L.R., ETC. VS. CAMDEN CITY PUBLIC SCHOOL DISTRICTÂ L.R., ETC. VS. PARSIPPANY-TROY HILLS TOWNSHIP PUBLIC Â SCHOOL DISTRICTÂ THE INNISFREE FOUNDATION VS. HILLSBOROUGH TOWNSHIP Â BOARD OF EDUCATIONTHE INNISFREE FOUNDATION VS. CHERRY HILL BOARD OFEDUCATION(L-2736-14, CAMDEN COUNTY AND STATEWIDE L-3104-14,MORRIS COUNTY AND STATEWIDE L-1372-15, SOMERSET COUNTYAND STATEWIDE L-3902-15, CAMDEN COUNTY AND STATEWIDE)(CONSOLIDATED)
A-3972-14T4/A-4214-14T4/A-2387-15T4/A-3066-15T4
| N.J. Super. Ct. App. Div. | Oct 16, 2017|
Check Treatment NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3972-14T4
A-4214-14T4
A-2387-15T4
A-3066-15T4
L.R., individually and on
behalf of J.R., a minor,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants,
October 16, 2017
v.
APPELLATE DIVISION
CAMDEN CITY PUBLIC SCHOOL
DISTRICT and JOHN C. OBERG in
his official capacity as Interim
School Business Administrator
and Board Secretary,
Defendants-Respondents.
_______________________________
L.R., individually and on
behalf of J.R., a minor,
Plaintiffs-Respondents/
Cross-Appellants,
v.
PARSIPPANY-TROY HILLS TOWNSHIP
PUBLIC SCHOOL DISTRICT and DAVID F.
CORSO in his official capacity as
Records Custodian of the Parsippany-
Troy Hills Township Public School
District,
Defendants-Appellants/
Cross-Respondents.
_________________________________
THE INNISFREE FOUNDATION,
Plaintiff-Appellant,
v.
HILLSBOROUGH TOWNSHIP BOARD
OF EDUCATION and AIMAN MAHMOUD,
Records Custodian,
Defendants-Respondents.
________________________________
THE INNISFREE FOUNDATION,
Plaintiff-Respondent,
v.
CHERRY HILL BOARD OF EDUCATION
and JAMES DEVEREAUX, Records
Custodian,
Defendants-Appellants.
_____________________________________
Argued September 18, 2017 – Decided October 16, 2017
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
2736-14 (A-3972-14).
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
3104-14 (A-4214-14).
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No. L-
1372-15 (A-2387-15).
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
3902-15 (A-3066-15).
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A-3972-14T4
Walter M. Luers argued the cause for L.R.,
individually and on behalf of J.R., a minor,
appellants in A-3972-14 and respondents/
cross-appellants in A-4214-14 (Law Offices of
Walter M. Luers, LLC, attorney; Mr. Luers, of
counsel and on the briefs; Jamie Epstein, on
the briefs).
Joseph D. Castellucci, Jr., argued the cause
for Camden City Public School District and
John C. Oberg, respondents in A-3972-14
(Florio Perrucci Steinhardt & Fader, LLC,
attorneys; Eric M. Wieghaus, on the brief).
Eric L. Harrison argued the cause for
Parsippany-Troy Hills Township Public School
District and David F. Corso, appellants/cross-
respondents in A-4214-14 (Methfessel & Werbel,
PC, attorneys; Mr. Harrison, of counsel and
on the briefs; Kegan S. Andeskie, on the
briefs; Emily H. Kornfeld, on the brief).
John D. Rue argued the cause for The Innisfree
Foundation, appellant in A-2387-15 and
respondent in A-3066-15 (John Rue &
Associates, attorneys; Mr. Rue, of counsel and
on the briefs; Krista Lynn Haley, on the
briefs).
Vittorio S. LaPira argued the cause for
Hillsborough Township Board of Education and
Aiman Mahmoud, respondents in A-2387-15
(Fogarty & Hara, attorneys; Mr. LaPira, of
counsel and on the brief; Robert D. Lorfink,
on the brief).
Raina M. Pitts argued the cause for Cherry
Hill Board of Education and James Devereaux,
appellants in A-3066-15 (Methfessel & Werbel,
PC, attorneys; Ms. Pitts and Vivian Lekkas,
on the briefs).
Cynthia J. Jahn, General Counsel, argued the
cause for amicus curiae New Jersey School
Boards Association in A-3972-14, A-4214-14, A-
2387-15, and A-3066-15.
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A-3972-14T4
Krista Lynn Haley argued the cause for amicus
curiae The Innisfree Foundation in A-3972-14
and A-4214-14 (John Rue & Associates,
attorneys; Ms. Haley, on the briefs).
Iris Bromberg argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey in A-4214-14 (American Civil Liberties
Union of New Jersey Foundation, attorneys; Ms.
Bromberg, Edward L. Barocas, Jeanne LoCicero,
and Krista Haley, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
These four related appeals1 concern efforts by plaintiffs (a
nonprofit advocacy organization for disabled students, and the
mother of a disabled student in the Camden City Public Schools)
to obtain from several school districts copies of settlement
agreements and records reflecting the provision of special
services to other qualified students. In each of these cases,
plaintiffs, with the assistance of counsel, requested copies of
the documents. The respective school districts resisted
disclosure, citing statutory and regulatory provisions that
generally safeguard the privacy of students in their records,
subject to certain specified exceptions and conditions.
Plaintiffs' requests raise several novel issues of access
under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -
1
The appeals, which have overlapping counsel, were argued on the
same date, and we consolidate them for purposes of this opinion.
4
A-3972-14T4
13, the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:36-
19, and the Federal Family Educational Rights and Privacy Act of
1974 ("FERPA"), 20 U.S.C.A. § 1232g. The requests also implicate
administrative regulations adopted under both the NJPRA and FERPA.
Specifically, the four cases before us arise out of requests
made to school district officials in Cherry Hill (A-3066-15),
Hillsborough (A-2387-15), Parsippany-Troy Hills (A-4214-14), and
Camden City (A-3972-14). The lawsuits generated conflicting
results in the trial courts.
The judge in the Hillsborough case concluded that the
plaintiff advocacy organization's request must be disallowed under
the regulations of the New Jersey Department of Education, N.J.A.C.
6A:32-7.1 to -7.8. That ruling was consistent with a prior
administrative decision of the Government Records Council ("GRC")
interpreting those regulations.
Conversely, the judges in the Cherry Hill and Parsippany-Troy
Hills cases ruled that the applicable laws and regulations allow
the plaintiff-requestors access to the records, provided that the
disabled students' personally identifiable information was
redacted from them. Those two judges disagreed with the GRC's
legal interpretation of the state regulations in that prior case.
As a caveat, the judge in the Parsippany-Troy Hills case upheld a
special service charge of $96,815 calculated by the School Board
5
A-3972-14T4
to perform the review and redaction process before the records
were turned over.
Finally, in the fourth case, Camden City, the trial judge
dealt with the separate issues posed by a parent's access to her
own child's records, "access logs" for those records, and other
documents possessed by the school district that refer to her child.
The judge ordered the school district to produce an unredacted
copy of the child's own records and access logs, but not other
records.
For the reasons that follow, we hold that the respective
plaintiffs in the Hillsborough, Parsippany-Troy Hills, and Cherry
Hill cases are entitled to appropriately-redacted copies of the
requested records, provided that on remand those plaintiffs
either: (1) establish they have the status of "[b]ona fide
researcher[s]" within the intended scope of N.J.A.C. 6A:32-
7.5(e)(16); or (2) obtain from the Law Division a court order
authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15).
In either event, the school districts shall not turn over the
redacted records until they first provide reasonable advance
notice to each affected student's parents or guardians. The
parents and guardians must be afforded the opportunity to object
and provide insight to the school district officials about what
6
A-3972-14T4
may comprise or reveal personally identifying information in their
own child's records before the redactions are finalized.
We also remand the Camden City case for further proceedings
with respect to documents naming plaintiff's child that also could
refer to other students, but affirm the trial court's grant of
access concerning records that exclusively mention plaintiff's
child.
I.
All four of the appeals before us involve the Innisfree
Foundation ("Innisfree"), either as a plaintiff or as amicus
curiae. As described in its briefs, Innisfree is a non-profit
organization that "assists families of children with disabilities
who reside in New Jersey to advocate for their children's
educational needs." Innisfree asserts that its interest in access
to the school records it is requesting "arises out of its concern
for the special education programs of the children of its
constituents who are (or seek to be) classified as in need of
special education services under the Individuals with Disabilities
Education Act ("IDEA")," 20 U.S.C.A. §§ 1400 to -1482. Innisfree
has been certified by the New Jersey Supreme Court as a "pro bono
entity" under Rule 1:21-11(b).
