Legal Hotline: School settlement with student

  • Sep 08, 2016

Melissa Melewsky, Media Law Counsel

Q:  I filed a RTKL request with a local school district, seeking access to all settlement agreements that involve students that were entered into last year.  The school district denied access, citing confidentiality clauses and the Family Educational Rights and Privacy Act (FERPA), arguing that settlements are not public because they are educational records.  Can they do that?

A:  No.  The public’s right to access settlement agreements involving public agencies is well settled, and the school district cannot rely on confidentiality clauses contained in a settlement agreement or FERPA to deny public access, although FERPA may require the school to redact certain student-specific identification information.

Pennsylvania appellate courts have consistently held that confidentiality clauses in settlement agreements involving public agencies are not enforceable, and settlement agreements are public under both the former, more restrictive RTKL, as well as the revised RTKL.  See Morning Call, Inc. v. Lower Saucon Township, 627 A.2d 297 (Pa.Cmwlth. 1993);Tribune–Review Publishing Company v. Westmoreland County Housing Authority, 574 Pa. 661, 833 A.2d 112 (Pa. 2003); Newspaper Holdings, Inc. v. New Castle Area School District, 911 A.2d 644 (Pa.Cmwlth.2006), appeal denied, 592 Pa. 776, 926 A.2d 443 (2007).   The New Castle News case is noteworthy because the court ordered the school district to pay the newspaper’s legal fees after the school district unreasonably denied access to an executed settlement agreement.

It is not uncommon for settlement agreements to include a confidentiality clause, but these clauses are not enforceable under Pennsylvania law when a public agency is a party to the settlement.  In other words, agencies cannot contract away the public’s right to know.

The Office of Open Records (OOR) has also addressed public access to settlements involving schools and students citing the cases above, and has routinely held that the RTKL requires public access once the records have been de-identified in accordance with FERPA. See e.g., Andren v. West Shore School District, OOR Dkt. AP 2009-1084. FERPA regulations prohibit the release of student-specific educational records without permission, and the OOR considers certain information in settlement agreements to be subject to redaction when they contain student-specific information such as IEP plans, grades, and disciplinary information.

In rare circumstances, the OOR has denied access to settlement agreements involving students, when evidence showed that the requester had knowledge of the student’s identity. See Express Times v. Saucon Valley School District, AP 20120048 (denying newspaper’s request for settlement when request identified student by name); Fieber v. New Hope School District, AP 2013-1020 (denying request by former school board director who wrote letter to the editor identifying family involved in the settlement agreement).  In these cases, the OOR held that because the requester knew the student’s identity and made that fact clear as part of the RTKL process, redacting identifying information from the settlement agreement would not “de-identify” the records in accordance with FERPA. The OOR’s position on this issue has not been challenged in court.

Newspapers requesting access to settlement agreements involving students should not include information like a student’s name or other identifying information in RTKL requests or other RTKL correspondence.  Newspapers should limit their request language to time frame and subject matter so that FERPA cannot be used as a basis for denial.

As always, this is not intended to be, nor should it be construed as, legal advice.  Please consult your private attorney or the PNA Legal Hotline at (717) 703-3080 with questions.


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