A Capehart Scatchard Blog

Appellate Division Remands Case on Disclosure of Student Records Under OPRA

By on October 17, 2017 in Open Public Records Act with 0 Comments

When is a student record, such as a settlement agreement involving a special education student or a request for an independent special education evaluation, subject to disclosure in response to a request under the Open Public Records Act (“OPRA”)? According to the Appellate Division’s published decision dated October 16, 2017 in L.R. v. Camden City Public School District, et al., the answer is that disclosure is permitted when the requestor is one of the sixteen (16) authorized organizations, agencies, or persons identified in regulations adopted by the New Jersey Department of Education to implement the New Jersey Pupil Records Act (“NJPRA”).

This decision involved litigation against four different school districts by OPRA requestors that sought various student records. The requestors sought copies of settlement agreements, requests for independent evaluations, and other documents related to special education students. The school districts denied the requests for various reasons, including that they are required to protect the privacy of the student whose personal information is contained within the documents.

Authorized persons and entities identified in  N.J.A.C. 6A: 32-7.5(e) include parents, students, certified educational personnel, clerical personnel, board of education, accrediting organizations, state and federal educational officials, child welfare caseworkers and bona fide researchers. Most of the categories do not apply to a typical OPRA requestor. The Court focused on two of the categories, namely, whether the plaintiffs were entitled to the records upon the presentation of a court order or on the basis of the plaintiffs being bona fide researchers. Ultimately, the Appellate Division remanded all four consolidated cases for development of a record on these issues.

Critical to the Court’s analysis are the following conclusions. The Court recognized the breadth of the definition of public records under OPRA and determined that the requested student records are public records. However, the Court concluded that the Legislature and Department of Education, by enactment of NJPRA and promulgation of implementing regulations, intended student records to carry confidentiality protections which are preserved under OPRA. According to the Court, redactions do not eliminate the status of the record as a student record entitled to those protections.

Remarkably, the Court remanded the cases to the trial court despite the fact that there appears to be nothing in the record indicating that at the time the OPRA requests were made to the school districts, the requestors presented a court order permitting disclosure of the records or that plaintiffs claimed to be bona fide researchers. Further, while recognizing that one of the plaintiffs is participating in or supporting litigation to vindicate the rights of disabled students, the Court concluded that it does not believe that facet per se eliminates that plaintiff’s arguable status as a bona fide research organization.

The Court suggested that the trial court should be “guided by the balancing of competing interests that courts typically employ in resolving common-law access requests.” The balancing test involves a two-step analysis to determine (1) whether the requestor has established a public interest in the record, and (2) whether the requestor has demonstrated that its interest in the public records sought outweighs the State’s interest in non-disclosure. The Court explained that the trial court may perform an in camera (closed) inspection of the requested records as it balances the relevant factors, and in the process may require redaction of the records to maintain confidentiality.

Of significance, the Court held that the three (3) day parental notice mandated in N.J.A.C. 6A:32-7.6(a)(4) should be followed in both the court order and bona fide researcher situations. This regulatory provision provides that prior to disclosure of student records to organizations, agencies or persons outside the school district pursuant to a court order, the school district shall give the parent or adult student at least three (3) days’ notice of the name of the requesting agency and the specific records requested unless otherwise judicially instructed. Referring to the privacy interest established under NJPRA, the Court explained, “This leads us to underscore the vital importance of a careful redaction process, and the functional benefits of allowing parental input into that process.”

It is likely that the Appellate Division’s decision will be appealed to the New Jersey Supreme Court given the holdings and the remand, and in particular, the process put in place for further court evaluation of the requestors’ status. In recognition of the appeal potential, the Appellate Division stayed its decision. In the interim, a school district receiving an OPRA request for similar student records should consult legal counsel.

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Robert Muccilli

About the Author

About the Author:

Robert A. Muccilli, Esq. is Co-Chair of Capehart Scatchard’s School Law Group and a Shareholder in the Labor and Employment Group. For over 25 years, he has focused his practice in the areas of school law, and labor and employment. He has represented school districts with respect to a variety of education law issues involving students, teachers, school construction and special education issues including questions pertaining to inclusion, least restrictive environment, discipline, behavior management, transition, evaluation, discrete trial instruction, medically fragile students, dyslexia, Down Syndrome, Aspergers Syndrome, and equal access to activities and services for disabled individuals. He has also been recognized as one of South Jersey’s Top Attorneys as published by SJ Magazine. Mr. Muccilli is admitted to practice law in New Jersey, the United States District Court for the District of New Jersey and Washington, DC.

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