7
A-3972-14T4
Innisfree's Records Requests and Lawsuits
In August 2015, Innisfree submitted substantially identical
requests under OPRA to both the Cherry Hill and Hillsborough school
districts. Those requests sought:
All settlement agreements executed in the past
two years and related to disputes between [the
district] and parents of students related to
the provision of special education services,
where the counterparties were parents (or a
single parent) of a child or children for whom
special education services were or are either
provided or sought. (Personally identifiable
information may be redacted).
According to Innisfree, it has presented similar OPRA
requests to many other school districts in this State. Its counsel
represented to us at oral argument that it plans eventually to
submit similar records requests to every New Jersey public school
district.
Anticipating that the school districts might want to redact
the requested records for student privacy reasons, Innisfree added
the following proviso to its requests:
(1) To the extent that any such records
contain personally identifiable information
related to any individual student, please
redact that personally identifiable
information prior to disclosure.
(2) To the extent that you assert that any
requested records are exempted from disclosure
under OPRA, and also unavailable under the
8
A-3972-14T4
common law right of access, please provide a
complete Vaugh[n] index[.]2
Both the Cherry Hill and Hillsborough school districts denied
Innisfree's records requests. In Cherry Hill's denial, it cited
a GRC decision, Popkin v. Englewood Board of Education, Complaint
No. 2011-263 (Gov't Records Council Dec. 18, 2012) (slip op. at
8). The GRC in Popkin had exempted a special education settlement
agreement from OPRA disclosure in its entirety, upon finding that
the requestor was not authorized to obtain it under the NJPRA.
Cherry Hill also declined to produce a Vaughn index, asserting
that such indices are "something prepared by order of a court on
matters which are questionably protected."
Hillsborough, meanwhile, asserted that the requested
documents were FERPA "education records" protected from
disclosure, 20 U.S.C.A. § 1232g, and "student records" under
N.J.A.C. 6A:32-2.1, a regulation promulgated in connection with
the NJPRA.
In October 2015, Innisfree filed separate complaints in the
Law Division in Camden County against the Cherry Hill district and
2
A "Vaughn index" is a submission "in which the custodian of
records identifies responsive documents and the exemptions it
claims warrant non-disclosure." North Jersey Media Grp., Inc. v.
Bergen Cty. Prosecutor's Office, 447 N.J. Super. 182, 199 (App. Div. 2016). See Vaughn v. Rosen,484 F.2d 820
, 826-27 (D.C. Cir. 1973), cert. denied,415 U.S. 977
,94 S. Ct. 1564
,39 L. Ed. 2d 873
(1974).
9
A-3972-14T4
its custodian of records, and in Somerset County against the
Hillsborough district and its own custodian of records. The
complaints each invoked a requestor's statutory rights to
government records under OPRA, as well as under the common law.
Cherry Hill and Hillsborough opposed the complaints, arguing that
their conduct in withholding the documents was justified under the
applicable laws and regulations governing student records.
The Trial Court's Ruling as to Cherry Hill
On February 9, 2016, the trial court in Camden County ordered
the Cherry Hill district to produce the agreements "with the
appropriate redactions" and to prepare and serve a Vaughn index.
The judge rejected the district's reliance on Popkin, concluding
that such GRC opinions lack precedential value and are non-binding
on the court. The judge also ruled that Innisfree was a prevailing
party under OPRA, granted its request for attorney's fees, and
declined to entertain its common-law right to access claim. On
March 16, 2016, the court entered final judgment in favor of
Innisfree and stayed the judgment pending appeal.
The Trial Court's Ruling as to Hillsborough
An opposite result was reached in the Hillsborough
litigation. On January 8, 2016, the trial court in Somerset County
dismissed Innisfree's complaint with prejudice. The judge
concluded that the NJPRA exempted the settlement agreements from
10
A-3972-14T4
OPRA disclosure in their entirety, even if those documents were
redacted, because they were "student records" as defined in the
NJPRA's regulations. The judge further noted in her oral opinion
that Innisfree was not authorized to gain access to student records
under the regulations contained in N.J.A.C. 6A:32-7.5. The judge
did not address FERPA, or Innisfree's common-law right of access
claim.
Innisfree has appealed the trial court's ruling in the
Hillsborough case, and the school district has appealed the trial
court's ruling in the Cherry Hill case.
L.R.'s Requests for Records and Her Two Cases
L.R.3 is the parent of a minor child, J.R., who attends public
school in the Camden City school district. In May 2014, an
attorney named Jamie Epstein submitted an OPRA request to the
Camden City district, seeking the "FERPA access log" for J.R.'s
school records. A FERPA access log is a document maintained by a
school district, which lists who has been given access to a
particular student's school records. Through Epstein, L.R. also
sought letters and emails sent to or received by Jonathan Ogbonna,
a district staff member, since March 2, 2012, containing J.R.'s
3
At oral argument on the appeal, all counsel agreed that they had
no objection to the use of the initials of L.R. and her child J.R.
in this opinion, given the use of initials for them in the trial
court below.
11
A-3972-14T4
name "in the subject or body of the record." The request also
sought certain other records.
In May 2014, the Camden district's interim administrator,
John C. Oberg, produced the access log for J.R., but redacted the
document "to protect confidential information of the student and
[J.R.'s] parents."4 Epstein replied that the district's response
was "improper because no redactions should be made, since, as
indicated, the request is made on behalf of my client [J.R.]."
The Camden school district's general counsel wrote to Epstein
and addressed the access log redaction issue. He maintained that
the district's actions were proper under state law, asserting that
Epstein had "not presented the requisite written consent under
N.J.A.C. 6A:32-7.5(e)(13), authorizing the [d]istrict to produce
J.R.'s student record information" to him. In response, Epstein
"[w]ithout waiving any rights concerning [the district's] improper
denial," emailed the district's counsel a self-drafted
authorization form signed by L.R., which read:
I, [L.R.], as parent and legal guardian of
[J.R.], I hereby extend my 20 USCS § 1232g.
Family Educational and Privacy Act rights to
my attorney, Jamie Epstein.
Oberg denied Epstein's request for the Ogbonna records,
4
It appears that L.R. and J.R.'s names and home address were
redacted from the documents.
12
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citing various concerns about student confidentiality,
administrative burdens, and disruption. Oberg also noted that
Epstein had not provided written consent in a sufficient form to
divulge J.R.'s records.
Epstein then made a second request, seeking:
1. Letters, memos, correspondence and emails
sent to or received by Clara West, Case
Manager, since 7/1/12 to present which
contain[s] the term [J.R.] aka JR. in the
subject or body of the record.
2. All educational/special educational
records created, received, kept or maintained
by Clara West, Case Manager, since 7/1/12 to
present which contains the term [J.R.] aka JR.
The Camden district, through Oberg, denied this request as well,
citing confidentiality and overbreadth concerns.
During the same time period, in May 2014, Epstein wrote to
Ogbonna directly and asked for "access [to J.R.'s] school records;
including, but not limited to, [J.R.'s] special education, health,
administrative, academic and disciplinary records." Ogbonna
replied that the district was not able to grant such access to
J.R.'s student records "unless and until it receives written
consent from [J.R.'s] parent or legal guardian[.]" Ogbonna
enclosed an "Authorization and Consent to Release Records" form,
to be completed "before any records are produced." The district's
authorization form included the following language:
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This consent and authorization is being made
under State and federal law requiring parental
consent as a prerequisite to obtaining student
or health records. I hereby release the
Camden City [s]chool [d]istrict, and its
employees and agents, from any liability or
responsibility in connection with producing
the aforesaid records in connection with this
request.
The district rejected Epstein's proposed waiver form as "vague"
and noted that it did not contain a liability waiver.
This dispute initially came to a head in the Office of
Administrative Law, after Epstein filed an administrative
complaint with the New Jersey Department of Education against the
district, alleging violations of federal and state law for
withholding the requested documents. After both sides moved for
summary decision, an Administrative Law Judge ("ALJ") decided that
the district was required to provide J.R.'s own records to Epstein.
Among other things, the ALJ concluded that Epstein's waiver was
sufficient to reflect parental consent.
The Camden City Litigation
In July 2014, a different attorney representing L.R. filed
an OPRA complaint in the Law Division in Camden County against the
Camden City school district and Oberg. The complaint sought an
order requiring the district to produce an unredacted access log
for J.R.'s records, the Ogbonna documents, and the West documents,
along with attorneys' fees and costs.
