigative materials, notes, correspondence and reports" of the investigation and is also a record that includes information made confidential by law. 65 P.S. §

67.708(b)(17)(ii), (iv); see also Sherry, supra.

(L0631216,1)

R. 023a


ATTORNEYS AT LAW

Therefore, in addition to the FERPA protections, the video records is also exempt under the noncriminal investigation exception. of the RTKL.

Sincerely,

Michael McAuliffe Miller

MMM/tl Enclosures

ti

(L06312164)

R. 024a

COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS

VALERIE HAWKINS,

Requestor,

vs. : No, AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT,

Agency.

AFFIDAVIT

I, Karen L. McConnell, hereby declare, pursuant to 18 Pa.C.S. § 4904, that the following

statements are true and correct based upon my personal knowledge, information and belief:

1. I serve as the Open Records Officer for the Central Dauphin School District ("Agency").

2. I am responsible for Right -to -Know Requests filed with the Agency,

3. In my capacity as the Open Records Officer, I am familiar with the records of the Agency.

4. Upon receipt of the request, I conducted a thorough examination of files in the possession, custody and control of the Agency for records responsive to the request underlying this appeal.

5. After conducting a good faith search of the Agency's files, I identified all records within the Agency's possession, custody or control that are responsive to the request and determined that the records are protected from disclosure under the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and thus, are exempt from disclosure under Pennsylvania's Right to Know Law, 65 P, S. § 67.101 et seq. ("RTKL").

6, The records sought in the Request are education records under FERPA. FERPA defines "education records" 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." 33 C.F.R. § 99.3; 20 U.S.C. § 1232g(a)(4)(A).

(LQ631218,1)

R. 025a

7. The video recording contains personally identifiable information directly related to students because the students are visible and identifiable in the video recording.

8. The video recording is maintained by the School District. The requested video recording is, and was, not maintained by a law enforcement unit of the Agency; and not created by a law enforcement unit of the Agency for a law enforcement purpose.

9. The video recording is an "education record" under FERPA which requires the Agency to keep the record confidential.

10. The personally identifiable information of the students cannot be redacted from the video recording,

11. First, the Agency cannot redact the student's personally identifiable information because it does not have the technological ability to redact the video recording.

12, Second, even if the Agency had the technological ability to redact the video recording, the Agency cannot remove all personally identifiable information from the video recording.

13. The Agency cannot remove all personally identifiable information because the subject of the video recordings have been covered on multiple occasions in the news media.

14. The repeated news reports identify the students in the recording as members of the Central Dauphin East girls' basketball team.

15. Therefore, even if the students' identities were capable of being redacted from the video recording, the students' identities will still be known to the Requester,

16. The Agency may be financially penalized through loss of Federal funds if it permits the release records protected by FERPA such as the video recording.

17 The video recording is part of the Agency's non -criminal investigation of the events documented in the video recording.

18. The Agency is conducting a detailed examination and official probe into the incident which occurred on the District's premises and in District property of which the video recording is evidence.

{L0631218,1)

R. 026a

Notary Public

Swom.to and wbsoribed:before me This 31st day of Maroh, 20:16,

7/// /41-0 /14/1/

CENTRAL DAUPHIN SCHOOL DISTRICT

/ prff/ ma, get-mos

Karen L. McConnell, School District/Open Records Officer

My Commission Expires: .061., /2.,,Z7/7

(Seal) COMMONWEALTH Of PENNSYLVANIA

NOTARIAL -SEAL

MELISSA FRY

Notuy Public LOWER PAXTON MP, DAUPHIN COUNTY

My OommIsslon Explrea Dec 12, 2010

(L0631218.1)

R. 027a


FINAL DETERMINATION

IN THE MATTER OF

VALERIE HAWKINS AND FOX43 NEWS, Requester

v. : Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT, Respondent

INTRODUCTION

Valerie Hawkins, Planning Editor for Fox43 News (collectively "Requester"), submitted

a request ("Request") to the Central Dauphin School District ("District") pursuant to the Right -

to -Know Law ("RTKL"), 65 P.S. §§ 67.101 et seq., seeking a video from a District school bus.

The District denied the Request, stating, among other reasons, that the video is confidential

under federal law. The Requester appealed to the Office of Open Records ("00R"), For the

reasons set forth in this Final Determination, the appeal is granted and the District is required to

take further action as directed.

FACTUAL BACKGROUND

On February 23, 2016, the Request was filed, seeking "a copy of the video that was

captured by a school bus camera system that occurred on Feb, 16, 2016." On March 24, 2016,

after extending its time to respond to the Request by thirty days, see 65 P.S. § 67.902(b), the

District denied the Request, stating that disclosure of the video would violate the Family

1

R. 028a

Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, and would result in the loss

of federal funding. 65 P.S. § 67.708(b)(1)(i). In addition, the District argued that the video is

exempt from disclosure because it is related to a noncriminal investigation. 65 P.S. §

67.708(b)(17).

On March 24, 2016, the Requester appealed to the OOR, challenging the denial and

stating grounds for disclosure.' Specifically, the Requester notes that the video shows an adult

grabbing a 17 year old student by the wrist. The OOR invited both parties to supplement the

record and directed the District to notify any third parties of their ability to participate in this

appeal. See 65 P.S. § 67.1101(c).

On April 1, 2016, the District submitted a position statement reiterating its grounds for

denial, and supported by the affidavit of Karen McConnell, the District's Open Records Officer.

LEGAL ANALYSIS

"The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government." SWB Yankees L.L.C. v,

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open -government law 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." Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff'd

75 A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. § 67.503(a). An appeals officer is required "to review all information filed relating to the

request." 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an

In its appeal, the Requester granted the OOR an additional thirty days to issue a final determination. See 65 P.S. §

67.1101(b)(1).

2

R. 029a

appeal. The decision to hold a hearing is discretionary and non -appealable. Id. The law also

states that an appeals officer may admit into evidence testimony, evidence and documents that

the appeals officer believes to be reasonably probative and relevant to an issue in dispute.

Id. Here, neither party requested a hearing; however, the OOR has the necessary, requisite

information and evidence before it to properly adjudicate the matter.

The District is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.302, 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. See 65

P.S. § 67.305. An agency bears the burden of proving the applicability of any cited exemptions.

See 65 P.S. § 67.708(b).

Section 708 of the RTKL clearly places the burden of proof on the public body to

demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of

proving that a record of a Commonwealth agency or local agency is exempt from public access

shall be on the Commonwealth agency or local agency receiving a request by a preponderance of

the evidence." 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such

proof as leads the fact -finder ,.. to find that the existence of a contested fact is more probable

than its nonexistence." Pa. State Troopers Ass'n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.

2011) (quoting Pa. Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821,

827 (Pa. Commw. Ct. 2010)).

1. The requested video is not an education record

The District argues that the requested school bus video is protected from disclosure by

FERPA. FERPA protects "personally identifiable information" contained in "education records"

from disclosure and financially penalizes school districts "which [have] a policy or practice of

3

R. 030a

permitting the release of education records of students without the written consent of their

parents." 20 U.S.C. § 1232g(b)(1). Regulations implementing FERPA define "education

records" as those records that are "[d]irectly related to a student" and Im]aintained by an

educational agency or institution or by a party acting for the agency or institution." 34 C.F.R.

99.3. While the express language of FERPA's implementing regulation would appear to

encompass all records held by an educational institution and which relate to a student, a review

of case law interpreting FERPA reveals that not all records pertaining to a student and held by an

educational institution are "education records" for purposes of FERPA. Just because a record

involves a student does not automatically invoke the confidentiality provisions of FERPA,

In Owasso Indep. Sch. Dist. No. 1-011 v. Falvo, the United States Supreme Court held

that individual student papers are not "education records" under FERPA because they were not

maintained in a central file by the official records custodian. 534 U.S. 426 (2002). Other courts

have looked at the records themselves and have concluded that only those records relating to a

student's academic performance are "education records" for purposes of FERPA. Bd. of Educ,

of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011) (tally sheets

denoting student's daily activities for purposes of compiling the student's official progress

reports are not "educational records" because the records were not part of the student's

permanent file.); Pollack v. Regional Sch. Unit 75, 2015 U.S. Dist. LEXIS 55992 (D. Me. 2015)

(holding that "educational records" are those records which follow a student from "grade to

grade."); S.A. v. Tulare County Office of Educ., 2009 U.S. Dist. LEXIS 93170 (E.D. Cal, 2009)

(e -mails mentioning a student's name are not "education records" because they are not part of

the student's permanent file); Wallace v. Cranbrook Educ. Ginty., 2006 U,S. Dist. LEXIS 71251

(E.D. Mich. 2006) (student statements provided in relation to an investigation into school

4

R. 031a

employee misconduct do not directly relate to a student, and, therefore, are not "education

records."); Ellis v. Cleveland Man. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Oh. 2004). Perhaps

the most succinct definition of "education records" was enunciated by the United States District

Court for the Western District of Missouri:

It is reasonable to assume that criminal investigation and incident reports are not educational records because, although they may contain names and other personally identifiable information, such records relate in no way whatsoever to the type of records which FERPA expressly protects; i.e., records relating to individual student academic performance, financial aid or scholastic probation which are kept in individual student files.

Bauer v. Kincaid, 759 F. Supp. 575, 591 (W.D. Mo. 1991) (emphasis added). Thus, based on the

foregoing, the courts have made clear that only those records relating to student academics are

"education records" protected by FERPA. The mere fact that a record involves a student does

not automatically render a record an "education record."

Here, the Request seeks a school bus video showing an altercation between an adult and a

17 year -old student. While this video purportedly depicts the individual student, there is no

evidence that this video is part of the student's permanent academic file. This is precisely the

type of record which the courts have held to not constitute an "education record" under FERPA.

The District points to Rending v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021, 2011 PA

O.O.R.D. LEXIS 74, wherein the request sought a copy of a school bus video recording.

Because the video recording depicted students on the bus, the OOR concluded that the record

met the definition of an "education record," and, therefore, was protected from disclosure by

FERPA. A review of the final determination in Remling reveals that the OOR relied solely on

the broad language of FERPA's implementing regulations and did not analyze the relevant case

5

R. 032a

law limiting the scope of what constitutes an "education record." Based on the foregoing, the

requested video is not an "education record" protected by FERPA.2

2. The requested video does not relate to a noncriminal investigation

The District also withheld the requested video on the basis that it is being used as part of

the District's noncriminal investigation into the incident depicted on the video. The District

argues that this is the type of noncriminal investigation which the Commonwealth Court has held

to be exempt from disclosure. Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Commw. Ct.

2011). Section 708(b)(17) of the RTKL exempts from disclosure records of an agency "relating

to noncriminal investigations[.]" Id. In order for this exemption to apply, an agency must

demonstrate that "a systematic or searching inquiry, a detailed examination, or an official probe"

was conducted regarding a noncriminal matter. See Pa. Dep't of Health v. Office of Open

Records, 4 A.3d 803, 810-11 (Pa. Commw. Ct. 2010). Furthermore, the inquiry, examination, or

probe must be "conducted as part of an agency's official duties," Id, at 814; see also Johnson v.

Pa, Convention Center Auth., 49 A.3d 920 (Pa. Commw. Ct. 2012). The investigation must

specifically involve an agency's legislatively -granted fact-finding powers. See Pa. Dep't of Pub.

Well v. Chawaga, 91 A.3d 257 (Pa. Commw. Ct. 2014). To hold otherwise would "craft a

gaping exemption under which any governmental information -gathering could be shielded from

disclosure. Id. at 259.

In Sherry, the requester sought records regarding Academic Honor Code violations. In

finding the records related to a noncriminal investigation, the Court noted that "these records

surpass the District's routine performance of its duties and entail a systematic or searching

inquiry, detailed examination, and/or official probe into purported student rule violations on the

2 Because the requested vidco is not protected by FERPA, disclosure would not threaten the loss of Federal funding. Accordingly, the District has not met its burden of proof to withhold the video under Section 708(b)(1)(i) of the RTKL, 65 P.S. § 67.708(b)(1)(0. See 65 P.S. § 67.708(a)(1),

6

R. 033a

District's premises." 20 A.3d at 523. Subsequent to the Court's decision in Sherry, the Court

considered whether a report of a performance audit of a Department of Public Welfare grantee

was a record of a noncriminal investigation. In finding that it was not a record of a noncriminal

investigation, the Court noted that "DPW's performance audit was not part of DPW's

legislatively -granted fact-finding or investigative powers; rather the audit was ancillary to

DPW's public assistance services." 91 A.3d at 259 (emphasis added).

Here, unlike the situation in Sherry, the District is not investigating Academic Honor

Code violations, which would unquestionably relate to the District's core function of educating

students. Rather, the District is investigating an assault on a student by the parent of another

student. This cannot be said to relate to the District's core function of educating students, and

can only be said to be "ancillary" to the District's mission. Furthermore, the District has pointed

to no "legislatively -granted fact-finding authority" to conduct a noncriminal investigation. As

such, the District's "investigation" cannot be said to be the type of inquiry that falls within the

ambit of the noncriminal investigative exemption. Chawaga, 91 A.3d at 259.

Assuming, arguendo, that the District's "investigation" is a noncriminal investigation for

purposes of the RTKL, the mere fact that the video is being used in the investigation, does not, in

and of itself, mean that the video is a record of a noncriminal investigation. In Pa. State Police

v. Grove, a requester sought a copy of a "dash -cam" video recording of a traffic stop. The State

Police denied access, arguing that the video documented the results of a criminal investigation,

and, therefore, was exempt from disclosure. 119 A.3d 1102 (Pa. Commw. Ct. 2015). In

rejecting the State Police's argument, the Court noted that "[dash -cam videos] are created to

document troopers' performance of their duties in responding to emergencies and in their

interactions with members of the public, not merely or primarily to document, assemble or

7

R. 034a

report on evidence of a crime or possible crime." 119 A.3d at 1108 (emphasis added). Thus, to

withhold a video under an investigative exemption, the video must exist "merely or primarily"

for investigative purposes. Here, there is no evidence that the video exists for reasons other than

to document the behavior of students and others aboard school buses. In other words, the

requested video does not exist "merely or primarily" for investigative purposes. Accordingly,

the District has failed to meet its burden of proof that the requested video relates to a noncriminal

investigation.3 65 P.S. § 67.708(a)(1).

CONCLUSION

For the foregoing reasons, Requester's appeal is granted, and the District is required to

disclose the requested video within thirty days. Within thirty days of the mailing date of this

Final Determination, any party may appeal to the Dauphin County Court of Common Pleas. 65

P.S. § 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be

served notice and have an opportunity to respond according to court rules as per Section 1303 of

the RTKL. However, as the quasi-judicial tribunal adjudicating this matter, the OOR is not a

proper party to any appeal and should not be named as a party.4 This Final Determination shall

be placed on the OOR website: http://openrecords.pa.gov.

The remainder of this page is intentionally left blank

3 Additionally, while Section 708(b)(16) of the RTKL references videos as a type of record that may relate to a criminal investigation, Section 708(6)(17) of the RTKL contains no reference to videos. Cf. 65 P.S. § 67.708(b)(16)(ii) with 65 P.S. § 67.708(b)(17)(ii). 4 Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

8

R. 035a

FINAL DETERMINATION ISSUED AND MAILED: May 19, 2016

/s/ Charles Rees Brown CHARLES REES BROWN CHIEF COUNSEL

Sent via e-mail to:

Valerie Hawkins Tricia Lontz, Esq.

9

R. 036a

SEA ATTORNEYS AT LAW

June 9, 2016

VIA HAND DELIVERY Office of the Prothonotary Dauphin County Courthouse Front & Market Streets Harrisburg, PA 17101

Eckert Seamans Cherin & Mellott, LLC 213 Market Street 8th Floor Harrisburg, PA 17101

Re: Central Dauphin School District v. Valerie Hawkins, et al.

Dear Sir or Madam:

TEL 717 237 6000 FAX 717 237 6019 www.eckertseamans.com

Tricia S. Lontz 717.237.7189 [email protected]

Enclosed please find an original and four copies of Petitioner's Notice of Appeal/Petition for Judicial Review for filing in the above -referenced matter. Also enclosed is a check in the amount of $197.25 representing the filing fee. Please date and time -stamp the three additional

copies and return them to the courier. The original Petition should be sent to the Court Administrator's Office.

If you have any questions regarding this matter, please do not hesitate to contact me. Thank you for your assistance.

Very truly yours,

Tricia S. Lontz

TSL/glp Enclosures cc: Certificate of Service

{L0639883.1) R. 037a

Supreme Ccquiritif Pennsylvania Cour'

DAUPHIN

leas it

County

... . , .. ... - ....

For Prothonotary Use Only: . ,: . ' ...

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The information collected on this form is used solely for court administration purposes. This. orm does not

supplement or replace the filingand service o pleadings or other papers as required by law or rules of court.

' Commencement of Action: Complaint Writ of Summons v Petition

Transfer from Another Jurisdiction Declaration of Taking

Lead Plaintiff's Name: Central Dauphin School District Lead Defendant's Name: Valerie Hawkins

Dollar Amount Requested: - within arbitration limits (check one) outside arbitration limits Are money damages requested? Yes v No

Is this a Class Action. Suit? Yes v No Is this an MDJ Appeal? Yes v No

Name of Plaintiff/Appellant's Attorney: Michael McAuliffe Miller, Esquire

Cheek here if you have II 0 attorney (are a Self -Represented [Pro Sel Litigant)

Nature of the Case: Place an "X" to the left of the ONE case category that most aCctii;ately describes your

PRIMARY CASIg... If you..are making more than one type of claim, check the one that

yoit.consicrer most important. : : ;:

TORT (do not include Mass Tort) 0 Intentional Malicious Prosecution Motor Vehicle 0 Nuisance 0 Premises Liability 0 Product Liability (does not include mass tort)

El Slander/Libel/ Defamation Other:

CONTRACT (do not Include Judgments)

El Buyer Plaintiff Debt Collection: Credit Card p Debt Collection: Other

p Employment Dispute: Discrimination p Employment Dispute: Other

Other:

CIVIL APPEALS Administrative Agencies El Board of Assessment

Board of Elections Dept. of Transportation 0 Statutory Appeal: Other

Right -to -Know Law

0 Zoning Board

El Other:

MASS TORT 0 Asbestos p Tobacco p Toxic Tort - DES El Toxic Tort - implant Ei Toxic Waste. 0 Other:

PROFESSIONAL LIABLITY 0 Dental 0 Legal El Medical El Other Professional:

REAL PROPERTY El Ejectment C] Eminent Domain/Condemnation El Ground Rent 0 Landlord/Tenant Dispute I=:] Mortgage Foreclosure: Residential El Mortgage Foreclosure) Commercial Ej Partition 0 Quiet Title 00ther:

MISCELLANEOUS Common Law/Statutory Arbitration Declaratory Judgment Mandamus Non -Domestic Relations Restraining Order

ElQuo Warranto EIReplevin DOther:

1742412,641/20.1.1

CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT, : DAUPHIN COUNTY, PENNSYLVANIA

Petitioner

vs.

VALERIE HAWKINS, FOX 43 NEWS, and the COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Respondents

: NO. : NOTICE OF APPEAL/PETITION FOR : JUDICIAL REVIEW

: CIVIL ACTION - LAW

ORDER

AND NOW, this day of , 2016, upon review of the Notice of

Appeal/Petition for Review filed by the Central Dauphin School District, it is hereby ORDERED

that the Appeal is GRANTED and the Final Determination of the Office of Open Records is

REVERSED.

BY THE COURT:

Jr,

Distribution List:

Michael McAuliffe Miller, Esq., Eckert Seamans Cherin & Mellott, LLC, 213 Market Street, 8th

Floor, Harrisburg, Pennsylvania 17101; (717) 237-7174; (717) 237-6019; [email protected]

Valerie Hawkins and Fox 43 News, 2005 South Queen Street, York, Pennsylvania 17403; [email protected]

Charles Rees Brown, Esq., Commonwealth of Pennsylvania, Office of Open Records, Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, PA 17120-0225; charlebrow@pa,gov

Court Administrator - Civil Division, Dauphin County Court

{L0639476.1}

R. 039a

Michael McAuliffe Miller, Esquire (PA I.D. 78507) Tricia S. Lontz, Esquire (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected]

CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT,

vs.

Petitioner

VALERIE HAWKINS, FOX 43 NEWS and the COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Respondents

: DAUPHIN COUNTY, PENNSYLVANIA

; NO. aom C,V I-1401 alp : NOTICE OF APPEAL/PETITION FOR : JUDICIAL REVIEW


NOTICE OF APPEAL/PETITION FOR REVIEW

Central Dauphin School District (the "District"), files this appeal and petitions this

Honorable Court by and through its attorneys and the law firm of Eckert Seamans Cherin &

Mellott, LLC, for review of the Final Determination issued by the Commonwealth of

Pennsylvania Office of Open Records (the "OOR"), and in support thereof avers as follows:

I. PARTIES

1. Tlie District, petitioner herein, is a school district duly organized and existing

under the laws of the Commonwealth of Pennsylvania, having an address of 600 Rutherford

Road, Harrisburg, Pennsylvania 17109.

{L0639476.1}

R. 040a

2. Respondent, Valerie Hawkins, is a reporter with Fox 43 News with an office

located at 2005 South Queen Street, York, Pennsylvania 17403 (the "Requester").

3. Respondent, Fox 43 News, is the fictitious name of WPMT, LLC a limited

liability company providing news services with a principal place of business at 2005 South

Queen Street, York, Pennsylvania 17403.

4. Respondent, Commonwealth of Pennsylvania Office of Open Records, is an

office within the Commonwealth's Department of Community and Economic Development

established pursuant to Section 1310(a) of the Pennsylvania Right to Know Law (65 P.S. §

67.101 et seq.) ("RTKL") having an office located at 400 North Street, Plaza Level, Harrisburg,

Pennsylvania 17120-0225.

