In L.R. v. Camden City Public School District,the Supreme Court of New Jersey addressed the extent to which school districts must provide information to requestors on settlement agreements with parents of special education students under the Open Public Records Act (OPRA) and the New Jersey Public Records Act (NJPRA). The six participating justices split 3-3. Thus, the Appellate Division’s decision was affirmed by an equally divided court. Accordingly, a document containing information relating to an individual student, even if that document has been stripped of personally identifiable information, is not subject to release, absent a court order.
Facts of L.R. v. Camden City Public School District
The litigation arose from several consolidated lawsuits filed by a parent of New Jersey students and the Innisfree Foundation. In the cases, the plaintiffs sought copies of documents, including settlement agreements and records of the provision of special services to qualified students. The school districts, Cherry Hill, Hillsborough, Parsippany-Troy Hills, and Camden City, refused to disclose the requested records. In support, they relied on statutory and regulatory provisions designed to protect the privacy of student records.
Although the federal regulations permit disclosure of redacted education records to third parties without parental consent, when all personally identifiable information is removed, the Family Educational Rights and Privacy Act of 1974(FERPA) does not preclude individual states from adopting stricter privacy protections. At the same time, the NJPRA requires local boards of education to safeguard the reasonable privacy interests of parents and students against the opposing interests of third parties who may seek access to student records.
The cases resulted in divergent rulings in the trial courts. The judge in the Hillsborough case held that the plaintiff advocacy organization’s request must be declined under the regulations of the New Jersey Department of Education (DOE), N.J.A.C. 6A:32-7.1 to -7.8. 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 students’ personally identifiable information was redacted from them. Finally, the trial judge in the Camden City case 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 access logs, but not other records.
The Appellate Division held that that the disputed records constituted “student records” protected from disclosure under the NJPRA. It further held that the plaintiffs could be entitled to redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of a “[b]ona fide researcher” 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). On appeal, the New Jersey Supreme Court agreed to consider two issues: the Appellate Division’s construction of the term “student record” under N.J.A.C. 6A:32-2.1, and the standard to be applied when a requestor seeks a “court order” pursuant to N.J.A.C. 6A:32-7.5(e)(15).
Three members of the New Jersey Supreme Court agreed with the Appellate Division that a “student record” under N.J.A.C. 6A:32-2.1 retains its protected status under New Jersey law notwithstanding the school district’s redaction of “personally identifiable information,” as required by FERPA and its regulations. “Although New Jersey school districts are required to comply with FERPA and its regulations, no New Jersey statute or regulation authorizes the disclosure of student records after redaction of personally identifiable information or provides that school districts satisfy New Jersey’s privacy mandate if they adhere to federal law,” Justice Anne Patterson wrote in an opinion joined by Justices Jaynee LaVecchia and Lee Solomon. “To the contrary, the text and history of New Jersey’s student record privacy regulations suggest that those regulations are intended to be distinct from — and stricter than — those imposed by FERPA and federal regulations.”
In reaching its decision, the concurring court members specificallyconcluded that, as currently drafted, N.J.A.C. 6A:32-2.1 includes in the definition of a “student record” a document containing information relating to an individual student, even if that document has been stripped of personally identifiable information that might identify the student in compliance with federal law. “The Commissioner of Education has issued no rule, or even informal guidance, providing that the redaction of personally identifiable information from a student record is sufficient to satisfy the NJPRA’s student privacy goals,” Justice Patterson wrote. “To date, the Department of Education simply has not taken the regulatory steps necessary to provide that a ‘student record’ … loses its privacy protection if a school district redacts the document.”
The New Jersey Supreme Court went on to identify non-exclusive factors that should govern a court’s determination when a requestor, not otherwise authorized by statute or regulation to have access to a given student record, seeks a court order mandating disclosure of that record pursuant to N.J.A.C. 6A:32-7.5(e)(15). They include: (1) the type of student record requested; (2) the information that the student record contains; (3) the potential for harm in any subsequent nonconsensual disclosure of the student record; (4) the injury from disclosure to the relationship between the educational agency and the student and his or her parents or guardians; (5) the extent to which disclosure will impede the educational agency’s functions by discouraging candid disclosure of information regarding students; (6) the effect disclosure may have upon persons who have provided such information; (7) the extent to which agency self-evaluation, program improvement, or other determinations will be chilled by disclosure; (8) the adequacy of safeguards to prevent unauthorized disclosure; (9) the degree of need for access to the student records; and (10) whether there is an express statutory or regulatory mandate, articulated public policy, or other recognized public interest militating toward access. The court emphasized that not all of the factors will apply in every case and that “additional factors” not identified by the court may be relevant to a given case.
Justice Barry Albin authored a dissenting opinion, which was joined by Chief Justice Stuart Rabner and Justice Walter Timpone. The dissenters argued that the court should defer to the DOE’s reasonable interpretation 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.
“The views expressed by the DOE at oral argument are in accord with its position that once a student record has been properly redacted, it is no longer a student record under its regulation,” Justice Albin wrote. “This Court should defer to the DOE’s reasonable interpretation of the NJPRA because of its ‘experience and specialized knowledge’ in the area of public education and because policy decisions concerning the proper balance between protecting the privacy interests of student records and making school districts accountable to the public fall within its purview.”
All of the justices agreed that the New Jersey Legislature should intervene. “This protracted litigation illustrates an urgent need for greater clarity in the law governing public access to educational records,” Justice Patterson wrote. “New Jersey’s current NJPRA regulations state general principles, but provide scant guidance to both requestors seeking access under OPRA and the common law.”
For more information about the New Jersey Supreme Court’s decision in L.R. v. Camden City Public School District or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.