Parent files U.S. Supreme Court petition challenging FERPA protection of security footage





UTAH— A petition has been filed asking the U.S. Supreme Court to consider whether security videos should be classified as educational records under federal law.

Utah resident Roger Bryner, who wrote and filed the petition with the Court, sued the Canyons School District after he requested security footage from October 2012 and was denied the recording under the Family Educational Rights and Privacy Act. The footage reportedly showed a fight Bryner’s child was involved in at Butler Middle School.

The Utah District Court ruled the security footage was an education record. After viewing the video, the court determined it contained “personally identifiable information” of the students in the video and was subject to FERPA. The court said students in the video were “clearly identifiable… either by face, body shape, clothing or otherwise.”

The court said a redacted version of the video could be released and gave Bryner a 10-day period to request the footage and pay $120 to have the video redacted.

Bryner, who has pursued the lawsuit without representation, said teachers, librarians and custodians have seen the video.

“I represented myself in Utah hoping as a parent I’d be able to view my child’s records instead of them being held in secrecy,” Bryner said. “Custodians had the right to see this video, but not the parents.”

Bryner filed an appeal with the Utah Court of Appeals, and the Society of Professional Journalists joined the case, submitting an amicus brief in 2013 at the court’s request. Both argued the footage was not an education record because it was not academic in nature and, therefore, not the type of record FERPA was intended to protect. Bryner also reasoned the video should be made available to him because “it is not maintained by an educational agency or institution as required by FERPA.”

“FERPA was enacted to ensure that parents of students are allowed to access their children’s education records and to protect the privacy of those records,” the brief states.

The court of appeals upheld the trial court decision, however, arguing the video falls under FERPA because it contains information directly related to students and because the video was maintained by people acting on behalf of the district.

“FERPA requires only that the record be maintained by or on behalf of an educational agency, not that the educators themselves maintain the records or review them,” the opinion states.

David Reymann, an attorney who worked on the amicus brief, said the U.S. Supreme Court doesn’t typically agree to hear many cases where a plaintiff doesn’t have representation unless criminal charges are involved.

He said if the Court decided to take the case, it could potentially provide clarity on how FERPA should be interpreted and speak to the intent of the law.

“If you take (FERPA) at its word, it probably does apply to this type of footage,” Reymann said. “It would be helpful if (the Court) started to resolve the issue.”

Paul Van Komen, who represents Canyons School District, said he was unaware a petition had been filed and that the district had not been served.

In the petition Bryner submitted to the U.S. Supreme Court, he asks the court to address whether restricting his ability to request a copy of the video to a 10-day period and forcing him to pay for the copy is a violation of his 14th Amendment rights.

Bryner said the video will be deleted if the Court declines to grant certiorari. He said the video will never be placed in his child’s file and that his son won’t have the opportunity to request the video when he turns 18.

“The concept of FERPA is you should have access to (your) children’s records,” Bryner said. “That’s not happening here."

Bryner said he also believes his First Amendment rights are being infringed upon because he is unable to view the video and address any issues he might have after viewing it.

“Redress of grievances can’t happen if secrets are kept from you,” Bryner said. “Allowing that sort of secrecy under the cover of people’s faces is a violation of the First Amendment.”

Bryner said the U.S. Supreme Court has the opportunity to make a much-needed ruling on interpreting FERPA and that he hopes the Court decides to hear the case.

“It’s my child,” Bryner said. “I want to see the record.”

SPLC staff writer Kaelynn Knoernschild can be reached by email or (202) 974-6318.

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