This blog is the third in a municipal law series on all things roads. Property issues involving roads are fact specific and require an analysis of the facts and circumstances of your situation. This blog addresses the issue of the interplay between a statutory road or road by prescription vis a vis the statute of limitations for an eminent domain petition. If you have a specific question or legal issue, please contact the municipal law attorneys at SMGG.

When does the eminent domain statute of limitations begin on a road that becomes a public road by virtue of statute or prescription? If you read our first Road Blog on Public and Private Roads in Pennsylvania, you know that there are three distinct ways in which a road that has been laid out but not formally declared is deemed public: the introduction of court records showing the road to have been opened under eminent domain; by statute; or by prescription.

Regarding a statutory public road and a public road by prescription (requiring uniform, adverse, and continuous use for 21 years), there is a natural interplay with takings laws, which require that, in the absence of a declaration of taking, a petition for the appointment of viewers for the assessment of damages under [the Eminent Domain Code, 26 Pa. C.S. §§ 101-1106,] must be filed within six years from the date on which the asserted taking, injury or destruction of the property occurred or could reasonably have been discovered by the condemnee. 42 Pa. C.S. § 5527(a)(2).

Both statute and prescription methods require use by the public for a set number of years, along with maintenance by the municipality. By way of example, per Section 2307 of the Second Class Township Code:

(a) Every road which has been used for public travel and maintained and kept in repair by the township for a period of at least twenty-one years is a public road having a right of-way of thirty-three feet even though there is no public record of the laying out or dedication for public use of the road.

Thus, by statute, in a Second Class Township, a non-declared road can only become public where there is evidence that, for at least 21 years, it has been maintained by the municipality in which it is situated and has been used for travel by the general public. Therefore, in a road dispute, historical evidence of maintenance and public use is critical.

So, when does the statute of limitations for an eminent domain claim begin to run for a landowner who wants to challenge the nature of a road on or abutting his or her property? When the municipality first made efforts to maintain the road and the public used the road or after the period set forth by statute or prescription? In the unpublished Commonwealth Court opinion of Dysert et al. v. Robinson Township, No. 38 C.D. 2021 , the Court said that the statute of limitations began to run after the 21-year period of maintenance and use. In that case, the municipality demonstrated maintenance and use going back to 1974, therefore, the trial court held that the statute of limitations began to run in 1995 and that the landowners had six years from that date to file a petition under the laws of eminent domain. The Commonwealth Court agreed. An additional fact that the court considered was that the landowners were put on actual notice when they purchased the property in 1997 and 1998, because the deed language referencing the road as a “public road” was sufficient enough to put them on notice and preclude the tolling of the statute of limitations for filing their Petition.

Although the case is unreported and not precedential, it may be cited for persuasive value, and offers an opportunity to review of this underreported area of the law.

Please note that this blog post provides general information regarding road laws in Pennsylvania. If you own or are interested in purchasing a property which sits on a private road, or if you have a question about the legal status of your road, please reach out to a member of our municipal team so that we can provide more specific advice based on the facts and circumstances relating to your property. For more information on this or other municipal concerns, please contact Gretchen E. Moore at gmoore@smgglaw.com or Alexis M. Wheeler at awheeler@smgglaw.com.

The Sedona Principles clearly state that “[l]awyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.” Sedona Conference Cooperation Proclamation (2008).  The Federal Rules (in particular FRCP 26) supports the spirit of cooperation to identify and fulfill legitimate discovery needs. In federal court, judges may find it unacceptable to for one party to search electronically stored information (ESI) with terms not agreed-upon by the other party.

What happens when one side doesn’t do an appropriate or adequate job in the ESI discovery process?  This is an absolutely appropriate time to seek court intervention and, possibly, sanctions.  In November 2021, Judge Bettlestone of the Eastern District of Pennsylvania issued a discovery decision allowing for sanctions for Defendants’ inadequate discovery methods. In Vasoli v. Yards Brewing Company, Defendants independently chose search terms and time periods for its ESI searching in the lawsuit.  A party employee deposition revealed that there was a critical email communication that was not produced in discovery.  After the deposition, Defendants produced the email.  This naturally prompted Plaintiff’s concerns about their opponents’ ESI searching methods.  The judge held a discovery conference call and it became clear that Defendant’s searching techniques had some holes.  After that call, Defendant sought to cure its shortcomings by conducting an additional ESI search with Plaintiff’s name within two company custodial accounts.  This resulted in an additional 841 pages of emails and it begged the question why such a straightforward search wasn’t previously used for these custodians.

