A Capehart Scatchard Blog

N.J. Supreme Court Rules on Student Records Issue – Part 1

Editor: Sanmathi (Sanu) Dev, Esq.

Under New Jersey law, student records are protected from public disclosure. “Student record” pursuant to N.J.A.C. 6A:32-2.1 means 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 maintained for the purpose of second-party review is considered a student record. Access to student records by second-parties are governed by several state and federal laws including the federal Family Educational Rights and Privacy Act (“FERPA”), the New Jersey Pupil Records Act (“NJPRA”), New Jersey Open Public Records Act (“OPRA”), and common law right to access public records.

On July 17, 2019, in a split decision, the New Jersey Supreme Court in L.R. v. Camden City Public School District issued an opinion affirming a New Jersey Appellate Division’s decision holding that a requestor cannot gain access to a student record under OPRA, even if a public school district redacts the record per FERPA mandates. This decision involved litigation against four different public school districts by OPRA requestors that sought various student records, such as copies of settlement agreements and records reflecting provision of special services. All four districts denied the OPRA requests as student records within the meaning of N.J.A.C. 6A:32-2.1 and, thus, exempt from disclosure under OPRA.

The Court invited the New Jersey Department of Education (“NJDOE”), which promulgated the New Jersey regulations under consideration, to appear amicus curiae. The NJDOE challenged the Appellate Division’s application of NJPRA and its implementing regulations on the grounds that the court had construed New Jersey regulations to shield more than federal law requires. At oral argument, the NJDOE stated that it viewed “information related to a student” to denote information identifiable to a particular student. Thus, the NJDOE interpreted N.J.A.C. 6A:32-2.1 to mean that a redacted record that cannot be linked to a pupil is not a student record and therefore can be disclosed pursuant to an OPRA request.

Writing the concurring opinion for the Court, Justice Anne Patterson rejected the NJDOE’s interpretation of “student record” and found that the protections under NJPRA extend further than those under FERPA. Justice Patterson indicated that the NJDOE has twice amended NJPRA and its implementing regulations since FERPA incorporated the redaction of personally identifiable information but has chosen not to incorporate the concept in a proposed rule or adopted procedure themselves.

In dissent, Justice Barry Albin reasoned that the NJDOE’s interpretation of N.J.A.C. 6A:32-2.1 in no way endangers the privacy rights of pupils but allows members of the public to gather information that will shed light on matters of significant public importance. Further, Justice Albin argued that the Court should defer to the NJDOE’s interpretation because the NJDOE promulgated the regulation within the sphere of its authority and that its interpretation of the regulation was not “plainly unreasonable.”

As this was a split decision, the Appellate Division’s ruling stands. Ultimately, both Justice Patterson and Justice Albin left it in the NJDOE’s hands to provide greater guidance on the subject of student record disclosure going forward.

In next week’s article, we will discuss the second part of the New Jersey Supreme Court’s decision in this case involving the circumstances under which a court may order the production of student records under N.J.A.C. 6A:32-7.5(e)(15).

Questions regarding this article may be sent to Publications@Capehart.com.


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