14
A-3972-14T4
On October 20, 2014, the trial judge5 ordered the district to
produce the unredacted access log, but specifically noted that
access to the FERPA access log was not being granted under the
authority of OPRA. The judge denied L.R.'s request for the Ogbonna
and West documents. The judge denied the Camden City district's
ensuing motion for reconsideration.6
L.R. has appealed the judge's decision, asserting that the
judge erred in ordering production of the unredacted access log
by relying upon FERPA rather than OPRA. She also contends that
the judge should have granted her access to the other documents
relating to J.R. maintained by Ogbonna and West. The Camden City
school district has not cross-appealed.
The Parsippany-Troy Hills Case
Meanwhile, L.R. and J.R. pursued a separate records request
and litigation with the Parsippany-Troy Hills school district in
Morris County. In November 2014, Epstein, on behalf of J.R.,
served an OPRA request upon Parsippany-Troy Hills seeking:
(1) All requests made on behalf of [disabled]
students for independent educational
5
This was a different judge in the Camden vicinage than the judge
who presided over the Cherry Hill matter. The judge in the Camden
City case is now retired.
6
After additional proceedings were held involving other documents
not at issue on appeal, the judge ordered the district to produce
those other documents. The parties entered into a consent order
calling for the district to pay L.R.'s attorney an agreed-upon sum
in reasonable counsel fees and costs.
15
A-3972-14T4
evaluations ["IEE"] and all responses to
those requests.
(2) All requests made on behalf of [disabled]
students for independent evaluations
["IE"] and all responses to those
requests[.]
The request sought such records for the period from July 1, 2012
to November 4, 2014, with "personal identifiers of students and
their parents or guardians" redacted, "leaving only initials[.]"
Parsippany-Troy Hills's records custodian denied the request
as overbroad. The custodian noted in part that the request would
require the district to perform "a wholesale search of records"
pertaining to its current students, along with those who no longer
attend, and that "OPRA does not contemplate such [research]." The
custodian also asserted that the requested records were pupil
records exempt from OPRA disclosure.
In December 2014, L.R., through the same attorney who had
represented her in the Camden City litigation, filed a complaint
in the Law Division in Morris County, alleging that the Parsippany-
Troy Hills district had violated OPRA by failing to produce
redacted documents responsive to her request. The complaint sought
an order requiring the district to provide redacted documents,
"leaving only initials[.]" Parsippany-Troy Hills moved for
summary judgment, asserting that the records were confidential
student records exempt from OPRA disclosure under FERPA and the
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NJPRA. In the alternative, the district asserted that the
production of the records would require an overly burdensome search
of student files not contemplated by OPRA.
During the ensuing motion proceedings before the Morris
County judge, the Parsippany-Troy Hills Director of Special
Services submitted a certification detailing the substantial
administrative efforts that would be required to respond to L.R.'s
request and to make appropriate redactions. The Director certified
that approximately 1,200 district students were "classified as
eligible for special education services" out of 6,934 total
students enrolled. Additionally, 180 students "either graduated
or aged out," and 65 once-classified students were "declassified"
between September 1, 2012, and November [5], 2014. Thus, according
to the Director, 1,445 student files could contain documents
responsive to plaintiff's request.
The Director further explained that the documents sought were
"not housed in any central repository[,]" nor stored or compiled
electronically, but that hard copies were kept in student files,
either at the central office or in "school-level files" at each
school "maintained by the students' respective case managers."7
He estimated that it would take the district's "licensed special
7
As of March 2015, the district employed twenty-seven case
managers.
17
A-3972-14T4
education professionals" ("LSEPs") approximately one hour per
student to review the appropriate files, redact, and produce the
requested documents. He noted that LSEPs earn, at a minimum, $67
per hour.
L.R. objected to the district's special service charge
estimate, and sought discovery (including a deposition of the
director), a plenary hearing, and the opportunity to retain an
expert to address the issue. She disputed the district's claims
that none of the responsive documents were maintained
electronically, that it would take one hour to review, retrieve,
and redact responses from each student file, and that only LSEPs
could perform such a review.
On April 7, 2015, the Morris County judge, sua sponte,
dismissed L.R. and J.R. from the complaint, substituted Epstein
as plaintiff, and granted the request for the IEE and IE requests
and responses, "subject to redaction of all student personal
identifiers, including initials[.]" Based upon the
certifications, the court ordered Epstein to pay a $96,815 special
service charge to the district, with 50% to be paid in advance of
any document production.8 Epstein declined to pay the special
service charge and the district has not produced the records. The
8
This total represents 1,445 hours of review (one hour per file)
times the quoted $67 per hour rate for staff time.
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Morris County judge further awarded Epstein attorneys' fees and
costs as the prevailing party.
Parsippany-Troy Hills appealed the trial court's orders.
Meanwhile, L.R. cross-appealed from portions of the court's
decisions. In particular, L.R. challenges the substitution of
Epstein for her as the real party in interest and the court's
holding that the district was required to redact student initials
before disclosing the documents.
The Amici
We have granted the participation as amicus curiae of two
additional organizations: the New Jersey School Boards
Association ("The Association") and the American Civil Liberties
Union of New Jersey ("ACLU-NJ"). The Association supports the
school districts' legal arguments in these appeals, and the ACLU-
NJ, conversely, supports the arguments of plaintiffs. In addition,
as we have already noted, Innisfree has been granted amicus status
in the two appeals involving L.R.
Other Related Appeals and The Global Appellate Stay
Innisfree and others have made similar requests for records
to other school districts around the State. As a result of trial
court orders entered in those various cases, more than a dozen
other appeals are pending before this court in various stages of
briefing. Following a global case management conference with a
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A-3972-14T4
retired appellate judge serving on recall, counsel agreed that the
present four appeals were suitable "test cases" the disposition
of which might provide guidance in the other pending matters. In
the meantime, a global order staying the other appeals has been
entered.
II.
Since as early as 1944, the laws of our State have governed
the terms for inspection of records relating to children enrolled
in our public schools. See L. 1944, c. 217 (directing the State
Board of Education to "prescribe rules and regulations governing
the public inspection of pupil records and the furnishing of any
other information relating to the pupils and former pupils of any
school district."). The 1944 statute, ultimately codified at
N.J.S.A. 18:2-4.1, did not specifically address the privacy or
other interests at stake. Nor did the 1944 enactment provide the
State Board with explicit guidance in developing the mandated
regulations. Ibid.
The 1944 provision was amplified in 1967 with the passage of
what is now known as the NJPRA. See L. 1967, c. 271. This
development occurred four years after OPRA's predecessor, the
Right to Know Law, L. 1963, c. 73, took effect.
20
A-3972-14T4
The Right to Know Law, a general statute encompassing the
terms of access to a variety of governmental records, required
that:
all records which are required by law to be
made, maintained or kept on file by any board,
body, agency, department, commission or
official of the State or . . . by any public
board, body, commission or authority created
pursuant to law by the State . . . shall, for
the purposes of this act, be deemed to be
public records.
[N.J.S.A. 47:1A-2 (repealed by L. 2001, c.
404, § 17, effective July 7, 2002).]
The Right to Know Law further stated, in relevant part, that
records were exempt from disclosure if:
provided in this act or by any other statute,
resolution . . . of the Legislature, executive
order of the Governor, rule of court, any
Federal Law, regulation or order, or by any
regulation promulgated under the authority of
any statute or executive order of the
Governor[.]9
[Ibid.]
Subsequently, the 1967 version of the NJPRA allowed for the
public inspection of pupil records, subject to State Board
regulations:
Public inspection of pupil records may be
permitted and any other information relating
to the pupils or former pupils of any school
district may be furnished in accordance with
rules prescribed by the state board, and no
9
The substance of this Right to Know Law provision was retained
in OPRA. See N.J.S.A. 47:1A-9.
21
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liability shall attach to any member, officer
or employee of any board of education
permitting or furnishing the same accordingly.
[L. 1967, c. 271, codified at N.J.S.A. 18A:36-
19 (amended later at L. 1977, c. 346, § 1).]
The corresponding regulations then in effect allowed four
categories of requestors to inspect pupil records, at the
discretion of local boards of education: (1) authorized
representatives of the Selective Service System, Federal Bureau
of Investigation, United States Army, and United States Navy; (2)
persons who had "a legitimate interest in the records for purposes
of systematic educational research, guidance, and social service";
(3) parents, guardians, and adult students; and (4) employers and
higher education institutions. See N.J.A.C. 6:3-1.3(a) to -1.3(d)
(1969). Additionally, the 1969-vintage regulations gave local
boards and their employees the discretion "to withhold items . .
. of a confidential nature or in which the applicant for such
information has no legitimate interest." N.J.A.C. 6:3-1.3(e)
(1969).