II. JURISDICTION

5. This Notice of Appeal/Petition for Review is being filed pursuant to Section

1302(a) of the RTKL (65 P.S. § 67.1302(a)).

III. FACTUAL AND PROCEDURAL BACKGROUND

6. On February 23, 2016 Requester, Valerie Hawkins, submitted a RTKL request to

the District. A true and correct copy of the Request is attached hereto as Exhibit A.

7. Requester's RTKL Request sought the following: "FOX 43 News is requesting a

copy of the video that was captured by a school bus camera system that occurred on February 16,

2016."

8. The District's Open Records Officer invoked the District's right to an additional

30 -day period to respond to the Request and then issued a timely denial of the request on March

24, 2016. A true and correct copy of the District's denial is attached hereto as Exhibit B.

(L0639476.1) 2

R. 041a

9. Requester appealed the District's denial to the Office of Open Records on March

24, 2016. A true and correct copy of the Requester's appeal is attached hereto Exhibit C.

10. On March 25, 2016, the OOR issued an Official Notice of the Requester's appeal

and invited both parties to supplement the record. A true and correct copy of the OOR's Notice

of Appeal is attached hereto as Exhibit D.

11. Only the District supplemented the record by submitting a letter brief and

supporting affidavit of the District's Open Records Officer in support of its denial. A true and

correct copy of the District's Letter Brief and Affidavit is attached hereto as Exhibit E.

12. The OOR issued a Final Determination granting the Requester's appeal on May

19, 2016 at OOR Dkt # AP 2016-0583, A true and correct copy of the OOR's Final

Determination is attached hereto as Exhibit F.

IV. ARGUMENT

DID THE OOR ERR WHEN IT DETERMINED THAT TIIE SCHOOL BUS

VIDEOTAPE WAS NOT AN EDUCATION RECORD UNDER FERPA AND DOES

NOT RELATE TO A NONCRIMINAL INVESTIGATION OF THE DISTRICT?

SUGGESTED ANSWER: YES.

13. A reviewing court exercising its appellate jurisdiction may "independently review

the OOR's Orders and may substitute its own findings of fact for that of the [00R]," Bowling v.

OOR, 990 A.2d 813, 818 (Pa. Cmwlth. 2010), app. granted 15 A.3d 427 (Pa. 2011).

14. The Court's decision "shall contain findings of fact and conclusions of law based

upon the evidence as a whole." 65 P.S. § 67.130(a).

15. The District is a local agency subject to the RTKL. 65 P.S. § 67.302.

16. Section 305(a) of the RTKL provides that records possessed by agencies are

presumed to be public records, but this "presumption shall not apply if: (1) the record is exempt

(L0639476.1) 3

R. 042a

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, regulation or judicial order of decree."1 65 P.S.

§ 67.305(a).

17. Section 306 of the RTKL further provides that "Eniothing in this act shall

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

Federal or State law, regulation or judicial order or decree." 65 P.S. § 67.306.

A. The school bus videotape is an education record protected from disclosure under federal law.

18. The OOR's Final Determination that the school bus videotape is not an education

record must be reversed because the OOR misinterpreted and misapplied the plain language of

Family Education Right and Privacy Act, 20 U.S.C. § 1232g ("FERPA"), incorrectly interpreted

cases applying FERPA which improperly narrowed FERPA's applicability, and made

conclusions based on assumptions not supported by facts in the record before it.

19. FERPA defines "education records" 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." 33 C.F.R.

§ 99.3; 20 U.S.C. § 1232g(a)(4)(A).

20. A record includes "any information recorded in any way, including, but not

limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and

microfiche." 33 C.F.R. § 99.3.

1 If any of these circumstances are met, the record is not a "public record" as defined by the RTKL. I

65 P.S. § 67,102.

(L0639476.1) 4

R. 043a

21. The FERPA requirements govern the disclosure under Pennsylvania's RTKL of

any records that fall within FERPA's reach. See Bryner v. Canyons Sch. Dist., 351 P.3d 852,

857 (Utah Ct. App. 2015); see 65 P.S. § 67.305(a).

22. The video recording here is not subject to disclosure under the RTKL because it is

protected from disclosure under FERPA, a federal statute.

23. The video recording is protected under FERPA because it (i) contains information

directed related to a student; and (ii) is maintained by the District.

24. "A plain reading of FERPA's statutory language reveals that Congress intended

for the definition of education records to be broad in scope." Bryner, 351 P.3d at 857 (citing

Gonzaga Univ. v. Doe, 536 U.S. 273, 292 (2002) (Breyer, J., concurring) (observing that the

"key language" of FERPA, including its definition of education records, is "broad and

nonspecific")).

25. "Notably, Congress made no content -based judgments with regard to its

`education records' definition." Bryner, 351 P.3d at 857 (quoting United States v. Miami Univ,

294 F.3d 797, 812 (6th Cir. 2002)). Thus, courts must not infer such a limitation. Bryner, 351

P.3d at 857 (citing Honig v. Doe, 484 U.S. 305, 324-25 (1998) (declining to read an exception

into a statute because the plain language of the statute evinced Congress's intent to omit such an

exception and the court was not 'at liberty to engraft onto the statute an exception Congress

chose not to create")).

26. Despite such statutory construction prohibitions, OOR's Final Determination

engrafts content based restrictions into both the "directly related to" and "maintained by" prongs

of FERPA's "education records" definition. It does so by holding that "only those records

relating to a student's academics are 'education records' protected by FERPA" and that the

(L0639476.1) 5

R. 044a

record must not only be maintained by the educational institution but, in addition, it must be

maintained as "part of the student's permanent academic file." OOR Final Determination, at 5

(emphasis added).

27. OOR' s determination that a record can only be an "education record" if it is

related to a student's academic performance and is maintained in that particular student's

permanent education file is contrary to the plain language of the statute, principles of statutory

construction, federal guidance on the subject, and the case law on which OOR relies.'

28. Indeed, in rendering its determination, OOR failed to recognize a distinction

between the two prongs of the "education records" definition, providing a lengthy string cite

intermeshing the two. For purposes of clarity, the District addresses each prong individually.

i. The First Prong: "Directly Related To"

29. With respect to the "directly related to" prong of the "education records"

definition, OOR cites three cases in its Final Determination. See Wallace v. Cranbrook Educ.

Cmty., 2006 U.S. Dist. LEXIS 71251 (E.D. Mich. 2006); Ellis v. Clevenland Mun. Sch. Dist.,

309 F. Supp. 2d 1019 (N.D. Oh. 2004); Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. 1991).

30. Each of these cases involved students' statements contained in incident reports

about the subject of the investigation such that the records were only tangentially related to the

students. Wallace, 2006 U.S. Dist. LEXIS 71251, at *8 (student statements provided in relation

to an investigation into a school employee's alleged misconduct); Ellis, 309 F. Supp. 2d at 1022-

2 In reaching its decision, OOR overturned five years of its prior jurisprudence by overruling its own

precedent in Rending v. Bangor Area School District OOR Dkt. AP 2011-2001; 2011 PA OOR Lexis 47. In so doing, OOR blithely stated that, even though Remling supports CDSD's position, OOR wrongly decided Remling because it failed to sufficiently analyze case law. Of course, as

CDSD points out infra, OOR, in this case, analyzes the case law improperly.

{L0639476.1} 6

R. 045a

23 (witness statements related to allegations of a physical altercation); Bauer, 759 F. Supp. at

590 (criminal investigation and incident reports maintained by a law enforcement unit).

31. Even assuming arguendo that these cases were properly decided, they are

distinguishable from the video recording at issue. In each of these cases, the statements were

gathered post hoc, after a particular incident, and as a result of an investigation into the non-

students at issue. For this reason, the courts found that after -the -fact witness statements were not

"directly related to" the students, but rather were "directly related" to the non -students'

investigations.

32. Such incident reports are nothing like the videotape at issue here which plainly

depicts the actual events in question - it is a video recording of students which documents both

conduct by students at a school function and conduct of a parent of another student.

33. Furthermore, the OOR ignored entirely a recent case and federal agency guidance

which specifically address whether video recordings, like the video recording here, are "directly

related to" the students depicted in the tape such that they constitute education records. See

Bryner v. Canyons Sch. Dist., 351 P.3d 852, 857 (Utah Ct. App. 2015).

34. In Bryner, the reviewing court found that a video recording depicting an

altercation among students was an education record protected by FERPA. Id. at 858.

35. In analyzing the "directly related to" prong, the Bryner court noted,

Iiinfoimation is directly related to a student if it has a close connection to that student." Id, at

858 (quoting Rhea v. District Bd. of Trustees of Santa Fe Coll., 109 So.3d 851, 857

(Fla.Dist.Ct.App. 2013)). "Records therefore directly relate to a student if 'the matters addressed

in the .., records pertain to actions committed or allegedly committed by or against' the student

and contain information identifying the student." Id. (citations omitted).

{L0639476.1) 7

R. 046a

36. The court further explained that guidance from the United States Department of

Education's Family Policy Compliance Office (the FPCO), which implements and oversees

institutional compliance with FERPA, has explained that "a parent may only inspect a school

videotape showing his or her own child engaged in misbehavior if no other students are

pictured." Id. at 858 (citation to FPCO guidance omitted in original).

37. In fact, the FPCO guidance presumes that school video surveillance tapes that are

maintained by the school and depict students constitute education records:

If education records of a student contain information on more than one student, the parent requesting access to education records has the right to inspect and review, or be informed of, only the

information in the record directly related to his or her child If,

on the other hand, another student is pictured fighting in the videotape, [the parent] would not have the right to inspect and

review that portion of the videotape.

Id. (quoting FPCO guidance).

38. Indeed, the FPCO guidance does not even question that such videotapes are

education records for those students at issue in the video and even places limitations on the

parent's right to view the videotape when it also constitutes the education record of another

student. See id.

39. Additional FPCO guidance has further explained that video recordings are

"education records only for those students who are 'directly related' to the focus or subject of the

video." Id. (citing Opinion of the Texas Attorney General, OR 2006-07701 (July 18, 2006);

Opinion of the Texas Attorney General, OR 2006-00484 (January 13, 2006) (both of which cite

to FPCO guidance)). Thus, a school video recording is not an education record only for those

students in the background of the video recording and not involved in the focus or subject of the

video. Id,

(L0639476.1) 8

R. 047a

40. Based on this guidance and its interpretation of the plain language of the statute,

the Bryner court found that the video pertained to "actions committed or allegedly committed by

or against" [the student] and other students. Id. Because the video recording was a record of the

actions of the students involved and contained images identifying the students, the video

contained information "directly related to" the students involved in the incident. Id.

41. Likewise, the video recording at issue here pertains to "actions committed or

allegedly committed by or against" a student or students, is a record of the actions of the students

and non -students involved, and contains images identifying the students involved. See id. There

is no reasonable argument to the contrary. The video recording unquestionably depicts events

involving a student: the student is the focus and subject of the video.

42. That the video recording also depicts conduct of a non -student does not eliminate

the FERPA protections afforded to the involved student's education record. In fact, it would be

nonsensical to suggest that the presence of a non -student, such as a parent, custodian, teacher,

teacher's assistant, cafeteria worker, administrative staff, or any other individual, divests such

records of protections expressly provided by FERPA.

43. The video recording here contains information directly related to a student and

therefore satisfies the first prong of "education record" definition under FERPA.

i. The Second Prong: "Maintained by"

44. With respect to the "maintained by" prong of the "education records" definition,

the video recording also satisfies this requirement under FERPA.

45. OOR' s Final Determination is seemingly based primarily on this second prong of

the statutory test. OOR reaches its conclusion the video recording was not maintained by the

District by (1) disregarding entirely the sworn testimony of the District's Open Records Officer

{L0639476,1} 9

R. 048a

and creating its own facts; and (2) disregarding the plain language of the statute in favor of case

law it either misinterpreted or read too broadly in order to improperly narrow FERPA's

applicability.

46. Specifically, the case law cited by OOR does not stand for the propositions for

which it relies upon:

Owasso Independent Sch. Dist. v. Falvo, 534 U.S. 426 (2002): OOR contends that this case stands for the broad proposition that "individual student papers are not 'education records' under FERPA because they were not maintained in a central file by the official records custodian." OOR Final Determination, at

4. Contrary to OOR's assertion, the Court limited its holding to the "narrow point" that individual student papers in the hands of student graders are not education records "at that stage." Falvo, 534 U.S. at 433-36 (emphasis added). In fact, the Court did not purport to limit "education records" to only those records relating to academic performance nor did it suggest any requirement that such records must be maintained in that particular student's permanent file. Instead, the Court offered nothing more than that the "word 'maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled." Id. at 433.

Bd. of Educ. of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011) (case not selected for publication): OOR contends that tally sheets are not "educational records" because the records were not part of the student's permanent file. OOR Final Determination, at 4. The Horen court, however, in relying on Falvo, merely found that "the word 'maintain' requires the records be kept in a permanent facility." Horen, 2011 U.S. App. LEXIS 26644, at *20 (emphasis added). It held that "temporary notes made by [the

student's] teacher, for the teacher's own use, which were subsequently destroyed, [we]re not educational records." Id. at *20-21,

Pollack v. Regional Sch. Unit 75, 2015 U.S. Dist. LEXIS 55992 (D. Me. 2015):

OOR contends that Pollack held that "education records" are those records which follow a student from "grade to grade." OOR Final Determination, at 4.

Pollack, however, did not hold that at all. Instead, the court relied on Oswasso, noting that the term "maintain" was intended to refer to "institutional records kept in a single place." The court's passing reference to the phrase "grade to grade" is mere dicta offered to support its proffered distinction between education records under FERPA and education records under The Individual with Disabilities Education Act. Pollack, 2015 U.S. Dist. LEXIS 55992, at *24.

S.A. v. Tulare County Office of Educ., 2009 U.S. Dist, LEXIS 93170 (E,D.Cal, 2009): OOR again engrafts a requirement that the record be a part of the

{L0639476.1) 10

R. 049a

student's permanent file where one does not exist. OOR Final Determination, at 4 (emphasis added). Instead, the court focused on emails which were temporary because they were deleted and records that "will be kept in a filing cabinet in a records room at the school or on a permanent secure database." S.A., 2009 U.S. Dist. LEXIS 93170, at * 10 (citing Owasso, 534 U.S. at 434).

Indeed, the court indicated that "emails, whether in hard copy or in electronic format, may be education records so long as the educational institution maintains them." Id. at *9.

47. Contrary to OOR's recitation, each one of these cases stands for the proposition

that the records are "maintained by" an educational institutional if the records are kept in a single

place, permanent facility, or on a permanent secure database by the educational institution itself.

48. As such, OOR' s singular and unsupported conclusion that education records must

be "part of the student's permanent academic file," is nothing more than a requirement invented

by OOR to justify its decision that flies in the face of the plain language of the statute and case

law interpreting the same.

49. The video recording here is maintained by the District in a central location and as

part of its permanent records. The District's Open Records Officer affirmed that the video

recording was "maintained by" the District under this precise understanding of its definition in

her Affidavit to the 00R. See Exhibit E, at ¶ 8. 00Rs conclusion to the contrary is not

supported by the law or the facts of this case.

50. Therefore, OOR's decision that the video recording is not maintained by the

District must be reversed.

51. Notably, OOR reached its decision which overruled five years of OOR's own

precedent, (on which the District was entitled to rely) without providing a hearing on this matter.

52. Contrary to OOR's present determination, however, its determination in Remling

properly applied the plain language of the statute in determining that the school bus video

{L0639476.1) 11

R. 050a

recording was an education record protected from disclosure under FERPA. Seg Remling v.

Bangor Area School District, 2011 WL 554115 (Pa. Off. Open Rec. February 1, 2011).

53. OOR's determination has demonstrated that it has simply failed to interpret and

apply the provisions of FERPA consistent with the federal government's own guidance as well

as well -established precedent. Its conclusions in this case are not supported by the law or the

facts and its Final Determination must be reversed.3

B. The school bus videotape is a part of the District's noncriminal investigation and protected from disclosure under the RTKL.

54. The OOR's Final Determination that the school bus videotape is not a record

relating to the District's noncriminal investigation of the events depicted in the video recording is

also clearly erroneous and must be reversed.

55. Section 708(b)(17) of the RTKL, specifically exempts from disclosure a record4

of an agency relating to a noncriminal investigation. The RTKL provides that records relating to

noncriminal investigations include:

(i) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports. (iii) A record that includes the identity of a confidential source (iv) A record that includes information made confidential by law.

(v) Work papers underlying an audit (vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration,

'Because the bus video recording is an "education record" protected from disclosure under FERPA, the District's

disclosure of the video would result in the loss of Federal funds by the District, See 20 U.S.C. § 1232g(b)(1).

Therefore, the video is also exempt from disclosure under Section 708(b)(1) of the RTKL.

4 The term "record" is defined as "[Unformation, 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. Moreover, the term "record" includes "a

document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained

electronically and a data -processed or image -processed document. Id. Based on the definition of "record" any

suggestion by OOR that video recordings are not included within Section 708(b)(17) is without merit. See OOR

Final Determination, at 8, n.3.

{L0639476.1) 12

R. 051a

certification or similar authorization issued by an agency or an

executed settlement agreement unless the agreement is determined to be confidential by a court.



65 P.S. § 67.708(b)(17).

56. The "term 'investigation' means a systematic or searching inquiry, a detailed

examination, or an official probe." Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth.

2011) (quoting Dep't of Health v. 00R, 4 A.3d 803, 810-11 (Pa. Cmwlth. 2010).

57. OOR contends that the District "investigating an assaults on a student by the

parent of another student ... cannot be said to relate to the District's core function of educating

students, and can only be said to be 'ancillary' to the District's mission." OOR Final

Determination, at 7. Furthermore, it contends the District has "pointed to no 'legislatively -

granted fact-finding authority' to conduct a noncriminal investigation." Id.

58. OOR' s suggestion that a school district may only conduct "noncriminal

investigations" related to its "core function of educating students" is wrong. See OOR Final

Determination, at 7.

59. Among other core functions, the District also has a core function of ensuring the

safety of its students. See, e.g., 24 P.S. §§ 13 -1301 -A -13-1313-a; 22 Pa. Code §§ 10.1-10.25

(relating to the District's obligation to ensure "Safe Schools"); 24 P.S. § 5-510 (relating to the

District's ability to adopt and enforce such reasonable rules and regulations regarding

management of school affairs and conduct of pupils).

It must be noted that OOR's characterization of the incident as "an assault" is erroneous and inflammatory.

Indeed, neither party to this action has characterized the incident as such, nor is such a description accurate.

{L0639476.1} 13

R. 052a

60. Further, the District has a core function of ensuring student's conduct themselves

appropriately and levying discipline when necessary and after a full and fair investigation. See

e.g., 24 P.S. § 5-510; 24 P.S. § 13.1317 (relating to authority as to conduct and behavior over

pupils); 24 P.S. § 13-1318 (relating to the District's authority to suspend or expel pupils on

account of disobedience or misconduct).

61. Indeed, each of these provisions provide "legislatively -granted fact finding and

investigative powers" to the District to regulate and investigate student conduct, such as the

student conduct captured in the video at issue here, as well as levy discipline or take other action

on behalf of or against a student. OOR has, in fact, previously recognized a school district's

authority to conduct noncriminal investigations pursuant to 24 P.S. § 13-1317, and found such

records exempt from disclosure under Section 708(b)(17) of the RTKL. In the Matter of Lance

and Sarah Fanner v. Susquenita Sch. Dist., OOR Dkt. AP 2015-0447 (April 28, 2015).

62. In addition, the "Safe Schools" provisions at 24 P.S. §§ 13-1301-A et seq.

expressly empowers the District to investigate conduct by non -students "on school property, at a

school sponsored activity or on a conveyance ..., such as a school bus, providing transportation

to or from a school or school sponsored activity." 22 Pa.Code § 10.1. The District's mission to

ensure the safety of its students under this statutory mandate is anything but "ancillary."

63. Moreover, the District's fact-finding and investigative power is also inherent in its

duties to implement and enforce rules and regulations regarding the management of school

affairs, conduct of employees, and conduct of students when they are under the District's

supervision. 24 P.S. § 5-510. Such obligations are not limited strictly to educational functions.

(L0639476.1) 14

R. 053a

64. As such, OOR's determination that the District was not empowered to conduct a

noncriminal investigation of an incident which involved a student and a parent of a student on

the District's premises and in District property is simply without merit.

65. Finally, OOR's citation to Pennsylvania State Police v. Grove, 133 A.3d 292 (Pa.

Cmwlth. 2016) is unavailing for three reasons: (1) criminal cases and criminal investigations are

different in nature than noncriminal investigations; (2) the Grove court merely found that the

video at issue did not contain any investigative information, not that such videos could never

contain investigative information, 119 A.3d at 1109; and (3) the Grove case is currently on

appeal to the Pennsylvania Supreme Court to consider the question of whether the video at issue

is exempt from disclosure under Section 708(b)(16) of the RTKL. Pennsylvania State Police v.

Grove, 133 A.3d 292 (March 15, 2016) (granting appeal).

66. Moreover, Contrary to OOR's unsupported assertion, the video recording here

does exist "merely or primarily" for investigative purposes. See OOR Final Determination, at 8.

In fact, this video recording only exists for this purpose. The District does not retain surveillance

videos for any other purpose.

67. The video recording here is a record relating to the District's noncriminal

investigation of this matter. Exhibit E, at ¶¶ 17-18. It contains an actual depiction of both the

student's conduct and the non -student's conduct. It is the investigative material central to the

noncriminal investigation of the events in question.

