Moeck et al v. A.M. et al

Filing 97

MEMORANDUM (Order to follow as separate docket entry) re 84 MOTION for Discovery to Un-redact files filed by Lori Moeck, A.M., C.M. Signed by Magistrate Judge Karoline Mehalchick on 10/7/2014. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LORI MOECK, et al.,
Plaintiffs

CIVIL ACTION NO. 3:13-CV-1305

v.

(MUNLEY, J.)
(MEHALCHICK, M.J.)

PLEASANT VALLEY SCHOOL
DISTRICT, et al.,
Defendants
MEMORANDUM
In this case, Plaintiffs assert various civil rights claims, including Fifth and Fourteenth
Amendment claims for assault and battery and state created danger, related state law claims for
assault and battery and intentional infliction of emotional distress, and also under Title IX of
the Education Amendments of 1972 and 20 U.S.C. § 1681(a). Discovery has been ongoing in
this matter, which has been referred to the undersigned Magistrate Judge for pretrial
management, up to but not including dispositive motions. (Doc. 66). Pending before this Court
is Plaintiffs’ Motion to Un-Redact Files (Doc. 84). Specifically, Plaintiffs seek the production of
un-redacted discovery that had previously been produced by Defendants in redacted form. For
the reasons provided below, Plaintiffs’ motion is GRANTED.
I.

BACKGROUND AND PROCEDURAL HISTORY
On January 2, 2014, the parties entered into a Stipulation (Doc. 44) regarding the

confidentiality of student records, which outlined the procedure for requesting the release of
student records. The Stipulation was approved by the Court by Order dated January 7, 2014.
(Doc. 46). Pursuant to the Stipulation, to release student records with names un-redacted,

counsel must notify the students or parents of any minor students, and if a student objects to the
release of his or her records, Plaintiffs must file a motion to request the un-redacted records.
Upon request by Plaintiffs for un-redacted copies of documents, in May 2014, counsel
for the School District Defendants sent fifty (50) letters with requests for release of student
records to the students. As of August 6, 2014, only ten (10) of the students objected. Twenty-six
(26) students agreed to the release by either not replying within the specified period 1, or by
returning the form indicating consent to release. The remaining fourteen (14) letters were
unaccounted for, and as such, it is unknown whether those individuals would consent to or
object to the release of records. 2
On August 26, 2014, following a teleconference on the same date, the Court issued an
Order (Doc. 86) directing Plaintiffs to file a motion seeking un-redacted copies of the student
records to which objections have been received, along with the records of those students or
parents who did not claim the letters. The Court further directed Plaintiffs to provide notice to
the objecting students of the motion in accordance with the procedure and form set forth in the
Stipulation. As of September 15, 2014, three students responded to that notice, all of whom had
previously objected to the release of their records. One student objected and noted that she does
not remember anything regarding the alleged incident. A second student objected to the release

1

The pertinent part of the notice states, in bold font, as follows: “[I]f you fail to return
this letter within ten (10) days of the date of this letter, properly completed, you will be
deemed to have consented to the disclosure.”
2

The School District Defendants assert that ten (10) of these fourteen (14) students were
not witnesses to the underlying incident in this case, and were only mentioned cursorily in the
documents produced. (Doc. 73 at page 2).
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of his records, but did consent to the release of his un-redacted deposition with the school.
Finally, the parents of the third student who objected maintained their objections to the release
of the student’s records, but consented to the release of any incident reports, interviews, or other
documents pertaining to the alleged incident. This consent wass contingent upon the parents
also receiving a copy of these documents.
As directed by the Court, and pursuant to the Stipulation, Plaintiffs have filed a motion
to un-redact the files. (Doc. 84). Plaintiffs’ position is that they are entitled to view un-redacted
copies of any reports or statements of any potential witnesses related to this matter. (Doc. 75).
Further, Plaintiffs submit that they need this information in order to understand the statements
of the individuals interviewed by Defendants, and to conduct additional discovery requests
regarding relevant areas related to Plaintiffs’ claims. (Doc. 84). Defendants submit that it would
be a violation of Federal Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g,
to produce un-redacted copies of documents containing the names of students who objected or
did not respond to the initial notice. (Doc. 73).
II.

