On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1170-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
Plaintiff L.R. appeals from an April 15, 2011 order of the Law Division denying her motion for summary judgment and dismissing with prejudice her complaint compelling defendant Camden Board of Education (Board) to provide access to requested records and pay attorney's fees under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We affirm.
By way of background, plaintiff is the mother of J.R., a first-grade special needs child. She and the Board were involved in a contested Special Education matter before the Office of Administrative Law (OAL). In connection with that administrative proceeding, on December 24, 2010, plaintiff sought discovery by serving the Board with a notice in lieu of subpoena seeking "[a]ll documents (whether electronic or paper) and objects in your, your attorney's, agent's, employees' or students' possession which make reference to [L.R. or J.R.] and/or which you may rely upon at time of trial." After having received no response by the January 7, 2011 date fixed in the notice, on February 5, 2011, plaintiff sought sanctions from the administrative law judge (ALJ) and on February 10, 2011, sent another copy of the notice in lieu of subpoena to the Board.
In response to a March 7, 2011 order of the ALJ to turn over discovery by March 9, 2011, the Board disclosed forty-six pages of material, including an official report, Individual Education Plan (IEP) progress report and other school records, which, upon review, plaintiff advised via letter dated March 8 to the ALJ, that defendant's response was "severely deficient an[d] unacceptable." She maintained that the Board remained non-compliant with her discovery demand and in violation of the ALJ's March 7, 2011 order.
The administrative proceeding began on March 14, 2011, and at that time the A.L.J. ordered defendant to furnish all withheld discovery. On March 18, 2011, the Board disclosed additional documents. On that same day, the Board filed a certification of its Director of Special Services, representing that a diligent search had been conducted and discovery was complete, though there might be some additional documents referencing J.R. tangentially but it would be "unduly burdensome" to locate them.
The trial resumed on March 30, 2011 and one of J.R.'s teachers testified that there were some index cards that the teacher had used addressing her goals and objectives for J.R. The A.L.J. ordered these items to be produced and on April 3, 2011, the Board disclosed the index cards to plaintiff, though they were illegible. When the trial continued on April 5, 2011, the A.L.J. ordered that legible copies be produced along with additional documents that the teacher revealed on cross-examination were at her private home. On April 7, 2011, defendant produced these documents, consisting of J.R.'s reading logs, homework notebook, his books, skill cards, and individual instruction data.
While her discovery request was still pending before the ALJ, on February 14, 2011, plaintiff, on behalf of her child J.R., filed an OPRA request with the Board, requesting in almost the identical language of the notice in lieu of subpoena "[a]ll documents (whether electronic or paper) and objects in your, your attorney's, agent's, employees' or students' possession which make reference to L.R. and/or J.R." In correspondence dated four days later - February 18, 2011, the Board's School Business Administrator denied plaintiff's request because it was "overly broad and improper." The Administrator added that plaintiff was also not entitled to the records pursuant to the Family Education Rights and Privacy Act (FERPA), 20 U.S.C.A. 1231g, and New Jersey administrative regulation, N.J.A.C. 6A:32-7.5, without written consent of the parent, adult student or presentation of a court order.*fn1 He also noted that "some of the records are in the [B]oard's attorney's possession, and may be protected by attorney-client privilege and not subject to release under OPRA."
Consequently, on March 4, 2011, plaintiff filed a verified complaint and motion for summary judgment in the Law Division, seeking a declaration that the Board violated OPRA and an order requiring defendant to produce the documents requested and to pay attorney's fees and costs as authorized by N.J.S.A. 47:1A-6. On April 7, 2011, the Board filed its answer demanding judgment in its favor dismissing plaintiff's complaint with prejudice and awarding the Board costs of the suit and reasonable attorney's fees.
Following argument on April 15, 2011, Judge Orlando denied plaintiff's summary judgment motion and dismissed her complaint with prejudice, finding plaintiff's OPRA request impermissibly overbroad. The judge reasoned:
First of all it asks for all documents in your, your attorneys, agents, employees and student possession which make reference to either the student or the parent. Clearly the request for all documents in a student's possession is grossly overbroad.
Secondly, there is under OPRA a general recognition that the attorney/client privilege applies and . . . that's an exception and not a government record, [N.J.S.A.] 47:1A-1.1. It says "A government record shall not include -- and it says any record within the attorney[-]client privilege." Now it does not include invoices or bills. However, this was such a blanket request that it would presumably include not only ...