On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-996-10.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2011
Before Judges Sabatino, Ashrafi and Fasciale.
The opinion of the court was delivered by ASHRAFI, J.A.D.
Plaintiff K.L., the father of a boy and a girl in elementary school, appeals from a final judgment dismissing his claim that defendant Evesham Township Board of Education violated the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, and his common law right of access to public records. He sought school records pertaining to alleged incidents of bullying against his children. Defendant Board of Education declined to provide any records except the children's own school files. It asserted that certain records in its possession are privileged and exempt from disclosure. After plaintiff filed this lawsuit, the Board released one redacted document to plaintiff that reported the disciplining of another student for violent conduct against plaintiff's son.
Although New Jersey's newly-enacted Anti-Bullying Bill of Rights Act ("the Anti-Bullying Act"), L. 2010, c. 122, N.J.S.A. 18A:37-13.1 to -32, did not take effect until after the events relevant to this appeal, we consider as part of our analysis whether that law would modify the school district's obligations with respect to the records in dispute. We also consider whether OPRA or the federal Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, was the statutory basis upon which the Board disclosed the single disciplinary document.
We affirm in part the Law Division's judgment dismissing plaintiff's complaint, and we reverse it in part. We remand to the Law Division to determine an appropriate award of attorney's fees and costs to plaintiff related to the document that defendant Board disclosed during this litigation.
On January 26, 2010, plaintiff submitted a written request to defendant Board of Education "for school records (Redacted or UnRedacted) pertaining to the safety and security of our children who attend the Evesham School District specifically Evans Elementary School." He sought "copies of school records of bullying/incidents involving my children . . . (where they have either been hit or threatened)" on four specific dates in December 2009 and January 2010.
Superintendent of Schools Patricia Lucas responded to plaintiff's request by letter dated February 1, 2010, attaching only a copy of the school district's "Harassment, Intimidation and Bullying Policy." The letter advised plaintiff that he was "always welcome" to review his own children's student records, see N.J.A.C. 6A:32-7.1(f), but he was "not entitled to review records of other students," see ibid.; 20 U.S.C. § 1232g(a)(1), or "records which are not 'government records' under OPRA."
After further correspondence did not change the parties' positions, plaintiff filed a verified complaint in the Law Division alleging violations of OPRA and the common law. He sought declaratory and injunctive relief and reimbursement of his attorney's fees. See N.J.S.A. 47:1A-6. The Board filed an answer, a brief, and certifications opposing plaintiff's cause of action.
A certification by the principal of the children's school, Lou Casanova, recited a history of disputes with plaintiff dating to March 2008. At that time, plaintiff's children made statements to school personnel that caused Casanova to make a referral to the Division of Youth and Family Services (DYFS). According to Casanova, the DYFS referral resulted in many adversarial communications and conferences with plaintiff over the next two years regarding his dissatisfaction with Casanova and other school personnel. Casanova was contacted by several political office holders and news organizations inquiring about alleged racial discrimination and other mistreatment of plaintiff's children. In addition, plaintiff demanded that his children be transferred to a different school and that the Board provide transportation, although the other school was a "walking" elementary school to which transportation was not available.
In its submissions opposing plaintiff's lawsuit, the Board identified two categories of records it possessed but believed need not be disclosed under OPRA or the common law. First, school personnel had made notes at the request of the Board's attorney concerning incidents involving plaintiff's children and contacts with plaintiff. The Board asserted that the notes were not subject to disclosure because the attorney-client privilege, the work product privilege, and the deliberative material exception from the definition of government records exempted them from disclosure. See N.J.S.A. 47:1A-1.1. Second, according to the Board, any records that pertain to other students are exempt from disclosure under federal and State privacy laws. See 20 U.S.C. § 1232g(a)(1)(A); N.J.A.C. 6A:32-7.1(f). The Board declared that no other records relating to plaintiff's children existed that fit the description in his request.
At a hearing on May 18, 2010, the trial court ordered the Board to determine whether it had any documents from the relevant dates that were included in the records of other students. If any such records existed, the Board was to notify the parents of any children mentioned in the records. The parents would then be given an opportunity to object to disclosure of the records to the court for in camera review.
Principal Casanova reviewed student records and identified one document, an "Elementary Disciplinary Referral Form," in another student's file relating to an incident that involved plaintiff's son. The Board notified the parent of the other student. The parent had no objection to disclosure of the record provided that her child's name was redacted from the document. In July 2010, the Board submitted the redacted document to the court for in camera review and, subsequently, provided the same document to plaintiff's counsel.
The disciplinary form does not mention plaintiff's son by name, and the name of the other student has been concealed. It refers to an incident on December 16, 2009, and states that "[Named student] placed his hands around a student's neck, punched him and kicked him. [Named student] admitted doing this." As a result, the named student was given an in-school suspension.
The Board also submitted to the court for in camera review eleven pages described as chronological notes of contacts of school personnel with plaintiff and his children on the four dates listed in plaintiff's request for records. The Board provided to plaintiff's attorney a privilege log describing the notes.
In another certification submitted to the court, Board attorney William Donio stated that he believed plaintiff might sue the Board and school personnel after plaintiff filed an administrative complaint against the school district with the United States Department of Education. At that time, which was about June 2008, Donio advised the Board and school personnel to maintain detailed chronological records of their contacts with plaintiff and his children.
After reviewing the notes, the trial court determined by written opinion that they were exempt from disclosure under OPRA and the common law because they were protected by the attorney-client and work product privileges. See N.J.S.A. 47:1A-1.1.
The court reached no findings or conclusions as to the deliberative material exception to OPRA disclosure requirements. See ibid. The court further determined that plaintiff had partially prevailed with respect to the one disciplinary referral document that the Board had disclosed after plaintiff filed this lawsuit, and therefore, plaintiff was entitled to his attorney's fees and costs related to that one document.
Plaintiff's attorney submitted an application for attorney's fees and costs. The Board then filed further opposition and argued that the disciplinary form was not released pursuant to OPRA but pursuant to FERPA, the federal statute governing confidentiality of student records. See 20 U.S.C. § 1232g. The Board argued that FERPA does not provide for shifting of attorney's fees to a prevailing litigant. Persuaded by the Board's new argument, the court rescinded its prior ruling and agreed that plaintiff was not entitled to attorney's fees and costs. By order dated December 3, 2010, the court dismissed plaintiff's complaint with prejudice.
After plaintiff filed a notice of appeal, the trial court issued a letter-opinion pursuant to Rule 2:5-1(b) expanding upon its earlier written opinions and comprehensively explaining its findings of fact and conclusions of law.
"The trial court's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review." O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 379 (App. Div. 2009); accord MAG Entm't, LLC v. Div. of Alc. Bev. Cont., 375 N.J. Super. 534, 543 (App. Div. 2005). We also conduct plenary review of the trial court's legal conclusion that a privilege exempts the requested records from disclosure, Paff v. Div. of Law, 412 N.J. Super. 140, 149 (App. Div.), certif. denied, 202 N.J. 45 (2010); Asbury Park Press v. Cnty. of Monmouth, 406 N.J. Super. 1, 6 (App. Div.), aff'd, 201 N.J. 5 (2010), as well as its determination that ...