68. Accordingly, OOR's determination that the video recording is not exempt under

the noncriminal investigation exception of the RTKL must be reversed.

(L0639476.1) 15

R. 054a

WHEREFORE, Central Dauphin School District requests this Honorable Court issue an

order granting the Notice of Appeal/Petition for Review and reversing the Final Determination of

the Office of Open Records.

Respectfully submitted,

ECKERT SEAMANS CHERIN & MELLOTT, LLC

Michael McAuliffe Miller, Esquire (I.D. No. 78507) Tricia S. Lontz, Esquire (I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Sheet, 8th Floor Harrisburg, PA 17101 [email protected] [email protected] Telephone: (717) 237-6000

Date: June 9, 2016 Counsel for Central Dauphin School District

(L0639476.1) 16

R. 055a

VERIFICATION

I, Vitaa) L' MCC°"-jtC"-- , hereby verify that I am the Assistant Superintendent for

Finance and Administrative Operations and the District's Open Records Officer, am authorized

to provide this Verification. The facts set forth in the foregoing Notice of Appeal/Petition for

Review are based upon my personal knowledge or information that was gathered from regularly

kept business records, or gathered during an investigation in the course of preparing the

foregoing; and the facts are true and correct to the best of my knowledge, information and belief.

I understand that statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904

relating to unswom falsification to authorities.

Date: June q , 2016

(L0639476.1)

Kareli Iv Connell, Assistant Superintendent for Finance and Administrative Operations and Open Records Officer

R. 056a

EXHIBIT A

R. 057a

Henry, Faith 111111111111



To: DC, OpenRecords

Subject: F0X43 NEWS-->RTK appeal form


Fox43 3-24-16.pdf; nontrafficcitationfiledagainstericarawls.pdf

Good afternoon,




and Ms. McConnell.

filed a RTK request with the Central Dauphin School District on Feb. 23, 2016 to request a copy of the video that was






camera video:


To: [email protected] Subject: RE: FOX43 NEWS -->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23.



Kind Regards,



To: openrecordsofficerOcdschools.orq

R. 058a


Hi there,

My name Is Valerie and 1 am the Planning Editor for FOX43 News.

I am emalling seeking a copy of an Incident that was captured on a school bus video system on Feb. 16 after Erica Rawls




Name of Requestor: Valerie Hawkins

Street Address: 2005 South Queen Street

City/State/County: York PA 17403

Telephone: 717-814-5599




Feb. 16 (see attached docuMent). Rawls was cited with a summary count of harassment. We would like to obtain a video



Do you want to inspect the record: Yes



Kind regards,

Valerie Hawkins Planning Editor/ WPMT FOX43 717.814.5599/ [email protected]

2005 South Queen Street, York, PA 17403 ,

Valerie Waltz Planning Editor/ WPMT FOX43 / 717.814,5599/ [email protected]

2005 South Queen Street, York, PA 17403

2

R. 059a

EXHIBIT B

R. 060a

CENTRAL DAOPHiN SCHOOL I)ISTRICt-

District Administration Office 600 Rutherford Road .

14cirrisbufg; PA 1710 re1epholV1 (717) .5-45474 Fax: (717) 657;499.9 op enrecordsofffc erQddsChools..Org

CDNO Kores L. MBA; CPA .

Oer Re0t:d.s Otrier

'Oldht-ro.:Kilow,fieSsionse4orm.

Marcfr.24, 2016

'VIA \vciliz6fox4.t.:corn:

Vdieriel-idWffig. `2005'Souin Queen 'Street, Yorlc,,,PA 1740

Dear

Theundersigned is.the Open..Reacirds:.Officer: for Central Ipauptitn..5ehool lIstriat On.

Februaw. 23, 20.16,:tlie,Open ecords Offide reoelveci r00c:fesi from .you fOr the:fol.10\fiVi!

F0).43 News. is.:redOes'tin9 Cdpy of the Ytc106"theitiv0S d'opAttect

soho0.1 eryst d=vrresith On 'Feb. 13, 2O:1

'We responged.wittiln ti'VP:c101(ed. fl.Ye ($1 claysfaciviShigli).0 Of*;.littatial tiffiewasi needed f gleopijr.eyieW and lherpfStriOt:wdis invoking its r0hrt.q.0 (W.Ong1-4111:-

Your request busvideocontainsopersonallyidentiffak5le,infornldfign: ;directly related to ,a4tudept wstudenisi it is,.csmsio.cyrod dr),9000o.tipri reO0r41.ndtis

rric:Iiritdiryficl by acP:tr011apuphiri School.0Str.t0 ana is prOtOted froM.release ty..;11):e

Family Eclucc.itidnal Rights and PriVa4y AOt § 1:2320:0.4.CfR Part:9C, (See:

.Rernlltv v: 13.dra0e. Area SehOor-DIStriCt, ID0Ck6t.Nd. violation of FERP.A

could result in the loss of state and/or fedora funding, Therefore, the vi'c4eo:ls:.42'9>tempt

pursuant to 6 PS §67 708b) A record. fhe'....clisci.o'S (.1(9.- Of .v.vtikt.i wouId,t.J)f iii th loss

of Peder01.0r;State.:fun0q.bY.95 iV.qs/b.Y at The Coiitppnweo/th; 4:1(5.1tion;,,Ifirexempt:

fout$Iforiffo..65.1R,t., .§:67,708,(b)..(17.)0).fnvesticitiye materials , idles; correspondence and

re part.tela tit:1g*. 4.non-dilnlinal.investtgartion.,

Y.00110vP.V.'figilt tO.d01).e..01::RYP...0P110(alrIfOrMith.,10WI114 ..A.trrei5r.i:t eoaltivo o.ife4tr,- Om -go of boot; ftioorol,-COrrtimot*Ps.;11th Key4tOrte,Bulldlrio 400.1%1h:street

Fourth FlOaY,'Harris{qUrg;.P.fy :17120. You rnUSf.clO,SQ*Ithtri.MbWIrie0. days of the. mailing

date Of theagency's response as outlined:in SectiOn'1101, Mato Office:otbpen Record's website att ftp:floperwecards,stateQa:wtor figin4rinfOrrridIlort.dn fin an

oppeal you hove further questions -I pose callKVrerl MOOr.Ireli

SIneefel.Y:

-eei),05

:Kai -en L. MCC.beiriellf MBA,,CP:A

Open Records;Ofticer.:

KLM:law

R. 061a

EXHIBIT C

R. 062a

pennsyNania OFFICE OF OPEN REC0flOt

RIGHT -TO -KNOW LAW ("RTKL") APPEAL OF DENIAL, PARTIAL DENIAL, OR DEEMolige OPEN RECORDS

RECEIVED MAR 2 4 2016

Office of Open Records ("00R") Email: openrecords(@,paam Fax: (717) 425-5343




Email: vwaltz©fox43.com



Phone/Fax: 717-814-5599 /717-814-5586

Request Submitted to Agency Via: EEmail []Mail ElFax Din -Person (check only one)

Date of Request: 02/23/2016 Date of Response: 3/24/2016 OCheek if no response



Email: [email protected] Phone/Fax: 717-545-4703 / 717-657.4999


I was denied access to the following records (REQUIRED, Use additional pages if necessary): video that

was captured by a school bus camera system that occurred on Feb. 16, 2016 involving' Erica Rawls.

She Is accused of grabbing a 17 -year -old girl by the wrist after the team returned from .a game at CD High School,

I requested the listed records from the Agency named above, 13y signing below, I am appealing the Agency's




request was sufficiently specific. OW Mang th %UK,

I am also appealing for the following reasons (Optional. Use additional pages if necessary):

Is for the actions of the adult, Erica Rawls, who was charged by police and Is the wife of CD East Principal Jesse Rawls,

DI have attached a copy of my request for records. (REQUIRED)

Eli have attached a copy of all responses from the Agency regarding my request. (REOITBED)

[]I have attached any letters or notices extending the Agency's time to respond to my request.


DI am interested in resolving this issue through OOR mediation. This stays the initial OOR deadline for

the issuance of a final determination. If mediation is unsuccessful, the OUR has 30 days from the



You should provide the Agency with a copy of this form and any documents you submit to the OOR.

0012Appeal Form- Revised January 4, 2016

R. 063a

EXHIBIT D

R. 064a

pennsylvania Ida OFFICE OF OPEN RECORDS

Via E -Mail only;

Valerie Hawkins 2005 South Queen Street York, PA 17403 [email protected]

March 25, 2016

Via E -Mail only:

Karen L, McConnell Open Records Officer Central Dauphin School District 600 Rutherford Road Harrisburg, PA 17109 openrecordsofficer@cdschools,org

RE: OFFICIAL NOTICE OF APPEAL - DOCKET #AP 2016-0583

Dear Parties:

Please review this information carefully as it affects your legal rights.

The Office of Open Records ("00R") received this appeal under the Right -to -Know Law ("RTKL"), 65 P.S. §§ 67.101, et seq. on March 24, 2Q16. This letter describes the appeal

process. A binding Final Determination will be issued pursuant to the timeline required by the RTKL. In most cases, that means within 30 calendar days.

OOR Mediation: This is a voluntary, informal process to help parties reach a mutually

agreeable settlement on records disputes before the 00R. To participate in mediation, both

parties must agree in writing. If mediation is unsuccessful, both parties will be able to make

submissions to the OOR, and the OOR will have 30 calendar days from the conclusion of the

mediation process to issue a Final Determination,

Note to Parties: Statements of fact must be supported by an affidavit or attestation made under penalty of perjury by a person with actual knowledge. Any factual statements or

allegations submitted without an affidavit will not be considered, The agency'has the burden of proving that records are exempt from public access (see 65 P.S. § 67.708(a)(1)). To meet this burden, the agency must provide evidence to the OOR. The law requires the agency position

to be supported by sufficient facts and citation to all relevant sections of the RTKL, case law,

and OOR Final Determinations, An affidavit or attestation is required to show that records do not

exist. Blank sample affidavits are available on the OOR's website,

Submissions to OOR; Both parties may submit information and legal argument to

support their positions by 11;59:59 p.m, seven (7) business days from the date of this letter.

Submissions sent via postal mail and received after 5:00 p.m, will be treated as having been

received the next business day. The agency may assert exemptions on appeal even if it did not assert them when the request was denied (Levy v. Senate ofPa,, 65 A,3d 361 (Pa. 2013)).

Commonwealth Keystone Building I 400 North Street, 4th Floor I Harrisburg, PA 17120-0225 I 717.346.99031F 717.425.5343 I http://openrecords.pa.gov

R. 065a

Include the docket number above on all submissions related to this appeal, Also, any

information you provide to the OOR must be provided to all parties involved in this

appeal. Information shared with the OOR that. is not also shared with all parties will not be

considered.

Agency Must Notify Third Parties: If records affect a legal or security interest of an

employee of the agency; contain confidential, proprietary or trademarked records of a person or

business entity; or are held by a contractor or vendor, the agency must notify such parties of

this appeal immediately and provide proof of that notice to the OOR within seven (7)

business days from the date on this letter. Such notice must be made by (1) providing a copy

of all documents included with this letter; and (2) advising that interested persons may request to

participate in this appeal (see 65 P.S. § 67.1101(c)).

Commonwealth Court has held that "the burden [is] on third -party contractors to

prove by a preponderance of the evidence that the [requested] records are exempt." (Allegheny

County Dept of Admin. Servs, v. A Second Chance, Inc., 13 A.3d 1025, 1042 (Pa. Commw. Ct.

2011)). Failure of a third -party contractor to participate in an appeal before the OOR may

be construed as a waiver of objections regarding release of the requested records.

Law Enforcement Records of Local Agencies: District Attorneys must appoint Appeals

Officers to hear appeals regarding criminal investigative records in the possession of a local law

enforcement agency. If access to records was denied in part on that basis, the Requester should

consider filing a concurrent appeal with the District Attorney of the relevant county.

If you have any questions about the appeal process, please contact the assigned Appeals

Officer (contact information is enclosed) - and be sure to provide a copy of any correspondence

to all other parties involved in this appeal.

Sincerely, //ie."

Erik Arneson Executive Director

Enc.: Assigned Appeals Officer contact information Entire appeal as filed with OOR

Jf

4

R. 066a


Please accept this as a Request to Participate in a currently pending appeal before the Office of Open

Records. The statements made herein and in any attachments are true and correct to the best of my

knowledge, information and belief. I understand this statement is made subject to the penalties of 18 Pa.C,S.

§ 4904, relating to unsworn falsifications to authorities.

NOTE: The requester filing the appeal with the OOR is a named party in the proceeding and is NOT

required to complete this form.


Name:

IF YOU ARE OBJECTING TO THE DISCLOSURE OF YOUR HOME ADDRESS, DO NOT PROVIDE THE

OFFICE OF OPEN RECORDS WITH YOUR HOME ADDRESS. PROVIDE AN,ALTERNATE ADDRESS

Ili YOU DO NOT HAVE ACCESS TO E-MAIL.


E-mail

Fax Number:

Name of Requester:



E-mail

Name of Agency:



E-mail

Record at issue:



0 The owner of a record containing confidential or proprietary information or trademarked records

O A contractor or vendor

O Other: (attach additional pages if necessary)

X have attached a copy of all evidence and arguments I wish to submit in support of my position.


Please submit this form to the Appeals Officer assigned to the appeal.. ,Remember to copy all parties on this

correspondence. The Office of Open Records will not consider direct interest filings submitted after a Final

Determination has been issued in the appeal.

p

R. 067a



CONTACT INFORMATION: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4t" Floor Harrisburg, PA 17120-0225

PHONE: (717) 346-9903

FACSIMILE: (717) 425-5343

E-MAIL: CharleBrow®pa.gov


Please direct submissions and correspondence related

to this appeal to the above Appeals Officer. Please include the case



The OOR website, http://openrecords,pa.gov, is searchable and both parties

are encouraged to review prior final determinations involving similar records

and fees that may impact this appeal.

R. 068a

Pennsylvania OFFICE OFFICE OF OPEN RECORDS

IN THE MATTER OF

FOX 43 NEWS Requester,

v. Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT :

Respondent.

Kati

This correspondence confirths the above -referenced Requester's agreement to an additional


Requester's appeal form. Accordingly, pursuant to 65 P.S. § 67.1101(b)(1), the Office of Open


May 23, 2016.

R. 069a

pennsytvania OFFICE OF OPEN RECORDS

RIGHT -TO -KNOW LAW ("RTKL") DEEMED9ROXP OPEN RECORDS

APPEAL OF DENIAL, PARTIAL DENIAL,

RECEIVED

MAR 2 4 2016

Office of Open Records ("00W') Email: openrecordsapa,gov Fax: (717) 425-5343







Request Submitted to Agency Via: I:Email Omaii OFax Din -Person (check only one)

Date of Request: 02/23/2016 Date of Response: 3/24/2016 ['Check if no response



Email: [email protected] Phone/Fax: 717-545-4703 /717-657-4999

Name & Title of Person Who Denied Request (if any): Karen

I was denied access to' the following records (REQUIRED. Use additional pages if necessary): video that

was captured by a school bus camera system that occurred on Feb. 16, 2016 Involving'Erica Rawls.

She is accused of grabbing a 17 -year -old girl by the wrist after the team returned from .a game at CD High School.

I requested the listed records from the Agency named above, By signing below, I am appealing the Agency's



are nof))rotected by a privilege, and are not exempt under any Federal or State law or regulation; and the

request was sufficiently specific. Our roam forivantin thevEdeo

I am also appealing for the following reasons (Optional, Use additional pages if necessary):

is for the actions of the adult, Erica Rawls, who was charged by police and Is the wife of CD East Principal Jesse Rawls.

DI have attached a copy of my request for records, (REQUIRED)

DI have attached a copy of all responses from the Agency regarding my request. (REOUWED)



DI am interested in resolving this issue through OOR mediation, This stays the initial OOR deadline for

the issuance of a final determination. If mediation is unsuccessful, the OOR has 30 days front the

conclusion of the mediation process to issue a final determination,


You should provide the Agency with a cony of this form and any documents you submit to the OOR.

OOR Appeal Form - Revised January 4, 2016

R. 070a

CENTRAL. DA,UPyON s0Hool. DISTRICT

District Administraticn Office. 600 Rutherford Road 140trisbufg; PA 17.10 Telephone1 (717) .5451474 Fax: (717) 657;499.9 apenrecordsoffiCerqacisdhooli.Org .0Pen Re'ore.3s OffiOer. '

111

C D Kareri L. MCCal-inelli MBA; CPA .

'thaht-Yo:Kbow.Retoonse."Form.

Mardh.24, 201:6.

'ViA'EMAllzvwciltz4f0)*(4.:corn:

Valerie HaVekihs. 20O South Queen 'Street, York,,.P.A 17403

OPP' MS..,FibwAr*'

The is.the Open Records,Officer: for Central Dauphin. School District On

February 24.; :20.16.,..theO.pen Records .C)ffIce received a reCiOest from .yop fOr ihe-follovOng!:

FOX43 News. is.feqUesting a Copy Of The video-thativaS eaptiites:1 sews), bus.cti41.6rti.V.0'661:rthat O.covrred, on Feb, 16, 20:1i5.:

'We ro*.orkcied'wiibln ffr five (6)butirress clOysro!civiskig.11101 00011.101101 tie'si needed TO' gftall rey1ei6/ and 1.herp1StriCtwasfOOkihq Its riohtt42O t*fONIOA.,

Your request is.denied:, .School bus: video oontdinspersonally.identifiab(einformafidn: idirectly related to.astudent or students, It Is considered cri di.iCction rporqtbTis maintained by Central.Douphin School District .ana Is protected from release b.y.fhe

Family Educational Rights Qhd PriVa Act IFERPAy, § 12320..'$4-CFR Part 99 (See;

offemllo0 V parige Area sohoof-01*ICf", DOCIwt violation of FERFA

could res.ultin The loss of state Ondf.or. .federal funding, Therefare,..the videals:.9.0.'9)Cern:Pt

pursuant ta.65'F!84&67,.7.C)0(N.('.1..),(i) A fecorof,tho'...diseiasvr.-Pf.tiyhtch tvagf.,00.41,100 the loss

of.Pederqbar:State:furlds ,bygri .cigqrvy or the Cojnmonwe ct/tb tn POIOlon.,'#:Isoxe..typt:

OorsuOrif to 65 P §67.708tbyf17gill10estigcrtiVe. Materials,. Oates; correspondence and:

YU W.:w01# t000peal,ftke.denial 0finfoWtiOn,in Writing la! :Arn-(56r.ist

0.Irea611,-OfflOO Of 0006 ..NOor,.COrrimPOWO011th Keystane,e,ullaing1.400.14arth§teet, Fourth FlOarcl-larrisbUrg',. PA 17120. You MUStocTO,so *I**. IS :6001'6A days otthe mailing

date of the -agency's response as outlined in ,lectlOr1101 Visit :the Office of Records webSite at.htta:nopenrecards..state.oa,us!for fOrtherinfOrmatiorian fl(lng.an

oPPe01... it'yol..,/,have. further duestions.; please call karen McConnell

SineetelY;

Karen L. L. KACCOrtiriell MBA ,;CPA Open Records;Officer.:

KLM:law

R. 071a

CENTRAL DAUPHIN .SCHO.OL DISTRIcT

District ApirriinlartitiCrffice 600 IROherforci Rocici Harrisburg, PA '17109

Telephone'. (71.7). 50-4703 FQX: (.717)657-4999 Karen L.. MeConnellb MBA, CPA

osenrecortisaffi0.0tgodfChools.CQ. ,OpenRecord Offieer.

1114h14.6.4thoW ResDonse4otert,

March 1.,20.16

V.I..A:EMAIL:.VWciltz0fox43.com.

Valerie HaWkitis 2005, SOuth GhieenStreet York, PA. J40.8

Dear Ms. Hdw.}40s:

Thej undersigned is:the Open Records Offierlbr;Cenirdi D..thiphinSChoot Distriet..0n.

February 4; 2oi:4"t M9,0pervRocorcis Oro, receIved.a. request from you for -the followinv

F0X43, t\i\ys is rotitiOStirio ca.Py of. ftle"vich4. frotwasycopture.d.b..y..0 schoot buS carnera'syStern thotoobtirred Orr feb,.'16,.2016.

Please be adylsed. that.plegarevIewisnecessory to determine whether the requested

record cons.tit.QteS c451Alid record Vr).dier the ildhPf97Kric.A.0-.0w, A.c7cordihqlyhthe District IS

invokitid Its fiht:to.an additional 30 dgy period Jr which to,.ortalyV4, Ord'reS'Pond.:to. your

request .$0e:..6.5 P. S. .§ 67,20.211: You on eipect.a reSponS0 toldOr re,tipeStWithit):S0 days

:f1QM the dcte.of this lefter,,Thefees.tb process -this requestare ekpette:dito

Sincerely, ,

v

en9.0c.:1600

Xdreri L MCConnell, Open ReCOrd,Officer

-KLM,.1ow

11

R. 072a

Feb. 23, 2016 1046AM MDJ 12-3-05 LOWELL A WITMER - No. 2687-P. 1 -

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41_6,

R. 073a

Henry, Faith IIMMINNIM



To: DC, OpenRecords

Subject: FOX43 NEWS-->RTK appeal form


Fox43 3-24-16.pdf; nontrafficcitationfiledagainstericarawls,pdf

Good afternoon,




and Ms. McConnell.







camera video:


To: openrecordsofficer@cdschools,orq Subject: RE: F0X43 NEWS -->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23,



Kind Regards,

Valerie Hawkins Planning Editor/ WPMT FOX43 / 717.814,5599/ [email protected] 2005 South Queen Street, York, PA 17403


To: g_penrecordsofficer©cdschools,orq

R. 074a

Cc: Smith, Paul Subject: F0X43 NEWS -->standard right -to -know request form

HI there,

My name Is Valerie and I am the Planning Editor for F0X43 News.