As a sanction, the judge considered ordering a Rule 30(b)(6) deposition of the person familiar with how the searches had been conducted.  Defendant protested, claiming attorney-client privilege and the attorney work-product doctrine related to its ESI search methodology and decisions. The court rejected both arguments, stating in part that “neither the privilege nor the doctrine, however protects facts from disclosure.”  Vasoli at *2 (citations omitted).  Therefore, a factual description of what counsel did will not necessarily require the disclosure of confidential client communications.  Also, the practical steps taken by the attorney to identify responsive documents do not necessarily encroach on the thought processes of counsel. Therefore, the steps that the party took to search for and produce relevant documents were discoverable and the judge imposed, as a sanction, a 30(b)(6) deposition into Defendant’s discovery processes.

Takeaways:

  1. You have a professional responsibility to produce responsive documents relevant to a party’s claim or defense and proportional to the needs of the case. FRCP 26(b)(1).
  2. There are cases where the negotiation and agreement of an ESI protocol is more appropriate than others. There are pros and cons to each methodology (to be discussed in a future blog).
  3. Be wary that your ESI discovery processes are likely not protected by either the attorney-client or work product doctrine protections.

When facing litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with KLDiscovery as our preferred eDiscovery vendor and can assist you with the most up-to-date and efficient methods to manage discovery in your litigation. Gretchen Moore chairs the firm’s eDiscovery Committee and Litigation Practice Group.  She can be reached at gmoore@smgglaw.com or (412) 227-0275.

This blog is the second in a municipal law series on all things roads.  Property issues involving roads are fact specific and require an analysis of the facts and circumstances of your situation.  This blog addresses the issue of road maintenance where you know the road is a private road.  If you have a specific question or legal issue, please contact the municipal law attorneys at SMGG.

If you live on a private road, you may be familiar with the struggles to maintain that road.  In some cases, neighbors will voluntarily agree to a written road maintenance agreement. In other instances, the agreement may be made verbally or by a neighborly handshake.  But some neighbors on private roads can’t or won’t come to an agreement and disputes erupt.

A new law may help.  Pennsylvania House Bill 523, now law at 36 P.S. §2735 (Effective December 6, 2021), amends the General Road Law to provide basic maintenance for a private roadway in the absence of an agreement between homeowners. This law requires homeowners to contribute to the maintenance and repair of a private road, in its current state, when it is used to access their properties. The law specifically provides for the right to bring a civil action to enforce it.

2735. Repair of private roads

(a) A private road shall be opened, fenced and kept in repair by and at the expense of the property owner at whose request the private road was granted and laid out, and by the property owner’s heirs and assigns.

(b) Each property owner that shares a common benefit from a private road shall contribute in proportion to the amount of the private road utilized to the cost of maintaining the private road at the current level of improvement and shall have the right to bring a civil action to enforce the requirement of this section.

(c) This section shall not apply to a private road subject to a written maintenance agreement, a private road established by the Commonwealth or by a municipality entitled to the exception provided under 26 Pa.C.S. § 204(b)(9) (relating to eminent domain for private business prohibited) or to a private road within a common interest ownership community under 68 Pa.C.S. [sic*] (relating to real and personal property).

This is a tool that you can utilize if you are faced with the issue of neighbors who refuse to pitch in for maintenance of a private road.  We will update you if and when there is litigation related to this law.

Please note that this blog post provides general information regarding road laws in Pennsylvania. If you own or are interested in purchasing a property which sits on a private road, or if you have a question about the legal status of your road, please reach out to a member of our municipal team so that we can provide more specific advice based on the facts and circumstances relating to your property. For more information on this or other municipal concerns, please contact Gretchen E. Moore at gmoore@smgglaw.com or Alexis M. Wheeler at awheeler@smgglaw.com.

 

* this citation is left open-ended in the text of the statute. It is our assumption that this citation was meant to reference portions of Title 68 that provide for homeowners associations as the responsible party in the upkeep of common elements in planned communities.

Elected officials are, naturally, sometimes at the center of conflict and division within their board.  Conflict is to be expected.  However, what happens when board members take action to freeze out a minority board member from information that he or she needs to do his or her respective job?  The use of information-control tactics against minority members on a board, impeding their ability to receive that information necessary to perform his or her duties is problematic – and it may be unconstitutional.

