Lindeman v. Kelso Sch. Dist. No. 458, No. 77253-3 (Nov. 15, 2007)
The Washington State Supreme Court has ruled that a videotape from a school bus surveillance camera is subject to public disclosure under state law because it does not fall within the student file exemption. When an altercation between two elementary students was recorded by a bus surveillance camera, the parents of one of the students requested a copy of the videotape. Kelso School District No. 458 (KSD) denied the request on the ground the videotape was exempt from public disclosure. The parents sued in state court, alleging the denial violated Washington’s Public Disclosure Act (PDA). The trial court held that the videotape was exempt from disclosure under the PDA, finding that the tape “contains information that would allow a viewer to identify a student” and “was maintained by the district for potential discipline.” The state’s intermediate court of appeals affirmed.
In reversing, the state supreme court narrowly construed the PDA exemption for “[p]ersonal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.” By exempting only information that is both “personal” and “maintained for students,” the PDA contemplates protection of materials in a student’s permanent file, such as grades, standardized test scores, social security number, and other similar records, the court held. The videotape was a product of a surveillance system in place to maintain security and safety on school buses, making it significantly different from the type of record schools maintain in students’ personal files in the court’s view. The court emphasized that the placing the tape in a student’s file does not transform it into a record maintained for students. KSD’s argument also was undermined by the fact that it had allowed the parents to view the videotape on the evening of the incident. Even assuming the videotape constituted “personal information” within the meaning of the PDA, KSD had failed to meet its burden of showing the videotape was “in any files maintained for students.”
In a brief concurring opinion one justice indicated he would have found that footage of a fight on a crowded bus is not protected “personal information” at all, but “public or general” information. Another opinion agreed with the majority that the trial court had applied the wrong legal standard but argued that the case should be remanded to the trial court for “determination of whether, and to what extent, the information in the videotape is ‘[p]ersonal information’ that is ‘in any files maintained for students’ and thus exempt under the student file exemption.”
Lindeman v. Kelso Sch. Dist. No. 458, No. 77253-3 (Nov. 15, 2007)
Concurring opinion
Opinion concurring in part and dissenting in part
[Editor’s Note: The status of school video footage under the federal student privacy law, the Family Educational Rights and Privacy Act (FERPA), has been the subject of considerable uncertainty. FERPA sets a privacy “floor” that preempts state privacy laws, but state laws may set higher protections. The first link below is to a January 2007 letter from NSBA requesting further guidance on videotape issues from the Family Policy Compliance Office (FPCO), the U.S. Department of Education agency that enforces FERPA. In a decision summarized at the next link, a New York state court found that the privacy of the school videotape in that case was not protected because the tape was a “law enforcement unit record” rather than an “education record” under FERPA. This particular aspect also was addressed briefly in guidance recently issued by the U.S. Department of Education on privacy and school safety, available at the last link.]
NSBA letter to FPCO re. video footage
NSBA School Law pages on Rome City Sch. Dist. v. Grafasi
NSBA School Law pages on recent FERPA guidance