I am emallIng seeking a copy of an incident that was captured on a school bus video system on Feb. 16 after Erica Rawls




Name of Requestor: Valerie Hawkins Street Address: 2005 South Queen Street

City/State/County: York PA 17403

Telephone: 717-814-5599

Records requested: F0X43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on Feb.



Feb. 16 (see attached docuMent), Rawls was cited with a summary count of harassment. We would like to obtain a video






Kind regards,

Valerie Hawkins Planning Editor/ WPMT FOX43 / 717.814.5599/[email protected] 2005 South Queen Street; York, PA 17403


2

R. 075a

EXHIBIT E

R. 076a

Eckert Seamans Cherin & Mellott, LLC TEL 717 237 6000 213 Market Street FAX '717 237 6019 tith Floor www.eckertscarnans.com Harrisburg, PA 17101

ATTORNEYS AT LAW

Michael McAuliffe Miller 717.237.7174 mmillerCleckertscamans.com

April 1, 2016

VIA EMAIL and U.S. MAIL

Charles Rees Brown, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225

Re: Riffht to Know Request Appeal Docketed at # AP 2016-0583

Dear Mr. Brown:


By way of background, on February 23, 2016, the Requestor sought the following: "F0X43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on February 16, 2016." The District's Open Records Officer invoked the District's right to an additional 30 -day period to respond to the Request. The District submitted a timely response on March 24, 2016, denying the request. This Appeal followed.

The District properly denied the request because the requested video recording is an "education record" under the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and is therefore (and otherwise) exempt from disclosure under Pennsylvania's Right to Know Law, 65 P.S. § 67.101 et seq., ("RTKL").

The District's position is consistent with the Office of Open Records' (00R) decisions as the OOR has regularly held that education records covered under FERPA are not public records, including denying a request for a school bus video recording nearly identical to the request here.

See In the Matter of Jeff Remling v. Bangor Area Sch. Dist,, OOR Dkt. AP 2011-0021; see also

In the Matter of Larry Fieber v. New Hope-Solebury Sch. Dist., OOR Dkt. 2013-1020; Hocker v.

Owens J. Robert Sch. Dist., OOR Dkt. AP 2011-0302; In the Matter of Robert Robinson v. Phila.

City Sch. Dist,, OOR Dkt. AP 2010-0917.

(L0631216.1)

R. 077a

NM% ATTORNEYS AT LAW


Section 305(a) of the RTKL provides that records possessed by agencies are presumed to be public records, but that this "presumption shall not apply if: (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, regulation or judicial order or decree,"1 65 P.S. §

67.305(a), Section 306 of the RTKL further provides that InJothing in this act shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial or decree." 65 P,S, § 67,306.

This appeal should be denied because: (1) the requested record is not public and is exempt under FERPA; (2) disclosure of the requested record would result in the loss of federal or state funding; and (3) the record is a record relating to a noncriminal investigation exempt under Section 708(b)(17). Thus, the requested record is not subject to disclosure under the RTICL.

(1) The Video Recording is Not Public and is Protected from Disclosure under FERPA

The. video recording is an "education record" containing personally identifiable information under FERPA. FERPA defines "education records" 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." 33

C.F.R. § 99.3; 20 U.S.C. § 1232g(a)(4)(A), A record includes "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and microfiche. 33C.F.R. § 99,3.

First, the videotape at issue contains information directly related to students. "Information that is directly linked to a student or renders the identity of a student traceable is clearly protected under FERPA.." In the Matter of Jeff Remling, supra. The video recording at issue depicts which students were present on the bus in question on February 16, 2016 and which students were involved or not involved in the interaction at issue. Thus, the video recording contains information that is directly related to the students.

Further, the information that is directly related to the students also contains "personally identifiable information," Personally identifiable information includes lojther 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; or ... [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 related." 33 C,F.R. § 99.3. The video recording contains "personally identifiable information" because it is traceable to the students depicted. The video

If any of these circumstances are met, the record is not a "public record" as defined by the RTKL, 65 P,S, § 67,102,

(L0631216,1)

R. 078a


ATTORNEYS AT LAW

plainly shows and identifies the students present on the bus and those involved or not involved in

the interaction at issue.


Because the video recording contains (i) personally identifiable information directly related to students (ii) that is maintained by the School District, the video recording constitutes an "education record" as defined by FERPA. Under FERPA, such records are protected and confidential. This exact result was reached by the OOR in its Final Determination issued in In the Matter of Jeff Remling v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021. In Remling, the OOR denied the requestor's appeal seeking access to a school bus videotape because the videotape was an "education record" of the school district protected by FERPA. Similarly, the school bus video recording here is not subject to disclosure under FERPA. Therefore, the video recording is exempt from disclosure under Section 305(a)(3) and Section 306 of the RTKL.

In addition, the education record at issue cannot be disclosed pursuant to the law enforcement unit exception under FERPA. Under FERPA, records" does not include "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement." 20 U.S.C. §

1232g(a)(4)(b). As stated by the District's Open Records Officer in the attached Affidavit, the video recording at issue is, and was, not maintained by a law enforcement unit of the School District and not created by a law enforcement unit of the School District for law enforcement purposes. Rather, the video recording was created by the School District itself, separate and apart from any law enforcement unit of the School District, Therefore, the video recording cannot be disclosed pursuant to the law enforcement unit exception under FERPA,

Moreover, the video recording cannot be disclosed in a redacted form without violating FERPA's disclosure protections. First, the video recording is not capable of being redacted. As stated by the Open Records Officer, the School District does not have the technological capability of redacting the video recording to remove personally identifiable information.

Second, even if the School District had the technological ability to redact the video recording, such redaction would be insufficient to remove all personally identifiable information from the video as FERPA requires. See Sherry v. Radnor Twp, Sch. Dist., 20 A.3d 515, 525 (Pa, Cmw1th,

2011); In the Matter of Lany Fieber v. New Hope-Solebury Sch. Dist., OOR Dtk. AP 2013- 1020. In both Sherry and Fieber, it was recognized that under certain circumstances even redaction cannot eliminate all personally identifiable information because the document would still contain elements which could be used to identify the students involved. Specifically, in Fieber, the identity of the student involved could not be withheld through redaction because reports in the local newspapers made reference to the student who was the subject of the record.

(L0631216,1)

R. 079a


ATTORNEYS AT LAW

Therefore, even if the student's name was redacted from the document, the student's identity would be known to the requestor in violation of FERPA,

Likewise, here, there have been numerous media reports regarding the circumstance surrounding the video recording. The reports identify the involved students as members of the girls' basketball team, Therefore, even if the students' faces and other identifying characteristics could be redacted from the videotape, the students' identities will still be known to, or reasonably discoverable by, the Requestor in violation of FERPA.

The video recording at issue is an education record protected by FERPA. Because the video recording is protected by FERPA, it is exempt from disclosure under the RTKL. This Appeal should therefore be denied.


In addition to the basis for denial above, the video is also exempt from disclosure under Section 708(b)(1) of the RTKL. Under Section 708 of the RTKL, a record, the disclosure of which "would result in the loss of Federal or State funds by an agency or the Commonwealth" is exempt from disclosure. 65 P.S. § 67.708(b)(1)(i), FERPA expressly indicates that it financially penalizes school districts "which [have] a policy or practice of permitting the release of education records . of students without the written consent of their parents." 20 U,S.C. §

1232g(b)(l).

Therefore, FERPA protects education records from disclosure and financially penalizes school districts that lack a policy for protecting such records, Because the disclosure of the video recording at issue would result in the loss of Federal funds by the School District, the record is

also exempt from disclosure under Section 708(b)(1)(i) of the RTKL, This Appeal should be denied on this basis as well.

(3) The Video Recording Constitutes a Record Relating to a Non -criminal Investigation.

The video recording also constitutes a record relating to a noncriminal investigation. Section 708(b)(17) of the RTKL, specifically exempts from disclosure a record of an agency relating to a

noncriminal investigation. The RTKL defines records relating to a noncriminal investigation as

including:

(i) Complaints submitted to an agency, (ii) Investigative materials, notes, correspondence and reports. (iii) A record that includes the identity of a confidential source ,

(iv) A record that includes information made confidential by law. (v) Work papers underlying an audit. (vi) A record that,.if disclosed, would do any of the following:

(L0631216.1)

R. 080a


ATTORNEYS AT LAW

(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court,



65 P.S. § 67.708(b)(17).

The Commonwealth Court examined this RTKL exception as it pertains to "education records" in Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011). In Sherry, the

Commonwealth Court affirmed the denial of a request to inspect de -identified records of honor code violations maintained by the district because it determined the records were exempt from disclosure under the RTKL as noncriminal investigation records. The Court found that the records were evidence of the district's official probe into a purported rule violation on the

district's premises, contained a description of the violative conduct, contained witness/teacher statements, and contained a description of the course and result of the investigation. Id. at 523-

24. Thus, the Court found the records constituted noncriminal investigation records and were exempt pursuant to this exception. Id, at 524.

Here, the video recording contains information relating to an incident on a school bus which involved students and a parent of a student. The video recording documents activities that were

noncriminal in nature (even if certain events are alleged to be criminal in nature). As affirmed by the Open Records Officer, the School District is conducting a detailed examination and official probe into the incident which occurred on the District's premises and in District property. The video recording contains an actual depiction of the events in question and is evidence of the conduct subject to the investigation. Thus, the record relates to a noncriminal investigation because it constitutes "investigative materials, notes, correspondence and reports" of the investigation and is also a record that includes information made confidential by law. 65 P.S. §

67.708(b)(17)(ii), (iv); see also Sherry, supra.

(L0631216.1}

R. 081a

RI11 laa ATTORNEYS AT LAW


Therefore, in addition to the FERPA protections, the video records is also exempt under the noncriminal investigation exception of the RTKL.


MMM/tl Enclosures

(L0631216.1)

R. 082a


VALERIE HAWKINS,

Requestor,

vs. : No. AP 2016-0583


Agency.

AFFIDAVIT


statements are true and correct based upon my personal knowledge, information and belief;

1. I serve as the Open Records Officer for the Central Dauphin School District ("Agency"),

2. I am responsible for Right -to -Know Requests filed with the Agency.

3. In my capacity as the Open Records Officer, I am familiar with the records of the .Agency,

4, Upon receipt of the request, I conducted a thorough examination of files in the possession, custody and control of the Agency for records responsive to the request underlying this appeal.

5. After conducting a good faith search of the Agency's files, I identified all records within the Agency's possession, custody or control that are responsive to the request and determined that the records are protected from disclosure under the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and thus, are exempt from disclosure under Pennsylvania's Right to Know Law, 65

P.S. § 67.101 et seq. ("RTKL").

6. The records sought in the Request are education records under FERPA. FERPA defines "education records" 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." 33 C.F.R. § 99.3; 20 U.S.C. § 1232g(a)(4)(A).

(L0631218.1)

R. 083a

7. The video recording contains personally identifiable information directly related to students because the students are visible and identifiable in the video recording.

8, The video recording is maintained by the School District. The requested video recording is, and was, not maintained by a law enforcement unit of the Agency; and not created by a law enforcement unit of the Agency for a law enforcement purpose.

9. The video recording is an "education record" under FERPA which requires the Agency to keep the record confidential.

10. The personally identifiable information of the students cannot be redacted from the video recording.

11. First, the Agency cannot redact the student's personally identifiable information because it does not have the technological ability to redact the video recording.

12. Second, even if the Agency had the technological ability to redact the video recording, the Agency cannot remove all personally identifiable information from the vide6 recording.

13. The Agency cannot remove all personally identifiable information because the subject of the video recordings have been covered on multiple occasions in the news media.

14, The repeated news reports identify the students in the recording as members of the Central Dauphin East girls' basketball team.

15. Therefore, even if the students' identities were capable of being redacted from the video recording, the students' identities will still be known to the Requester.

16, The Agency may be financially penalized through loss of Federal funds if it permits the release records protected by FERPA such as the video recording.

17. The video recording is part of the Agency's non -criminal investigation of the events documented in the video recording.


{L06312183 )

R. 084a

Sworn -to and subscribed:before me this gs'r day of March, 2016,

Notary Public


By:

/A 10( &,,cv. ifzeolOS

Karen(L. McConnell, District/Open Records Officer

My Commission Expires: ,w7

(Seal) SEMMONWEALTH QF PENNSYLVANIA

NOTARIAL SEAL MELISSA FRY Nohuy Publlo

LOWER PAXTON TWP, DAUPHIN COUNTY

My CommIssIon Exolroo 080 12, 2010

(L0631218.1)

R. 085a

EXHIBIT F

R. 086a


FINAL DETERMINATION

IN THE MATTER OF

VALERIE HAWKINS AND FOX43 NEWS, Requester

v. : Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT, Respondent

INTRODUCTION



to -Know Law ("RTKL"), 65 P.S. §§ 67,101 et seq., seeking a video from a District school bus:


under federal law. The Requester appealed to the Office of Open Records ("00R"). For the



FACTUAL BACKGROUND


captured by a school bus camera system that occurred on Feb. 16, 2016." On March 24, 2016,



1

R. 087a


of federal funding. 65 P.S. § 67.708(b)(1)(i). In addition, the District argued that the video is


67.708(b)(17).


stating grounds for disclosure.' Specifically, the Requester notes that the video shows an adult



appeal. See 65 P.S. § 67.1101(c).


denial, and supported by the affidavit of Karen McConnell, the District's Open Records Officer,

LEGAL ANALYSIS


access to information concerning the activities of their government," SWB Yankees L.L.C. v,

Winterrnantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open -government law is




75 A.3d 453 (Pa. 2013).





67.1101(b)(1).

2

R. 088a







records. 65 P.S. § 67.302, Records in possession of a local agency are presumed public unless



See 65 P.S. § 67.708(b).






proof as leads the fact -finder ... to find that the existence of a contested fact is more probable

than its nonexistence." Pa. State Troopers Ass'n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.


827 (Pa. Commw. Ct. 2010)).



FERPA. FERPA protects "personally identifiable information" contained in "education records"

from disclosure and financially penalizes school districts "which {have] a policy or practice of

3

R. 089a

permitting the release of education records ... of students without the written consent of their


records" as those records that are "[d]irectly related to a student" and "[m]aintained by an


99.3, While the express language of FERPA's implementing regulation would appear to

encompass all records held by an educational institution and which relate to a student, a review



involves a student does not automatically invoke the confidentiality provisions of FERPA.

In Owasso Indep. Sch. Dist. No. I-011 v. Falvo, the United States Supreme Court held


maintained in a central file by the official records custodian, 534 U.S. 426 (2002). Other courts

have looked at the records themselves and have concluded that only those records relating to a

student's academic performance are "education records" for purposes of FERPA. Bd. of Educ,

of the Toledo City Sch, Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011) (tally sheets





grade."); S.A. v. Tulare County Office of Educ., 2009 U.S. Dist. LEXIS 93170 (E.D. Cal. 2009)


the student's permanent file); Wallace v. Cranbrook Educ. Clay, 2006 U.S. Dist. LEXIS 71251

(E.D. Mich. 2006) (student statements provided in relation to an investigation into school

4

R. 090a


records."); Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Oh. 2004). Perhaps



It is reasonable to assume that criminal investigation and incident reports are not

educational records because, although they may contain names and other personally identifiable information, such records relate in no way whatsoever to

the type of records which FERPA expressly protects; i.e., records relating to

individual student academic performance, financial aid or scholastic probation which are kept in individual student files.


foregoing, the courts have made clear that only those records relating to student academics are







The District points to Remling v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021, 2011 PA

O.O.R.D. LEXIS 74, wherein the request sought a copy of a school bus video recording.



FERPA. A review of the final determination in Rending reveals that the OOR relied solely on


5

R. 091a



2. The requested video does not relate to a noncriminal investigation






to noncriminal investigations[.]" Id. In order for this exemption to apply, an agency must


was conducted regarding a noncriminal matter. See Pa. Dep't of Health v. Office of Open


probe must be "conducted as part of an agency's official duties." Id. at 814; see also Johnson v.

Pa. Convention Center Auth., 49 A.3d 920 (Pa. Commw. Ct. 2012). The investigation must

specifically involve an agency's legislatively -granted fact-finding powcrs. See Pa. Dep't of Pub.

Welf v. Chawaga, 91 A.3d 257 (Pa. Commw. Ct. 2014). To hold otherwise would "craft a



In Sherry, the requester sought records regarding Academic Honor Code violations. In




2 Because the requested video is not protected by FERPA, disclosure would not threaten the loss of Federal funding.

Accordingly, the District has not met its burden of proof to withhold the video under Section 708(b)(1)(i) of the

RTKL, 65 P.S. § 67.708(b)(1)(i). See 65 P.S. § 67.708(a)(1).

6

R. 092a

District's premises." 20 A.3d at 523. Subsequent to the Court's decision in Sherry, the Court

















v. Grove, a requester sought a copy of a "dash -cam" video recording of a traffic stop. The State



rejecting the State Police's argument, the Court noted that "[dash -cam videos] are created to



7

R. 093a







investigation.3 65 P.S. § 67.708(a)(1).

CONCLUSION



Final Determination, any party may appeal to the Dauphin County Court of Common Pleas. 65




proper party to any appeal and should not be named as a party.4 This Final Determination shall

be placed on the OOR website: http://openrecords.pa.gov.


3 Additionally, while Section 708(b)(16) of the RTKL references videos as a type of record that may relate to a

criminal investigation, Section 708(b)(17) of the RTKL contains no reference to videos. Cf. 65 P.S. §

67.708(b)(16)(ii) with 65 P.S. § 67.708(b)(17)(ii). 4 Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

8

R. 094a



Sent via e-mail to:


9

R. 095a

CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct copy of the foregoing Notice of

Appeal/Petition for Review upon the parties listed below by United States Postal Service First

Class Mail, postage prepaid, as follows:

June 9, 2016

Valerie Hawkins and Fox 43 News 2005 South Queen Street

York, Pennsylvania 17403

Charles Rees Brown, Esquire Commonwealth of Pennsylvania

Office of Open Records Commonwealth Keystone building

400 North Street, 4th Floor Harrisburg, PA 17120-0225

TricYa7 S. Lontz

2

{L0639476.1)

R. 096a

CENTRAL DAUPHIN SCHOOL DISTRICT, : IN THE COURT OF COMMON PLEAS, : DAUPHIN COUNTY, PENNSYLVANIA

Petitioner

v.


: NO. 2016 -CV -4400 -MP

: Appeal from Final Determination of the

Respondents : Pennsylvania Office of Open Records

RULE TO SHOW CAUSE

AND NOW, this 2 day of `Nik ts) , 2016, upon consideration of the

Petition for Review of a Final Determination of the Pennsylvania Office of Open Records that

was filed by Petitioner Central Dauphin School District, a Rule is hereby issued upon

Respondents, to show cause, if any it has, why the relief requested should not be granted.

RETURNABLE in writing within 20 days from the date of service of this Rule.

,S1A 7 A

tlefeti t3rrtigte9a

tioeusd.and correct con (1

Q5.6nizio tj.. wo;4)42..-----

Di bUtitibI ": The Hon. Bruce F. Bratton Michael McAuliffe Miller, Esq., 213 Market Street, 8° Floor, Harrisburg, PA 17101

Valerie Hawkins and Fox 43 News, 2005 South Queen Street, York, PA 17403

Charles Rees Brown, Esq., Commonwealth of Pennsylvania, Office of Open Records,

Commonwealth Keystone Building, 400 North Second Street, Plaza Level, Harrisburg,

PA 17120-0225

R. 097a

_ 4&7:

l

IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA

CENTRAL DAUPHIN SCHOOL DISTRICT, :

Petitioner,

v. 2016 -CV -4401 -MP


Respondents

PRAEC1PE

TO THE PROTHONOTARY:

fh

Kindly accept the attached Notice of Non -Participation for filing to the above -captioned

matter.

Dated: July 8, 2016

1


Char es Chief Courisel Supreme Court No. 70612 Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120-0225 (717) 346-9903 (717) 425-5343 (facsimile)

Counsel for Office of Open Records

R. 098a

IN THE COURT OF COMMON PLEAS OF

DAUPHIN COUNTY, PENNSYLVANIA


Petitioner,

v.


2016 -CV -4401 -MP

Respondents

NOTICE OF NON -PARTICIPATION OF THE OFFICE OF OPEN RECORDS

AND NOW, this 8th day of July, 2016, the Pennsylvania Office of Open Records,

adjudicator of the above -captioned appeal for which judicial review is sought, files this Notice of

Non -Participation and states in support thereof as follows:

1. The Office of Open Records ("OOR"), is a quasi-judicial tribunal which

adjudicates disputes over requests for public records under the Right -to -Know

Law ("RTKL"), 65 P.S. §§ 67,101-.3401. See Commonwealth v. Ctr. Twp., 95

A.3d 354, 363-64 (Pa. Commw. Ct. 2014).

2. The above -captioned action is a statutory appeal from a Final Determination of the

00R.

3. On February 23, 2016, Valerie Hawkins, Planning Editor for FOX43 NEWS

("Requester") sought records under the RTKL from Central Dauphin School District

("District") seeking "a copy of the video that was captured by a school bus camera

system that occurred on Feb. 16, 2016."

1

1

R. 099a

E

4. On March 24, 2016, the District denied the Request, stating that disclosure of the

video would violate the Family Educational Rights and Privacy Act ("FERPA"), 20

U.S.C. § 1232g, and would result in the loss of federal funding. 65 P.S. §

67.708(b)(1)(i), In addition, the District 'argued that the video is exempt from

disclosure because it is related to a noncriminal investigation. 65 P.S. §

67.708(b)(17).