About ten years later, the NJPRA was amended by the
Legislature to its current form, in "response to the problem of
the maintenance and confidentiality of pupil records." Senate
Educ. Comm., Statement to S. 260 (Mar. 29, 1976). The new
language, which replaced the prior statute virtually in its
22
A-3972-14T4
entirety, requires local boards of education to protect the
"reasonable privacy" interests of both students and parents:
The State Board of Education shall provide by
regulation for the creation, maintenance and
retention of pupil records and for the
security thereof and access thereto, to
provide general protection for the right of
the pupil to be supplied with necessary
information about herself or himself, the
right of the parent or guardian and the adult
pupil to be supplied with full information
about the pupil, except as may be inconsistent
with reasonable protection of the persons
involved, the right of both pupil and parent
or guardian to reasonable privacy as against
other persons and the opportunity for the
public schools to have the data necessary to
provide a thorough and efficient educational
system for all pupils.
[L. 1967, c. 271, codified at N.J.S.A. 18A:36-
19 (emphasis added).]
The 1975 definition of "pupil record" adopted in the
corresponding regulations closely resembled the current definition
of "student record," now found at N.J.A.C. 6A:32-2.1. The 1975
version read:
information related to an individual pupil
gathered within or without the school system
and maintained within the school system,
regardless of the physical form in which it
is maintained. This information includes that
which is manually recorded, electronically
recorded, mechanically recorded or filmed.
[N.J.A.C. 6:3-2.2 (1975); 6 N.J.R. 465 (Dec.
5, 1974) (proposed); 7 N.J.R. 251 (June 5,
1975) (adopted).]
23
A-3972-14T4
As part of the Senate's consideration of amendments to the
NJPRA, its Education Committee referred to "general agreement that
the current statutes, rules and regulations should be revised to
afford greater protection to both parents and students." Senate
Educ. Comm., Statement to S. 260 (Mar. 29, 1976) (emphasis added).
The Committee explicitly noted in that regard that it had
"carefully considered" two timely developments regarding pupil
records, including the enactment of FERPA in 1974, and significant
revisions to the New Jersey Administrative Code at N.J.A.C. 6:3-
2.1 to -2.8. Ibid.
FERPA
FERPA "prohibit[s] the federal funding of educational
institutions that have a policy or practice of releasing education
records to unauthorized persons." Gonzaga Univ. v. Doe, 536 U.S.
273, 276,122 S. Ct. 2268
, 2271,153 L. Ed. 2d 309
, 316 (2002). No funding is provided to educational agencies that "release . . . education[al] records (or personally identifiable information contained therein . . .) of students without the written consent of their parents" subject to certain exceptions. 20 U.S.C.A. § 1232g(b)(1) (2017); see34 C.F.R. § 99.30
(2017).
"Education records" under FERPA are considered to be:
"records, files, documents, and other
materials" containing information directly
related to a student, which "are maintained
by an educational agency or institution or by
24
A-3972-14T4
a person acting for such agency or
institution."
[Owasso Indep. Sch. Dist. No. I-011 v. Falvo,
534 U.S. 426, 429,122 S. Ct. 934
, 937,151 L. Ed. 2d 896
, 902 (2002) (quoting 20 U.S.C.A.
§ 1232g(a)(4)(A)).]
The critical concept of "personally identifiable information"
(commonly referred to as "PII") under FERPA includes, but is not
limited to:
(a) The student's name; (b) The name of the
student's parent or other family members; (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 (2017).]
Parental consent is not required under FERPA when records are
shared with authorized persons, including school officials, select
state and local officials, accrediting organizations, and others,
for a legitimate purpose. 20 U.S.C.A. § 1232g(b)(1)(A) through
(L) (2017).
25
A-3972-14T4
Additionally, within the federal regulations enacted pursuant
to FERPA, 34 C.F.R. § 99.31(b)(1) contains an important exception
to the parental consent requirement for "de-identified" or
redacted education records:
An educational agency or institution, or a
party that has received education records or
information from education records under this
part, may release the records or information
without the consent required by § 99.30 after
the removal of all personally identifiable
information provided that the educational
agency or institution or other party has made
a reasonable determination that a student's
identity is not personally identifiable,
whether through single or multiple releases,
and taking into account other reasonably
available information.
[34 C.F.R. § 99.31(b)(1).]
The 1977 Revision of the NJPRA In Light of FERPA and Then-
Existing State Regulations
When enacting the NJPRA amendments in light of FERPA, the
Senate Committee noted that third-party access to "official
records directly related to the student" under FERPA was "strictly
limited and require[d] written consent of the parents, or in the
event of subpena [sic] or transfer of records to another school,
advance notification of release to the parents or adult pupil."
Senate Educ. Comm., Statement to S. 260 (Mar. 29, 1976).
The Senate Committee also found instructive the then-current
version of state regulations. The Committee noted that the
26
A-3972-14T4
regulations "provide[d] for . . . confidentiality of pupil
records." Ibid. The regulations that existed at the time stated
that "[o]nly authorized organizations, agencies, or persons shall
have access to pupil records." N.J.A.C. 6:3-2.6 (1975). The
prior list of designated parties who had been allowed access at
N.J.A.C. 6:3-1.3 had been expanded by that point to include, in
relevant part: (1) organizations, agencies and persons from
outside the school with written consent from parents, guardians,
or adult pupils, or upon presentation of a court order; (2) bona
fide researchers, with assurances that the records "will be used
under strict conditions of anonymity and confidentiality"; and (3)
other school officials in the event of a student transfer outside
the district. N.J.A.C. 6:3-2.6(a) (1975). The Committee's
Statement did not address, however, the relationship, if any,
between the NJPRA and the Right to Know Law.
On the topic of notice, the revised regulations that were in
effect in 1977 required local school boards to give parents notice
before disclosing pupil records pursuant to a court order, or to
other school officials if a student was transferring outside of
the district. N.J.A.C. 6:3-2.7(a)(4) (1975). Once the parent
was placed on such notice, N.J.A.C. 6:3-2.8 permitted him or her
to request an immediate stay of the release of records, and to
appeal the proposed disclosure to the Commissioner of Education.
27
A-3972-14T4
The regulations did not require such notice, however, before the
disclosure of pupil records to a bona fide researcher.
In 2005, Title 6, Chapter 3 of the governing regulations was
repealed and replaced by Title 6A, Chapter 32. See 37 N.J.R. 1982
(June 6, 2005) (proposed), 37 N.J.R. 3322 (Sept. 6, 2005)
(adopted). As discussed below, at that time, the State Department
of Education also added N.J.A.C. 6A:32-7.5(g), a provision which
requires districts to "adhere to" OPRA and FERPA. In addition,
the Title 6 authorization provisions discussed above were
incorporated and expanded at N.J.A.C. 6A:32-7.5. Among other
things, the notice and appeal rights provisions in former Title 6
were incorporated at N.J.A.C. 6A:32-7.6 and -7.7.
A decade later, Title 6A, Chapter 32 was readopted by the
Department of Education in 2015, without significant amendment to
the pertinent regulations. See 46 N.J.R. 1775 (Aug. 18, 2014)
(proposed); 47 N.J.R. 464 (Feb. 17, 2015) (adopted).
The Current Regulations under the NJPRA
Several key facets of the current State regulations
critically bear upon the legal issues before us. To begin with,
the regulations broadly define the term "student record" as
information related to an individual student
gathered within or outside the school district
and maintained within the school district,
regardless of the physical form in which it
is maintained. Essential in this definition
is the idea that any information that is
28
A-3972-14T4
maintained for the purpose of second-party
review is considered a student record.
Therefore, information recorded by certified
school personnel solely as a memory aid and
not for the use of a second party is excluded
from this definition.
[N.J.A.C. 6A:32-2.1.]
The regulations further proclaim that school districts must
"regulate access, disclosure, or communication of information
contained in educational records in a manner that assures [their]
security." N.J.A.C. 6A:32-7.1(b). Chief school administrators,
or their designees, are "responsible for the security of student
records maintained in the school district" and must "devise
procedures for assuring that access to such records is limited to
authorized persons." N.J.A.C. 6A:32-7.4(a).
In addition, N.J.A.C. 6A:32-7.5(a) prescribes that "[o]nly
authorized organizations, agencies or persons as defined in this
section shall have access to student records[.]" In that regard,
subsection 7.5(e) of the regulations lists sixteen categories of
authorized organizations, agencies, and persons, including
parents, students, certified educational personnel, clerical
personnel, boards of education, accrediting organizations, state
and federal educational officials, child welfare caseworkers, and
bona fide researchers. N.J.A.C. 6A:32-7.5(e).
