L.R., individually and on behalf of J.R., a minor, Plaintiffs-Appellants,
CAMDEN CITY PUBLIC SCHOOL DISTRICT and JOHN C. OBERG in his official capacity as Interim School Business Administrator and Board Secretary, Defendants-Respondents. L.R., individually and on behalf of J.R., a minor, Plaintiffs-Respondents/ Cross-Appellants,
PARSIPPANY-TROY HILLS TOWNSHIP PUBLIC SCHOOL DISTRICT and DAVID F. CORSO in his official capacity as Records Custodian of the Parsippany-Troy Hills Township Public School District, Defendants-Appellants/ Cross-Respondents. THE INNISFREE FOUNDATION, Plaintiff-Appellant,
HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION and AIMAN MAHMOUD, Records Custodian, Defendants-Respondents. THE INNISFREE FOUNDATION, Plaintiff-Respondent,
CHERRY HILL BOARD OF EDUCATION and JAMES DEVEREAUX, Records Custodian, Defendants-Appellants.
September 18, 2017
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket Nos. L-2736-14 (A-3972-14), L-3104-14
(A-4214-14), L-1372-15 (A-2387-15), L-3902-15 (A-3066-15).
M. Luers argued the cause for L.R., individually and on
behalf of J.R., a minor, appellants in A-3972-14 and
respondents/ cross-appellants in A-4214-14 (Law Offices of
Walter M. Luers, LLC, attorney; Mr. Luers, of counsel and on
the briefs; Jamie Epstein, on the briefs).
D. Castellucci, Jr., argued the cause for Camden City Public
School District and John C. Oberg, respondents in A-3972-14
(Florio Perrucci Steinhardt & Fader, LLC, attorneys; Eric
M. Wieghaus, on the brief).
L. Harrison argued the cause for Parsippany-Troy Hills
Township Public School District and David F. Corso,
appellants/cross-respondents in A-4214-14 (Methfessel &
Werbel, PC, attorneys; Mr. Harrison, of counsel and on the
briefs; Kegan S. Andeskie, on the briefs; Emily H. Kornfeld,
on the brief).
D. Rue argued the cause for The Innisfree Foundation,
appellant in A-2387-15 and respondent in A-3066-15 (John Rue
& Associates, attorneys; Mr. Rue, of counsel and on the
briefs; Krista Lynn Haley, on the briefs).
Vittorio S. LaPira argued the cause for Hillsborough Township
Board of Education and Aiman Mahmoud, respondents in A-2 38
7-15 (Fogarty & Hara, attorneys; Mr. LaPira, of counsel
and on the brief; Robert D. Lorfink, on the brief).
M. Pitts argued the cause for Cherry Hill Board of Education
and James Devereaux, appellants in A-3066-15 (Methfessel
& Werbel, PC, attorneys; Ms. Pitts and Vivian Lekkas, on
Cynthia J. Jahn, General Counsel, argued the cause for amicus
curiae New Jersey School Boards Association in A-3972-14,
A-4214-14, A-2387-15, and A-3066-15.
Lynn Haley argued the cause for amicus curiae The Innisfree
Foundation in A-3972-14 and A-4214-14 (John Rue &
Associates, attorneys; Ms. Haley, on the briefs).
Bromberg argued the cause for amicus curiae American Civil
Liberties Union of New Jersey in A-4214-14 (American Civil
Liberties Union of New Jersey Foundation, attorneys; Ms.
Bromberg, Edward L. Barocas, Jeanne LoCicero, and Krista
Haley, on the brief).
Judges Sabatino, Ostrer and Whipple.
four related appeals concern efforts by plaintiffs (a nonprofit
advocacy organization for disabled students, and the mother
of a disabled student in the Camden City Public Schools) to
obtain from several school districts copies of settlement
agreements and records reflecting the provision of special
services to other qualified students. In each of these cases,
plaintiffs, with the assistance of counsel, requested copies
of the documents. The respective school districts resisted
disclosure, citing statutory and regulatory provisions that
generally safeguard the privacy of students in their records,
subject to certain specified exceptions and conditions.
requests raise several novel issues of access under the Open
Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -
13, the New Jersey Pupil Records Act ("NJPRA"),
N.J.S.A. 18A:36-19, and the Federal Family Educational Rights
and Privacy Act of 1974 ("FERPA"), 20 U.S.C.A.