5. On March 24, 2016, the Requester appealed to the OOR, which docketed the appeal

as Valerie Hawkins and FOX43 News v. Central Dauphin School District, OOR Dkt.

AP 2016-0583.

6. On April 1, 2016, the District submitted a position statement reiterating its grounds

for denial, and supported by the affidavit of Karen McDonnell, the District's Open

Records Officer.

7. On May 19, 2016, the OOR issued its Final Determination granting the appeal.

8. On June 9, 2016, the District filed a Petition for Review of the OOR's Final

Determination determination.

9. On June 24, 2016, Judge Bruce Bratton issued a Rule to Show Cause why the relief

requested should not be granted. A response is due within twenty days.

10. The OOR has no interest in the underlying records; as a result "Mlle OOR does not

have standing to defend its decision because it is not aggrieved by the release of

another agency's records." East Stroudsburg University Foundation v. Office of Open

Records, 995 A.2d 496, 507 (Pa. Commw. Ct. 2010).

2

R. 100a

4-74. =z;

11. The OOR, accordingly, is not a proper party to this appeal.' See, e.g., Charnbersburg

Area School District v. Pennsylvania Office of Open Records (Maria Dorsey), No.

2012-849 (Frank. Corn. Pl. May 17, 2012) (discussing procedural rules for a Court of

Common Pleas and removing the OOR from the caption), available at

httIl://dced. state. paus/open-records/final-detenninations/Fi leHandier. ashx?ID=9021 ;

see also Lackawanna County Government Study Commission v. Office of Open

Records, No. 14 CV 4427 (Lack. Com. P1. Aug. 22, 2014) (holding that "[t]he OOR

should not be named as the respondent in this RTKL appeal"), available at

http://deckbappprd01/OpenRecords/FileHandler.ashx?FileM=14391.

12. As a quasi-judicial tribunal with no interest in the outcome of the District's appeal,

the OOR rests upon its Final Determination and will not file a brief or appear for

argument in the above listed appeal.


2

Charles Rees Brown Chief Counsel Supreme Court No. 70612

Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor IIarrisburg, PA 17120-0225 (717) 346-9903; (717) 425-5343 (facsimile) Counsel for Office of Open Records

Dated: July 8, 2016

The OOR's Final Determination states in the Conclusion' portion on the last page that "...as the quasi-judicial

tribunal adjudicating this matter, the OOR is not a proper party to any appeal and should not be named as a party.

See Padgett v. Pa. State Police, 73 A.3d 644, 648 n. 5 (Pa. Commw. Ct. 2013).

1

3

R. 101a

11.1=11.11111111. IMPIMMIIMIMIMMOMII.1==, Yrfg'. - ria 17gs.E:-.-

' I. -

I I: -L



Petitioner,

v. 2016 -CV -4401 -MP


Respondents


I hereby certify that the foregoing document was served in the manner indicated upon the

following:

Hon. Bruce F. Bratton,'Judge Dauphin County Court of Common Pleas Dauphin County Courthouse 101 Market Street, #6, Fifth Floor Harrisburg, PA 17101 (hand delivered)

Valerie Hawkins, Planning Editor Fox 43 NEWS 2005 South Queen Street York, PA 17403 [email protected] (Via e-mail and first class mail)

Dated: July 8, 2016

Michael McAuliffe Miller, Esquire Tricia S. Lontz, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street- 8th Floor Harrisburg, PA 17101 [email protected] [email protected] (Via e-mail and first class mail)

{12nAteo Paralegal

Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 (717) 346-9903 phone; (717) 425-5343 fax [email protected]

1

R. 102a

NAUMAN, SMITH, SHISSLER & HALL, LLP Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 [email protected] [email protected]

CENTRAL DAUPHIN SCHOOL IN THE COURT OF COMMON PLEAS DISTRICT,

Petitioner,

v.


Respondents.

DAUPHIN COUNTY, PENNSYLVANIA


: NO. 2016 -CV -4401 -MP

: OOR Dkt. No. AP 2016-0583

ANSWER OF RESPONDENTS FOX 43 NEWS AND VALERIE HAWKINS TO THE PETITION FOR REVIEW FILED BY

PETITIONER CENTRAL DAUPHIN SCHOOL DISTRICT

Respondents WPMT, LLC, dfb/a Fox 43 News (the "Station") and Valerie Hawkins

(together, "Respondents"), answer the Petition for Review of a Final Determination of the

Pennsylvania Office of Open Records (the "OOR") filed by Petitioner Central Dauphin School

District (the "District"), as follows:

I. PARTIES

1. Admitted.

2. Admitted.

R. 103a

3. Admitted.

4. Admitted in part and denied in part because the OOR is not a proper party to any

appeal and should not have been named as a respondent. Padgett v. Pa. State Police, 73 A.3d

644, 648 n.5 (Pa. Cmwlth. 2013).

IL JURISDICTION

5. Admitted.


6. Admitted.'

7. Admitted. Answering further, Respondents state that the video at issue in this

Petition for Review (the "Video") shows, on information and belief, footage of a confrontation

between Erica Rawls, the wife of the Central Dauphin East High School principal, and a member

of the girls' basketball team.

8. Admitted.

9. Admitted.

10. Admitted.

11. Admitted.

12. Admitted.

IV. ARGUMENT

13. Admitted. By way of further response, the Commonwealth Court has clarified that

except in extraordinary circumstances, an agency must present all of its evidence before the close

of the record in the OOR proceedings, and the reviewing court typically will defer to the findings

Answering further, Respondents note that a request for the same video was submitted by Michelle Sneeringer, the mother of a student on the girls' basketball team who witnessed the incident on the bus. That case reached an identical outcome with the OOR incorporating by reference its Hawkins decision into the Sneeringer decision at OOR Dkt # AP 2016-0648, and is also being appealed to this Court by the District. See Dkt No. 2016 -CV -4400 -MP.

2

R. 104a

of the appeals officer. Levy v. Senate of Pennsylvania, 94 A.3d 436, 441-42 (Pa. Cmwlth. 2014)

(discussing waiver and scope of review), appeal denied, 106 A.3d 727 (Pa. 2014).

14. Admitted.

15. Admitted.

16. Admitted. However, to the extent the averments of paragraph 16 and footnote 1

imply that the requested record is not a public record, they are specifically denied. By way of

further response, the Pennsylvania Right to Know Law ("RTKL"), 65 Pa. C.S. § 67.101 et seq.

was "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."

Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff'd, 75 A.3d 453

(Pa. 2013). In addition, 65 Pa. C.S. § 67.708(a) provides that the agency has the burden of

proving that a record is exempt from public by a preponderance of the evidence.

17. Admitted.

18. The averments of paragraph 18 are legal conclusions to which no responsive

pleading is required. To the extent a responsive pleading may be required, they are denied.


pleading is required.




pleading is required. To the extent the averments of paragraph 21 imply that the Family

Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g applies to exempt

3

R. 105a

27. The averments of paragraph 27 and footnote 2 are legal conclusions to which no

responsive pleading is required. To the extent a responsive pleading may be required, they are

denied as they refer to a written document, the content of which speaks for itself. Answering

further, Respondents state that the OOR is not bound by its prior decisions and may overrule

them, subject to its duties under 65 Pa. C.S. §§ 67.1102, 67.1301. The OOR's prior decision in

Rending v. Bangor Area School District, OOR Dkt. AP 2011-0021, did not analyze or cite to any

case law interpreting the definition of "education records" under FERPA.


pleading is required. To the extent a responsive pleading may be required, they are denied as

they refer to a written document, the content of which speaks for itself.

29. Admitted in part and denied in part. It is admitted that the OOR's Final

Determination cites these three cases. The remaining averments of paragraph 29 are denied

they refer to a written document, the content of which speaks for itself.


pleading is required. By way of further response, when the requested record involves allegations

of misconduct engaged in by non -students, the record is not "directly related" to a student. See

Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019, 1022-23 (N.D. Ohio 2004) ("while 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 citations and quotations

omitted); Wallace v. Cranbrook Educ. Only., 2006 U.S. Dist. LEXIS 71251, at *12, 2006 WL

2796135 (E.D. Mich. Sept. 27, 2006). In Ellis, the requester sought incident reports related to

altercations between substitute teachers and students, including student and employee witness

5

R. 106a

statements. Ellis, 309 F. Supp. 2d at 1022. Even though such records "clearly involve students as

alleged victims and witnesses," the court held that they "do not implicate FERPA because they

do not contain information 'directly related to a student.' Id. at 1023. Likewise, in Wallace the

court held that student statements provided in relation to an investigation into a school

employee's alleged misconduct "do not directly relate to the students and are not education

records" subject to FERPA. Wallace, 2006 U.S. Dist. LEXIS 71251, at *12. Similarly, the

subject of the records at issue here is the conduct of a non -student, and thus the Video is only

tangentially related to any students who appear in it.


pleading is required. To the extent a responsive pleading may be required, they are denied. By

way of further response, Petitioner's attempt to distinguish Ellis and Wallace on the basis that the

statements were gathered after the incident is not supported by the rationale of those cases, which

explicitly consider the subject matter of the requested documents and base their conclusions as to

the "directly related" inquiry on the same. The third case, Bauer v. Kincaid, also focused on the

type of records at issue, finding that "criminal investigation and incident reports are not

educational records because, although they may contain names and other personally identifiable

information, such records relate in no way whatsoever to the type of records which FERPA

expressly protects; i.e., records relating to individual student academic performance, financial aid

or scholastic probation which are kept in individual student files." 759 F. Supp. 575, 591 (W.D.

Mo. 1991).

32. Denied. By way of further response, the Video is in fact similar to the records at

issue in Ellis and Wallace in that the record involves students but the subject of the Video is the

conduct of a non -student.

6

R. 107a

33. The avennents of paragraph 33 are legal conclusions to which no responsive



pleading is required. By way of further response, although the court in Bryner v. Canyons School

District found that the video at issue was subject to FERPA, this holding was not at odds with

the reasoning of Ellis and Wallace. 351 P.3d 852, 857 (Utah Ct. App. 2015). Unlike the record at

issue here, the Bryner case involved surveillance video depicting an altercation between two

students and was thus considered a record "directly related" to a student. Id. The District did not

cite any Pennsylvania case standing for the proposition that school bus videos (or even school

surveillance videos generally) are educational records under FERPA. The District's best case is

from Utah. There are, however, other cases in which school surveillance videos have been

ordered disclosed. In Matter of Rome City School Dist. v. Grifasi, 10 Misc. 3d 1034, 1036 (NY

Sup. Ct. 2005) the court looked at whether a video of a fight between two students should be

disclosed. Looking at FERPA, the court determined that "[Oils federal statute is intended to

protect records relating to an individual student's performance. FERPA is not meant to apply to

records, such as the videotape in question which was recorded to maintain the physical security

and safety of the school building and which does not pertain to the educational performance of

the students captured on this tape." Id. at 1036-37. Noting that it was mindful of the opinion of

the Family Policy Compliance Office (on which the District relies in its Petition), the court

nonetheless found that Icilearly, the videotape in question is not an 'educational record' within

the meaning of FERPA." Id. at 1037. A Louisiana court made a similar determination in State v.

Mart, 697 So. 2d 1055, 1060 (La. App. 1997) (directing release of school bus video over school

board's objection that FERPA gave students reasonable belief that video would not be

7

R. 108a

disclosed), overruled on other grounds by In re: Matter Under Investigation, 15 So. 2d 972, 983

(La. 2009). See also Lindeman v. Kelso Sch. Dist. No. 458, 172 P.3d 329, 331-32 (finding that

Washington's state student records act, which is similar to FERPA, did not prevent release of

school bus surveillance video). Finally, as the Grifasi court pointed out, any concerns the District

would have about losing federal funds would not be applicable because any disclosure would be

pursuant to court order. Grifasi, 10 Misc. 3d at 1037.


pleading is required. By way of further response, the Bryner court adopted the "close

connection" test articulated in Rhea v. Dist. Bd. of Trs. of Santa Fe College, 109 So. 3d 851, 857

(Fla. Dist. Ct. App. 2013). In Rhea, the court considered a student's email about a professor's

classroom behavior and held that although the professor was the subject of the email, the email

also directly related to its student author. There is no question that the Video is directly related to

the adult accused of grabbing a student by the wrist, but, under Rhea, the relevant question is

whether the Video is also "directly related" to the student victim. The record at issue is

distinguishable from the email in Rhea because the student involved here played a much more

passive role. The student at issue is not alleged to have done anything --the actions of the adult

affecting the student were merely caught on camera. Therefore, even under the reasoning of

Rhea, the Video is not directly related to a student.

By way of further response, the Btyner case also quotes language from United States v.

Miami University to broadly suggest that a record is directly related to a student if it pertains to

actions committed "by or against" a student. 91 F. Supp. 2d 1132, 1149 (S.D. Ohio 2000). This

would seem to encompass any record with a student victim no matter how tangential, and would

directly contradict the holding in Ellis. Moreover, it would have the perverse effect of elevating

8

R. 109a

the privacy interests of adult offenders over student and parent access to information regarding

student safety. Such language must instead be read in context; importantly, the Miami case

involved student disciplinary records rather than adult misconduct. See Wallace, 2006 U.S. Dist.

LEXIS 71251, at *11-12 (recognizing this distinction and stating that the holding in Miami is

"expressly limited to misconduct by students").


pleading is required. By way of further response, statements of the Family Policy Compliance

Office (FPCO) are not binding on this Court. Moreover, the quoted language cannot be verified

because the case does not provide any citation to the actual FPCO guidance referenced.


pleading is required. By way of further response, the District's conclusion that videos that merely

records" would completely eliminate FERPA's statutory

requirement that a record be "directly related" to a student. 20 U.S.C. § I 232g(a)(4)(A)(i).


pleading is required. By way of further response, the District's reference to FPCO guidance is

irrelevant here because the FPCO guidance involves a hypothetical situation where "another

student is pictured fighting"-i.e., a video that depicts misconduct by two students such the

privacy rights of both are implicated because both are the subject of the video. Here, by contrast,

the Video allegedly depicts the misconduct of an adult.


pleading is required. By way of further response, this language in this paragraph recognizes that

the mere depiction of a student in a video is not enough to transform that video into an education

record subject to FERPA.

9

R. 110a


pleading is required. By way of further response, the Bryner case is inapposite because it

involved an altercation between two students. Here, by contrast, the Video is pertinent to

allegations of misconduct of an adult, not a student.


pleading is required. To the extent a responsive pleading may be required, they are denied. It is

specifically denied that "the student is the focus and subject of the video." On information and

belief, the Video was not focused on the student any more than it was focused on anyone else,

because the Video was shot from a fixed security camera. It is also specifically denied that the

Video is a record of the actions of the students involved, since it is a record of the actions of a

non -student.


pleading is required. By way of further response, the District mischaracterizes the Video by

stating that it "also" depicts the conduct of a non -student when that conduct is the subject of the

Video. Further, Respondents do not suggest that the mere "presence" of a non -student would

divest a record of FERPA protection; the Video is not subject to FERPA because it is not directly

related to a student and the subject of the Video is the conduct of a non -student. Moreover,

exempting this Video would not serve the policy goals of FERPA. It would prevent the release of

a video embarrassing to school authorities at the expense of the public's and parents' right to

know about student safety in the presence of adults affiliated with the school.


pleading is required. By way of further response, should this Court find, contrary to the

arguments stated above, that the Video contains information directly related to the involved

10

R. 111a

student, it should order the District to redact that student's information and produce the Video, as

in Bryner. 351 P.3d at 860 (affirming the trial court's ruling that the video depicting an

altercation between two students is an education record subject to FERPA and finding that the

court did not err in ordering the District to produce a redacted copy of the video); see also Miami

Univ., 294 F.3d at 824 ("Nothing in . . . FERPA would prevent [educational institutions] from

releasing properly redacted records.").


pleading is required. To the extent a responsive pleading may be required, they are denied.


pleading is required. By way of further response, the case law on the "maintained by" prong of

the "education records" definition repeatedly focuses on the idea of permanent records.

46. The averments of paragraph 46 which no responsive

pleading is required. By way of further response, Respondents note that OOR ruled in its favor in

a thorough, thoughtful, and comprehensively researched Final Determination. Nonetheless, the

District takes issue with the OOR's citation of certain cases in support of its decision in favor of

Respondents. For example, the District takes issue with the OOR's interpretation of Owasso

Independent School District v. Falvo, 534 U.S. 426, 432-33 (2002). For present purposes, there

are two salient points about Owasso. First, the U.S. Supreme Court took a searching look at the

reference to the word "maintain" in FERPA and held that peer -graded papers were not subject to

FERPA because they were not "maintained" within the meaning of the statute. Id. at 432-33.

Second, the Supreme Court attempted to limit school districts' reflexive attempts to declare

anything and everything an "education record" under FERPA.

11

R. 112a

Following Owasso, the Sixth Circuit also determined that just because a record

concerning a student is made in a school it is not necessarily an educational record. Bd of Educ.

of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644, at *20-21 (6th Cir. May

26, 2011) (interpreting Owasso and determining, with regard to temporary notes made by

teachers, that "the word 'maintain' requires that the records be kept in a permanent facility" and

finding that the records at issue did not constitute a "permanent document of [the student's]

education.") (emphasis added). There is no evidence here, by the way, that the Video was in fact

maintained in a permanent facility. Finally, a federal district court, has held that emails that were

not kept as part of a student's permanent file were not "maintained" within the meaning of

FERPA. In S.A. v. Tulare County Office of Educ., 2009 U.S. Dist. LEXIS 93170, at *10, 2009

WL 3296653 (E.D. Cal. Oct. 5, 2009). Again, the consistent theme running through all of these

cases-all of which involved a finding that school records about students were not necessarily

"education records" under FERPA-is that FERPA is not a blanket prohibition on disclosure. As

the OOR accordingly noted in its Final Determination, "not all records pertaining to a student

and held by an educational institution are 'education records' for purposes of FERPA. Just

because a record involves a student does not automatically invoke the confidentiality provisions

of FERPA." (Final Det. at 4.)




pleading is required. By way of further response, while the case law does not mandate that only

those records kept in a student's permanent file are "maintained" within the meaning of FERPA,

12

R. 113a

such records are referenced as a prime example. The case law suggests that records are

"maintained" if they are kept in a single place as part of a permanent record.

49. Denied. It is specifically denied that the Video is maintained by the District "in a

central location and as part of its permanent records." By way of further response, the District

provides no support for this averment other than the conclusory statement in its Affidavit that

"The video recording is maintained by the School District." See Affidavit at ¶ 8. This is

insufficient factual evidence to support the application of FERPA. The Affidavit does not set

forth any facts-such as the location of the record, format in which it is held, or retention

period-from which the Court can determine whether the Video is indeed "maintained" within

the meaning of FERPA. Office of Governor v. Scolforo, 65 A.3d 1095, 1104 (Pa. Cmwlth. 2013)

(affidavits that merely parrot or track language of an exemption but lack sufficient detail to

support an exemption claimed are insufficient); Office of Governor v. Bagwell, 114 A.3d 1113,

1123 (Pa. Cmwlth. 2015). This lack of evidence is particularly concerning because surveillance

video records, because of their large data size, are typically maintained only temporarily and are

periodically overwritten. Such retention would not be sufficient to meet the definition of

"maintained" under the case law. See, e.g., Horen, 2011 U.S. App. LEXIS 26644, at *20-21

(finding that temporary notes, which were subsequently destroyed were not education records);

Tulare County, 2009 U.S. Dist. LEXIS 93170, at *10 (noting that emails are "fleeting" and easily

deleted, and finding that those emails not printed and maintained in a central, permanent file

were not education records even if they could be accessed). The District has the burden of

proving an exemption applies, and has failed to provide sufficient factual support to meet its

burden.

13

R. 114a







53. The averments of paragraph 53, including the averments of footnote 3, are legal

conclusions to which no responsive pleading is required. Answering further, the District claims

in footnote 3 that it would lose federal funds if it were to disclose the Video. That is not the case

either in law or in fact. FERPA provides that federal funds may be withheld only when an

educational institution "has a policy or practice of permitting the release of educational records."

20 USC § 1232g(b)(1). Release of the Video pursuant to an administrative decree or a court

order does not a "policy or practice" make. In addition, the Department of Education does not

simply deprive a school of funds if it believes there has been a violation. First, the Department

issues a plan of correction, and then it determines the educational institution will not voluntarily

comply. See 20 USC § 1232g(b)(1) (stating that "action to terminate assistance may be taken

only if the Secretary finds there has been a failure to comply with this section, and he has

determined that compliance cannot be secured by voluntary means"). In fact, as of a year ago,

the Department of Education had never withdrawn federal funds based on a FERPA violation.

(See Frank LoMonte, Mythbusting FERPA, https://prezi.com/ein8wvfza3te/mythbustirkg-ferpa/

(copies of the relevant slides from the presentation are attached as Ex. A).)



14

R. 115a

55. The averments of paragraph 55, including the averments of footnote 4, are legal

conclusions to which no responsive pleading is required. To the extent the averments of

paragraph 55 imply that section 708(b)(17) applies to exempt the records requested in this

proceeding, they are specifically denied. By way of further response, the District fails to specify

which provision of 708(b)(17) it claims applies to the Video.


pleading is required. By way of further response, the request does not seek records of any

investigation of the incident created after the fact, but the raw material of the Video that captured

the incident as it happened. The District has not explained how the daily recording of

surveillance video qualifies as a record relating to an "investigation," which the case law defines

as a "systematic or searching inquiry" or "official probe." Carey v. Pa. Dep't of Corr., 61 A.3d

367, 378 (Pa. Cmwlth. 2013). Any to meet this definition would not

have begun until after the incident. The Video is analogous to police dash cam videos, which the

Commonwealth Court recently explained are not exempt from the RTKL under the criminal

investigation exemption because they are not themselves investigative. Pennsylvania State

Police v. Grove, 119 A.3d 1102, 1108-09 (Pa. Cmwlth. 2015), appeal granted, 133 A.3d 292

(Pa. 2016).