Organizations, agencies, or persons who are not otherwise
specified in the regulations can only obtain access to student
29
A-3972-14T4
records upon written parental consent or "the presentation of a
court order." N.J.A.C. 6A:32-7.5(e). As we discuss in more depth
below, the regulations are silent with respect to the processes
and standards by which such court orders are to be requested and
adjudicated.
Also significantly, N.J.A.C. 6A:32-7.5(g) provides:
In complying with this section, individuals
shall adhere to requirements pursuant to
N.J.S.A. 47:1A-1 et seq., the Open Public
Records Act (OPRA) and 20 U.S.C. § 1232g; 34
CFR Part 99, the Family Educational Rights and
Privacy Act (FERPA).
This cross-reference leads us to now address pertinent facets of
OPRA, the main statute relied upon by plaintiffs in their quest
for access.
OPRA
OPRA is sweeping legislation intended "to maximize public
knowledge about public affairs in order to ensure an informed
citizenry and to minimize the evils inherent in a secluded
process." Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean Cty. Prosecutor's Office,374 N.J. Super. 312
, 329 (Law Div. 2004)). "With broad public access to information about how state and local governments operate, citizens . . . can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct." Burnett v. Cty. of Bergen,198 N.J. 408
, 414 (2009).
30
A-3972-14T4
To that end, N.J.S.A. 47:1A-1 provides that "government
records shall be readily accessible . . . by the citizens of this
State, with certain exceptions, for the protection of the public
interest[.]" Moreover, "any limitations on the right of access .
. . shall be construed in favor of the public's right of access[.]"
N.J.S.A. 47:1A-1.
"Government records" are broadly defined under OPRA to
include any document "made, maintained or kept on file in the
course of . . . official business by any officer, commission,
agency or authority of the State or of any political subdivision
thereof[.]" N.J.S.A. 47:1A-1.1. However, N.J.S.A. 47:1A-1.1
expressly "excludes twenty-one categories of information" from its
expansive definition of a government record; "[t]he public's right
of access [is] not absolute." Educ. Law Ctr. v. State Dep't of
Educ., 198 N.J. 274, 284 (2009).
Examples of information exempted by OPRA from disclosure
under N.J.S.A. 47:1A-1.1 include such items as legislative
memoranda, records subject to the attorney-client privilege, crime
victim records, trade secrets, security/surveillance information,
and Social Security numbers. N.J.S.A. 47:1A-1 also contains an
exemption limited to "public institution[s] of higher education"
only, which protects "information concerning student records or
grievance or disciplinary proceedings against a student to the
31
A-3972-14T4
extent disclosure would reveal the identity of the student."
N.J.S.A. 47:1A-1.1 (emphasis added). No such comparable exemption
exists within OPRA for public elementary or secondary educational
institutions.
Notably for the present cases, N.J.S.A. 47:1A-9(a) provides
that OPRA "shall not abrogate any exemption of a public record or
government record from public access" contained in other federal
or state statutes or regulations. See O'Boyle v. Borough of
Longport, 218 N.J. 168, 185 (2014) (recognizing that "[a]
government record may be excluded from disclosure by other
statutory provisions").
OPRA also contains a privacy clause requiring public agencies
"to safeguard from public access a citizen's personal information
with which it has been entrusted when disclosure thereof would
violate the citizen's reasonable expectation of privacy[.]"
N.J.S.A. 47:1A-1; Asbury Park Press v. Cty. of Monmouth, 201 N.J.
5, 7 (2010); Burnett,supra,
198 N.J. at 414. In applying the
privacy clause, our courts consider the following factors to assess
whether the government records at issue must be withheld or require
redaction, in the interest of privacy, prior to disclosure under
OPRA:
"(1) the type of record requested; (2) the
information it does or might contain; (3) the
potential for harm in any subsequent
nonconsensual disclosure; (4) the injury from
32
A-3972-14T4
disclosure to the relationship in which the
record was generated; (5) the adequacy of
safeguards to prevent unauthorized
disclosure; (6) the degree of need for access;
and (7) whether there is an express statutory
mandate, articulated public policy, or other
recognized public interest militating toward
access."
[Burnett, supra, 198 N.J. at 427 (quoting Doe
v. Poritz, 142 N.J. 1, 88 (1995)).]
III.
A.
Our fundamental analytic task is to attempt to construe and
harmonize these various provisions under the NJPRA, FERPA, OPRA,
and the associated regulations, particularly the detailed set of
student record access provisions set forth at N.J.A.C. 6A:32-7.1
to -7.8.
In undertaking this difficult task, we are guided by well-
established principles of statutory and regulatory interpretation.
Ultimately, "[a] court's responsibility 'is to give effect to the
intent of the Legislature.'" State v. Harper, 229 N.J. 228, 237 (2017) (quoting State v. Morrison,227 N.J. 295
, 308 (2016)). "To do so, we start with the plain language of the statute. If it clearly reveals the Legislature's intent, the inquiry is over."Ibid.
(citing DiProspero v. Penn,183 N.J. 477
, 492 (2005)). On the other hand, "[i]f a law is ambiguous, we may consider extrinsic sources including legislative history."Ibid.
(citing Parsons ex
33
A-3972-14T4
rel. Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 308 (2016)). "We also look to extrinsic aids if a literal reading of the law would lead to absurd results."Ibid.
(citing Burnett,supra,
198 N.J. at 425).
As is the case here, where a court is reviewing multiple, but
related, statutory provisions, "the goal is to harmonize the
statutes in light of their purposes." American Fire & Cas. Co.
v. N.J. Div. of Taxation, 189 N.J. 65, 79-80 (2006) (citations omitted); see also Town of Kearny v. Brandt,214 N.J. 76
, 98 (2013). Reviewing courts "presume that the Legislature was aware of its own enactments and did not intend to create intentional conflict between . . . statutory schemes without expressly overriding provisions." Headen v. Jersey City Bd. of Educ.,212 N.J. 437
, 449 (2012). Also, "[w]e must presume that every word in a statute has meaning and is not mere surplusage, and therefore we must give those words effect and not render them a nullity." In re Attorney General's "Directive on Exit Polling: Media & Non- Partisan Pub. Interest Grps.",200 N.J. 283
, 297-98 (2009)
(citations omitted).
These same principles apply when we interpret the meaning of
duly-adopted administrative regulations. Generally, a "strong
presumption of reasonableness must be accorded [to an] agency's
exercise of its statutorily delegated duties." In re Certificate
34
A-3972-14T4
of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997) (citations omitted). "We interpret a regulation in the same manner that we would interpret a statute." U.S. Bank, N.A. v. Hough,210 N.J. 187
, 199 (2012). The "paramount goal" is to determine the regulation drafter's intent.Ibid.
Ordinarily, that intent "is found in the actual language of the enactment."Ibid.
Courts are not to "rearrange the wording of the regulation, if it is otherwise unambiguous, or engage in conjecture that will subvert its plain meaning."Ibid.
(citations omitted). Even so, if a regulation's literal wording yields "more than one plausible interpretation," "a reviewing court may consider extrinsic sources[.]" In re Eastwick Coll. LPN-to-RN Bridge Program,225 N.J. 533
, 542 (2016).
As an appellate court, we review the trial courts' decisions
on statutory and regulatory legal issues de novo. See, e.g.,
Harper, supra, 229 N.J. at 237 (with reference to the meaning of
a statute); U.S. Bank, supra, 210 N.J. at 198-99(with reference to the meaning of a regulation). See also K.L. v. Evesham Twp. Bd. of Educ.,423 N.J. Super. 337
, 349 (App. Div. 2011) (applying de novo review in the specific context of legal issues concerning student records access), certif. denied,210 N.J. 108
(2012). "A
trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special
35
A-3972-14T4
deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995) (citations omitted). Indeed, according
total deference to the trial court would be impossible in the
context of these four consolidated appeals, which involve
conflicting and disparate interpretations of the law made by
different judges in different counties.
B.
As a starting point to our de novo legal analysis, we note
it is clear and essentially undisputed that the school records
sought here are within the scope of OPRA's broad definition of
"government record[s.]" N.J.S.A. 47:1A-1.1. They are not "higher
education" records exempted from OPRA under N.J.S.A. 47:1A-1.1.
Moreover, it is not disputed that the documents sought by
plaintiffs comprise "education records" under FERPA because they
contain "information directly related to a student" and are
maintained by the school districts. 20 U.S.C.A. § 1232g(a)(4)(A).
