PPA v. 18 (2015)

DECISION ON PETITION FOR BILL OF DISCOVERY

ARTICULATION OF

On May 11, 2015, this court received the respondent-appellant's motion for articulation dated April 20, 2015.   The motion is granted.   There are three particulars, quoted below.

1. Does petitioners-appellees' Second Amended Petition for Bill of Discovery implicate the Family Educational Rights and Privacy Act of 1974, codified at 20 U.S.C. § 1232g (“FERPA”), and its applicable regulations at 34 C.F.R. Part 99?

Yes, and the respondent acknowledged the court has so found.   See Respondent's Brief [123.00] in opposition to second amended petition for bill of discovery, p. 5:  “As the Court, Cole–Chu, J., has previously determined, ․ the videos sought are ‘education records' within the meaning of FERPA.”

2. If the answer to issue 1 is yes, how is FERPA implicated and what is the legal basis for the court's granting of the Second Amended Petition for Bill of Discovery as it pertains to FERPA?

FERPA is implicated because, as stated in the decision dated December 17, 2015, at page 6:  “․ the videos [are] educational [sic] records under FERPA.”   See also, Memorandum of Decision on Motion (# 109.00) to Dismiss Amended Petition For Bill of Discovery, attached, dated October 20, 2014* (“Decision on Motion to Dismiss”), p. 6:  “The videos are, as respondent claims, ‘education records' within the meaning of FERPA:

‘For the purposes of [FERPA], the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which (i) contain information directly related to a student;  and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.  20 U.S.C. § 1232g (a)(4)(A).’ “

The legal basis for the granting of the Second Amended Petition for Bill of Discovery as it pertains to FERPA is that FERPA explicitly contemplates that courts will, from time to time, order disclosure of student educational records and permits compliance with such orders without consent, written or otherwise, of the student or the student's parent or guardian.   See 20 U.S.C. § 1232g (b)(2):

“No funds shall be made available under any applicable [federal] program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection, unless (A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student's parents and the student if desired by the parents, or (B) except as provided in paragraph (1)(J) [for law enforcement and blind studies], such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution ․” (emphasis added.)  20 U.S.C. § 1232g(b)(2).

This court is aware that, “although the ‘judicial order’ exception in FERPA does not inform courts of the criteria for entering orders for disclosure of education records, FERPA cannot be read as authorizing such orders on request.   See Press–Citizen v. University of Iowa, 817 N.W.2d 480, 493, 282 Educ.L.Rep. (Iowa 2012) (senseless to interpret “judicial order” exception as authorizing court order on request).   After all, the court here is acting in equity.   Congress implicitly entrusts to courts what equity and common sense require:  courts have a gatekeeping function.   Courts must balance all the facts and interests in favor of and in opposition to disclosure of education records within the meaning of FERPA.   See Ragusa v. Malverne Union Free School District, 549 F.Sup.2d 288, 292 (E.D.N.Y.2002) (party seeking disclosure must show need for information which outweighs privacy interests of other students).”   Decision on Motion to Dismiss, p. 9.

Specifically to this state and case, a bill of discovery is an appropriate context for a “judicial order” within the meaning of FERPA.   The court granted the bill of discovery based generally on the petitioners having borne their burden of proof on the petition and specifically on the following findings, among others, in the court's December 17, 2014, ruling:

The petitioner is a minor—twelve years old in January of 2014, when the petition was filed.   He is a student at the school.   He has been medically diagnosed with autism, a disorder which affects his ability to communicate and to socialize ․

In the autumn of 2013, a female student told the petitioner's mother that she and the petitioner's father should no longer have the petitioner take the school bus, bus M (the bus), to the school because he had repeatedly been bullied on the bus.   The petitioners were told by more than one person that two of the respondent's students who ride the bus forcibly pushed the petitioner against the inside walls and/or windows of the bus and hit the petitioner over the head with backpacks while riding to and from the school on numerous occasions.   The petitioners were told that those other students ․ repeatedly harassed and verbally insulted the petitioner and that no one had intervened.   Indeed, the petitioners were told that the driver of the bus encouraged these actions and also mocked the petitioner ․

The petitioner, being autistic, refuses to speak about these incidents, even when asked.   When his parents have raised the subject, he has responded by going into a fetal position and/or putting his head under a pillow.   There is no reason to expect he will be able to testify, at least with substantial clarity, to what happened ․

The bus was equipped with video surveillance and recording equipment.   That equipment recorded at least some images and actions and/or statements of the alleged student bullies and/or the bus driver toward the petitioner—along with, according to the respondent, images of other students ․ [T]here are several of those videos in the custody of the respondent ․ [I]t is undisputed that the videos show at least some behavior of students and/or the bus driver of a harassing nature toward the petitioner.

[T]here is a good faith basis for the petitioners' belief that the videos are material to, and reasonably necessary for, the determination of what claims, if any, the petitioners have against the respondent (and perhaps other defendants) and to the proof of any such claims ․ [T]he videos are actually material and necessary in those regards.   This is particularly true because the videos are objective evidence of what did and did not take place within the camera's view and because Seth Goldberg cannot be expected to articulate what happened to him, let alone testify about it, in the foreseeable future.