Elected officials have duty to be informed. Palm v.Centre Tp., 415 A.2d 990, 992 (Pa. Commw. Ct. 1980):

It is the duty of a school board member, a commissioner, a councilman, or a supervisor to be informed. Supervisors are not restricted to information furnished at a public meeting. A supervisor has the right to study, investigate, discuss and argue problems and issues prior to the public meeting at which he may vote. Nor is a supervisor restricted to communicating with the people he represents. He is not a judge. He can talk with interested parties as does any legislator.

This responsibility extends beyond the contours of the public meeting and what is discussed at those meetings.  

Elected officials have protections under the First Amendment. The Third Circuit has historically recognized that a public official’s right to free speech under the First Amendment will be violated when the retaliatory conduct of her peers interferes with her ability to adequately perform her elected duties. See Werkheiser v. Pocono Tp., 780 F.3d. 172, 182 (3d Cir. 2015); Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006).

To avoid entering the territory of this kind of interference, everyone can play a role in ensuring the government functions adequately and that Board members’ rights, duties, and privileges are protected.  Board division, when gone too far, can cross constitutional lines.  To avoid walking that line, there are things that everyone can do to make for a well-functioning Board or meeting:

For more tips for handling divisiveness among a board, see the December 2021 article on “Tips for Handling Board Conflicts” in the Pa Township News. 

Our attorneys are experienced and knowledgeable public sector law attorneys, with extensive experience working for municipal entities.  We work hard to allow government to focus on governing.  To learn more about managing public boards, or if you are in need of legal assistance related to this topic, please contact Gretchen E. Moore at (412) 281-5423 or gmoore@smgglaw.com

As technology changes, so, too, does our treatment of electronically stored information (ESI) for discovery purposes.  Today, hyperlinks are frequently utilized within communications to link the reader to another source document.  

Just when we got a handle on the treatment of document “families” – parent emails with children attachments, existing in time and space exactly the same as the day they were sent – hyperlinks are emerging as the “new attachments.” Hyperlinks, however, are different than attachments in several material respects:  they are stored in a location separate from the email or document (this could be, for example,  elsewhere within an entities’ server environment or externally to a website).  The source data can be moved, deleted, or even altered from the source at any time, and that change won’t be reflected in the parent email or document.  In the context of an email containing hyperlinked information, the family, in essence, is not preserved in space and time because it can be dynamic.

So how do we treat the hyperlink for purposes of discovery?  Is the link an attachment?  Should it be captured as part of the universe of documents for review?  Does it depend on public accessibility of the source data?  At least one court has grappled with the issue so far and more may be doing so in short order.  Magistrate Judge Parker (Southern District of New York) faced this issue in her recent discovery decision in Nichols v. Noom, 2021 WL 948646 (S.D.N.Y. 2021) (“Noom”) In Noom, the parties attempted to do all the right things pertaining to their exchange of electronically stored information (ESI).  For example, they attempted to negotiate an ESI protocol at the outset, consistent with the Sedona Principle’s best practices. But disagreements arose early.  After several conferences with the court, Noom agreed to collect data from multiple sources including Gmail, G-chat, Google Drive, Google Calendar, Slack, and other reporting tools and databases.  A dispute arose about the pros and cons of competing tools to collect the data from Gmail.  Plaintiffs wanted Noom to use Metaspike’s Forensic Email Collector (FEC), while Noom desired to use Google Vault.  The main difference between the two is that Google Vault does not pull documents referenced in emails via a hyperlink.

The court held a hearing on the matter, aided by eDiscovery vendor declarations. Noom contended that it is reasonable to use Google Vault to collect Gmail documents because Noom is separately collecting the Google Drive documents that are referenced as file hyperlinks through its custodial and share drive collections. The Court determined that Noom could use its preferred software to collect the data but if there were particular key documents containing hyperlinks where the hyperlinked documents could not be otherwise located in the production, Plaintiffs could raise the issue with the Court and Noom would be required to make the connection.  Noom was willing to do this for a reasonable number of documents. 