A more difficult related question is whether the documents
sought, if they are redacted to remove personally identifiable
information, still comprise "student records" governed by the
disclosure restrictions prescribed by the regulations in the New
Jersey Administrative Code. Absent their redaction, the
settlement agreements, access logs, and other documents being
sought by plaintiffs indisputably are "student record[s]" within
36
A-3972-14T4
the definition set forth in N.J.A.C. 6A:32-2.1, because they
contain "information related to an individual student gathered
within or outside the school district, . . . regardless of the
physical form in which it is maintained." Ibid. (emphasis added).
The provision stresses that "[e]ssential in this definition is the
idea that any information that is maintained for the purpose of
second-party review is considered a student record." Ibid.
(emphasis added). Hence, the regulation's definition is broad and
clearly aimed at promoting the substantial public policy to protect
student privacy, as articulated within the enabling statute. See
N.J.S.A. 18A:36-19.
The trial judge in the Cherry Hill case reasoned that
documents held by school districts are no longer "student records"
once personally identifiable information is removed from those
documents through redaction. We respectfully disagree.
The adjective "related," as used within the definition of a
student record in N.J.A.C. 6A:32-2.1 is a sweeping concept. The
primary dictionary definition published for the term "related" in
Webster's Dictionary is "connected" or "associated." See
Webster's II New College Dictionary 934 (1999 ed.). Other
definitions of the term "related" include "allied by nature [or]
origin," and "having [a] relationship to or with something else[.]"
The Random House College Dictionary 1113 (Revised ed. 1982),
37
A-3972-14T4
Black's Law Dictionary 1479 (10th ed. 2014). Similar broad
concepts are conveyed by the term "relevance" in our Rules of
Evidence, which treat "relevant" evidence as proof that has "any"
tendency to prove or disprove a fact of consequence. See N.J.R.E.
401.
We decline to read the term "related" in the Department of
Education's definition of a "student record" artificially or
narrowly, especially given the regulation's express statement that
a record's actual "physical form" does not matter. N.J.A.C. 6A:32-
2.1.
For example, a document reflecting a school district's
settlement of claims for special services by a hypothetical
disabled student, Mary Jones, remains a "student record," even if
her name and other personal identifiers are removed from the
settlement agreement. The record still "relates" to Mary Jones
and discusses aspects of her life. The document does not cease
becoming a "student record," or change its fundamental character,
even if, say, a redacting employee took an extra-wide marker to
mask the child's name, address, Social Security number, and other
demographic information, or replaced the actual names within it
with fictitious names. Jane Eyre surely was Charlotte Bronte's
novel even though it bore the pen name of "Currier Bell"; likewise
38
A-3972-14T4
the works of Samuel Clemens were no less his own despite being
issued under the pseudonym of "Mark Twain."
Given this premise, we then must consider the specific
limitations on access to student records expressed within N.J.A.C.
6A:32-7.1 through -7.8. We are mindful that those regulations,
at least as they existed in 1975, were accorded the positive
imprimatur of the Legislature, as explicitly stated in the Senate
Committee's 1976 Report. Senate Educ. Comm., Statement to S. 260
(Mar. 29, 1976). Moreover, as a matter of law, those duly-enacted
regulations are entitled to a presumption of validity, even if
they did not have the Senate's endorsement. See, e.g., N.J. State
League of Muns. v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (noting the presumption of validity afforded to regulations); In re Twp. of Warren,132 N.J. 1
, 26 (1993).
We do not read the language in N.J.A.C. 6A:32-7.5(g), which
cross-references OPRA and FERPA, to signify that those other two
statutes allow courts to disregard the access limitations within
our State's regulations concerning student records. Subsection
7.5(g) of N.J.A.C. 6A:32 merely states that, "[i]n complying with
[the Section 7.5 access provisions], individuals shall adhere to
requirements pursuant to . . . [OPRA and FERPA.]" Id. Yet, no
provisions within OPRA or FERPA explicitly "require" school
39
A-3972-14T4
districts to turn over records that are protected under state law.
Consequently, we must strive to harmonize those enactments.
The language within the NJPRA adopted by the Legislature in
1977 assures pupils, parents, and guardians the statutory right
of "reasonable privacy as against other persons[.]" N.J.S.A.
18A:36-19. The regulatory history reflects the deliberate
adoption of specific provisions restricting student records access
to a limited group of authorized persons or organizations. On the
whole, these provisions limiting access to only parties on the
authorized list serve to protect the privacy of students and
parents from intrusion by random third parties, except where there
is written parental consent or a court order requiring such
disclosure. These limitations on public access have remained a
key feature of the regulations, even in the wake of OPRA's
enactment and the replacement of Title 6, Chapter 3 of the
Administrative Code with Title 6A, Chapter 32.
The first historical mention of OPRA or FERPA in the NJPRA's
regulations occurred in 2005, when the Department of Education
added N.J.A.C. 6A:32-7.5(g), requiring districts to "adhere to"
OPRA and FERPA. Notably, N.J.A.C. 6A:32-7.5(g)'s plain language
does not expressly incorporate FERPA's provisions for the
redaction of PII into the NJPRA or its regulations. Moreover,
nothing in the NJPRA or its regulations states that sufficiently
40
A-3972-14T4
anonymized documents, with all PII removed, are no longer "student
records" under N.J.A.C. 6A:32-2.1.
Although the federal regulations, specifically 34 C.F.R. §
99.31(b), permit disclosure of redacted education records to third parties without parental consent when all PII is removed, FERPA does not mandate such disclosures. Nor does FERPA preclude individual states from adopting stricter privacy protections. See 20 U.S.C.A. § 1232g;34 C.F.R. § 99.31
(b), (d). See also James
Rapp, Education Law § 13.04[5] (Matthew Bender & Co. 2017) ("States
may impose additional or, perhaps, more restrictive requirements,
but they cannot preempt FERPA.").
Here in New Jersey, the 1977 amendments to the NJPRA reflected
the Legislature's heightened concern, post-FERPA, to safeguard the
reasonable privacy interests of parents and students against the
opposing interests of third parties who may seek access to their
student records. The limitations appearing in the NJPRA's
regulations were in place in their initial form even before OPRA
was enacted. The overall regulatory history shows that the
Department of Education has consistently administered the NJPRA
to allow public access to student records to only a finite group
of individuals and organizations, absent parental consent or a
court order, in the interest of maintaining the privacy and
confidentiality of those records.
41
A-3972-14T4
The language within N.J.A.C. 6A:32-7.5(g) added in 2005 does
not undermine that analysis. It is reasonable to conclude that
N.J.A.C. 6A:32-7.5(g) centrally concerns functionality – a
district's processing of student record requests from an
authorized person or organization. See K.L., supra, 423 N.J.
Super. at 350 ("In providing access to school records in accordance
with N.J.A.C. 6A:32-7.5, school districts must also comply with
the requirements of OPRA and FERPA, N.J.A.C. 6A:32-7.5(g)."). For
instance, if a school district receives an OPRA request from an
authorized person or organization listed under N.J.A.C. 6A:32-
7.5(e), then it must process that request in compliance with OPRA
and FERPA requirements. Nothing in the plain language of N.J.A.C.
6A:32-7.5(g), however, supersedes or nullifies the limitations of
"authorized" parties, as set forth at N.J.A.C. 6A:32-7.5(a) and
(e). Hence, we agree with the judge in the Hillsborough case that
a requestor cannot gain access to a student record unless the
requestor satisfies one of the "[a]uthorized" categories listed
in N.J.A.C. 6A:32-7.5(e)(1) through (16).
C.
The next analytical query we face is whether Innisfree and
L.R. may nonetheless be able to obtain the requested records by
relying on other portions of the State regulations. Two
possibilities exist in that regard.
42
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1.
First, it is at least conceivable that Innisfree might be
appropriately categorized under N.J.A.C. 6A:32-7.5(e)(16) as a
"[b]ona fide researcher" capable of justifying "the nature of
[its] research project and the relevance of the records sought."
Ibid. Such access to student records for research purposes must
be predicated on "strict conditions of anonymity and
confidentiality." Ibid.
Although the record in the four cases before us is sparse on
this subject and was not specifically adjudicated, at least one
dimension of Innisfree's activities as a non-profit organization
appears to involve gathering information about the services
provided to disabled students in various school districts. That
information, in turn, presumably will assist Innisfree in
conducting a comparative analysis of the level of services provided
to comparably-situated disabled students, both within a school
district and between districts. Such information could yield
trends or practices that could inform policy-making, academic
studies, grants, and other related endeavors. Although we
recognize that one of Innisfree's activities is participating in
or supporting litigation to vindicate the rights of disabled
students, we do not believe that facet per se eliminates its
arguable status as a bona fide research organization. Nor would
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it for the many other public interest groups and organizations
that both participate in litigation and disseminate public policy-
related research.
