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L.R. v. Camden City Public School District

Supreme Court of New Jersey

July 17, 2019

L.R., individually and on behalf of J.R., a minor, Plaintiffs,
v.
Camden City Public School District and John C. Oberg in his official capacity as Interim School Business Administrator and Board Secretary, Defendants. L.R., individually and on behalf of J.R., a minor, Plaintiffs-Appellants,
v.
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-Respondents. The Innisfree Foundation, Plaintiff-Appellant,
v.
Hillsborough Township Board of Education and Aiman Mahmoud, Records Custodian, Defendants-Respondents. The Innisfree Foundation, Plaintiff-Appellant,
v.
Cherry Hill Board of Education and James Devereaux, Records Custodian, Defendants-Respondents.

          Argued January 28, 2019

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 452 N.J.Super. 56 (App. Div. 2017).

          John D. Rue argued the cause for appellant The Innisfree Foundation (John Rue & Associates, attorneys; John D. Rue and Krista L. Haley, of counsel and on the briefs).

          Jamie Epstein argued the cause for appellants L.R., individually and on behalf of J.R., a minor (Jamie Epstein and Law Offices of Walter M. Luers, attorneys; Jamie Epstein and Walter M. Luers, on the briefs).

          Vittorio S. LaPira argued the cause for respondents Hillsborough Township Board of Education and Aiman Mahmoud (Fogarty & Hara, attorneys; Vittorio S. LaPira of counsel and on the briefs, and Robert D. Lorfink on the briefs).

          Raina M. Pitts argued the cause for respondents Cherry Hill Board of Education and James Devereaux (Methfessel & Werbel, attorneys; Raina M. Pitts and Eric L. Harrison, of counsel and on the briefs).

          Eric L. Harrison argued the cause for respondents Parsippany-Troy Hills Township Public School District and David F. Corso (Methfessel & Werbel, attorneys; Eric L. Harrison, of counsel and on the briefs, and Raina M. Pitts, on the briefs).

          Donna Arons, Deputy Attorney General, argued the cause for amicus curiae New Jersey Department of Education (Gurbir S. Grewal, Attorney General, attorney; Melissa Schaffer, Assistant Attorney General, of counsel, and Donna Arons, on the brief).

          Cynthia J. Jahn argued the cause for amicus curiae New Jersey School Boards Association (New Jersey School Boards Association, attorneys; Cynthia J. Jahn, on the briefs).

          Jeanne LoCicero argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Jeanne LoCicero, Tess Borden, Alexander Shalom, and Edward Barocas, on the briefs).

          CJ Griffin submitted a brief on behalf of amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys).

          Catherine Merino Reisman submitted a brief on behalf of amici curiae Education Law Center and Council of Parent Attorneys and Advocates, Inc. (Reisman Carolla Gran, attorneys).

          Krista L. Haley submitted a brief on behalf of amici curiae New Jersey Foundation for Open Government, Brechner Center for Freedom of Information, and Student Press Law Center (John Rue & Associates, attorneys).

         These consolidated appeals arise from two actions brought by a parent of a public school student under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and two actions brought by a nonprofit foundation under OPRA and the common law right of access to government documents. Two cases were brought by L.R. against the Camden City Public School District and the Parsippany-Troy Hills Township Public School District, respectively. Two other cases were brought by the Innisfree Foundation (Innisfree) against the Cherry Hill Board of Education and the Hillsborough Township Board of Education, respectively. The four trial courts that considered the issues reached inconsistent decisions, and their judgments were appealed.