DISCUSSION
FERPA applies to all educational institutions or agencies that receive funds under

federal programs administered by the U.S. Commissioner of Education, and establishes
minimum standards for the protection of a student's privacy and other rights, and enforces such
standards by authorizing the denial of funds to educational institutions and agencies that fail to
meet these prerequisites. 20 U.S.C. § 1232g. The provisions of FERPA that are relevant to the
instant case are found in 20 U.S.C. § 1232g(b), which pertain to the release of educational
records to third-parties. Section 1232g(b)(1) prevents the unrestricted release of a student's
education records or any “personally identifiable information” contained in such records to
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unauthorized individuals or organizations without the consent of the student and/or parents.
Lei Ke v. Drexel Univ., 2014 WL 1100179 (E.D. Pa. Mar. 20, 2014); see also Mattie v. Johnson, 74
F.R.D. 498, 501 (N.D. Miss. 1976). Education records are those records or documents
maintained by the institution or agency which “contain information directly related to a
student.” 20 U.S.C. § 1232g(a)(4)(A)(i). “Personally identifiable information” includes: (a) the
student's name; (b) the name of the student's parent or other family member; (c) the address of
the student or student's family; (d) a personal identifier, such as the student's social security
number, student number, or biometric record; (e) other indirect identifiers, such as the student's
date of birth, place of birth, and mother's maiden name; (f) other information that, alone or in
combination, is linked or linkable to a specific student that would allow a reasonable person in
the school community, who does not have personal knowledge of the relevant circumstances, to
identify the student with reasonable certainty; or (g) information requested by a person who the
educational agency or institution reasonably believes knows the identity of the student to whom
the education record relates. 34 C.F.R. § 99.3.
When a third-party seeks disclosure of education records covered by FERPA, the trial
judge, in exercise of discretion, must conduct a balancing test in which the privacy interests of
the students are weighed against the genuine need of the party requesting the information. Blunt
v. Lower Merion Sch. Dist., No. 07-3100, 2009 WL 1259100, at *2 (E.D. Pa. May 7, 2009); Zaal v.
State, 326 Md. 54, 602 A.2d 1247, 1256 (Md. 1992). While FERPA does not create a privilege,
it does represent the strong public policy of protecting the privacy of student records. Courts
balance the potential harm to the privacy interests of students with the importance and
relevance of the sought information to resolving the claims before the court. See, e.g., Blunt, 2009
WL 1259100 at *3; Naglak v. Penn. State Univ., 133 F.R.D. 18, 24 (M.D. Pa.1990). When
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privileged information or information protected by privacy concerns is withheld, a party is
being deprived of relevant information. However, policy concerns sometimes require the
withholding of this information over disclosure to a party who argues that the information is
needed for his case. Id.
This dispute requires the Court to weigh the statutory privacy interest of the students,
non-parties to this lawsuit, against the need and relevance of the discovery in Plaintiffs’ pursuit
of their claims. It is undisputed that the students enrolled in the Defendant School District have
a privacy interest in their educational records and data. 20 U.S.C. § 1232g(b)(2)(B); 34 C.F.R. §
99.31(a)(9)(ii). Further, pursuant to FERPA, funds under any applicable program may be
withheld from any educational agency or institution that fails to notify parents and students of
court orders or subpoenas ordering the release or access to personally identifiable information
in educational records. Although neither Defendants nor any of the objecting students have
cited any particular concern with the release of the un-redacted statements beyond privacy
rights, 3 the Court recognizes that the statutory privacy interest of these students in keeping the
statements redacted is great, and that the party seeking access faces a heavy burden in
demonstrating a genuine need that outweighs this privacy interest. This is a “significantly
heavier burden ... than exists with respect to discovery of other kinds of information, such as

3

For example, Blunt v. Lower Merion Sch. Dist., 2009 WL 1259100 (E.D. Pa. May 7,
2009), parents raised the concern that the release of the records sought could result in societal
stigma, or inadvertent online dissemination of the information.