But, once document exchange started, Plaintiffs wanted another bite at the apple.  They noticed that there were thousands of internal Noom documents that contained hyperlinks to other internal Noom documents and asked the court to reconsider and hold that the hyperlinked internal documents be treated as attachments (putting the duty on Noom to review and produce or log). There was no meeting of the minds between the parties because the ESI protocol didn’t specifically address this issue.  And Gmail and Google Drive data (which included most of the relevant hyperlinked documents) had already been collected.  The Court reached a ruling that accounted for proportionality, cost, and delay. It determined that hyperlinks are not equivalent to attachments and stood by the initial ruling that the Defendant did not need to re-collect data with familial attachments in place:

When a person creates a document or email with attachments, the person is providing the attachment as a necessary part of the communication.  When a person creates a document or email with a hyperlink, the hyperlinked document/information may or may not be necessary to the communication.  For example, a legal memorandum might have hyperlinks to cases cited therein.  The court does not consider the hyperlinked cases to be attachments.  A document also may contain a hyperlink to another portion of the same document.  That also is not an attachment.  A document might have a hyperlink shortcut to a SharePoint folder.  The whole folder would not be an attachment.

The court held that the protocol it previously established, requiring the parties to raise the issues on a document-by-document basis, provided the appropriate balance for the needs of the case. 

Takeaways:

  1. Use eDiscovery vendors and experts to assist you in presenting your ESI issues to the court.  
  2. This is an evolving area of law. If you want hyperlinks treated a certain way in discovery, negotiate it in the ESI protocol early, before either side sinks significant cost into discovery.
  3. Proportionality, costs and delay area always good arguments in discovery disputes, especially when time and money has already been expended on discovery.
  4. Fight for what is really important.  Maybe thousands of hyperlinks aren’t important, but ten hot ones are important.  Take those specific issues to the Court and you are likely to obtain the more focused relief. 

When facing litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with KLDiscovery as our preferred eDiscovery vendor and can assist you with the most up-to-date and efficient methods to manage discovery in your litigation. Gretchen Moore chairs the firm’s eDiscovery Committee and Litigation Practice Group.  She can be reached at gmoore@smgglaw.com or (412) 227-0275.

The production of documents as large combined PDF (Portable Document Format) documents is the modern-day equivalent of a discovery data dump.  We have all experienced the receipt of several 1,000+ page PDF documents in response to discovery in a matter, with each PDF containing a combination of emails, meeting minutes, contracts, and other documents.  It is basically a large, unusable mess.  Attorneys have mechanisms through both federal and state rules at their fingertips to demand better.  

Forms of Production

Most data that attorneys seek in discovery is Electronically Stored Information (ESI).  The form of production of ESI could be native, near-native, imaged documents accompanied by load files containing searchable text and metadata (static electronic image in Tagged Image File Format (TIFF) or PDF file format, with extracted text from the document into a text file, and selected metadata and other non-apparent data into one or more separate load files), or simply imaged documents.  Inherent in any of those forms of production is that the documents are produced as ordinarily maintained.  A large PDF, combining a variety of documents, does not meet the definition.

Remember that, as the requesting party in both state and federal court in Pennsylvania, you can specify the form in which the ESI is to be produced. 

Under Federal Rule of Civil Procedure 34, a party is required to produce documents (1) “as they are kept in the usual course of business or must label them to correspond to the categories in the requests,” Fed. R. Civ. P. 34(b)(2)(E)(i), and (2) if a request does not specify a form of producing ESI, “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii)

Under the Pennsylvania State Rule, a party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form. Pa.R.C.P. No. 4009.1(b).

So start early by requesting the production in your desired format.  And continue to fight for that production.  

The Problem with Large PDF Productions

The production of multiple documents together in one PDF removes any ability to determine relationship, order, and sequencing of any of the documents contained within the PDF.  Loading a large PDF into database and then searching for information is cumbersome.  For example, if you locate one email at page 502 within a 1000+ page PDF, you can’t tag or utilize that document as a standalone document without first unitizing the PDF (breaking it down into its component documents).  That takes time and expense.  And you need instructions to unitize.  Those instructions come in the form of a load file, which is essentially the instruction manual for your data and provides information about which documents go together and other document organization. Further, documents produced in one large PDF have no useable metadata which would pertain to the underlying documents contained within the PDF. While all metadata isn’t always required for a case, as metadata may be critically relevant to your case or completely irrelevant, without at least basic system metadata, you lose all ability to utilize metadata in the sorting and organization of the discovery documents within your database.  See Sedona Conference Journal, Comment 12.a.on metadata. 