§ 1232g. The requests also implicate administrative
regulations adopted under both the NJPRA and FERPA.
the four cases before us arise out of requests made to school
district officials in Cherry Hill (A-3066-15), Hillsborough
(A-2387-15), Parsippany-Troy Hills (A-4214-14), and Camden
City (A-3972-14). The lawsuits generated conflicting results
in the trial courts.
judge in the Hillsborough case concluded that the plaintiff
advocacy organization's request must be disallowed under
the regulations of the New Jersey Department of Education,
N.J.A.C. 6A: 32-7.1 to -7.8. That ruling was
consistent with a prior administrative decision of the
Government Records Council ("GRC") interpreting
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
disabled students' personally identifiable information
was redacted from them. Those two judges disagreed with the
GRC's legal interpretation of the state regulations in
that prior case. As a caveat, the judge in the
Parsippany-Troy Hills case upheld a special service charge of
$96, 815 calculated by the School Board to perform the review
and redaction process before the records were turned over.
in the fourth case, Camden City, the trial judge 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 child's own
records and access logs, but not other records.
reasons that follow, we hold that the respective plaintiffs
in the Hillsborough, Parsippany-Troy Hills, and Cherry Hill
cases are entitled to appropriately-redacted copies of the
requested records, provided that on remand those plaintiffs
either: (1) establish they have the status of "[b]ona
fide researcher[s ]" 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).
either event, the school districts shall not turn over the
redacted records until they first provide reasonable advance
notice to each affected student's parents or guardians.
The parents and guardians must be afforded the opportunity to
object and provide insight to the school district officials
about what may comprise or reveal personally identifying
information in their own child's records before the
redactions are finalized.
remand the Camden City case for further proceedings with
respect to documents naming plaintiff's child that also
could refer to other students, but affirm the trial
court's grant of access concerning records that
exclusively mention plaintiff's child.
four of the appeals before us involve the Innisfree
Foundation ("Innisfree"), either as a plaintiff or
as amicus curiae. As described in its briefs,
Innisfree is a non-profit organization that "assists
families of children with disabilities who reside in New
Jersey to advocate for their children's educational
needs." Innisfree asserts that its interest in access to
the school records it is requesting "arises out of its
concern for the special education programs of the children of
its constituents who are (or seek to be) classified as in
need of special education services under the Individuals with
Disabilities Education Act ("IDEA"), " 20
U.S.C.A. §§ 1400 to -1482. Innisfree has been
certified by the New Jersey Supreme Court as a "pro bono
entity" under Rule 1:21-11(b).
Records Requests and Lawsuits
August 2015, Innisfree submitted substantially identical
requests under OPRA to both the Cherry Hill and Hillsborough
school districts. Those requests sought:
All settlement agreements executed in the past two years and
related to disputes between [the district] and parents of
students related to the provision of special education
services, where the counterparties were parents (or a single
parent) of a child or children for whom special education
services were or are either provided or sought. (Personally
identifiable information may be redacted).
to Innisfree, it has presented similar OPRA requests to many
other school districts in this State. Its counsel represented
to us at oral argument that it plans eventually to submit
similar records requests to every New Jersey public school
that the school districts might want to redact the requested
records for student privacy reasons, Innisfree added the
following proviso to its requests:
(1) To the extent that any such records contain personally
identifiable information related to any individual student,
please redact that personally identifiable information prior
(2) To the extent that you assert that any requested records
are exempted from disclosure under OPRA, and also unavailable
under the common law right of access, please provide a
complete Vaugh[n] index[.]
the Cherry Hill and Hillsborough school districts denied
Innisfree's records requests. In Cherry Hill's
denial, it cited a GRC decision, Popkin v. Enqlewood
Board of Education, Complaint No. 2011-263 (Gov't
Records Council Dec. 18, 2012) (slip op. at 8). The GRC in
Popkin had exempted a special education settlement
agreement from OPRA disclosure in its entirety, upon finding
that the requestor was not authorized to obtain it under the
NJPRA. Cherry Hill also declined to produce a Vaughn index,
asserting that such indices are "something prepared by
order of a court on matters which are questionably
meanwhile, asserted that the requested documents were FERPA
"education records" protected from disclosure, 20
U.S.C.A. § 1232g, and "student records" under
N.J.A.C. 6A:32-2.1, a regulation promulgated in
connection with the NJPRA.