57. The averments of paragraph 57 and footnote 5 are legal conclusions to which no

responsive pleading is required.





15

R. 116a


pleading is required. By way of further response, student discipline is irrelevant to the Video,

which concerns the conduct of an adult who was not a student.


pleading is required. By way of further response, the District is not investigating student conduct

here, but the alleged misconduct of a non -student.







pleading is required. By way of further response, although Grove involves a separate RTKL

exemption for criminal investigative records under section 708(b)(16), it is relevant to the

present case because it involves a video recording of the interaction at issue. Grove, 119 A.3d at

1104-05. In Grove, the court determined that the video recordings at issue were not subject to the

exemption because they were "created to document troopers' performance of their duties in

responding to emergencies and in their interactions with members of the public, not merely or

primarily to document, assemble or report on evidence of a crime or possible crime." Id. at 1108.

The District contends that the case is "unavailing" because criminal investigations are different

from non -criminal investigations, but fails to explain why this difference matters. The RTKL

exempts both criminal and noncriminal investigative records and thus the key issue is the

16

R. 117a

meaning of the term "investigative." See, e.g., Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515,

522 (Pa. Cmwlth. 2011) (analogizing between the two exemptions); Dep 't of Health v. Office of

Open Records, 4 A.3d 803, 810-11 (Pa. Cmwlth. 2010) (same). The District also incorrectly

argues that the Grove court merely found that the video at issue did not contain any investigative

information. However, one of the videos did contain "investigative information," such as

"witness interviews, interrogations, intoxication testing and other investigative work" and the

court simply ordered the agency to produce the video with that information redacted. Grove, 119

A.3d at 1109.

66. Denied. It is specifically denied that the school bus surveillance videos exist only

for investigative purposes. The District claims the school bus video recording system "only

exists" for an investigative purpose, but the District submitted no evidence in support of that

dubious proposition. The District's affiant, Karen McConnell, does not state in her Affidavit why

the District has a school bus video recording system. The District fails to address its burden,

much less carry its burden, on this crucial point. The OOR recognized this deficiency in reaching

its Final Determination and emphasizing that "[Nere, there is no evidence that the video exists

for reasons other than to document the behavior of students and others aboard school buses."

(Final Det. at 8.) By way of further response, such surveillance videos exist primarily to monitor

and ensure student safety, and also to monitor the bus driver's performance of his or her duties.

Only after a specific incident occurs are the videos used for investigative purposes.

67. The averments of the first sentence of paragraph 67 are legal conclusions to which

no responsive pleading is required. To the extent a responsive pleading may be required, they are

denied. It is specifically denied that the Video is the "investigative material" central to the

noncriminal investigation of the events in question. It is raw evidence that, regardless of any

17

R. 118a

importance it may now have in the context of an investigation, was not "investigative material"

created for that purpose. As such it does not fall under any of the provisions of section

708(b)(17).

68. Finally, Respondents are entitled to obtain access to the Video for the independent

reason that it is now a public judicial record subject to the common law right of access. Upon

information and belief, the Video, or a portion of it, was played in Magisterial District Judge

Dominic Pelino's courtroom at a hearing on the harassment charge filed against Erica Rawls

based on conduct allegedly captured in the Video. The playing of the Video occurred on May 25,

2016, nearly a week after the OOR issued its final determination. A copy of a news report

regarding the hearing is attached hereto as Ex. B. The Pennsylvania Supreme Court has

determined that tape recordings played during preliminary hearings are public judicial records or

documents to which the common law right of access attaches. Commonwealth v. Upshur, 592 Pa.

273, 290, 924 A.2d 642, 653 (Pa. 2007). As in Upshur, the recording at issue here was played at

an open hearing and the judge relied on it in making his decision. Accordingly, it is a public

judicial record subject to a presumption of openness. Because there is no chance that prejudice

would result from a broadcast of the Video, given that the harassment charge has been dismissed,

there is no basis for denying access to this public judicial record. Accordingly, Respondents urge

this Court to permit access to a copy of the Video on this basis. The averments of paragraph 68

are legal conclusions to which no responsive pleading is required.

WHEREFORE, Respondents FOX 43 NEWS and VALERIE HAWKINS respectfully

request that the Court deny the Petition for Review filed by Petitioner Central Dauphin School

District, affirm the Final Determination of the Office of Open Records, and order the District to

turn over to Respondents a copy of the Video.

18

R. 119a

Dated: July 14, 2016 Respectfully submitted,

WPMT, LLC (d/b/a FOX 43 News) and Valerie Hawkins

By: -4. One of their attorneys

Attorney of Record: Craig J. Staudenmaier, Esquire Supreme Court ID# 34996 Joshua D. Bonn, Esquire Supreme Court ID# 93967 NAUMAN, SMITH, SHISSLER & HALL, LLP 200 North Third Street, 18th Floor, P. 0. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010, Ext. 22 Facsimile: (717) 234-1925 [email protected] [email protected]

Of Counsel: Brendan J. Healey Cristina M. Salvato MANDELL MENKES LLC 1 North Franklin Street, Suite 3600 Chicago, IL 60606 (312) 251-1000 bhealeymandellmenkes.com tsalvatogmandellmenkes.com

Counsel for Respondents WPMT, LLC and Valerie Hawkins

19

R. 120a

VERIFICATION

1, Valerie Hawkins, hereby state that the facts set forth in the foregoing

ANSWER OF RESPONDENTS FOX 43 NEWS AND VALERIE HAWKINS

TO THE PETITION FOR REVIEW FILED ElY PETITIONER CENTRAL

DAUPHIN SCHOOL DISTRICT are true and correct to the best of my

knowledge, inlbrmation and belief. I understand that the statements made therein

are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification

to authorities.

Date: July 14, 2016

R. 121a

VERIFICATION

I, Matthew McConico, am authorized to make this verification on behalf of Respondent

Fox 43 News, and hereby state that the facts set forth in the foregoing ANSWER OF

RESPONDENTS FOX 43 NEWS AND VALERIE HAWKINS TO THE PETITION FOR

REVIEW FILED BY PETITIONER CENTRAL DAUPHIN SCHOOL DISTRICT are true and

correct to the best of my knowledge, information and belief. I understand that the statements

made therein are subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to

authorities.

Date: July 14, 2016

R. 122a


The undersigned, an employee with the law firm of Nauman, Smith, Shissler & Hall,

LLP, certifies that the attached ANSWER OF RESPONDENTS FOX 43 NEWS AND

VALERIE HAWKINS TO THE PETITION FOR REVIEW FILED BY PETITIONER

CENTRAL DAUPHIN SCHOOL DISTRICT was served upon counsel herein named by U.S.

Mail and email on July 14, 2016.

Michael McAuliffe Miller, Esq. (PA I.D. No. 78507) Tricia S. Lontz, Esq. (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected]

R. 123a

EXHIBIT A

R. 124a

R. 125a

- -114 .1,4 .-;9.9,eim:.11;-ra::--ELAFriii,..

I"

',N. " gr. . I IL...0,y 0.4:r.

R. 126a

LD ,-i a) tiO as a.

R. 127a

-10

Ti;

N

EXHIBIT B

R. 129a

Judge dismisses harassment charge against CD East principal's wife

A district judge has dismissed a harassment charge against Erica Rawls. wife of CD East High School Principal Jesse Rawls. (Mark Pynes, pennlive)

1/1 By Matt Miller I [email protected] Email the author I Fallow on Twitter oh May 25, 2016 at 5:19 PM, updated May 25, 2016 at 5:28 PM

After hearing more than an hour of testimony, a district judge Wednesday dismissed a harassment charge filed against the wife of Central Dauphin East High School's principal over a February incident involving a basketball player.

R. 130a

Judge Dominic Pelino concluded that Erica Rawls had no intent to harass or harm the female player when she grabbed her arm

following a play-off game the CD East team lost at Central Dauphin High School.

Rawls, 45, testified during her trial on the summary charge that she touched the upset player, 17 -year -old Jada Pettis, in a bid to

talk to her and calm her down.

"I reached for her arm to get her attention," Rawls said under questioning by her lawyer, Lenora Smith. " Jada started screaming,

'Don't touch me!'"

"It wasn't a forceful grab," Rawls continued. "Do I regret trying to help someone? No, I don't."

Wife of high school principal harassed student after game: police

Pettis testified, however, that Rawls was yelling at her about being "disrespectful" when she grabbed her arm as she was heading

for the team bus.

She said she had been talking to a friend on a cell phone as her coach and Principal Jesse Rawls told her to get on the bus. "I said,

'Stop talking to me," Pettis said when questioned by Officer Timothy Golletti of the Central Dauphin Area School District police.

"Mrs. Rawls comes and she stops me. She was yelling at me, like, 'Why are you being so disrespectful?"

"She grabbed my forearm and I told her to get off of me...l was kind of in shock."

On cross-examination, Smith asked Pettis if she had indeed been disrespectful and if she was upset about not playing more in the

game. "Were you having a little tantrum there on the sidelines?" Smith asked.

"I wouldn't say it was a tantrum. 1 was sitting on the bench," Pettis replied.

She said she knows and has at times confided in Erica Rawls.

"Is it fair to say she knows you enough to that if she saw you doing something wrong she would say something?" Smith asked

"It wasn't her place to," Pettis said.

After Pelino asked her a few questions, she insisted "I don't think my actions were wrong."

Golletti then played a 57 -second video for Pelino that he said recorded part of the incident, but did not show any physical contact

between Pettis and Erica Rawls.

Smith called Jesse Rawls as a witness. He said he didn't see his wife's actions that night, but did hear Pettis tell one of her

coaches, "Stop talking to me like some little -ass kid," as the coach urged her to get on the team bus.

The principal said the post -game atmosphere was "very, very, very tense," with disgruntled parents milling in the lobby as the

players and coaches prepared to leave.

"She cared enough about this kid to try to talk to her. Because of some politics in that school district, Mrs. Rawls is sitting here,"

Smith said in urging Pelino to dismiss the harassment count.

Golletti called the situation "unfortunate," but insisted Erica Rawls had no authority to touch Pettis. If parents are allowed to

commit such acts, "we're going to have chaos at these athletic events," he said. "We have to draw the line somewhere."

R. 131a


Petitioner,

v.


Respondents.


NO. 2016 -CV -4401 -MP

Petition for Review of the Final Determination of the Office of Open Records Docket No. AP 2016-0583

AND NOW, this day of , 2016, upon review of the Answer of

Respondents Fox 43 News and Valerie Hawkins to the Petition for Review filed by Petitioner

Central Dauphin School District, it is hereby ORDERED that the Petition for Review is

DENIED, the Final Determination of the Office of Open Records is AFFIRMED, and Petitioner

Central Dauphin School District is directed to turn over to Respondents a copy of the requested

video.

BY THE COURT:

Judge Bruce F. Bratton Distribution List: The Honorable Bruce F. Bratton Michael McAuliffe Miller, Esq., 213 Market St, 8th Floor, Harrisburg, PA 17101

Craig J. Staudenmaier, Esq., 200 N 3rd St, 18th Floor, P. 0. Box 840, Harrisburg, PA 17108

R. 132a

i Michael McAuliffe Miller, Esquire (PA I.D. 78507) Tricia S. Lontz, Esquire (PA I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street - 8th Floor Harrisburg, PA 17101 (717) 237-6000 [email protected] [email protected]


Petitioner

vs.


Respondents

NO. 2016 CV 4401 -MP

: CWIL ACTION - LAW

UNCON TESTED MOTION TO ORDER THE OFFICE OF OPEN RECORDS TO FILE A CERTIFIED COPY OF THE RECORD ON APPEAL

AND NOW, this 4th day of August, 2016, comes Central Dauphin School District, and

files with this Honorable Court by and through its attorneys and the law firm of Eckert Seamans

Cherin & Mellott, LLC, this Motion to Order the Commonwealth of Pennsylvania Office of

Open Records to file a certified copy of the record on appeal, and in support thereof avers as

follows:

I. PARTIES

1. The Movant is the Petitioner, the Central Dauphin School District (the "District"),

in the above -titled action.

2. Respondents are Valerie Hawkins, an adult individual, and Fox 43 News, both

with a business address of 2005 South Queen Street, York, Pennsylvania 17403.

10

R. 133a

3. Respondents Hawkins and Fox 43 News are represented by Attorneys Craig

Staudenmaier, Joshua Bonn, and Nathaniel Flandreau, 200 North Third Street, 18th Floor, PO

Box 840, Harrisburg, Pennsylvania 17108.

4. Respondent, Commonwealth of Pennsylvania Office of Open Records (the

"OOR), filed a Notice of Nonparticipation in this matter on July 8, 2016.

5. Respondent OOR is represented by its Chief Counsel, Charles Rees Brown, 400

North Street, 4th Floor, Harrisburg, Pennsylvania 17120.

II. FACTUAL AND PROCEDURAL BACKGROUND

6. On February 23, 2016, Valerie Hawkins, a reporter with Fox 43 News,

("Requester") submitted a RTKL request to the District.



2016."

8. A timely denial of the request was issued by the District on March 24, 2016.


24, 2016.


19, 2016 at OOR Dkt # AP 2016-0583.

11. A Petition for Review under the Right -to -Know Law ("RTKL") was filed on

behalf of the District on June 9, 2016.

12. A true and correct copy of the time -stamped Petition for Review was sent to

Valerie Hawkins, Fox 43 News, and OOR on or about June 9, 2016 pursuant to 65 P.S. §

67.1303.

2

R. 134a

1

13. The Petition for Review has not yet been ruled upon.

14. There has been no hearing set as of this date in this matter of which the

undersigned is presently aware.

III. MOTION TO DIRECT THE OOR TO FILE A CERTIFIED COPY OF THE RECORD ON APPEAL

15. The RTKL provides that the record on appeal from an OOR decision from a local

agency matter shall include the following:

(b) Record on appeal. --The record before a court shall consist of the request, the agency's response, the appeal filed under Section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.

65 P.S. 67.1303.

16. The Movant/District, with the consent and approval of the OOR and the

Respondents, Valerie Hawkins and Fox 43 News, requests that this Honorable Court order the

OOR to file a certified copy of the record on appeal in relation to OOR Dkt. AP 2016-0583.

17. Pursuant to Dauphin County Local Rule 208.2(d), the full text of this Motion has

been circulated to Attorney Charles Rees Brown, Chief Counsel of the OOR, Attorney Craig

Staudenmaier, Lead Counsel for Valerie Hawkins and Fox43 News as to whether any would

oppose this Motion.

18. This Court has the authority to order the OOR to produce a certified record on

appeal pursuant to its authority as a de novo court of review. 67 P.S. § 67.1302; Bowling v.

Office of Open Records, 75 A.3d 453 (Pa. 2013).

19. Receipt of a certified record from the OOR would serve this Honorable Court in

ascertaining the underlying facts and making an appropriate legal conclusion.

3

R. 135a

WHEREFORE, the Petitioner, Central Dauphin School District, hereby requests that this

Honorable Court order the OOR to produce a certified copy of the record on appeal to the

Dauphin County Court of Common Pleas.


ECKERT SEAMANS CHERIN & MELLOTT, LLC

/iii,(c. ka-e. i A 4-1,. i (6 iaLt-, Michael McAuliffe Miller, Esquire (1.D. No. 78507) Tricia S. Lontz, Esquire (I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 rnmiller@eckertseamans,com tlontz(&,eckertsearnans.com Telephone: (717) 237-6000

Date: August 4, 2016 Counsel for Central Dauphin School District

4

R. 136a 4


I hereby certify that I have served a true and correct copy of the foregoing Uncontested

Motion to Order the Office of Open Records to File a Certified Copy of the Record on Appeal

upon the counsel listed below by United States Postal Service First Class Mail, postage prepaid,

as follows:

Craig J. Staudenmaier, Esquire Joshua D. Bonn, Esquire

Nathaniel J. Flandreau, Esquire Nauman, Smith, Shessler & Hall, LLP

200 North Third Street, le Floor Harrisburg, PA 17108-0840

Charles Rees Brown, Esquire Commonwealth of Pennsylvania

Office of Open Records Commonwealth Keystone building

400 North Street, 4th Floor Harrisburg, PA 17120-0225

August 4, 2016

R. 137a


Petitioner

vs.


Respondents

: NO. 2016 CV 4401 -MP


ORDER

AND NOW, this day of , 2016, upon review of the Uncontested

Motion to Order the Office of Open Records to File a Certified Copy of the Record on Appeal,

IT IS HEREBY ORDERED that the Motion is GRANTED. The Commonwealth of

Pennsylvania Office of Open Records shall provide the Court a certified copy of the record on

appeal within twenty days of the date of this Order.

BY THE COURT:

Bruce F. Bratton, Judge

Distribution List:

Michael McAuliffe Miller, Esq., Eckert Seamans Cherin & Mellott, LLC, 213 Market Street, 8th Floor, Harrisburg, PA 17101; (717) 237-7174; (717) 237-6019; [email protected]

Craig J. Staudenmaier, Esq. 200 N. Third Steet, 18th Floor, Harrisburg, PA 17108; [email protected]

Charles Rees Brown, Esq., Commonwealth of Pennsylvania, Office of Open Records, Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, PA 17120-0225; charlebrow0,pa. gov


R. 138a

Distributed

yhrl

CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT, ; DAUPHIN COUNTY, PENNSYLVANIA

Petitioner

vs.


Respondents

: NO. 2016 CV 4401 -MP

CIVIL ACTION .- LAW

ORDER

AND NOW, this day of i\-0CpSI- , 2016, upon review of the Uncontested

Motion to Order the Office of Open Records to File a Certified Copy of the Record on Appeal,

IT IS HEREBY ORDERED that the Motion is GRANTED. The Commonwealth of

Pennsylvania Office of Open Records shall provide the Court a certified copy of the record on

appeal within twenty days of the date of this Order.

BY THE COURT:

lidettetfoTlisaiime, Judge (Alitl(Art 7.Tily,

Distribution List:

Michael McAuliffe Miller, Esq., Eckert Seamans Cherin & Mellott, LLC, 213 Market Street, 8th Floor, Harrisburg, PA 17101; (717) 237-7174; (717) 237-6019; [email protected]

Craig J. Staudenmaier, Esq. 200 N. Third Steet, 18th Floor, Harrisburg, PA 17108; [email protected]

Charles Rees Brown, Esq., Commonwealth of Pennsylvania, Office of Open Records, Commonwealth Keystone Building, 400 North Street, 4th Floor, Harrisburg, PA 17120-0225; [email protected]


E

p -r

IN THE COURT OF COMMON PLEAS OF THE 12th JUDICIAL DISTRICT DAUPHIN COUNTY, PENNSYLVANIA


Petitioner, v.

VALERIE HAWKINS, FOX 43 NEWS, OFFICE OF OPEN RECORDS

Respondent,

No. 2016 CV 4401 -MP

CERTIFICATION OF RECORD

I hereby certify the contents of the record transmitted with this Certification of Record pursuant to Pa.R.A.P. 1952 in Valerie Hawkins, Fox 43 News v. Central Dauphin School District, OOR Dkt. AP 2016-0583, which is the subject of this appeal.

The record transmitted with this certification is generated entirely from the Office of Open Records database. It is our practice to scan in each and every document submitted in an appeal. Thus, no originals are being transmitted to this Court.

Also, my signature on this Certification of Record and on all other correspondence directed to the Court in connection with this matter may be electronic and not original. I

hereby certified that this is my true and correct signature and that I have approved the use thereof for these purposes.

Erik Arneson, Executive Director Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 Phone: (717) 346-9903

Fax: (717) 425-5343 E-mail: [email protected]

Dated: August 30, 2016

iAn=



Petitioner, v.


Respondent,

No. 2016 CV 4401 -MP


I hereby certify that I have served a true and correct copy of the Certified Record

upon the following persons via first class mail or e-mail addressed as follows:

Craig J. Staudenrnaier, Esq. Joshua D. Bonn, Esq. Nathaniel J. Flandreau, Esq. Nauman, Smith, Shessler & Hall, LLP 200 North Third Street, 18th Floor Harrisburg, PA 17108 [email protected] [email protected] njflandreauanssh.com

August 30, 2016

Michael McAuliffe Miller, Esq. Tricia S. Lontz, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 [email protected] tlontz@_eckertseamans.com

Brendan J. Healey, Esq. Cristina M. Salvato, Esq. Mandell Menkes LLC 1 North Franklin Street, Suite 2600 Chicago, IL 60606

Faith Henry, Administrative Officer Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-0225 Phone: (717) 346-9903 Fax: (717) 425-5343 E-mail: fahenryapa.ov


CENTRAL DAUPHIN SCHOOL DISTRICT Petitioner, No. 2016 CV 4401 -MP

V.


Respondent,

Dated: August 30, 2016

CERTIFIED RECORD

Charles Rees Brown Chief Counsel Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street - Plaza Level Harrisburg, PA 17120-0225 Phone: (717) 346-9903 Fax. (717) 425-5343 E-mail: [email protected]

D A*3.,



Petitioner, V.


Respondent,

No. 2016 CV 4401 -MP

TABLE OF CONTENTS RECORD

Valerie Hawkins for Fox 43 News v. Central Dauphin School District, OOR Dkt. No. AP 2016-0583

Office of Open Records Docket No. 2016-0583:

1. The appeal filed by Valerie Hawkins of Fox 43 News ("Requester") to the Office of Open Records ("OOR"), received March 24, 2016.

2. Official Notice of Appeal dated March 25, 2016, sent to both parties by the OOR, advising them of the docket number and identifying the appeals officer for the matter.