We discern offhand no sensible reason for the regulatory
scheme in N.J.A.C. 6A:32-7.5(e)(16) to permit access to records
by, say, university Ph.D. candidates, but not researchers employed
at think tanks and public interest advocacy organizations. The
potential incursion on individual student privacy interests in
either context would be the same, regardless of the identity of
the researcher requesting the records. That said, the trial court
record supplied in these appeals is inadequate to resolve this
issue concerning Innisfree's status conclusively.10 The subject
instead should be litigated on remand, with evidentiary hearings
if necessary. The court's status determination presumably would
provide general guidance for other pending records disputes
involving Innisfree.
10
Offhand, it is not readily apparent that L.R., as a parent of a
disabled student, is likely to hold the status of a "[b]ona fide
researcher." Even so, we do not foreclose L.R. from attempting
to make such a showing on remand. On a related point, we reverse
the trial court's erroneous decision in the Parsippany-Troy Hills
case to substitute Attorney Epstein for L.R. as the plaintiff.
L.R., as the parent of J.R., is clearly the "real party in
interest" seeking the records on her child's behalf. L.R.'s
attorney was simply acting as her representative when making the
records requests.
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2.
A second potential pathway for plaintiffs to gain access to
appropriately-redacted versions of the records may be under
N.J.A.C. 6A:32-7.5(e)(15), which confers such access rights upon
non-qualifying organizations and persons "upon the presentation
of a court order[.]" Unfortunately, N.J.S.A. 6A:32-7.5(e)(15)
does not specify what standards or procedures are to govern
requests to obtain such court orders. Presumably, the process
would be guided by the balancing of competing interests that courts
typically employ in resolving common-law access requests.
More specifically, if the records sought qualify as common-law
public records, then a court must conduct a two-step analysis to
determine whether a requestor is entitled to access. Educ. Law
Ctr., supra, 198 N.J. at 302 (citations omitted). First, the
court must determine whether the requestor has established "an
interest in the public record." Ibid. That interest may be "a
wholesome public interest or a legitimate private interest." Ibid.
Second, the court must determine whether the requestor has
demonstrated that its interest in the public records sought
"outweigh[s] the State's interest in non-disclosure." Id. at 303
(citations omitted).
With respect to the first prong of the common-law test, a
court may consider legitimate concerns, such as the expenditure
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of public funds, or citizen concerns about how public institutions
carry out decisions. See, e.g., Home News v. State, Dep't of
Health, 144 N.J. 446, 454 (1996) (observing that "a citizen's
concern about a public problem is a sufficient interest").
In analyzing the second step, courts typically apply and
weigh the factors identified by the Supreme Court in Loigman v.
Kimmelman, 102 N.J. 98, 113 (1986). See also Educ. Law Ctr.,
supra, 198 N.J. at 303. Those factors are:
(1) the extent to which disclosure will impede
agency functions by discouraging citizens from
providing information to the government; (2)
the effect disclosure may have upon persons
who have given such information, and whether
they did so in reliance that their identities
would not be disclosed; (3) the extent to
which agency self-evaluation, program
improvement, or other decisionmaking will be
chilled by disclosure; (4) the degree to which
the information sought includes factual data
as opposed to evaluative reports of
policymakers; (5) whether any findings of
public misconduct have been insufficiently
corrected by remedial measures instituted by
the investigative agency; and (6) whether any
agency disciplinary or investigatory
proceedings have arisen that may circumscribe
the individual's asserted need for the
materials.
[Loigman, supra, 102 N.J. at 113 (citations
omitted).]
"Generally, the public's interest in nondisclosure is based
on the need to keep the information confidential." Keddie v.
Rutgers, 148 N.J. 36, 51 (1997). To that end, courts may perform
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an in camera inspection of the requested records as they balance
the relevant factors. Id. at 53-54. See also K.L., supra, 423 N.J. Super. at 359-60 (holding that "whether the requestor should be granted access to the records [under common law] requires a case-by-case, and in fact, document-by-document balancing of the requestor's interest against the public agency's interest in confidentiality") (citations omitted). While conducting such an in camera inspection, courts are authorized to require the redaction of the records to maintain confidentiality. S. Jersey Publ'g Co. v. N.J. Expressway Auth.,124 N.J. 478
, 499 (1991).
In this context of the weighing of competing interests,
"administrative regulations bestowing confidentiality upon an
otherwise public document, although not dispositive of whether
there is a common law right to inspect a public record, should,
nevertheless, weigh 'very heavily' in the balancing process, as a
determination by the Executive Branch of the importance of
confidentiality." Bergen Cty. Improvement Auth. v. N. Jersey
Media Grp., Inc., 370 N.J. Super. 504, 521 (2004) (quoting Home News,supra,
144 N.J. at 455
) (citations omitted). In this regard,
the Legislature's declaration of public policy within the NJPRA
at N.J.S.A. 18A:36-19 to safeguard the "reasonable privacy" of
students, and their parents and guardians, must therefore be given
strong consideration.
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This leads us to underscore the vital importance of a careful
redaction process, and the functional benefits of allowing
parental input into that process. As Innisfree's counsel frankly
acknowledged at oral argument on appeal, the mere use of a
student's initials in redacting his or her records might not be
enough to protect that student's identity and privacy. Mere
initials would be insufficient protection in a smaller school
district in which there may be few or no other of children having
similar initials or similar disabilities. Indeed, the federal
regulations adopted under FERPA recognize that the use of initials
will be inadequate to mask a student's identity in many instances.
Under certain circumstances, even the redaction of all
personally identifiable information would not prevent reasonable
persons "in the school community" who lack personal knowledge of
the parties involved from identifying the student "with reasonable
certainty." 34 C.F.R. § 99.3(f) (2017). The federal scheme anticipates such a scenario at34 C.F.R. § 99.31
(b)(1), by
requiring the redacting party to reasonably determine, once all
PII is removed, "that a student's identity is not personally
identifiable, whether through single or multiple releases, and
taking into account other reasonably available information."
Instructively, student initials can be considered PII under
FERPA, in situations where:
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(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.
[34 C.F.R. § 99.3 (2017).]
When it amended the definition of PII in 2008, the United States
Department of Education offered the following explanation:
[R]ecords that identify a student by initials,
nicknames, or personal characteristics are
[PII] if, alone or combined with other
information, the initials are linked or
linkable to a specific student and would allow
a reasonable person in the school community
who does not have personal knowledge about the
situation to identify the student with
reasonable certainty. For example, if
teachers and other individuals in the school
community generally would not be able to
identify a specific student based on the
student's initials, nickname, or personal
characteristics contained in the record, then
the information is not considered personally
identifiable and may be released without
consent. Experience has shown, however, that
initials, nicknames, and personal
characteristics are often sufficiently unique
in a school community that a reasonable person
can identify the student from this kind of
information even without access to any
personal knowledge, such as a key that
specifically links the initials, nickname, or
personal characteristics to the student.
. . . .
[Under] Paragraph (f) . . . the agency or
institution must make a determination about
whether information is [PII] not with regard
to what someone with personal knowledge of the
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relevant circumstances would know, . . . but
with regard to what a reasonable person in the
school or its community would know, i.e.,
based on local publicity, communications, and
other ordinary conditions.
[73 Fed. Reg. 74806, 74831-32 (Dec. 9, 2008)
(emphasis added).]
Similar considerations should be applied here in dealing with
access requests for student records under our state's laws and
regulations. The review of such requests should be conducted on
a case-by-case basis, depending on the specific nature of the
request and particular kind(s) of records sought. Because none
of the trial courts in the present appeals addressed these common-
law balancing issues, we do not resolve them here.11 Instead, the
balancing of interests should be adjudicated in the first instance
in the trial court on remand.12
11
We recognize that L.R.'s verified complaints in the Parsippany-
Troy Hills and Camden City cases invoked OPRA, but do not contain
separate counts under the common law. However, as our opinion has
shown, a common-law balancing of interests is implicated here
under the "court order" pathway for access at N.J.A.C. 6A:32-
7.5(e)(15). In light of our clarification of the governing laws,
L.R. is free to amend her complaints on remand to include common-
law claims.
12
We discern no immediate necessity on remand for the defendant
school boards to provide a "Vaughn index," and defer that question
to the sound discretion of the trial court as the remand
proceedings develop.
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D.
As a key procedural facet of the redaction process, we hold
that school districts must afford parents and guardians a
reasonable opportunity to comment upon the proposed redactions of
records relating to their own child. A parent or guardian may
possess background and contextual information that could show how
his or her child might be readily identified within the community,
despite good faith efforts by school employees to perform effective
and thorough redactions of the child's records. Their voices
should be heard in the process.