October 2015, Innisfree filed separate complaints in the Law
Division in Camden County against the Cherry Hill district
and its custodian of records, and in Somerset County against
the Hillsborough district and its own custodian of records.
The complaints each invoked a requestor's statutory
rights to government records under OPRA, as well as under the
common law. Cherry Hill and Hillsborough opposed the
complaints, arguing that their conduct in withholding the
documents was justified under the applicable laws and
regulations governing student records.
Trial Court's Ruling as to Cherry Hill
February 9, 2016, the trial court in Camden County ordered
the Cherry Hill district to produce the agreements "with
the appropriate redactions" and to prepare and serve a
Vaughn index. The judge rejected the district's reliance
on Popkin, concluding that such GRC opinions lack
precedential value and are non-binding on the court. The
judge also ruled that Innisfree was a prevailing party under
OPRA, granted its request for attorney's fees, and
declined to entertain its common-law right to access claim.
On March 16, 2016, the court entered final judgment in favor
of Innisfree and stayed the judgment pending appeal.
Trial Court's Ruling as to Hillsborough
opposite result was reached in the Hillsborough litigation.
On January 8, 2016, the trial court in Somerset County
dismissed Innisfree's complaint with prejudice. The judge
concluded that the NJPRA exempted the settlement agreements
from OPRA disclosure in their entirety, even if those
documents were redacted, because they were "student
records" as defined in the NJPRA's regulations. The
judge further noted in her oral opinion that Innisfree was
not authorized to gain access to student records under the
regulations contained in N.J.A.C. 6A:32-7.5. The
judge did not address FERPA, or Innisfree's common-law
right of access claim.
has appealed the trial court's ruling in the Hillsborough
case, and the school district has appealed the trial
court's ruling in the Cherry Hill case.
Requests for Records and Her Two Cases
is the parent of a minor child, J.R., who attends public
school in the Camden City school district. In May 2014, an
attorney named Jamie Epstein submitted an OPRA request to the
Camden City district, seeking the "FERPA access
log" for J.R.'s school records. A FERPA access log
is a document maintained by a school district, which lists
who has been given access to a particular student's
school records. Through Epstein, L.R. also sought letters and
emails sent to or received by Jonathan Ogbonna, a district
staff member, since March 2, 2012, containing J.R.'s name
"in the subject or body of the record." The request
also sought certain other records.
2014, the Camden district's interim administrator, John
C. Oberg, produced the access log for J.R., but redacted the
document "to protect confidential information of the
student and [J.R.'s] parents." Epstein replied
that the district's response was "improper because
no redactions should be made, since, as indicated, the
request is made on behalf of my client [J.R.]."
Camden school district's general counsel wrote to Epstein
and addressed the access log redaction issue. He maintained
that the district's actions were proper under state law,
asserting that Epstein had "not presented the requisite
written consent under N.J.A.C. 6A:32-7.5(e)(13),
authorizing the [d]istrict to produce J.R.'s student
record information" to him. In response, Epstein
"[w]ithout waiving any rights concerning [the
district's] improper denial, " emailed the
district's counsel a self-drafted authorization form
signed by L.R., which read:
I, [L.R.], as parent and legal guardian of [J.R.], I hereby
extend my 20 USCS § 1232g. Family Educational and
Privacy Act rights to my attorney, Jamie Epstein.
denied Epstein's request for the Ogbonna records, citing
various concerns about student confidentiality,
administrative burdens, and disruption. Oberg also noted that
Epstein had not provided written consent in a sufficient form
to divulge J.R.'s records.
then made a second request, seeking:
1. Letters, memos, correspondence and emails sent to or
received by Clara West, Case Manager, since 7/1/12 to present
which contain[s] the term [J.R.] aka JR. in the subject or
body of the record.