3. Central Dauphin School District's submission on appeal dated April I, 2016.

4. The Final Determinations issued by the OOR on May 19, 2016.

R.

pennsylvania OFFICE bF OPEN RECOAD$

RIGHT -TO -KNOW LAW ("RTKL") QEEktiEF OPEN RECORD§ APPEAL OF DENIAL, PARTIAL DENIAL, OR DEEM D DE

RECEIVED

MAR 2 4 2016

Office of Open Records ("OOR") Email: openrecords@pa,gov Fax: (717) 425-5343







Request Submitted to Agency Via: DEmail [Wail DFax D In -Person (check only one)

Date of Request: 02/23/2016 Date of Response: 3/24/2016 DCheck if no response



Email: [email protected] Phone/Fax: 717'5454703 / 717-657-4999


I was denied access to the following records (REQUIRED. Use additional pages if necessary): video that

was captured by a school bus camera system that occurred on Feb. 16, 2016 involving Erica Rawls.

She is accused of grabbing a 17 -year -old girl by the wrist after the team returned from a game at CD High School.

I requested the listed records from the Agency named above. By signing below, I am appealing the Agency's denial, partial denial, or deemed denial because the requested records are public records in the possession, custody or control of the Agency; the records do not qualify for any exemptions under § 708 of the RTKL, are not protected by a privilege, and are not exempt under any Federal or State law or regulation; and the

request was sufficiently specific.

Our mow for wantlori the Vde0 I am also appealing for the following reasons (Optional. Use additional pages if necessary):

is for the actions of the adult, Erica Rawls, who was charged by police and is the wife of CD East Principal Jesse Rawls.

have attached a copy of my request for records. (REQUIRED)

Eli have attached a copy of all responses from the Agency regarding my request. (REQUIRED)


DI hereby agree to permit the OOR an additional 30 days to issue a final order.

Eli am interested in resolving this issue through OOR mediation. This stays the initial DOR deadline for the issuance of a final determination. If mediation is unsuccessful, the OOR has 30 days from the conclusion of the mediation process to issue a final determination.


You should provide the Agency with a copy of this form and any documents you submit to the 0012. OOR Appeal Form - Revised January 4, 2016

Ag.

CENTRAL DAUPHIN 'SCHOOL DiTRICT District AdmtrdtiOrt Office 600 Rutherford Road Hi.bgA 17109 Te)ephone: f71. 545,470 Fax: (717) 657-4999 QPrIrecorcf-SoffiberOCdSthoals.Org

KCiteri L. McConnell., MBA, CPA OperfRenrds Officer

liaht-Ti,,:ktitiVritettiornse-..FOrtrt

Mar:Ohl:4,2014

IAgMAII:vwaltz6fax43.corn

Valerie-Fiawkins 1005 South Queen Street York, PA 17403

1004awkins:

The undersigned is the Open RecOrds.afficer for Central Dauphin..khool District On February 23: 2016 .theOpert Records Office received a request from you for tilefOlroWillgt

fox4a News is .requestin a copy, of the videerthahiras byci. =heel bus camera system that occurred on 'Feb. 1.6, g016:

We responded vhin fil...mtitiired lye 0 )6ustness.days'adrig.thaaMMOr4 $.4e-WaS, needed for alegal review and the District was invoking. ifs fight 30-d* extenSion..

taut relu.e.st is denied.. achOol burildec containspersonalividenifficibleinfOrmation directly related to .astudent or students if is considered gneducation record that is

maintained by Central .Dauphin Schoal District and is prateated frorn release by. the Family Educational Rights and Privacy Act (FERPA);20 Li.S.C.,1 1232g, 34 CFR Pali 99% {See Re)-nling v Bangor Area School MitiOt Docket -No. AP.20114021) A violation of FERPA

.Could resultin the loss of state and/or federal funding. Therefore', ihe video is also exempt pursuant to 65 P S67 708(b) () ) record The disclosure of which Wocild.resqltin The Joss of Pederal. or State furstls:1:;,y at) otpendy cm -the Common wealth. In addition, it is exempt pursuant to .65 P.S. §67.708(b)(17jryjn;,/e.sitgdfit/e iilaterials notes, correspondence and repOrtsrelating:tb i nortrtriminol investlgatiori,

You have d'rtght tp,aprettIthectental Of infarrhatibil in wttthg to Ptk Arnetdri, Eecutwe Director, Office of open Records Commonwealth Keystone-BUTICHtig;40.13t.Narth:Sfeeet,

Fburfh FICOrilatrislcurg,.1P-A 17120. You must do so.within 1:5 business days Of he rnailing date of the .drgeney's response as Outlined in iSectioni101. Visit the Office of Open. Records webiite othilP://openrecordstorfe:.pa.us,for furtherinforrnation on fiiing an apiveal, If you further questions1 please b011arett McConnell.

Sincerely,

# Karen L Cannell, MBA, CPA Open Records Officer,,

01..g4Pf-'

CENTRAL DAUPHIN ;SCHOOL DISTRICT

DIY.11.1cf Ad:Ministration Offic0 60C) -Rutherford Roncl Harrisburg, PA 17109 TefephOne: (7171 545-4703 Eqx: (71:7) - 657-4999 [email protected]

.Riiihf-T64noliiltetti-Orise Forth.

March 1,201A

VIA EMAIL:NWolizgfox43:corn

Vateriel-14NYlatis 2005 'Sduth Queen .Streer 'fork, PA 17403

Deqr MSc Hawkins:.

Kdren L McConnell, MBA,. CPA Open Records Officer

Theundersignedis. the Open Records Officer for Central: Dauphin Sdhool Disttiqt,On February 23; 201C he Open Records Office received oprewestirorn you forthe fallowing:

FQX4,3 NeWsisi3Ocitiostirt dicopy at the video that was captured by a schooibus camera system thcit o'Curi-ed :On F6b.

Please OeadvIsecilhat aiegcli'te.iiewIrn-O.cessaryto determine whether the requested. t.Oord dr4r)Slitutes a public reapral wideftheFight-to4cnowLow. Aecarolthgry, the DIstricf invoking lit right to On. additional S0 -coy period in which to :analyze and respondio your request-. See65 P. S. § .67.902 (b);Yo You Can expect a tesponse to your request within 30 ClOys from: the date of this tefter..The feestO process this request cfee peated.to be. under..$100. Sincerely,

f. ,A,..atA64.cos.

Karen L McConnell, MBA,CPA Open ReeardS.Officer

KLMilaw

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AOPC 407-mi PUBLIC ACCESS COPY

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Henry, Faith

From: Hawkins, Valerie <[email protected]> Sent: Thursday, March 24, 2016 2:40 PM

To: DC, OpenRecords Subject: FOX43 NEWS-->RTK appeal form Attachments: Appealform_Revised_2016-01-04 (Fillable)-1.pdf; Hawkins-Fox43 3-1-16.pdf; Hawkins-

Fox43 3-24-16.pdf; nontrafficcitationfiledagainstericarawls.pdf

Good afternoon,


Officer for the Central Dauphin School District, on March 24.

Attached you will find a completed RTK appeal form, and supporting documents of correspondence between myself and Ms. McConnell,

I filed a RTK request with the Central Dauphin School District on Feb. 23, 2016 to request a copy of the video that was captured by a school bus camera system of an incident that occurred on Feb, 16, 2016. Erica Rawls, the wife of CD

East Principal Jesse Rawls, is accused of grabbing a 17 -year -old girl by the wrist after she boards the school bus upon their return from a basketball game. Also attached to this email is a copy of the non -traffic citation which was filed against Erica Rawls on Feb. 16, 2016 related to the incident aboard the school bus.

Below is email correspondence between myself and Ms. McConnell showing my initial request for the school bus camera video:


To: openrecordsofficerPcdsohools.orq Subject: RE: FOX43 NEWS -->standard right -to -know request form

Good Afternoon,

I am writing to follow up on a Right to Know request form I submitted on Tuesday, February 23. I wanted to confirm that you received my request. Is there a time line available for when I should expect to hear whether the request has been approved or denied? Kind Regards,

Valerie Hawkins Planning Editor/ WPMT F0X43 / 717.814.5599/ vwaltz(a,tribunemedia.com 2005 South Queen Street, York, PA 17403


To: [email protected]

1


Hi there,

My name is Valerie and I am the Planning Editor for FOX43 News.

I am emailing seeking a copy of an incident that was captured on a school bus video system on Feb. 16 after Erica Rawls




Name of Requestor Valerie Hawkins Street Address: 2005 South Queen Street City/State/County: York PA 17403

Telephone: 717-814-5599


16, 2016. According to paperwork filed at Magisterial District Judge Lowell Witmer's office, Erica Rawls grabbed the wrist of a 17 -year -old girl after the CD East girls' basketball returned from a District 3 playoff game at Central Dauphin on

Feb. 16 (see attached document). Rawls was cited with a summary count of harassment. We would like to obtain a video copy of the incident that was captured by the school bus video system.


Do you want to inspect the record: Yes


Please let me know what, if any fees are associated with obtaining a copy of the video, Kind regards,



2

R_ 15na

to.e.:WA Vgez,3,w;;-- :g..;;I'-i-E--Act.tRI!g171-;w17-'-.F1-`,ixei..SP-t-c-siip-0-7:÷:'7::-2:-=-74.--:

2

1111h.M1._ R. 151a

pennsylvania Lda OFFICE OF OPEN RECORDS

Via E -Mail only:

Valerie Hawkins 2005 South Queen Street York, PA 17403 vvvaltzAfox43.com

March 25, 2016

Via E -Mail only:

Karen L. McConnell Open Records Officer Central Dauphin School District 600 Rutherford Road Harrisburg, PA 17109 [email protected]

RE: OFFICIAL NOTICE OF APPEAL - DOCKET NAP 2016-0583

Dear Parties:

Please review this information carefully as it affectsjour legal rights.

The Office of Open Records ("OOR") received this appeal under the Right -to -Know Law ("RTKL"), 65 P.S. §§ 67.101, et seq. on March 24, 2016. This letter describes the appeal process. A binding Final Determination will be issued pursuant to the tiineline required by the RTKL. In most cases, that means within 30 calendar days.

OOR Mediation: This is a voluntary, informal process to help parties reach a mutually agreeable settlement on records disputes before the OOR. To participate in mediation, both parties must agree in writing. If mediation is tuisuccessfill, both parties will be able to make submissions to the OOR, and the OOR will have 30 calendar days from the conclusion of the mediation process to issue a Final Determination.

Note to Parties: Statements of fact must be supported by an affidavit or attestation made under penalty of perjury by a person with actual knowledge. Any factual statements or allegations submitted without an affidavit will not be considered. The agency has the burden of proving that records are exempt from public access (see 65 P.S. § 67.708(a)(1)). To meet this burden, the agency must provide evidence to the OOR. The law requires the agency position to be supported by sufficient facts and citation to all relevant sections of the RTKL, case law, and OOR Final Determinations. An affidavit or attestation is required to show that records do not exist. Blank sample affidavits are available on the OOR's website.

Submissions to OOR: Both parties may submit information and legal argument to support their positions by 11:59:59 p.m. seven (7) business days from the date of this letter. Submissions sent via postal mail and received after 5:00 p.m. will be treated as having been received the next business day. The agency may assert exemptions on appeal even if it did not assert them when the request was denied (Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013))

Commonwealth Keystone Buitchng 1400 North Street, 4th Floors Harrisburg, PA 17120-0225 j 717.346.9903 I F 717.425.5343 I http://openrecords.pa.gov

R. 152a

Include the docket number above on all submissions related to this appeal. Also, any information you provide to the OOR must he provided to all parties involved in this appeal. Information shared with the OOR that is not also shared with all parties will not be

considered.

Agency Must Notify Third Parties: If records affect a legal or security interest of an employee of the agency; contain confidential, proprietary or trademarked records of a person or business entity; or are held by a contractor or vendor, the agency must notify such parties of this appeal immediately and provide proof of that notice to the OOR within seven (7) business days from the date on this letter. Such notice must be made by (1) providing a copy of all documents included with this letter; and (2) advising that interested persons may request to participate in this appeal (see 65 P.S. § 67.1101(c)).

Commonwealth Court has held that "the burden [is] on third -party contractors ... to prove by a preponderance of the evidence that the [requested] records are exempt." (Allegheny County Dep't of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1042 (Pa. Commw. Ct. 2011)). Failure of a third -party contractor to participate in an appeal before the OOR may be construed as a waiver of objections regarding release of the requested records.

Law Enforcement Records of Local Agencies: District Attorneys must appoint Appeals Officers to hear appeals regarding criminal investigative records in the possession of a local law enforcement agency. If access to records was denied in part on that basis, the Requester should consider filing a concurrent appeal with the District Attorney of the relevant county.

If you have any questions about the appeal process, please contact the assigned Appeals Officer (contact information is enclosed) - and be sure to provide a copy of any correspondence to all other parties involved in this appeal.

Sincerely,

Erik Arneson Executive Director

Enc.: Assigned Appeals Officer contact information Entire appeal as filed with OOR

R. 153a


Please accept this as a Request to Participate in a currently pending appeal before the Office of Open Records. The statements made herein and in any attachments are true and correct to the best of my knowledge, information and belief. I understand this statement is made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authorities.

NOTE: The requester filing the appeal with the OOR is a named party in the proceeding and is NOT required to complete this form.


Name:

IF YOU ARE OBJECTING TO THE DISCLOSURE OF YOUR HOME ADDRESS, DO NOT PROVIDE THE OFFICE OF OPEN RECORDS WITH YOUR HOME ADDRESS. PROVIDE AN.ALTERNATE ADDRESS IF YOU DO NOT HAVE ACCESS TO E-MAIL.


E-mail

Fax Number:

Name of Requester:



E-mail

Name of Agency:

Address/City/State/Zip_


E-mail

Record at issue:



The owner of a record containing confidential or proprietary information or trademarked records

A contractor or vendor

Other: (attach additional pages if necessary)

I have attached a copy of all evidence and arguments I wish to submit in support of my position.


Please submit this form to the Appeals Officer assigned to the appeal. Remember to copy all parties on this correspondence. The Office of Open Records will not consider direct interest filings submitted after a Final Determination has been issued in the appeal.

R_ 15da



CONTACT INFORMATION: Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4t Floor Harrisburg, PA 17120-0225

PHONE: (717) 346-9903 FACSIMILE: (717) 425-5343 E-MAIL: [email protected]


Please direct submissions and correspondence related to this appeal to the above Appeals Officer. Please include the case



The OOR website, http://openrecords.pa.gov, is searchable and both parties are encouraged to review prior final determinations involving similar records

and fees that may impact this appeal.

R.

Pennsylvania OFFICE OF OPEN RECORDS

IN THE MATTER OF

FOX 43 NEWS Requester, *

Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT Respondent.

This correspondence confirms the above -referenced Requester's agreement to an additional


Requester's appeal form. Accordingly, pursuant to 65 P.S. § 67.110I(h)(1), the Office of Open


May 23, 2016.

R. 156a

3 R. 157a

Brown, Charles (OOR)

From: Tricia S. Lontz <[email protected]> Sent: Friday, April 01, 2016 3:04 PM

To: Brown, Charles (OOR)

Cc: Michael McAuliffe Miller; Tricia S. Lontz Subject: Response to RTKL Appeal - Did. AP 2016-0583 Attachments: RESPONSE TO RTKL APPEAL DKT. AP 2016-0583 (L0631525).pdf

Mr. Brown,

Kindly permit the attached letter and Affidavit to respond to the above docketed appeal on behalf of Central Dauphin School District.

Please let me know if you have any questions.

Thank you,

Tricia

Tricia S. Lontz, Esq., D.P.T. I Associate. ECKERT SEAMANS CHERIN & MELLOTT, LLC

213 Market Street 8th Floor Harrisburg, PA 17101 Direct (717) 237.7189 tIontz(@,eckertseamans.corn

eckertseamans.com I bio I vCard

This e-mail message and any files transmitted with it are subject to attorney -client privilege and contain confidential information intended only for the person(s) to whom this email message is addressed. If you have received this e-mail message in error, please notify the sender immediately by telephone or e-mail and destroy the original message without making a copy. Thank you.

Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message.

1

15Ra

Eckert Seamans Cherin & Mellott, LLC 213 Market Street 8th Floor Harrisburg, PA 17101

ATTORNEYS AT LAW

April 1, 2016

VIA EMAIL and U.S. MAIL.

Charles Rees Brown, Esquire Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225

Re: Right to Know Request Appeal Docketed at 4 AP 2016-0583

Dear Mr. Brown:


'1FL 717 237 6000 FAX 717 237 6019 www.eckertsearnans,com

Michael McAuliffe Miller 717.237.7174 mmillengc ckertseamans.cont

By way of background, on February 23, 2016, the Requestor sought the following: "F0X43 News is requesting a copy of the video that was captured by a school bus camera system that occurred on February 16, 2016." The District's Open Records Officer invoked the District's right to an additional 30 -day period to respond to the Request. The District submitted a timely response on March 24, 2016, denying the request. This Appeal followed.

The District properly denied the request because the requested video recording is an "education record" under the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and is therefore (and otherwise) exempt from disclosure under Pennsylvania's Right to Know Law, 65 P.S. § 67.101 et seq. ("RTKL").

The District's position is consistent with the Office of Open Records' (OOR) decisions as the OOR has regularly held that education records covered wider FERPA are not public records, including denying a request for a school bus video recording nearly identical to the request here. See In the Matter of Jeff Remling v. Bangor Area Sch, Dist., OOR Old. AP 2011-0021; see also In the Matter of Larry Fieber v. New Hope-Solebury Sch. Dist., OOR Dkt. 2013-1020; Hocker v. Owens 3, Robert Sch. Dist., OOR Dkt. AP 2011-0302; In the Matter of Robert Robinson v. Phila. jy Sch. Dist., OOR Dkt. AP 2010-0917.

0,0631216.1)

R. 159a

s aA ATTORNEYS AT LAW

Charles Rees Brow, Esquire April 1, 2036 Page 2

Section 305(a) of the RTKL provides that records possessed by agencies are presumed to be public records, but that this "presumption shall not apply if: (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, regulation or judicial order or decree."1 65 P.S. §

67.305(a). Section 306 of the RTKL further provides that "[n.lothing in this act shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial or decree." 65 P.S. § 67.306.

This appeal should be denied because: (1) the requested record is not public and is exempt under FERPA; (2) disclosure of the requested record would result in the loss of federal or state funding; and (3) the record is a record relating to a noncriminal investigation exempt under Section 708(b)(17). Thus, the requested record is not subject to disclosure under the RTKL.

fl,) The Video Recording is Not Public and is Protected from Disclosure under FERPA

The video recording is an "education record" containing personally identifiable information under FERPA. FERPA defines "education records" 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 ox institution or by a person acting for such agency or institution." 33 C.F.R. § 99.3; 20 U.S.C. § 1232g(a)(4)(A). A record includes "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and microfiche, 33C.F.R. § 99.3.

First, the videotape at issue contains information directly related to students. "Information that is directly linked to a student or renders the identity of a student traceable is clearly protected under FERPA." In the Matter of Jeff Rending, supra. The video recording at issue depicts which students were present on the bus in question on February 16, 2016 and which students were involved or not involved in the interaction at issue. Thus, the video recording contains information that is directly related to the students.

Further, the information. that is directly related to the students also contains "personally identifiable information." Personally identifiable information includes "[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; or ... Pinformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record related." 33 C.F.R. § 99.3. The video recording contains "personally identifiable information" because it is traceable to the students depicted. The video

if any of these circumstances are met, the record is not a "public record" as defined by the RTKL, 65 P.S. § 67.102.

{Ler631216,1)

R. 160a


ATTORNEYS AT LAW

plainly shows and identifies the students present on the bus and those involved or not involved in the interaction at issue.


Because the video recording contains (i) personally identifiable information directly related to students (ii) that is maintained by the School District, the video recording constitutes an "education record" as defined by FERPA. Under. FERPA, such records axe protected and confidential. This exact result was reached by the OOR in its Final Determination issued in in the Matter of Jeff Remling v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021. In Reraling, the OOR denied the requestor's appeal seeking access to a school bus videotape because the videotape was an "education record" of the school district protected by FERPA. Similarly, the school bus video recording here is not subject to disclosure under FERPA. Therefore, the video recording is exempt from disclosure under Section 305(a)(3) and Section 306 of the RTKL.

In addition, the education record at issue cannot be disclosed pursuant to the law enforcement unit exception under FERPA. Under FERPA, the term "education records" does not include "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement." 20 U.S.C. §

1232g(a)(4)(b). As stated by the District's Open Records Officer in the attached Affidavit, the video recording at issue is, and was, not maintained by a law enforcement unit of the School District and not created by a law enforcement unit of the School District for law enforcement purposes, Rather, the video recording was created by the School District itself, separate and apart from any law enforcement unit of the School District Therefore, the video recording cannot be disclosed pursuant to the Jaw enforcement unit exception under FERPA.

Moreover, the video recording cannot be disclosed in a redacted form without violating FERPA's disclosure protections. First, the video recording is not capable of being redacted. As stated by the Open Records Officer, the School District does not have the technological capability of redacting the video recording to remove personally identifiable information,

Second, even if the School District had the technological ability to redact the video recording, such redaction would be insufficient to remove all personally identifiable information from the video, as FERPA requires. See Sherry v. Radnor Two. Sch. Dist., 20 A:3d 515, 525 (Pa. Cmwith. 2011); In the Matter of Larry Fieber Y. New Hope-Solebury Sch. Dist., OOR Dtk. AP 2013- 1020, In both Sherry and Fieber, it was recognized that under certain circumstances even redaction cannot eliminate all personally identifiable information because the document would still contain elements which could be used to identify the students involved. Specifically, in Fieber, the identity of the student involved could not be withheld through redaction because reports in the local newspapers made reference to the student who was the subject of the record.

