State Records Committee Appeal Decision 2023-36

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SHANA KUMMER, Petitioner, vs

SEVIER COUNTY SCHOOL DISTRICT, Respondent,

DECISION AND ORDER

Case No. 23-36

By this appeal Shana Kummer (“Petitioner”), requests records allegedly held by Sevier County School District (“Respondent”).

FACTS

On November 21, 2022, A.K., the daughter of Shana and Jared Kummer, attended her 6th grade physical education (P.E.) class at South Sevier Middle School. Allegedly, at some point prior to the class, a sign in the boys’ locker room was vandalized. As a result, the P.E. teacher dedicated the November 21st class as “endurance day” as a form of punishment for the vandalism. The teacher required the kids perform significant continued physical cardiovascular and calisthenic activity for the class period—activity that entailed wind-sprints across the gymnasium and pushups after each sprint. After returning home, A.K. complained of chest and muscle pain; A.K. also experienced restricted arm movements for nearly a week. Believing the physical activity to be unreasonably excessive, the Kummers raised concerns about the endurance day with the school and district administration on November 22, 2022, asking that the matter be investigated.

Superintendent Cade Douglas assigned Assistant Superintendent Michael Willes and Student Services Director Nolan Anderson to work with Principal Michelle Nielson to investigate the concerns. On December 2, 2022, the Kummers were notified by mail that the investigation had been completed and that appropriate action had been taken. After that notification, the Kummers requested various types of information relating to the P.E. program and asked for a copy of the video.

The request for the video was denied because the District IT Director believed that redacting the students’ faces from the video to protect their identities would damage the record. However, Mr. Willis informed the Kummers that although the Family Education Rights and Privacy Act (“FERPA”) protected the privacy of the students shown in the video, he could give a description of the footage, which he did, focusing his description particularly on A.K. He concluded by noting that the amount of exercise being required from the students was excessive given their age and he also confirmed that corrective action was being taken, including removal of these types of events (“endurance day”) from P.E. classes. Notwithstanding the description, arrangements were ultimately made for the Kummers to view the video on March 14, 2023.

After viewing the video, Petitioner filed a formal records request with the Respondent pursuant to the Government Records Access and Management Act (“GRAMA”) on March 16, 2023, requesting a copy of the footage. That request was denied on March 21, 2023, on the grounds that the video was not a public record under the GRAMA.

Petitioner appealed the decision to Chad Lloyd, Respondent’s Chief Administrative Officer (“CAO”). In her appeal Petitioner complained that the initial denial did not comply with the requirement in Utah Code § 63G-2-205(2)(b)—that the denial cite to the GRAMA provisions that justify denial of the request. Mr. Lloyd responded to the appeal by expressly identifying Utah Code § 63G-2-107(2) [1] as the basis for the denial and noting that under this provision the record is not subject to the GRAMA.

Petitioner has now appealed to the State Records Committee (“Committee”), challenging the CAO’s decision. On August 17, 2023, the Committee held a hearing during which the parties were allowed to participate. At the hearing, the Committee considered the written materials, oral testimony, and oral arguments of the parties. After having carefully considered all evidence presented to the Committee, the Committee issues the following Decision and Order.

ISSUES FOR REVIEW

We must determine whether the surveillance video footage is protected by FERPA or whether it may be disclosed under GRAMA.

STATEMENT OF REASONS FOR DECISION

1. FERPA Controls the Records to the Extent there is no Conflict with GRAMA.

GRAMA states that “a person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours. . . .” Utah Code § 63G-2-201(1)(a). However, if a record’s access is restricted pursuant to a statute outside of GRAMA, then it is not a public record. Utah Code § 63G-2-201(3)(b). If access to a record is governed or limited by another statute, then access to the record is governed by the specific provisions of that statute. Utah Code § 63G-2-107(1)(a). However, “while the other statute’s provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with the other statute.” Southern Wilderness Alliance v. Automated Geographic Reference Center, 2008 UT 88, ¶17 (quoting Utah Dep’t of Pub. Safety v. Robot Aided Mfg. Ctr., Inc., 2005 UT App 199. ¶11 (internal quotation marks omitted).

FERPA is a federal law intended to “protect [parents’ and students’] rights to privacy by limiting the transferability of their records without their consent. United States v. Miami Univ., 294 F.3d 797, 806 (6th Cir. 2002). So long as an educational institution does not have a policy or practice of releasing education records without the consent of the students or their parents, Congress will continue to allocate funds to those institutions that comply with FERPA. See 20 U.S.C. § 1232g(b)(1). FERPA defines an “education record” as “those records, files, documents, and other materials which . . . contain information directly related to a student” and are “maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232(g)(a)(4)(A).

