School Case Clarifies Scope, Limits of Right-to-Know LawNovember 19, 2019 – Alerts
In a recent Right-to-Know Law case, the Pennsylvania Office of Open Records (OOR) issued a final determination that sheds light on the extent to which a school district may decline producing requested records. The requester sought all emails sent from or received by school board members and the superintendent during a 21-day period in May 2019. The school district countered with arguments to withhold the release of these records – exceptions that the OOR partially granted and partially denied.
For school districts, the OOR decision is particularly instructive as to the narrowness of certain exceptions.
Maciejewski v. Southern Columbia Area School District
Josh Maciejewski submitted a request to the Southern Columbia Area School District seeking all emails exchanged between members of the school board and the superintendent during the period of May 11 to May 31, 2019. The district denied the request, emphasizing a lack of specificity, and argued that certain records are protected because they are, for example, related to a noncriminal investigation, Safe2Say confidentiality, threats to computer security and exemption under the Family Educational Rights and Privacy Act (FERPA). The OOR accepted only some of the arguments, often finding an insufficient tie-in to all parts of an exception. Some of the noteworthy findings of the OOR include:
Right-to-Know Arguments/Exceptions – Granted
- Safe2Say Confidentiality: OOR recognized Section 1304-D regarding the confidentiality of a record created or obtained through the implementation or cooperation of Safe2Say.
- Noncriminal Investigation: The district successfully demonstrated that identified emails were exempt from disclosure because they related to a noncriminal investigation. The argument’s success hinged on submitting affidavits that tied each responsive email to a complaint raised by a parent about a teacher’s behavior and an internal investigation.
Right-to-Know Arguments/Exceptions – Denied
- Lack of Specificity of the Request: OOR found that request was specific enough when there were ten identified email addresses and a shorter timeframe than that upheld in Easton Area School Dist. v. Baxter.
- Computer or Infrastructure Safety: OOR acknowledged an affidavit from the district that showed how certain records were related to emergency training and quiz results regarding the various actions to be taken in the event of emergencies. However, OOR determined the affidavit, “does not explain how the disclosure of any of these records is likely to threaten computer or infrastructure safety.” Notably, OOR did permit redaction of login information.
- FERPA: The district’s argument that certain emails identifying students were education records pursuant to FERPA was rejected by OOR because “there is no evidence that emails are directly related to students and are maintained in any way such that they constitute ‘education records.’” The district was permitted to redact student names and identifying information for those who are 17 or younger pursuant to the Right-to-Know Law.
- Labor Strategy or Negotiation: OOR found that certain emails relating to representation and scheduling of a hearing, or labor relations more generally, were not sufficiently related to strategy or negotiation specifically and ordered disclosure.
- Deliberations: OOR rejected the district’s argument that an email describing discipline which had already occurred was predecisional and deliberative.
- Emails Constituting Advertising, Solicitation, Automated Newsletters and Spam: The district did not successfully prove that certain emails were not a transaction or activity of the district and was ordered to disclose.
For any questions regarding this alert or this Right-to-Know Law case, please contact Jacqueline Lembeck at 610.397.2007 or [email protected] or any member of Fox Rothschild’s Education Practice Group.