In this regard, the three-day parental notice mandated in
N.J.A.C. 6A:32-7.6(a)(4) for situations where a court order for
disclosure is sought should be scrupulously observed.13 The three-
day period has been codified in the regulations since at least
1974, and clearly remains an important ingredient. See 6 N.J.R.
466 (Dec. 5, 1974) (reflecting the genesis of the notice
requirement in the earlier version of the regulation, N.J.A.C.
6:3-2.7(a)(4)).
Although the three-day parental notice period is not
mentioned within the other portions of the Title 6A regulations
13
We acknowledge the sensible exception in N.J.A.C. 6A:32-
7.6(a)(4)(i) exempting notice where the parent is a party to a
court proceeding involving child abuse or dependency matters. See
also 20 U.S.C.A. § 1232g(b)(2)(B).
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A-3972-14T4
where access may be provided to authorized requestors such as bona
fide researchers, we conclude that such notice should be supplied
in all situations. Doing so would carry out the objectives of the
NJPRA to achieve "reasonable privacy" and help avoid the
inadvertent disclosure of a child's identity.
To be sure, it is not our role in this appellate opinion to
micro-manage the precise manner in which the redaction process is
conducted. In particular, we do not resolve at this time whether
the substantial special services charge quoted by the Parsippany-
Troy Hills district of nearly six figures is reasonable and
justified. Instead, if any right of access is established, an
evidentiary hearing must be conducted on remand in the trial court
to develop the record further on that issue, and to enable that
court14 to make a more informed ruling.
E.
The GRC's administrative decision in Popkin, supra, is
partially but not fully consistent with our overall analysis. The
complainant in Popkin filed an OPRA request with a school board,
seeking records that would reveal the dollar amount that the school
district paid in public funds to settle a disabled student's claim
for services. The school board declined to turn over the requested
14
We recognize that the Morris County judge who approved the
special services charge is now retired.
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documents, deeming them confidential "student records" protected
under the NJPRA and its associated regulations. The school board
also asserted that disclosing a redacted version of the documents
containing only the settlement amount, but not the specifics of
the student's disability and the services the student needed,
could be misconstrued and hamper the board's ability to settle
future cases.
The GRC agreed with the school board's position in Popkin,
concluding that the requested documents were "student records"
within the definition of N.J.A.C. 6A:32-2.1, because the documents
"related to" an individual student and had been "gathered" and
"maintained" by the district. The GRC also held that the
complainant, who was apparently not the parent or guardian of the
student whose case had settled, was not an "authorized person"
listed in the subsections N.J.A.C. 6A:32-7.5(e)(1) through (16)
entitled to access the records. The GRC further pointed out that
OPRA expressly states that it "shall not abrogate any exception
of a public record or government record from public access . . .
pursuant to . . . [a] regulation promulgated under the authority
of any [other] statute." See N.J.S.A. 47:1A-9(a).
For the reasons we have already stated, we concur with the
GRC's reasoning in Popkin that copies of a school district's
settlement agreements with disabled students, even if redacted,
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nonetheless comprise "student record[s]" under N.J.A.C. 6A:32-2.1
and protected under the NJPRA. However, the GRC was not asked in
Popkin to consider, as here with respect to Innisfree, whether the
requestor was a bona fide researcher. Nor did the GRC address
whether the "court order" pathway under N.J.A.C. 6A:32-7.5(e)(15)
could make the document available to a requestor who chooses the
procedural option under OPRA of litigating a record request dispute
in the Superior Court rather than before the GRC, an administrative
tribunal. See N.J.S.A. 47:1A-7. Moreover, the GRC is confined
to the terms of the OPRA statute and has no jurisdiction over
common-law claims of a right of access. Ciesla v. N.J. Dep't of
Health & Senior Servs., 429 N.J. Super. 127, 146-48 (App. Div.
2012). Hence, those two discrete legal issues, which we are
remanding to the trial court, were not addressed in Popkin.
F.
We need not resolve at this time the outstanding issues of
counsel fees and costs. For one thing, plaintiffs' status as the
ultimate prevailing parties in the Cherry Hill, Hillsborough, and
Parsippany-Troy Hills cases has not been established. Moreover,
additional legal work will no doubt be performed by counsel on
remand. Consequently, it is premature to decide fee-shifting
issues on these appeals.
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We are satisfied, however, that a student or his or her
parent, guardian, or authorized legal representative is entitled,
subject to the child abuse and dependency caveats in N.J.A.C.
6A:32-7.6(a)(4)(i), to reasonable and prompt access to unredacted
copies of his or her own records and access logs, assuming they
do not incidentally mention or identify other students. In that
regard, we agree with the trial court in Camden City that attorney
Epstein sufficiently exhibited his status as L.R.'s representative
in seeking her child's records. The district's insistence that
Epstein sign its own self-created release form containing a
liability release was excessive and unreasonable.
We therefore affirm the Camden County judge's decision
relating to J.R.'s own records and access logs, consistent with
the terms of the NJPRA, OPRA, and FERPA. However, the balance of
the issues posed in that case, which concern efforts by L.R. to
obtain letters, memos, correspondence, emails, and other documents
that refer to J.R., but which conceivably could also refer to or
identify other students,15 must be reexamined on remand, in light
15
For instance, the school district files might contain a memo
that lists the special-needs children, including J.R., who take
the same designated bus to and from school or perhaps to an outside
activity. Or perhaps the district's records may include a
narrative of J.R.'s activities in the classroom on a particular
day and J.R.'s interactions with other named children. The
realistic possibility that personal identifying information about
such other students might be disclosed in the records, absent
meticulous redaction, requires close scrutiny on remand, with
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of the generic guidance we have provided in this opinion on
substantive issues and in interpreting the regulatory framework.
G.
As a parting subject, we encourage the New Jersey Department
of Education to consider formulating "best practices" guidance –
perhaps expanding or revising the existing regulations – to address
the myriad issues of implementation that have been presented by
these four cases. We rejected Innisfree's eleventh-hour
contention it raised on the eve of the scheduled appellate oral
argument that the Department was an indispensable party, and that
these appeals should have been re-calendared with a mandate for
the Department's (or Attorney General's) participation.16 Even so,
we presume the Department, which we were advised by Innisfree's
counsel had been supplied with courtesy notice of these appeals
and did not thereafter move to intervene or participate, will be
guided by this precedential opinion accordingly.
appropriate notice given to the parents or guardians of such other
children that may be mentioned in the records. In light of the
time and effort such redaction could entail, L.R. is free on remand
to withdraw or modify her outstanding requests in the Camden City
case.
16
We note that no pleading or brief in this case has challenged
the Department of Education's records access regulations as ultra
vires or otherwise invalid, an argument that would have required
service of a formal notice upon the Attorney General much earlier
in the litigation. See R. 4:28-4(a)(1); see also R. 2:5-1(h)
(requiring such notice to be served five days after the filing of
the notice of appeal).
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IV.
For these various reasons, the order compelling turnover in
Cherry Hill (A-3066-15) is vacated and remanded for further
proceedings, and the order denying turnover in Hillsborough (A-
4214-14) is affirmed in part, but without prejudice to Innisfree
establishing access rights on remand on the alternative grounds
that we have suggested under N.J.A.C. 6A:32-7.5(e)(15) or (16).
The order granting access to L.R. in Parsippany-Troy Hills (A-
4214-14) is also vacated and remanded for further proceedings,
including, if access is approved, an evidentiary hearing on the
projected reasonable costs of redaction.
The orders in Camden City (A-3972-14) are affirmed in part,
solely as to the release of J.R.'s own records, but that case is
remanded for further proceedings regarding access to records that
mention or could identify other students.
To achieve consistency, we direct that venue for all four
remanded cases be transferred to the Camden vicinage, where two
of these four cases originated. We realize that doing so may pose
some inconvenience to some of the litigants from the Somerset
County and Morris County cases. Nonetheless, consolidation of all
four "test" cases within the same vicinage before a single judge
will have the advantages of efficiency and uniformity.
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Lastly, because we readily appreciate that one or more parties
may pursue Supreme Court review of our decision, we stay this
opinion, sua sponte, for thirty days. If a petition for
certification or motion for leave to appeal is filed with the
Supreme Court by any party in any of these four cases before that
thirty-day period lapses, the automatic stay shall remain in force
until such time as the Supreme Court may otherwise direct. We
hope that preserving the status quo in such a manner, pending the
Court's anticipated review, will minimize disruption and avoid the
harmful consequences of any improvident interim disclosures.
All four appeals are consequently remanded, in accordance
with the terms of this opinion. We do not retain jurisdiction.
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