One question in determining whether FERPA governs a record is whether the record pertains to a student’s academic performance. This issue has been addressed by different courts, but courts have found that FERPA holds no such requirement [2]. Therefore, when an educational institution maintains the record, the question to examine is not whether the record relates to the student’s academia in any way, but if the information in the record directly relates to the student. 20 U.S.C. § 1232(g)(a)(4)(A).

Records 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. U.S. v. Miami Univ., 91 F.Supp.2d 1132, 1149 (S.D.Ohio 2000), affirmed, 294 F.3d 797 (6th Cir.2002). Notably, if the record is directly related to the teacher and only “tangentially related” to the student, FERPA does not apply. Easton Area School Dist. v. Miller, 191 A.3d 75, 82 (Pa.Cmwlth 2018). Therefore, if video footage directly relates to the student, as opposed to the teacher, and the student is personally identifiable, then FERPA will apply regardless of the academic setting of the video.

At the hearing, the Committee moved to view the video recording in camera pursuant to Utah Code § 63G-2-403(9)(a)(ii) (granting the Committee authority to view records in camera). While the footage showed the P.E. teacher in the center of the gymnasium instructing the students, we ultimately believe that the video footage was more related to the students than the teacher. Further, we found the video footage clear enough that students could be personally identified. Because the students were not tangentially related to the teacher’s conduct, and because they could be personally identified, we find that the video directly relates to the students and therefore constitutes an “education record” under FERPA.

2. Notwithstanding FERPA’s Governance, the GRAMA Still Applies

Although FERPA applies to the video and seemingly restricts disclosure, Petitioner argues that our Utah case law provides that, so long as FERPA is satisfied and there is no conflict with our state law, the GRAMA can still control releasing the video. Petitioner points us to Bryner v. Canyons School Dist. 2015 UT App 131 as support for that proposition.

In that case, a GRAMA request sought surveillance footage of an altercation between two students. The issue was the same one we have in front of us here: Namely, is FERPA an absolute bar to record disclosure of education records? In holding that the trial court was correct in ordering the video be redacted and disclosed, the Court ruled that “GRAMA’s provisions will still apply so long as they are not inconsistent with FERPA.” Id., ¶29 (quoting Southern Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, ¶17-21 (editorializing “FERPA” to the original quotation)). That is, because FERPA does not address redacting an education record, then there is no conflict with GRAMA allowing redactions over the protected information before disclosure. See Utah Code § 63G-2-308(1)-(2). Consequently, the Bryner Court upheld the trial court’s decision that the school district redact the students’ faces in the video to comply with FERPA and then disclose the footage.

The Respondent argues that Bryner is not controlling because it does not create a general requirement to disclose the video, nor does it supersede federal law to create an affirmative requirement to provide a copy of the video. To support its position, the Respondent points to guidance issued by the Student Privacy Policy Office of the U.S. Dept. of Education (“SPPO”) which was released after the Bryner case was handed down. Additionally, the Respondent goes so far as to argue, essentially, that Bryner was incorrect in its ruling—that GRAMA cannot compel disclosure of education records governed by FERPA and that the Bryner Court “did not consider the effect or application of the more specific GRAMA section 63G-2-107(2)(c), which expressly states without qualification that the disclosure of a FERPA record is governed by FERPA (and thus not by GRAMA).” Resp’t’s Statement of Facts at 8.

However, we don’t agree. Upon reviewing Bryner, we find the issue before the Court was identical to the one before us, and therefore, the case is applicable and illustrative for us to follow. In essence, the Bryner Court upheld the trial court’s logic in holding that (1) the video footage at issue in the case was governed by FERPA; (2) GRAMA doesn’t conflict with FERPA in redacting the footage; (3) the school district had to redact the identities of the students in the video; (4) the district had to provide a copy a of the redacted video to the requester; and (5) the requester had to pay for the redactions. We see no reason why the same logic cannot be applied to this case.

2.a. The GRAMA/FERPA Conflict

In determining that FERPA applies to the video record at issue, and that, under both Bryner and Southern Utah Wilderness Alliance, GRAMA might also still apply, we defer to Bryner’s own explanation in navigating the GRAMA/FERPA conflict:

GRAMA governs the procedure for requesting government records unless the statute or regulation governing disclosure of the record conflicts with GRAMA. Thus, while FERPA’s specific provisions will control in the event of an irreconcilable conflict, GRAMA’s provisions will still apply so long as they are not inconsistent with FERPA. While FERPA defines education records and provides guidelines for disclosure of such records, FERPA does not directly address whether education records may be redacted or whether a fee may be charged for such redaction. We therefore conclude that GRAMA’s provisions regarding redaction and fees apply to Bryner’s request.

