This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
Within six weeks of the Pennsylvania Supreme Court’s decision in Easton Area School District v. Miller, 13 MAP 2019, 2020 Pa. LEXIS 3378 (“Easton”), the OOR was required to apply the Easton holding to a school bus video request. That holding is the OOR’s Final Determination in Tricia Mezzacappa v. Colonial Intermediate Unit 20, Docket No. AP 2019-1922 (July 31, 2020).
Background and Facts:
On September 4, 2019, the Requester filed a RTKL Request directed to the Colonial Intermediate Unit 20 (“Unit”) for “bus video AM route only for the first day of school 2019-2020.” The Unit denied the Request, contending that the video was exempt under the Family Education Rights and Privacy Act (“FERPA”).
The Requester appealed to OOR, which invited the parties to supplement the record. The Unit’s position statement included verified attestations by the Unit’s Open Records Officer, its Executive Director, and its Director of Technology that: 1) the requested videos contained personal details of minor students; 2) the Unit lacks the technology to redact the videos, and; 3) after performing a balancing test, the Unit determined that the requested record could not be released. With the agreement of all parties, OOR stayed the matter pending the Easton decision.
After Easton was handed down, OOR reopened the record to permit the parties to address the effect of that decision on the appeal. The Unit submitted supplemental attestations by its Open Records and Director of Technology in support of the positions it had taken before the Easton decision. The Requester submitted a statement saying that the Unit failed to demonstrate any expectation of privacy in the locations where a bus stops on public roads, and that redaction of the faces of students would be acceptable.
OOR Analysis and Holding:
The Unit advised OOR that it had conducted the necessary balancing test and determined that the public interest in disclosure far outweighed the privacy rights of the students and their families. It argued that redaction was impossible, both because it lacked the capability to perform such redactions, and because it would have to redact, not only student information, but street signs, addresses, and any information that would show the actual route taken by the bus.
As per Easton, OOR rejected the argument that redaction of information that would show the bus route was necessary, because there is no expectation of privacy in any information that would reveal public information such as school bus routes.
OOR accepted the Unit’s attestation that it lacked the capability to redact the video itself. It then looked to Section 1307(g) of the RTKL to resolve the redaction issue. Section 1307(g) provides that “miscellaneous costs an agency necessarily incurs for complying with a request may be imposed upon the Requester so long as the costs are reasonable.“ Slip op. at 11. Accordingly, the Unit was required to provide the Requester with an estimate of reasonable costs necessary to have the video redacted with thirty (30) days of OOR’s Final Determination. Upon payment of those costs, the Unit would be required to provide the redacted video.
Bottom Line:
An agency must provide an estimate of redaction costs to the Requester when video redaction is necessary under Easton and the agency lacks the ability to perform the necessary redactions.