OFFICIAL OPINION No. 20

OFFICIAL OPINION No. 20 Stttdent-parent right to examine stttdent r ecords; Teachers rights to ex- amine school personnel records; Salary records of pttblic, State schools and community colleges are p1i/Jlic records. 1. A student and the student's parents-when the student is an uneman- cipated minor-have a right, under the comrr.on law and the provisions of the "Right to Know" Law, Act of June 21, 1957, P.L. 390, as amended (65 P.S. §66.1) to examine records kept by public schools concerning that student. A public school is an "agency" within the meaning of the "Right to Knew" Law, and the student's files are "public records" since they become "decisions fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons .... " 2. However, the status of a public record is restricted where its releas9 "would operate to the prejudice or impairment of a person's reputation or personal security .. .. " Thus, the records are available only to the stu- dent and, where a minor, his parents. 3. A teacher in the public schools has a right under the common law and the provisions of the "Right to Know" Law to examine personal rec- ords concerning that teacher. 4. Salary records of employes of the public schools, State institutions and community colleges are public records, within the meaning of the "Right to Know" Law, and, therefore, are available for inspection. Salary records of private institutions of higher learning and State-related colleges and universities are not public records within the meaning of the "Right to Know" Law, and are not available. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. March 8, 1973 You have asked our opinion on several related questions. They are: ( 1) What are the rights of a student and his or her parents to examine records concerning that student kept by the public schools? ( 2) What are the rights of a teacher to exa~ine personnel rec- ords concerning that teacher kept by the pubhc schools? ( 3) Are salary records of e~ployes <;>f. the pub~ic schools ~d of institutions of higher education rece1vmg pubhc funds avail- 46 OPINIONS OF THE ATTORNEY GENERAL able for public inspection under the Pennsylvania "Right to Know" Law, Act of June 21, 1957, P. L. 390, as amended (65 P .S. §66.1)? You are advised that: ( 1) A student and the student's parents have a right to ex- amine records concerning that student, subject to the limitations stated below. ( 2) A teacher in the public schools has a right to examine the personnel records concerning that teacher. ( 3) Salary records of employes of the public schools, State institutions, and community colleges are public records, and, therefore, are available for inspection. Salary records of private institutions of higher learning and State-related colleges and uni- versities are not public records and are not available. The answers to each of these questions are governed by com- mon law and by the provisions of the "Right to Know" Law and related statutes. The "Right to Know" Law provides: "Every public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania." 65 P.S. §66.2. The terms "agency" and "public record" are defined by the Act as follows: " ( 1) 'Agency.' Any department, board or commission of the executive branch of the Commonwealth, any po- litical subdivision of the Commonwealth, the Pennsyl- vania Turnpike Commission, or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such or- ganization performs or has for its purpose the perform- ance of an essential governmental function." ( 65 P.S. §66.1(1) ). " ( 2) 'Public Record.' Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order, or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public record" shall not mean any report, communication or other paper, the publi- cation of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memo- randum or other paper, access to or the publication of OPINIONS OF THE ATTORNEY GENERAL which is prohibited, restricted or forbidden by statute, law or order or decree of court, or which would oper- ate ~o the prejudice or impairment of a person's rep- utat10n or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal au- thorities of Federal funds, excepting therefrom how- ever the record of any conviction for any criminal act." (65 P.S. §66.1(2)). 47 "Political subdivision" is defined by the laws of this Common- wealth as follows: "'Political subdivision'; any county, city, borough, incor- porated town, township, school district, vocational school district and county institution district." Act of May 28, 1937, P.L. 1019, as amended (46 P.S. §601). ( 1) With respect to your first question you are advised that a student or the student's parents-when the student is an un- emancipated minor-have a right to examine records concern- ing that student kept by public school authorities. This right is derived from the Pennsylvania "Right to Know" Law and the "common law" right to inspect records of a public nature by per- sons having a sufficient interest in the subject matter therein. It is clear that a public school, which is an instrumentality of the local school district, is an "agency" within the meaning of the "Right to Know" Law. (See ( 3) below) It is also clear that student records dealing with reports of teachers, administrators, examination scores, etc. are "public records,'' within the mean- ing of the Law, subject to certain limitations discussed below, because those documents do, in fact, become "decisions fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons .. .. " The availability of a student's records is restricted when such records "would operate to the prejudice or impairment of a per- son's reputation or personal security .... " This restriction does not apply in those situations where a parent or legal guardian of a public school student requests to see records pertaining to the student. As the legally responsible person charged with the care and protection of the student, the release of these records to such parent or guardian must be considered equivalent, for purposes of the "Right to Know" Law, to the release of the doc- uments to the student himself. Under such circumstances, there- fore such release cannot be considered to be to "the prejudice or i~pairment of a person's reputation or personal security .. .. " It must be emphasized at this point that the above restriction applies to those situations where persons other than the student or the parents are requesting access to the student's records. Not only would the release of such documents without the