Bryner at ¶29 (internal citations, quotation marks, and editorials omitted).

In other words, the Court ruled that because FERPA doesn’t address disclosure of redacted records, GRAMA’s provisions allowing redactions don’t conflict with the federal law, and where there’s no conflict, GRAMA may still apply. Therefore, if FERPA-related information is redacted, then the law is satisfied and GRAMA can allow disclosure of the redacted record. Since Bryner remains good law in this state, we are bound to follow it.

Turning to the SPPO’s guidance that came out since Bryner was decided, the guidance states:

When a video is an education record of multiple students, in general, FERPA requires the educational agency or institution to allow, upon request, an individual parent of a student (or the student if the student is an eligible student) to whom the video directly relates to inspect and review, or be informed of the content of the video, consistent with the FERPA statutory provisions in 20 U.S.C. § 1232g(a)(1)(A) and regulatory provisions at 34 CFR § 99.12(a). FERPA generally does not require the educational agency or institution to release copies of the video to the parent or eligible student.

U.S. Dept. of Education FAQs on Photos and Videos under FERPA, ¶3.

We don’t find the SPPO guidance convincing for two reasons. First, the guidance is not law; it is guidance for educational institutions—guidance that the Respondent followed in providing a description of the video to the Kummers and then allowing them to view the footage. Second, the guidance states that “FERPA generally does not require” releasing video or photos. This is not the same as being prohibited from releasing them. Therefore, because the guidance is neither law nor bars disclosure, we don’t see how the SPPO’s guidance conflicts with Bryner’s conclusion that disclosure may occur so long as the FERPA protected information is redacted.

Finally, we don’t read Bryner the same way that the Respondent does. The trial court did in fact order the disclosure of the video within 10 days of redactions being completed so long as Bryner paid for the redactions. The Court of Appeals upheld that decision. Thus, we disagree with the Respondent’s assertion that Bryner doesn’t support the notion that redacted FERPA records can be subject to a disclosure order. To the contrary, we read Bryner to fully comport with the law as it neatly balances without contradiction the sensitive interests FERPA seeks to protect with the GRAMA’s “strong presumption in favor of public disclosure.” Schroeder v. Utah Attorney General’s Office, 2015 UT 77, ¶55.

2.b. Fees for Redactions

When a governmental entity must provide requested records in a form other than how it normally maintains the records, the entity may charge a reasonable fee for the cost of manipulating and tailoring the record so that it’s suitable for delivery. Utah Code § 63G-2-203(1)-(2)(a)(ii). In this case, the video footage is not normally maintained in redacted form. Redacting the identities of the students in the video will be an added cost to the Respondent to make delivering the video compliant with FERPA and GRAMA.

At the hearing, Petitioner expressed that she was willing to pay the cost of redacting the video. Accordingly, we find that a reasonable fee for the redactions is warranted.

ORDER

THEREFORE, it is hereby ordered that Petitioner’s appeal is GRANTED. The Respondent is ordered to redact only the identities of the students, except for A.K., and provide a copy of the redacted video to Petitioner. The Respondent may charge Petitioner a reasonable fee to cover the costs of redaction.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect parties’ rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor. Utah Code § 63G-2-403(15)(d)(i)(B). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 28 day of August 2023

BY THE STATE RECORDS COMMITTEE

Ken Williams
Chair, State Records Committee

1. “Except as provided in Subsection (3), this chapter does not apply to a record containing protected health information as defined in 45 C.F.R., Part 164, Standards for Privacy of Individually Identifiable Health Information, if the record is:
(c) The disclosure of an education record as defined in the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99, that is controlled or maintained by a governmental entity shall be governed by the Family Educational Rights and Privacy Act, 34 C.F.R. Part 99.” Utah Code § 63G-2-107(2)(c).

2. See e.g., State ex rel. ESPN v. Ohio State Univ., 132 Ohio St. 32, 212 (2012) (holding that records of NCAA investigation into student-athletes were education records even though they were not academic in nature); U.S. v. Miami Univ., 294 F.3d 797 (6th Cir.2002) (finding that non-academic student disciplinary records were “education records” subject to FERPA); Easton Area School Dist. v. Miller, 191 A.3d 75, 81 (Pa.Cmwlth, 2018) (“The statute does not require an educational record to be related to a student’s academic performance, but it does require the information to be ‘directly related to a student.’”); Bryner v. Canyons School Dist. 2015 UT App 131, ¶20 (“Notably, Congress made no content-based judgments with regard to its ‘education records’ definition.”) (quoting Miami Univ., 294 F.3d at 812.)