         The four matters were consolidated by the Appellate Division, which affirmed in part and reversed in part the trial courts' determinations, and remanded for further proceedings. 452 N.J.Super. 56, 96-97 (App. Div. 2017). The court concluded that the records sought in the four matters constituted "government records" under OPRA, N.J.S.A. 47:1A-1.1, and "education records" under the Federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g(a)(4)(A). Id. at 82-83. It ruled that the documents would comprise "student records" within the meaning of N.J.A.C. 6A:32-2.1, which are protected from disclosure under the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19, and its implementing regulations, even if redacted to eliminate personally identifiable information in accordance with FERPA. Id. at 83. Accordingly, the Appellate Division held that a requestor cannot gain access to a student record unless the requestor is within one of the categories of "authorized" individuals and entities identified in N.J.A.C. 6A:32-7.5(e)(1) through (16). Id. at 86-87. The Appellate Division suggested, however, that L.R. and Innisfree could seek access to the requested records by means of a court order, as N.J.A.C. 6A:32-7.5(e)(15) provides, and also held that either requestor might qualify as a "bona fide researcher[]" under N.J.A.C. 6A:32-7.5(e)(16). Id. at 87-89. It directed the trial court on remand to determine the applicability of those two potential regulatory pathways to access. Id. at 88, 91-92. To govern the trial court's inquiry as to whether to enter an order permitting access, the Appellate Division adopted the factors set forth in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). Id. at 89.

         L.R. and Innisfree filed petitions for certification, which the Court granted, limited to 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). 233 N.J. 222-23 (2018).

         HELD:

The six members of the Court who participated in this matter agree upon the non-exclusive factors identified in the concurring opinion that 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). An equally divided Court affirms the Appellate Division's determination 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 from that record of "personally identifiable information," as required by FERPA and its implementing regulations.
1. The Court considers the following non-exclusive factors, adopted both from Loigman and from Doe v. Poritz, 142 N.J. 1 (1995), to provide a workable framework for a court order for the production of student records under N.J.A.C. 6A:32-7.5(e)(15): (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 stresses that not all of the factors will apply in every case and that additional factors not identified in the Appellate Division's opinion or in this opinion may be relevant to a given case. (Patterson, J., concurring, at 41-44; Albin, J., dissenting, at 5, 17)
JUSTICE PATTERSON, CONCURRING, joined by JUSTICES LaVECCHIA and SOLOMON, expresses the view 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 in compliance with federal law. Justice Patterson notes that FERPA regulations envision that once "personally identifiable information" is redacted, and the educational institute reasonably determines that the record will not reveal the identity of the student at issue, the record may be publicly disclosed; however, the New Jersey Department of Education has not incorporated in a proposed rule the concept of personally identifiable information, or adopted a procedure whereby student records may be disclosed following the redaction of such information. Justice Patterson observes that the Department has acknowledged the need for greater clarity in the regulations that govern access to New Jersey public school student records and adds that the Court welcomes the Department's commitment to provide more detailed guidance.
JUSTICE ALBIN, DISSENTING IN PART, joined by CHIEF JUSTICE RABNER and JUSTICE TIMPONE, is of the view that the Department's interpretation of N.J.A.C. 6A:32-2.1 -- 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 -- in no way endangers the privacy rights of pupils but allows members of the public to gather information that will shed light on matters of significant public importance, such as student achievement test scores, district graduation rates, district violence and vandalism incidents, bullying and harassment reports, injury and safety records, the cost of lawsuits filed against school districts, and the effectiveness of school programs. Justice Albin notes that N.J.A.C. 6A:32-2.1 is not a model of clarity and lends itself to more than one reasonable interpretation; therefore, Justice Albin explains, because the Department's interpretation of that regulation is not "plainly unreasonable," it is entitled to substantial deference. Justice Albin respectfully dissents from the concurrence's rejection of the Department's reasoned interpretation of N.J.A.C. 6A:32-2.1, but agrees with the concurrence's multi-factor test for securing a court order for pupils' records pursuant to N.J.A.C. 6A:32-7.5(e)(15).

         The members of the Court being equally divided, the judgment of the Appellate Division is AFFIRMED.