con- sent of the student or of the parents probably violate the "Right 48 OPINIONS OF THE ATTORNEY GENERAL to Know" Law, but liability for defamation or injurious false- hood may arise. We note in passing that a recent study _indica~es that 74 per cent of a large cross-section of Pennsylvarua public schools have no policies forbidding the releas~ of any part, of a student'.s rec- ord in the absence of the parent s or student s consent. Michael J. Barone, A Survey of School Districts to Determine Local Pol- icy Regarding Mainten0;nce, R~lease, and Us~ of Pupil. Person- nel Information ( Chromcle Gm dance Profess10nal Service). See also, Pa. School Journal, pp. 177-179 (1970). This study indi- cates that guidelines should be prepared for local districts spec- ifying the circumstances when student records should not be released to persons in the absence of student or parental consent. This office stands ready to cooperate with you and with local school officials in the formulation of such guidelines and directs your attention to "Guidelines for the Collection, Maintenance and Dissemination of Pupil Records," Report of Conference Con- vened by Russell Sage Foundation, May 25-28, 1969, which could be used as a model approach to these problems. We also stand ready to assist in the preparation of such legislation or regulations as may be found necessary to further protect the pri- vacy rights of students and their parents. Several courts in recent years have also reaffirmed the com- mon law right of a person to inspect public records when he or she has a sufficient interest in the subject matter of those doc- uments. Specifically, and perhaps most notably, a New York Court in the case of Van Allen v. McLeary, 211 N.Y.S. 2d 501 (Sup. Ct., Nassau County 1961) held that a parent has a common law right to inspect his child's school records, and to compel their production by mandamus. See also, Johnson v. Bd. of Ed- ucation, 220 N.Y.S. 2d 362 (Sup. Ct., Kings County 1961 ). A discussion of the Pennsylvania common law right to inspect public documents by persons having a special interest in them, is provided in a 1913 Attorney General's Opinion, 16 Dauphin 151, and in a 1925 Attorney General's Opinion by Dep. Atty. General Campbell, both affirming that common law right, 6 D & C 383. Recent Pennsylvania cases affirming the common law right that public records are available to the inspection of any citizen at all reasonable times are Avveal o.f Simon, 353 Pa. 514, 518. 46 A. 2d 243. 245 (1946), and Wile11 v. Woods, 393 Pa. 341, 347-350. 141 A. 2d 844. 848-849 (1958) . The Wiley case contains a thorough survey of the Pennsylvania cases supporting this right. ( 2) With respect to your second question, you are advised that a teach 0 r does have a right to examine personnel records concerning that teacher kept by the public schools for the same reasons that a student has the right to examine his records as discussed above. OPINIONS OF THE ATTORNEY GENERAL ( 3) With respect to your third question, you are informed that salary records of employes of public schools and of institu- tions of higher education receiving public funds are subject to the provisions of the "Right to Know" Law with certain excep- tions discussed below. ' It is clear from the "Right to Know" Law that the Legislature intended the taxpayers to have access to information concerning how their tax money is being disbursed. Salary information, ab- sent extraordinary circumstances which we cannot perceive at this time, should as a matter of course be released to the public. The Legislature realized, however, that there are times when a disclosure of certain records "would operate to the prejudice or impairment of a person's reputation or personal security ... " In- formation such as a persons' previous arrest record or a history of mental instability, which can be found in an employe's per- sonal file, is excluded from public investigation. The "Right to Know" Law applies to those institutions that would be included in the definition of the term "agency" as it appears in the Act. Only the salary records of an "agency'- would be subject to disclosure under the "Right to Know" Law. A. Public Schools Public schools are incorporated within a school district, which is a political subdivision under the statutory definition above, and hence are agencies within the Act. Thus, the salaries of em- ployes of public schools which c:re a disbursement of funds by an agency are "public records." B. State-Owned Institutions State-Owned Institutions, i.e., state colleges and universities, are those institutions now existing and those which may here- after be created or constituted by, in, and for the Commonwealth of Pennsylvania. These institutions are administered by the Board of State College and University Directors which is subiPct to the regulations of the State Board of Education, (24 P.S. §§20- 2001 et seq.) . The Board of Education is a part of the Executive Branch of the government under the auspices of the Secretary of Education. It is readily apparent that these institutions fall within the statutory definition of agency and hence the salaries of the employes of such institutions are matters of "public rec- ord." C. Community Colleges The case of Kegel v. Community College of Beaver County, 55 D & C 2d 220 ( 1972) held that a community college created pursuant to the Community College Act of August 24, 1963, P.L. 1132 is an "agency" and that individual salary records of the college employes are "public records" within the meaning and provisions of the "Right to Know" Law. 50 OPINIONS OF THE ATTORNEY GENERAL D. State-Related Commonwealth Universities and Private State- Aided Institutions In the case of Mooney v. Board of Trustees of Temple Uni- versity, 292 A. 2d 395, 448 Pa. 424 ( 1972), the Court, with _Jus- tice Manderino dissenting, held that although Temple Umver- sity became a State-related institution by virtue of the Temple University-Commonwealth Act of November 30, 1965, P.L. 843 §43 §2(2) 24 P.S. §2510-2(2), it was not an "agency" subject to the "Right to :Know" Law. On the basis of this opinion, State- related institutions are not agencies within the meanin of the "Right to Know" Act and, hence, their salary records are not subject to public access. Private State-related institutions are not "agencies" under the "Right to Know" Law since they do not come under the defini- tion of a "political subdivision" or of an "agency". Sincerly yours, MARK P. WIDOFF Deputy Attorney General ISRAEL P ACKEL Attorney General