Utah journalists are closely watching a case before the Utah Court of Appeals that may determine whether Utahns have access under state open records law to surveillance video shot in public schools.
The Utah Headliners Chapter of the Society of Professional Journalists, which represents The Tribune and other news organizations statewide, has filed a friend-of-the-court brief in the case brought by Midvale father Roger Bryner
Bryner sued the Canyons School District after administrators denied his request under the state's Government Records Access and Management Act for surveillance video he believed showed an Oct. 1, 2012, altercation between his child and another student at Butler Middle School in Cottonwood Heights.
Canyons argued — and continues to argue — the video is a student record protected under the Federal Education Rights and Privacy Act. FERPA prohibits the release of any education record that contains information about students other than the child whose parent or guardian has requested the record.
Third District Judge Barry Lawrence sided with the school district, ruling surveillance video is a student record. Because a student other than Bryner's son was visible in the video, Lawrence determined Bryner could obtain a version of the video in which only his child was clearly visible if he agreed to pay Canyons $120 to redact the video.
Bryner never elected to pay the fee to obtain the video, so Lawrence dismissed the case on June 5.
Bryner appealed, and on Oct. 22, the appeals court requested a brief from SPJ on the issue of whether a school surveillance video is an educational record protected under FERPA.
Attorneys David Reymann and Rachel Wertheimer, representing SPJ, argue FERPA does not protect surveillance video.
FERPA, according to their brief, "was meant to protect only those records that are academic in nature" and surveillance video in not academic.
"Rather, because a surveillance recording is used to maintain the physical security and safety of an educational institution, it is akin to a law enforcement record, which is expressly excluded from the definition of 'education record' under FERPA," according to the brief. "Moreover, because a student has no expectation of privacy with regard to a surveillance recording, the recording is not private in nature and thus not subject to protection as an education record under FERPA."
This issue is important to journalists — and the public — because the records to which access has been denied involve student safety — a topic of intense public interest.
The Tribune has worked independently to ensure interpretations of FERPA do not deny the public access to school investigative documents that may have bearing on student safety. Earlier this year, after taking a Granite School District case to court, we ultimately gained access through mediation to student statements and partial phone records to determine what likely led popular Cottonwood High School football coach Josh Lyman to resign in May 2012 amid sexual misconduct allegations.
We fully support SPJ's efforts on behalf of all journalists and the public in the Canyons district case.
"Student safety is of the utmost interest to an informed public and the misuse of FERPA in this case would significantly damage the public's right to know what is going on in schools," Sheryl Worsley, KSL Newsradio news director and Utah SPJ president, said in a statement. "If the school district is allowed to shield itself by incorrectly claiming surveillance camera footage is the same as a test or grading record, then the public school system can't be held accountable for keeping students in public schools safe. Greater transparency leads to greater accountability and better methods in the educational and in any system."
We'll continue to follow the case and will let you know how it turns out.