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L.R. v. Camden City Public School District

Superior Court of New Jersey, Appellate Division

October 16, 2017

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,
CHERRY HILL BOARD OF EDUCATION and JAMES DEVEREAUX, Records Custodian, Defendants-Appellants.

          Argued September 18, 2017

         On 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).

          Walter 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).

          Joseph 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).

          Eric 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).

          John 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).

          Raina 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 the briefs).

          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.

          Krista 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).

          Iris 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).

          Before Judges Sabatino, Ostrer and Whipple.


          SABATINO, P.J.A.D.

         These four related appeals[1] 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.

         Plaintiffs' 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.

         Specifically, 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.

         The 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 those regulations.

         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 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.

         Finally, 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.

         For the 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).

         In 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.

         We also 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.


         All 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).

         Innisfree's Records Requests and Lawsuits

         In 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).

         According 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 district.

         Anticipating 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 to disclosure.
(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[.][2]

         Both 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 protected."

         Hillsborough, 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.

         In 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.

         The Trial Court's Ruling as to Cherry Hill

         On 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.

         The Trial Court's Ruling as to Hillsborough

         An 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.

         Innisfree 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.

         L.R.'s Requests for Records and Her Two Cases L.R.[3] 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.

         In May 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."[4] 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.]."

         The 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.

         Oberg 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.

         Epstein 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 JR.

         The Camden district, through Oberg, denied this request as well, citing confidentiality and overbreadth concerns.

         During 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:

         This 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 request.

         The district rejected Epstein's proposed waiver form as "vague" and noted that it did not contain a liability waiver.

         This 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.

         The Camden City Litigation

         In July 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.

         On October 20, 2014, the trial judge[5] 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 reconsideration.[6]

         L.R. 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.

         The 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 seeking:
(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 those requests[.]

         The 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[.]"

         Parsippany-Troy 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.

         In 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 ...

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