Most Importantly it Violates the Federal Rules!

A single large PDF combining multiple separate documents is not the way documents are maintained in the ordinary course of business.  A party who opts to produce documents as maintained in the usual course of business must actually produce the documents that way. A production of e-mails grouped together as a large document violates this obligation. And the courts are noticing:

Johnson v. Italian Shoemakers, Inc., 2018 WL 5266853, at *2 (W.D.N.C. Oct. 23, 2018) (awarding sanctions where party continued to produce e-mails as PDFs, “which is not how emails are maintained in the regular course of business”);

Spilker v. Medtronic, Inc., 2015 WL 1643258, at *5 (E.D.N.C. April 13, 2015) (party satisfied the requirements by providing “fully searchable documents, sortable by metadata fields, in a folder structure organized by custodian”); and

Abbott Labs. v. Adelphia Supply USA, 2019 WL 3281324, at *2 (E.D.N.Y. May 2, 2019) (the documents in question were scanned all together and produced as a single 1941-page PDF file. While the production of documents in one large PDF file was only one of the factors that Magistrate Judge Lois Bloom considered in recommending such harsh sanctions, attorneys should heed the message.) 

When facing litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with KLDiscovery as our preferred eDiscovery vendor and can assist you with the most up-to-date and efficient methods to manage discovery in your litigation. Gretchen Moore chairs the firm’s eDiscovery Committee and Litigation Practice Group.  She can be reached at gmoore@smgglaw.com or 412-281-5423.

By Gretchen E. Moore and the eDiscovery Committee at SMGG:  Lydia Gorba, Lynne Hewitt, and Maryann Mahoney.

First came email.  Then came Slack, WhatsApp, Zoom, Teams, texts, and a host of social media platforms where we can communicate…in writing…and those communications are saved as electronically stored information (ESI).  “Collaboration software,” like Slack, Zoom, and Teams, is the newest eDiscovery challenge.  But the challenge lies in the preservation, capture, and review, as well as the analysis of proportionality, and not in the question of whether it is discoverable.

The United States District Court for the Central District of California recently ruled that the Plaintiff’s Slack messages were both relevant and proportional to the needs of the case and ordered their production.  Benebone LLC v. Pet Qwerks, Inc., 2021 WL 831025 (2/18/21).  The main points of contention between Plaintiff and Defendant focused on the cost to extract, process, and review 30,000 Slack messages.

Although the Court described Slack as a relatively new communication tool, it was part of Plaintiff’s internal business communications and there was no real dispute that Plaintiff’s Slack messages were likely to contain relevant information.

On the topic of burden and proportionality to the needs of the case, the court held a (Zoom) hearing and determined that “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportionate to the needs of this case.” Id. at *3.

One of the key takeaways from this case is to get an eDiscovery expert. Defendant’s expert testified that there are readily available third-party tools for collection and review of Slack and that searches of the data could be limited to certain Slack channels, users, or custodians (similar to focusing an email search on custodians and time frames).  Defendant’s estimate of cost for the project was vastly different than Plaintiff’s unsupported estimates ($22,000 compared to $110,000-$255,000).  To that end, Defendant’s expert proposed that contract attorneys could do first-level review at a rate of $40 an hour as opposed to a $400 an hour attorney rate.  Plaintiff failed to provide a declaration or testimony from an eDiscovery expert.

When facing federal litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with KLDiscovery as our preferred eDiscovery vendor.  Slack is considered a more dynamic form of ESI, making search, collection, and processing more difficult.  Choosing the right application programming interface (API) is important as Slack data is exported in JSON format, which is difficult to decipher and requires the right processing to get to more user-friendly data for review purposes.  Additionally, the level of subscription used impacts what can be recovered. SMGG leverages KLDiscovery’s portfolio of eDiscovery solutions and consultative expertise to assist in these arenas.  Call the litigation attorneys of Strassburger McKenna Gutnick & Gefsky to assist you with your federal litigation needs.  Gretchen Moore co-chairs the firm’s eDiscovery Committee and Litigation Practice Group.  She can be reached at gmoore@smgglaw.com or 412-281-5423.

By Gretchen E. Moore and the eDiscovery Committee at SMGG:  Lydia Gorba, Lynne Hewitt, and Maryann Mahoney.