2. All educational/special educational records created,
received, kept or maintained by Clara West, Case Manager,
since 7/1/12 to present which contains the term [J.R.] aka
Camden district, through Oberg, denied this request as well,
citing confidentiality and overbreadth concerns.
the same time period, in May 2014, Epstein wrote to Ogbonna
directly and asked for "access [to J.R.'s] school
records; including, but not limited to, [J.R.'s] special
education, health, administrative, academic and disciplinary
records." Ogbonna replied that the district was not able
to grant such access to J.R.'s student records
"unless and until it receives written consent from
[J.R.'s] parent or legal guardian[.]" Ogbonna
enclosed an "Authorization and Consent to Release
Records" form, to be completed "before any records
are produced." The district's authorization form
included the following language:
consent and authorization is being made under State and
federal law requiring parental consent as a prerequisite to
obtaining student or health records. I hereby release the
Camden City [s]chool [d]istrict, and its employees and
agents, from any liability or responsibility in connection
with producing the aforesaid records in connection with this
district rejected Epstein's proposed waiver form as
"vague" and noted that it did not contain a
dispute initially came to a head in the Office of
Administrative Law, after Epstein filed an administrative
complaint with the New Jersey Department of Education against
the district, alleging violations of federal and state law
for withholding the requested documents. After both sides
moved for summary decision, an Administrative Law Judge
("ALJ") decided that the district was required to
provide J.R.'s own records to Epstein. Among other
things, the ALJ concluded that Epstein's waiver was
sufficient to reflect parental consent.
Camden City Litigation
2014, a different attorney representing L.R. filed an OPRA
complaint in the Law Division in Camden County against the
Camden City school district and Oberg. The complaint sought
an order requiring the district to produce an unredacted
access log for J.R.'s records, the Ogbonna documents, and
the West documents, along with attorneys' fees and costs.
October 20, 2014, the trial judge ordered the district to
produce the unredacted access log, but specifically noted
that access to the FERPA access log was not being granted
under the authority of OPRA. The judge denied L.R.'s
request for the Ogbonna and West documents. The judge denied
the Camden City district's ensuing motion for
has appealed the judge's decision, asserting that the
judge erred in ordering production of the unredacted access
log by relying upon FERPA rather than OPRA. She also contends
that the judge should have granted her access to the other
documents relating to J.R. maintained by Ogbonna and West.
The Camden City school district has not cross-appealed.
Parsippany-Troy Hills Case
Meanwhile, L.R. and J.R. pursued a separate records request
and litigation with the Parsippany-Troy Hills school district
in Morris County. In November 2014, Epstein, on behalf of
J.R., served an OPRA request upon Parsippany-Troy Hills
(1) All requests made on behalf of [disabled] students for
independent educational evaluations ["IEE"] and all
responses to those requests.
(2) All requests made on behalf of [disabled] students for
independent evaluations ["IE"] and all responses to
request sought such records for the period from July 1, 2012
to November 4, 2014, with "personal identifiers of
students and their parents or guardians" redacted,
"leaving only initials[.]"
Hills's records custodian denied the request as
overbroad. The custodian noted in part that the request would
require the district to perform "a wholesale search of
records" pertaining to its current students, along with
those who no longer attend, and that "OPRA does not
contemplate such [research]." The custodian also
asserted that the requested records were pupil records exempt
from OPRA disclosure.
December 2014, L.R., through the same attorney who had
represented her in the Camden City litigation, filed a
complaint in the Law Division in Morris County, alleging that
the Parsippany-Troy Hills district had violated OPRA by
failing to produce redacted documents responsive to her
request. The complaint sought an order requiring the district
to provide redacted documents, "leaving only
initials[.]" Parsippany-Troy Hills moved for summary
judgment, asserting that the records were confidential
student records exempt from OPRA disclosure under FERPA and
the NJPRA. In the ...