A Capehart Scatchard Blog

School District Counsel Not Considered a Custodian Under OPRA

By: Angela Reading, Law Clerk.
Editor: Sanmathi (Sanu) Dev, Esq.

On June 21, 2022, the New Jersey Appellate Division in S.W. v. Elizabeth Board of Education confirmed in an unpublished opinion that a request made under the Open Public Records Act (“OPRA”) to an attorney for a public entity is invalid. The Appellate Division held that OPRA explicitly requires a request for access to a government record to be “to the appropriate custodian,” and counsel for a board of education is not a custodian within the meaning of OPRA under N.J.S.A. 47:1A-5(g).

This case arose from a special education due process petition brought by the parents on behalf of their son against the Elizabeth Board of Education (“Board”). The Administrative Law Judge (“ALJ”) in that case instructed the parties to stipulate as many documents as possible. The Board’s counsel provided 148 pages of documents, including the student’s grades, progress reports, attendance records, and special education records. The parents claimed that the documents were incomplete.

The parents did not seek to compel discovery before the ALJ for the alleged missing documents.  Instead, the attorney for the parents sent an OPRA request to the Board’s counsel. The Board denied any obligation to provide documents under OPRA because no valid OPRA request had been submitted to the Board’s records custodian, nor to an officer, employee, or office of the district. The parents then initiated a lawsuit in the Law Division of the Superior Court of New Jersey, claiming the Board’s failure to produce the additional documents was a denial of public records under N.J.S.A. 47:1A-5(i) and a violation of OPRA. The parents also claimed that the OPRA request to the Board’s counsel was appropriate because Rule of Professional Conduct 4.2, which prohibits direct communication with a client known to be represented by counsel, prohibited them from communicating directly with the district. After the trial judge ruled in favor of the Board, the parents appealed to the New Jersey Appellate Division

The Appellate Division affirmed the trial court’s decision and upheld the Board’s denial of records as consistent with OPRA’s clear requirement that such a request be submitted to the agency’s custodian. The Appellate Division rejected the claim that the Board’s counsel was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. The Court held that outside counsel representing the agency is not an “officer or employee” of the agency.

The Appellate Division also addressed whether RPC 4.2 prohibits a party that sued a public agency from submitting an OPRA request directly to the agency. The Court said it does not, emphasizing that the RPC exempts communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact to ensure “a citizen’s right of access to government decision-makers.”

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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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