          JUSTICES LaVECCHIA, PATTERSON, and SOLOMON concur in the judgment of the Court and join fully the concurring opinion filed by JUSTICE PATTERSON. JUSTICE ALBIN filed a partially dissenting opinion, in which CHIEF JUSTICE RABNER and JUSTICE TIMPONE join, agreeing with the concurrence's multi-factor test for securing a court order for pupils' records pursuant to N.J.A.C. 6A:32-7.5(e)(15), but dissenting as to the interpretation of N.J.A.C. 6A:32-2.1. JUSTICE FERNANDEZ-VINA did not participate.

          PER CURIAM

         The judgment of the Appellate Division is affirmed by an equally divided Court.

          JUSTICE PATTERSON, concurring.

         These consolidated appeals arise from two actions brought by a parent of a public school student under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and two actions brought by a nonprofit foundation under OPRA and the common law right of access to government documents. The requestors sought to compel disclosure of certain educational records maintained by the defendant public school districts. In each case, the school district declined to produce the requested records. The four trial courts that considered the issues reached inconsistent decisions, and their judgments were appealed.

         The Appellate Division consolidated the cases and determined that the disputed records constituted "student records" protected from disclosure under the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its implementing regulations. L.R. v. Camden City Pub. Sch. Dist., 452 N.J.Super. 56, 83-87 (App. Div. 2017). It held that pursuant to N.J.A.C. 6A:32-7.5(e), only authorized individuals and entities would be permitted access to such records. Id. at 86-87. The Appellate Division remanded the matters for a determination of whether the requestors could establish a right of access under two regulations that had not been considered by the trial courts, N.J.A.C. 6A:32-7.5(e)(15), which authorizes such access "upon the presentation of a court order," and N.J.A.C. 6A:32-7.5(e)(16), which grants "bona fide researchers" access to student records. Id. at 87-92. It also concluded that the common law right of access factors prescribed in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), prescribed the governing standard for the issuance of a court order. Id. at 89.

         We granted the requestors' petitions for certification, limited to 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).

         We concur 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 from that record of "personally identifiable information," as required by the Federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, and its implementing 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. 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.

         We conclude 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.

         Second, we identify non-exclusive factors to 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). Those factors are derived from Burnett v. County of Bergen, 198 N.J. 408, 427 (2009), in which we applied the standard of Doe v. Poritz, 142 N.J. 1 (1995) in the OPRA setting, and from Loigman, 102 N.J. at 113, in which we addressed the common law right of access to government records.

         The New Jersey Department of Education, which participated in these appeals as amicus curiae at our request, acknowledged the need for greater clarity in the regulations that govern access to New Jersey public school student records. We welcome the Department's commitment to provide students, parents, school districts, other educational agencies, and the public with more detailed guidance regarding the sensitive issues raised by these appeals.

         I.

         We begin by reviewing each of the four underlying suits and trial court decisions. Two cases were brought by L.R. against the Camden City Public School District (Camden) and the Parsippany-Troy Hills Township Public School District (Parsippany-Troy Hills), respectively. Two other cases were brought by the Innisfree Foundation (Innisfree) against the Cherry Hill Board of Education (Cherry Hill) and the Hillsborough Township Board of Education (Hillsborough), respectively. We then turn to the single Appellate Division decision in which the four cases were consolidated.

         A.

         1.

         Plaintiff L.R. is the mother of J.R. In 2014, when this litigation commenced, J.R. was a minor and attended a school operated by Camden.

         L.R., acting on J.R.'s behalf, served two records requests pursuant to OPRA on Camden's records custodian. In those requests, L.R. sought an access log identifying all individuals permitted to view J.R.'s school records. She also sought records, letters, and e-mails containing J.R.'s name from sources specified in her request.

         Camden produced redacted versions of the list of individuals with access and other documents but declined L.R.'s requests for several categories of student records on confidentiality grounds. It also responded that it was not in possession of certain requested categories of documents.

         L.R. filed a complaint and an Order to Show Cause in the Law Division against Camden, its records custodian, and the Department of Education, seeking access to the requested documents. The trial court granted L.R.'s application with respect to the access log, but held that FERPA, not OPRA, was the source of L.R.'s right to that log. It denied L.R.'s application with respect to the other categories of records sought. L.R. appealed.