We’ve all been there.  You are in active litigation and, as the attorney, you are required to abide by a variety of rules related to discovery and, in particular, the discovery of electronically stored information.  Your client, on the other hand, is giving substantial pushback on the scope and processes of collecting the responsive documents.  In federal court, you have an obligation under Rule 26(g) to sign discovery responses and objections and to certify that, to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

  1. with respect to a disclosure, it is complete and correct as of the time it is made; and
  2. with respect to the discovery request, response or objection, it is:
  1. consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
  2. not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
  3. neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

If you allow your client to self-collect and don’t oversee the collection, you have not supervised your client and are in violation of the rule.  And the federal courts are making note of it.  In the 2020 case of EEOC v. M1 5100 Corp. (Southern District of Florida), after a paltry production of documents, Defendant’s counsel admitted that Defendant “self-collected” responsive documents and information to the discovery requests without the oversight of counsel.  The client’s self-interested parties and employees of Defendant conducted the search and collection.

Self-collection in and of itself is not necessarily evil (depending on the circumstances); self-selection however, is a problem.  The attorney must advise, supervise, and have knowledge of the process utilized, especially when the collector is self-interested.  Otherwise, there is no way the attorney can make the representations required under Rule 26(g)(1).  The Court in EEOC v. M1 5100 reminds us that an attorney’s signature on discovery responses is not a “mere formality”; rather it is a representation to the Court that the discovery is complete and correct at the time it is made.  Abdication of the duties to assist with search, collection and production is “improper and contrary to the Federal Rules of Civil Procedure.” See EEOC v. M1 5100.

When facing federal litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with KLDiscovery as their preferred eDiscovery vendor.  SMGG leverages KLDiscovery’s portfolio of eDiscovery solutions and consultative expertise to provide clients with innovative technologies and best-in-class data security practices.  Call the litigation attorneys of Strassburger McKenna Gutnick & Gefsky to assist you with your federal litigation needs.  Gretchen Moore co-chairs the firm’s eDiscovery Committee and Litigation Committee.  She can be reached at gmoore@smgglaw.com or 412-281-5423.

The Family Educational Rights and Privacy Act (FERPA) could not protect a school bus surveillance video as exempt under Pennsylvania’s Right-to-Know Law (RTKL) where a school district failed to demonstrate that disclosure would lead to loss of federal funding pursuant to FERPA.  In Easton Area School District v. Miller et al.[1], Rudy Miller and The Express Times submitted a Right-to-Know request to the Easton Area School District seeking the school bus surveillance video related to a physical disciplinary incident involving an elementary school teacher and a student on the bus.  The school district denied the request and on appeal to the Office of Open Records (OOR), the school district took the position that the video constituted an education record under FERPA (a defined term) and therefore disclosure of the video would put the district at risk of losing federal funding, citing to Subsection 708(b)(1)(i) of the RTKL, which exempts from public record access a record whose disclosure would result in the loss of federal or state funds by an agency. The school district’s position was that Subsections 1232g(b)(1)-(2) of FERPA generally provide for the withholding of federal funding to education agencies or institutions that have a policy or practice of releasing education records and personally identifiable information contained in those records unless certain conditions are present.

The OOR determined that the video was not an education record under FERPA, as did the lower court.  The Commonwealth Court affirmed the lower court’s order but its reasoning differed.  The Commonwealth Court found that while FERPA did not require an education record to be related exclusively to a student’s academic performance, it did require it to be “directly related to a student.”  As the video was only “tangentially related” to the students on the bus and instead “directly related” to the teacher disciplining the student, it was not an education record related to the student and therefore not exempt from disclosure under FERPA.

The Supreme Court granted discretionary review to consider whether the Commonwealth Court erred in determining that the video was not exempt from disclosure under FERPA.  While the Supreme Court’s rationale departed from the Commonwealth Court, they affirmed the court’s order, with instructions to redact student images from the video prior to disclosure.  The Supreme Court found that the lower courts ended their inquiry after determining that the video was not an education record.  However, as the Supreme Court pointed out, that does not conclude the analysis because a conclusion that the video qualifies as an education record under FERPA does not necessarily render the video exempt from disclosure under the relevant subsection, rather you need to assess the impact on funding.