{L0631210.1}

WIFE ATTORNEYS AT LAW


Therefore, 0 -veil if the student's name was redacted from the document, the student's identity would be known to the requestor in violation of FERPA.

Likewise, here, there have been numerous media reports regarding the circumstance surrounding the video recording. The reports identify the involved students as members of the girls' basketball team. Therefore, even if the students' faces and other identifying characteristics could be redacted from the videotape, the students' identities will still be known to, or reasonably discoverable by, the Requestor in violation of FERPA.

The video recording at issue is an education record protected by FERPA. Because the video recording is protected by FERPA, it is exempt from disclosure under the RTKL. This Appeal should therefore be denied.


In addition to the basis for denial above, the video is also exempt from disclosure under Section 708(b)(1) of the RTKL. Under Section 708 of the RTKL, a record, the disclosure of which "would result in the loss of Federal or State funds by an agency or the Commonwealth" is exempt from disclosure. 65 P.S. §. 67,708(b)(1)(i). FERPA expressly indicates that it financially penalizes school districts "which [have] a policy or practice of permitting the release of education records ... of students without the written consent of their parents." 20 U.S.C. §

1232g(b)(1).

Therefore, FERPA protects education records from disclosure and financially penalizes school districts that lack a policy fox protecting such records. Because the disclosure of the video recording at issue would result in the loss of Federal funds by the School District, the record is

also exempt from disclosure under Section 708(b)(1)(i) of the RTKL. This Appeal should be denied on this basis as well.

(3) The Video Recording Constitutes a Record Relating to a Non-criuninal Investigation.

The video recording also constitutes a record relating to a noncriminal investigation. Section 708(b)(17) of the RTKL, specifically exempts from disclosure a record of an agency relating to a noncriminal investigation. The RTKL defines records relating to a noncriminal investigation as.

including:

(1) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports. (iii) A, record that includes the identity of a confidential source .... (iv) A record that includes information made confidential by law. (v) Work papers underlying an audit. (vi) A record that, if disclosed, would do any of the following:

{1.0631216.1)

kEK ATTORNEYS AT LAW

Charles Rees Brown, gsquire April 1, 2016 Page 5

(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court.



65 P.S. § 67.708(b)(17).

The Commonwealth Court examined this RTKL exception as it pertains to "education records" in Sherry v. Radnor Twp. Sch. Dist., 20. A.3d 515 (Pa. Cmwith. 2011). In Sherry., the Commonwealth Court affirmed the denial of a request to inspect de -identified records of honor code violations maintained by the district because it determined the records were exempt from disclosure under the RTKL as noncriminal investigation records. The Court found that the records were evidence of the district's official probe into a purported rule violation on the district's premises, contained a description of the violative conduct, contained witnesslteacher statements, and contained a description of the course and result of the investigation. Id. at 523- 24. Thus, the Court found the records constituted noncriminal investigation records and were exempt pursuant to this exception. Id. at 524,

Here, the video recording contains information relating to an incident on a school bus which involved students and a parent of a student The video recording documents activities that were noncriminal is nature (even if certain events are alleged to be criminal in nature). As affirmed by the Open Records Officer, the School District is conducting a detailed examination and official probe into the incident which occurred on the District's premises and in District property. The video recording contains an actual depiction of the events in question and is evidence of the conduct subject to the investigation. Thus, the record relates to a noncriminal investigation because it constitutes "investigative materials, notes, correspondence and reports" of the investigation and is also a record that includes information made confidential by law. 65 P.S. § 67.708(b)(17)(ii), (iv); see also Sherry, supra.

{L0631216.1)

R.

FARF 0A))

ATTORNEYS AT LAW


Therefore, in addition to the URFA protections, the video records is also exempt under the noncriminal investigation exception of the RTKL.


MMM/tl Enclosures

(L0631216.1)

4

R. 164a


VALERIE HAWKINS,

Requestor,

vs. No. AP 2016-0583


Agency.

AFFIDAVIT


statements are true and correct based upon my personal knowledge, information and belief:

1. I serve as the Open Records Officer for the Central Dauphin School District (Agency").

2. I am responsible for Right -to -Know Requests filed with the Agency.

3. In my capacity as the Open Records 'Officer, I am familiar with the records of the Agency.

4. Upon receipt of the request, I conducted a thorough examination of files in the possession, custody and control of the Agency for records responsive to the request underlying this appeal.

5. After conducting a good faith search of the Agency's files, I identified all records within the Agency's possession, custody or control that are responsive to the request and determined that the records are protected from disclosure under the Family Education Right and Privacy Act, 20 U.S.C. § 1232g, ("FERPA"), and thus, are exempt from disclosure under Pennsylvania's Right to Know Law, 65 P.S. § 67.101 e sea. ("RTKL").

6. The records sought hi the Request are education records under FERPA. FERPA defines "education records" 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." 33 C.F.R. § 99.3; 20 U.S.C. § 1232g(a)(4)(A).

IL0631211.1)

7, The video recording contains personally- identifiable information directly related to students because the students are visible and identifiable in the video recording.

8. The video recording is maintained by the School District. The requested video recording is, and was, not maintained by a law enforcement unit of the Agency; and not created by a law enforcement unit of the Agency for a. law enforcement purpose.

9, The video recording is an "education record" under FERPA which requires the Agency to keep the record confidential.

10. The personally identifiable information of the students cannot be redacted from the video recording.

11. First, the Agency cannot redact the student's personally identifiable information because it does net have the technological ability to redact the video recording.

12. Second, even if the Agency had the technological ability to redact the video recording, the Agency cannot remove all personally identifiable information from the video recording.

13 The Agency cannot remove all personally identifiable information because the subject of the video recordings have been covered on multiple occasions in the news media.

14. The repeated news reports identify the students in the recording as members of the Central Dauphin East girls' basketball team.

15. Therefore,. even if the students' identities were capable of being redacted from the video recording, the students' identities will still be known to the Requester.

16. The Agency may be financially penalized through loss of Federal funds if it permits the release records protected by FERPA such as the video recording.

17. The video recording is part of the Agency's non -criminal investigation of the events documented in the video recording.


{L0631218.1)


i j) ^ i i/f1,OLy evix, ;aim. as

By: /. f '...' ,, _,1 el-tyret-g...

Karen' . McConnell, School District/Open Records Officer

Sworn to and subscribed' before me this 30 r day of March, 2016.

//I/ Notary Public

My Commission Expires: Are< /4, i7(

(Seal) CONNONNEALTH Of PENNSYLVANIA

MELISSA FRY Nullify Public

LOWER PAXTON NIP, DAUPHIN COUNTY

My Commission Expires Ooo 12, 2019

1L0631218.11

R. 167a

4

R. 168a

Pennsylvania OFFICE OF OPEN RECORDS

FINAL DETERMINATION

IN THE MATTER OF

VALERIE HA,WKINS AND FOX43 NEWS, Requester

v, : Docket No.: AP 2016-0583

CENTRAL DAUPHIN SCHOOL DISTRICT Respondent

INTRODUCTION



to -Know Law ("RTKL"), 65 P.S. §§ 67.101 et seq., seeking a video from a District school bus.


under federal law. The Requester appealed to the Office of Open Records ("00R"). For the



FACTUAL BACKGROUND


captured by a school bus camera system that occurred on Feb. 16, 2016." On March 24, 2016,



1

R. 169a


of federal funding. 65 P.S. § 67.708(b)(1)(i) In addition, the District argued that the video is


67.708(b)(17).


stating grounds for disclosure.1 Specifically, the Requester notes that the video shows an adult



appeal. See 65 P.S. § 67.1101(c).


denial, and supported by the affidavit of Karen McConnell, the District's Open Records Officer.

LEGAL ANALYSIS


access to information concerning the activities of their government." SWB Yankees L.L.C. v.

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open -government law is




75 A.3d 453 (Pa. 2013).





67.1101(b)(1).

2







records. 65 P.S. § 67.302. Records in possession of a local agency are presumed public unless



See 65 P.S. § 67.708(b).






proof as leads the fact -finder ... to find that the existence of a contested fact is more probable

than its nonexistence." Pa. State Troopers Ass 'n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.


827 (Pa. Commw. Ct, 2010)).



FERPA. FERPA protects "personally identifiable information" contained in "education records'

from disclosure and financially penalizes school districts "which [have} a policy or practice of

3

permitting the release of education records ... of students without the written consent of their


records" as those records that are "[d]irectly related to a student" and "[m]aintained by an


99.3. While the express language of FERPA's implementing regulation would appear to

encompass all record:, held by art educational institution and which relate to a student, a review



involves a student does not automatically invoke the confidentiality provisions of FERPA.

In Owasso Indep. Sch. Dist. No. I-011 v. Falvo, the United States Supreme Court held


maintained in a central file by the official records custodian. 534 U.S. 426 (2002). Other courts

have looked at the records themselves and have concluded that only.those records relating to a

student's academic performance are "education records" for purposes of FERPA. Bd. of Educ

of the Toledo City Sch. Dist. v. Horen, 2011 U.S. App. LEXIS 26644 (6th Cir. 2011) (tally sheets





grade."); S.A. v. Tulare County Office of Educ., 2009 U.S, Dist. LEXIS 93170 (E.D. Cal. 2009)


the student's permanent file); Wallace v. Cranbrook Educ. Cmty., 2006 U.S. Dist. LEXIS 71251

(E.D. Mich, 2006) (student statements provided in relation to an investigation into school

4

R. 172a


records."); Ellis v. Cleveland Mun. Sch. Dist., 309 F, Supp. 2d 1019 (N.D. Oh. 2004). Perhaps



It is reasonable to assume that criminal investigation and incident reports are not

educational records because, although they may contain names and other personally identifiable information, such records relate in no way whatsoever to

the type of records which FERPA expressly protects; i.e., records relating to

individual student academic performance, financial aid or scholastic probation which are kept in individual student files.


foregoing, the courts ha:Ne made clear that only those records relating to student academics are







The District points to Remling v. Bangor Area Sch. Dist., OOR Dkt. AP 2011-0021, 2011 PA

0.0.R.D. LEXIS 74, wherein the request sought a copy of a school bus video recording.



FERPA. A review of the final determination in Rernling reveals that the OOR relied solely on


5



2, The requested video does not relate to a noncriminal investigation






to noncriminal investigations{.]" Id. In order for this exemption to apply, an agency must


was conducted regarding a noncriminal matter. See Pa. Dep 't of Health v. Office of Open


probe must be "conducted as part of an agency's official duties," Id. at 814; see also Johnson v.

Pa. Convention Center Auth., 49 A.3d 920 (Pa. Commw. Ct. 2012). The investigation must

specifically involve an agency's legislatively -granted fact-finding powers. See Pa. Dep't of Pub.

Welf v. Chawaga, 91 A.3d 257 (Pa. Cornmw. Ct. 2014). To hold otherwise would "craft a



In Sherry, the requester sought records regarding Academic Ilonor Code violations. In




2 Because the requested video is not protected by FERPA, disclosure would not threaten the loss of Federal funding. Accordingly, the District has not met its burden of proof to withhold the video under Section 708(b)(1)(i) of the RTKL, 65 P.S. § 67.708(b)(1)(i). See 65 P.S. § 67.708(a)(1).

6

R. 174a

District's premises." 20 A.3d at 523, Subsequent to the Court's decision in Sherry, the Court

















v, Grove, a requester sought a copy of a "dash -cam" video recording of a traffic stop. The State



rejecting the State Police's argument, the Court noted that "{dash -cam videos] are created to



7

R. 175a







investigation.3 65 P.S. § 67.708(a)(1)

CONCLUSION



Final Determination, any party may appeal to the Dauphin County Court of Common Pleas, 65




proper party to any appeal and should not be named as a party.`' This Final Determination shall

be placed on the OOR website: http://openrecords.pa.gov..


3 Additionally, while Section 708(b)(16) of the RTKL references videos as a type of record that may relate to a criminal investigation, Section 708(b)(17) of the RTKL contains no reference to videos. Cf. 65 P.S. §

67.708(b)(16)(ii) with 65 P.S. § 67.708(b)(17)(ii). 4 Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

8

R. 176a



Sent via e-mail to:


9

R. 177a


Petitioner

v.

VALERIE HAWKINS, FOX 43 NEWS, and THE COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS,

Copies Distributed

Date, fqi,k/i,c4 Initials

DAUPHIN COUNTY, PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF

: NO. 2016 CV 4401 MP


Respondents

SCHEDULING ORDER

AND NOW, this 12th day of October, 2016, upon consideration of Petitioner's

Administrative Application for Status Conference, IT IS HEREBY ORDERED that a

Status Conference will be held on Tuesday, December 20, 2016 at 9:00 A.M. in

Chambers, Juvenile Justice Center, 7th Floor Human Services Building, 25 South

Front Street, Harrisburg, Pennsylvania.

BY THE COURT:

William T. Tully, J.

DISTRIBUTION: Michael McAuliffe Miller, Esquire, 213 Market Street, 8th Floor, Harrisburg, PA 17101 Craig J. Staudenmaier, Esquire, 200 N. Third Street, 18th Floor, Harrisburg, PA 17108 Charles Rees Brown, Esquire, 400 North Street, 4th Floor, Harrisburg, PA 17120 Court Administration FILE

R. 178a

Copies Distributed

Date Is r 1 Initials '(

CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS OF DISTRICT, : DAUPHIN COUNTY, PENNSYLVANIA

Petitioner )

v. : NO. 2016 CV 4401 MP

VALERIE HAWKINS, FOX 43 NEWS, :

and THE COMMONWEALTH OF r. - PENNSYLVANIA OFFICE OF OPEN : CIVIL ACTION - LAW RECORDS,

Respondents

SCHEDULING ORDER

AND NOW, this 5th day of January, 2017, following a Status Conference on

December 20, 2016, IT IS HEREBY ORDERED that a Hearing is scheduled for

Thursday, March 30, 2017 at 1:00 P.M. in Courtroom No. 11, Juvenile Justice Center,

7th Floor Human Services Building, 25 South Front Street, Harrisburg,

Pennsylvania.

BY THE COURT:

William T. Tully, J.

DISTRIBUTION: Michael McAuliffe Miller, Esquire, 213 Market Street, 8th Floor, Harrisburg, PA 17101 Craig J, Staudenmaier, Esquire, 200 N. Third Street, 18th Floor, Harrisburg, PA 17108 Charles Rees Brown, Esquire, 400 North Street, 4th Floor, Harrisburg, PA 17120 Court Reporter's Office Court Administration FILE

R. 179a

CENTRAL DAUPHIN SCHOOL : IN THE COURT OF COMMON PLEAS DISTRICT,

VS.

Petitioner


Respondents

: DAUPHIN COUNTY, PENNSYLVANIA

: NO. 2016 -CV -4401 -MP NOTICE OF APPEAL/PETITION FOR

: JUDICIAL REVIEW


STIPULATIONS

AND NOW, this 30th day of March, 2017, it is hereby stipulated and agreed by and

among the parties, Central Dauphin School District (the "District"), Petitioner; and Valerie

Hawkins and Fox 43 News, Respondents, as follows:

I. PARTIES

1. Petitioner, the District, is a school district duly organized and existing under the

laws of the Commonwealth of Pennsylvania, having an address of 600 Rutherford Road,

Harrisburg, Pennsylvania 17109.

2. Respondent, Valerie Hawkins, is an assignment editor with Fox 43 News with an

office located at 2005 South Queen Street, York, Pennsylvania 17403 (the "Requester").

3. Respondent, Fox 43 News, is the fictitious name of WPMT, LLC a limited

liability company providing news services with a principal place of business at 2005 South

Queen Street, York, Pennsylvania 17403.

4. Respondent, Commonwealth of Pennsylvania Office of Open Records ("OOR"),

is an office -within the Commonwealth's Department of Community and Economic Development

established pursuant to Section 1310(a) of the Pennsylvania Right to Know Law (65 P.S. §

(L0675341.2)

R. 180a

67.101 et seq.) ("RTKL") having an office located at 400 North Street, Plaza Level, Harrisburg,

Pennsylvania 17120-0225.

5. The OOR declined to participate in the matter and filed a Notice of Non -

Participation on July 8, 2016. A true and correct copy of the Notice of Non -Participation is

attached hereto as Exhibit A.

II. JURISDICTION

6. This Notice of Appeal/Petition for Review is filed pursuant to Section 1302(a) of

the RTKL (65 P.S. § 67.1302(a)).


7. On February 23, 2016, Requester, Valerie Hawkins, submitted a RTKL request to

the District. A true and correct copy of the Request is attached hereto as Exhibit B.



2016."

9. The video recording at issue is a video recording that was captured on a District

school bus through its video recording system on February 16, 2016.

10. In response the RTKL request for the school bus video recording, the District's

Open Records Officer invoked the District's right to an additional 30 -day period to respond to

the Request on March 1, 2016, and then issued a timely denial of the request on March 24, 2016.

A true and correct copy of the District's denial is attached hereto as Exhibit C.


24, 2016. A true and correct copy of the Requester's appeal is attached hereto Exhibit D.

(L0675341.2) 2

R. 181a

12. On March 25, 2016, the OOR issued an Official Notice of the Requester's appeal

and invited both parties to supplement the record. A true and correct copy of the OOR's Notice

of Appeal is attached hereto as Exhibit E.

13. Only the District supplemented the record by submitting a letter brief and

supporting affidavit of the District's Open Records Officer in support of its denial. A true and

correct copy of the District's Letter Brief and Affidavit is attached hereto as Exhibit F.


19, 2016 at OOR Dkt # AP 2016-0583. A true and correct copy of the OOR's Final

Determination is attached hereto as Exhibit G.


ECKERT SEAMANS CHERIN & MELLOTT

41664 111

Michael McAuliffe Miller (I.D. No. 78507) Tricia S. Lontz (I.D. No. 316052) Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 [email protected] [email protected] Telephone: (717) 237-6000

Counsel for Central Dauphin School District

5 770 ,

Dated:

(L0675341.2) 3

NAUMAN SMITH

Craig J. denmaier (I.D. No. 34996) Joshua D. Bonn (ID. No. 93967) Nathaniel J. Flandreau (I.D. No. 317466) Nauman Smith 200 North 3rd Street, 18th Floor Harrisburg, PA 17101 [email protected] Telephone: (717) 236-3010

Counsel for Valerie Hawkins and PA Media Group

Dated: 0 - (C7

R. 182a

EXHIBIT A

R. 183a

gfifnifeAttf_golgatakeoehaal:`,kkANFa2z9INFaciokiVAA


CENTRAL DAUPHIN SCHOOL DISTRICT, Petitioner,

v. 2016 -CV -4401 -MP


Respondents

pRAECRE

. .

TO THE PROTHONOTARY:.

Kindly accept the attached Notice of Non -Participation for filing to the above -captioned

matter.,

Dated: July 8, 2016

1


Char us.g.,eeS ,Brown Chief Counsel Supreme emit No. 70612 Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120-0225 (717) 346-9903 (717) 425-5343 (fasimile)

Counsel for Office of Open Records

R. 184a

.kek ag-gaa



Petitioner,

V.


Respondents

........

2016 -CV -4401-1111'

NOTICE OF OF NON -PARTICIPATION OF OFFICE OF OPEN RECORDS

AND NOW, this 8th day of July, 2016, the Pennsylvania Office of Open Records,

adjudicator of the above -captioned appeal for which judicial review is sought; files this Notice of

Non -Participation and states in support thereof as follows:

1. The Office of Open Records ("00R"), is a quasi-judicial tribunal which

adjudicates disputes over requests for public records under the Right -to -Know

Law ("RTKL"), 65 P.S, H 67.101-.3401. See Commonwealth v. Cm Twp., 95

A.3d 354, 363-64 (Pa. Commw. Ct. 2014),

2. The above -captioned action is a statutory appeal from a Final Determination of the

00R,

3. On February 23, 2016, Valerie Hawkins, Planning Editor for FOX43 NEWS

("Requester") sought records under the RTKL from Central Dauphin School District

("District") seeking "a copy of the video that was captured by a school bus camera

systein. that occurred on Feb. 16, 2016."

1

R. 185a

4. On March 24, 2016, the District denied the Request, stating that disclosure of the

video would violate the Family Educational Rights and Privacy Act ("FERPA"), 20

U.S.C. § 1232g, and would result in the loss of federal funding. 65 P.S. §

67.708(b)(1)(i), In addition, the District argued thatt.. the video is exempt

disclosure because it is related to a noncriminal investigation. 65 P.S. §

. 67.708(b)(17).

5. On March 24, 2016, the Requester appealed to the .00R, which docketed the appeal

as Valerie Hawkins and FOX43 News v. Central Dauphin School District, OOR Dkt.

AP 2016-0583.

6. On April 1, 2016, the District submitted a position statement reiterating its grounds

for denial, and supported by the affidaVit of Karen McDonnell, the District's Open

Records Officer.

7, On May 19, 2016, the OOR issued its Final Determination granting the appeal,

8. On June 9, 2016, the District filed a Petition for Review of the OOR's Final

Determination determination,

9. On June 24, 2016, Judge Bruce Bratton issued a Rule to Show Cause why the relief

requested should not be granted. A response is due within twenty days.

10. The OOR has no interest in the underlying records; as a result "[t]he OOR does not

have standing to defend its -decision because it is not aggrieved by the release of

another agency's records." East Stroudsburg University Foundation v. Office of Open

Records, 995 A,2d 496, 507 (Pa. Commw. Ct, 2010).

2

R. 186a

Documents

REPRODUCED RECORD2016 -CV -04401 -MP Central Dauphin School Districtvs.Valerie Hawkins, et al. 08/05/2016 RULE Upon consideration of the Petition of PA Media Group to Intervene, IT