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business records .” Bigge v. Dist. Sch. Bd. of Citrus Cnty., Fla., No. 5:11-CV-210-OC-10TBS, 2011
WL 6002927 (M.D. Fla. Nov. 28, 2011)(citing Rios v. Read, 73 F.R.D. 589, 598
(E.D.N.Y.1977)). The plaintiffs must “demonstrate a genuine need for the information that
outweighs the privacy interests of the students.” Rios v. Read, 73 F.R.D. at 599.
Against the privacy interests asserted by the students in this case, the Court must
consider the importance of the requested information to this lawsuit. Plaintiffs assert claims
pursuant to the Fifth and Fourteenth Amendment, for assault and battery and state created
danger, related state law claims for assault and battery and intentional infliction of emotional
distress, and claims under Title IX of the Education Amendments of 1972 and 20 U.S.C. §
1681(a). There is no doubt that the issues at stake are of the utmost importance. The Court finds
that the importance of the information sought justifies the disclosure of the un-redacted
discovery. See Bigge v. Dist. Sch. Bd. of Citrus Cnty., Fla., 2011 WL 6002927 , at *1 (placing great
weight on the U.S. Department of Education’s opinion that the requirements of Title IX
override the requirements of FERPA in a direct conflict between them, in determining that
enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sexbased discrimination in schools, and therefore holding that the need for the student's testimony
outweighs her concern that her name and contact information be kept confidential).
This conclusion is buttressed by the protections offered by the Stipulation and Order
entered on January 7, 2014. Pursuant to this Order, the confidential documents and personally
identifiable information derived from such documents shall be used and disclosed solely for the
purposes of this litigation (Doc. 46, at page 8). Disclosures should be made only to the
minimum extent necessary for this litigation, and in accordance with the terms and conditions
of that Order. The parties are required to maintain in a secure manner all confidential
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documents and personally identifiable information derived therefrom. These are significant
protections that severely limit the scope of persons that will have access to the protected
information and minimize the potential for unauthorized release of the information.
In light of the privacy protections afforded by the Stipulation and Order, the potential for
harm to the privacy interests of parents and students in the School District is outweighed by the
importance of this information to this lawsuit, which centers on the constitutional and statutory
rights of children and the alleged violation of those rights by their own School District. As such,
the Court will order the production of the un-redacted records of the twenty-six (26) students
who agreed to the release by returning the consent forms or by not replying within the specified
period. Additionally, the Court will order the production of the un-redacted records of the
students who objected to the release, including both those who objected initially, and the three
students who filed objections to the notice of the instant motion. Finally, the Court will order
the production of the un-redacted records of the students who did not respond to either the
initial notice or the instant motion.
However, the un-redacted records of those students who either made objections to the
disclosure, or failed to respond to the disclosure, shall not be disseminated to any party or thirdparty entity until and unless counsel determines that those individuals must be disclosed for
purposes of this litigation. Those un-redacted records should be produced to Plaintiffs’ counsel
marked “For Attorneys Only”. As noted above, the School District Defendants contend that a
number of the students identified were not witnesses to the underlying incident. While it
recognizes that there is a need for the disclosure of the un-redacted records of these students for
purposes of this litigation, the Court urges counsel to use discretion in reviewing these records
and in deciding which discovery to pursue so as not to further infringe on any student’s privacy
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rights unless necessary for purposes of this litigation. Prior to identifying one of these students
to a party to this litigation, or for the purposes of conducting further discovery (e.g. a
deposition), Plaintiffs’ counsel should confer with Defendants’ counsel in an attempt to agree
on whether or not it is necessary to identify the student. If the parties cannot agree, then counsel
shall contact the undersigned to arrange for a teleconference to resolve the dispute over further
disclosure.
III.

CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Un-Redact Files (Doc. 84) is

GRANTED.
An appropriate Order will follow.

s/ Karoline Mehalchick

Dated: October 7, 2014

KAROLINE MEHALCHICK
United States Magistrate Judge

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