The Supreme Court therefore found that the video is an education record within the meaning of FERPA because it is “directly related” to the student as much as it is related to the teacher.  The Supreme Court focused on the fact that the school district failed to prove by a preponderance of the evidence that disclosure of the video in fact would result in the loss of federal funds.  The Court concluded that the students’ images in the video, however, are exempt from disclosure under FERPA and are thereby excluded from the RTKL’s disclosure requirements pertaining to public records; however, because the images can be redacted to remove personally identifiable information, the video is not exempt and must be disclosed.  RTKL Section 706 provides for redaction of information not subject to access and provision for the remainder of the information to be produced.

The Court went on to assess the constitutional balancing test related to the students’ informational privacy, reminding the District of its obligations to balance the students’ and parents’ interests in controlling access to and dissemination of the children’s images in the video against the public’s interest in dissemination of those images and to redact the video as necessary to protect those informational privacy interests.

Justice Dougherty wrote the opinion, joined by Justices Todd and Donohue.

Justices Baer and Wecht joined Part III(A)(2) of the opinion and joined the mandate to the extent it requires disclosure of the subject video, albeit they would favor disclosure in an unredacted form.

Chief Justice Saylor and Justice Mundy joined part III(B) of the opinion to the extent it determines the subject video was an education record and joined the mandate to the extent it precludes the disclosure of information that could reveal the identities of the students in the video.

Several concurring and dissenting opinions were filed.

For more information on this or other Right-to-Know Law concerns, please contact Gretchen E. Moore at gmoore@smgglaw.com.

[1] EASTON AREA SCHOOL DISTRICT, Appellant v. RUDY MILLER AND THE EXPRESS TIMES, Appellees, 13 MAP 2019, 2020 WL 3281099, at *1 (Pa. June 18, 2020)

By:  Alexis Wheeler, Gretchen Moore and Alan Shuckrow

In the past weeks and months, the COVID-19 outbreak has shuttered many local government and public sector entities, along with much of private sector. While concerns over the coronavirus are widespread across all industries, unique to government agencies in Pennsylvania is the issue of how best to conduct business as required by the Sunshine Act, while balancing public health and safety risks. A hallmark of this pandemic’s effect on daily life is the concept of “social distancing,” in order to slow the spread of the coronavirus.  However, the Sunshine Act requires a public meeting anytime official action is discussed by a majority of a public body’s members.[1]

There are limited exceptions to the Sunshine Act, which includes a provision for emergency meetings that allows agencies to meet without public notice when addressing an issue “involving a clear and present danger to life or property.”[2]  However, even emergency meetings must be open to the public.[3] So, how are these bodies conducting business in an era where public gatherings are considered a public health risk?

Some local governments are addressing the issue by holding telephone or teleconference public meetings. Others are streaming meetings through television and/or the internet. Others still are taking written questions and comments from the public; allowing public participation through a conference line; or holding the public in a separate room with the appropriate social distancing measures in place.

Clearly, there is no one-size-fits-all procedure to meet the needs of every government agency in the Commonwealth. And, as the public health risks continue over a longer period of time, agencies may need to adjust their approach. However, when determining what steps your public body should take, it is paramount to understand that official action requires public comment. If an agency holds a public meeting electronically or otherwise, the Sunshine Act requires that the public be informed and able to participate.[4]

Remember, too, that there are time limits set forth in the Municipalities Planning Code and local ordinances related to the holding of public hearings or acting on applications submitted to the municipalities.  Municipalities should take stock of all outstanding applications and hearings and obtain written extensions and waivers from applicants as needed.

These matters are complicated, and the situation will continue to evolve.  If you have any questions, we suggest that you first consult your Solicitor.

Moreover, our public sector attorneys at SMGG (listed below) are always available to serve as a resource, particularly at this time.

Gretchen Moore gmoore@smgglaw.com

Kathy Clark kclark@smgglaw.com

Alexis Wheeler awheeler@smgglaw.com

Alan Shuckrow ashuckrow@smgglaw.com

[1] 65 Pa.C.S.A. § 704 .

[2] 65 Pa.C.S.A. § 709(a); 65 Pa.C.S.A. § 703.

[3] See  65 Pa.C.S.A. § 704 (Official action and deliberations by a quorum of the members of an agency shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered)”).

[4] Id.; Office of Open Records, OOR Guidance on Public Meetings, Penn. State. Assoc. of Twp. Supervisors. (2020), (http://psats.org.s97340.gridserver.com/ckfinder/userfiles/files/OORGuidanceonPublicMeetings.pdf ).