“․ [The] respondent has not denied that the videos are necessary because they show no bullying of the petitioner.   If a suit is necessary—that is, if the petitioners' claims are not resolved without suit—the suit's allegations will likely differ, in light of study of the videos, from the allegations in the petition.   However, that is a benefit of the bill of discovery, not a defect in the petition ․” Memorandum of Decision on Petition for Bill of Discovery, pp. 2–5.

At oral argument, the respondent, by counsel, stated, “the primary determination that this court has to do is ․ to weigh the different interests that are at stake.”   Transcript, December 8, 2014, pp. 22–23.   Respondent continued, “the judicial order exception has been, when considered by other courts, ․ subjected to a balancing test, which [is] much like this Court was already required to do sitting in a court of equity ․ These courts have said that the requestor should have a higher burden, a heavier burden, than would normally be found in a traditional discovery request.”  Id., 30–31.   Every petition for a bill of discovery faces a heavier burden than any ordinary discovery request.   Compare, Berger v. Cuomo, 230 Conn. 1, 6, 644 A.2d 333 (1994) (three main facts to be shown to support bill of discovery) ¹ with Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59, 459 A.2d 503 (1983) (discovery requests shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action).

The respondent argued, “the petitioner's interest that is being weighed against these unrepresented minor individuals' privacy interests which the United States Congress has ․ said [are] very important, is not very great ․ That would be my primary argument as far as the weighing of interests.”   Transcript, December 8, 2014, p. 33.   The court rejects that argument.   In concluding that “petitioners have well met their burden of proof and the respondent has shown no well-founded objection to granting the petition,” the court did consider the privacy rights of students other than the petitioner Seth Goldberg, under FERPA and in equity.   The court found, implicitly and now explicitly, that those rights neither altered the burden of proof on the petition as a matter of law nor, as a matter of fact, outweighed the petitioners' interests in production of the videos.   During oral argument, the court asked respondent's counsel, to no avail, to articulate the nature and source of the “higher hurdle” the petitioners are claimed to have to clear to prevail on their petition;  the claimed factor “superseding whether ․ the traditional elements [of a bill of discovery] are met.”   Transcript December 8, 2014, pp. 38, 43.   None of the Connecticut cases cited by the respondent holds that FERPA alters the requirements for issuance of a bill of discovery—an equitable procedure which, after all, is favored.  Berger v. Cuomo, supra, 230 Conn. 6. The privacy interests, under FERPA and in general, of other students on the bus with the petitioner Seth Goldberg do not defeat the petitioners' showing of a good faith belief that the videos are material and necessary to aid in the proof in another action, for which action there is probable cause, and for which production there is no adequate remedy at law.   See footnote 1.

3. If the answer to issue 1 is yes, does the Court's decision trigger application of, or itself apply, FERPA's “judicial order exception” set forth at 20 U.S.C. § 1232g (b)(2)(B) and 34 C.F.R. § 99.31(a)?  If so, what burden of proof did petitioners-appellees bear to satisfy application of such exception and how did petitioners-appellees satisfy that burden?

The court does not understand what the respondent means by its decision “triggering” application of, or “itself applying” FERPA's “judicial order exception.”   The court granted the bill of discovery and does expect, and would require, compliance with it.   As the respondent acknowledges, “the ‘judicial order’ exception in FERPA does not inform courts of the criteria for entering orders for disclosure of education records ․” See Respondent's Brief [123.00] in opposition to second amended petition for bill of discovery, p. 9. The burden of proof met by the petitioners, by the evidence admitted on the petition, is described in the decision and further articulated above.

Cole–Chu, J.

FOOTNOTES

FN1. A bill of discovery is appropriate for evidence believed in good faith to be material and necessary to aid in the proof of another action pending or about to be brought;  Berger v. Cuomo, supra, 230 Conn. 6;  for which action there is probable cause;  Pottetti v. Clifford, 146 Conn. 252, 259, 150 A.2d 207 (1959);  or for the defense of such action, when there is no adequate remedy at law for obtaining the evidence.   Berger v. Cuomo, supra.*[Editor's Note:  The referenced Memorandum of Decision on Motion # 109 to Dismiss Amended Petition for Bill of Discovery dated October 20, 2014, pg. 1, par. 5, has not been reproduced.   See 59 Conn. L. Rptr. 232.].  FN1. A bill of discovery is appropriate for evidence believed in good faith to be material and necessary to aid in the proof of another action pending or about to be brought;  Berger v. Cuomo, supra, 230 Conn. 6;  for which action there is probable cause;  Pottetti v. Clifford, 146 Conn. 252, 259, 150 A.2d 207 (1959);  or for the defense of such action, when there is no adequate remedy at law for obtaining the evidence.   Berger v. Cuomo, supra.*[Editor's Note:  The referenced Memorandum of Decision on Motion # 109 to Dismiss Amended Petition for Bill of Discovery dated October 20, 2014, pg. 1, par. 5, has not been reproduced.   See 59 Conn. L. Rptr. 232.]

Cole–Chu, Leeland J., J.