         2.

         L.R. served a request for records pursuant to OPRA on Parsippany-Troy Hills to permit comparative analysis that would assist in a pending dispute between L.R. and Camden concerning J.R.'s educational needs. L.R. sought the following records:

1. All requests made on behalf of students for independent educational evaluations and all responses to those requests.
2. All requests made on behalf of students for independent evaluations and all responses to those requests[.]
([P]lease provide all records with personal identifiers of students and their parents or guardians redacted leaving only initials).

         Parsippany-Troy Hills denied the OPRA requests. It contended, among other assertions, that the records sought "would constitute [] pupil record[s] under N.J.A.C. 6A:32-1.1 et seq. and thus would be exempt from disclosure under OPRA."

         L.R. filed a complaint and an Order to Show Cause in the Law Division against Parsippany-Troy Hills and its records custodian. She asserted that OPRA entitled her to other parents' requests for independent educational evaluations of their children, and responses thereto, "with personal identifiers redacted from all documents and, with respect to names, redacting names and leaving only initials."

         The trial court ordered disclosure of the requested documents, redacted to remove personally identifiable information, including the initials of the students whose records would be disclosed.[1] The court reasoned that once redacted, the documents would no longer constitute educational records under FERPA, or student records within the meaning of the NJPRA. Applying the factors set forth in Doe, 142 N.J. at 88, the court ordered disclosure of the documents, redacted in accordance with FERPA to remove personally identifiable information. Based on the volume of the records requested and the anticipated cost of the redactions, the trial court imposed a special service charge of $96, 815 on the counsel who had requested the records. See N.J.S.A. 47:1A-5(c). It awarded attorneys' fees to L.R. and J.R. pursuant to N.J.S.A. 47:1A-6.

         Parsippany-Troy Hills appealed the trial court's determination, and L.R. cross-appealed to challenge the trial court's substitution of her counsel for her as the plaintiff, as well as the court's holding that students' initials should be redacted from the records prior to disclosure.

         3.

         Innisfree Foundation (Innisfree) states that it is a nonprofit organization that "assists families of children with disabilities who reside in New Jersey to advocate for their children's educational needs."

         Innisfree served OPRA requests on Cherry Hill, seeking the following records:

All settlement agreements executed in the past two years and related to disputes between Cherry Hill School 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).

         Innisfree requested that Cherry Hill redact any personally identifiable information related to an individual student before disclosing the records, and further that it provide an index of any requested records withheld as exempt from disclosure under OPRA.

         Citing a Government Records Council decision deeming settlement agreements to be "student records" exempt from disclosure under N.J.A.C. 6A:32-2.1, Cherry Hill denied Innisfree's request for the documents and the index of records withheld from disclosure.

         Innisfree filed a complaint and an Order to Show Cause in the Law Division, asserting claims under OPRA and the common law right of access against Cherry Hill and its records custodian. The trial court ordered Cherry Hill to produce the requested settlement agreements with appropriate redaction and serve an index of documents withheld. It also granted Innisfree's application for attorneys' fees. Cherry Hill appealed.

         4.

         Innisfree served on Hillsborough an OPRA request -- virtually identical to the request served on Cherry Hill -- for settlement agreements between Hillsborough and parents, related to the provision of special education services to students.

         Hillsborough denied Innisfree's OPRA request. It contended that even if the documents at issue were redacted, they would remain education records for purposes of FERPA and "student records" protected by N.J.A.C. 6A:32-2.1, because the records would still contain "information related to an individual student gathered within or outside the school district and maintained within the school district."

         Innisfree filed a complaint and an Order to Show Cause against Hillsborough and its records custodian in the Law Division, asserting claims based on OPRA and the common law right of access. The trial court denied Innisfree's application and dismissed its complaint. The court held that a document constituting a "student record" under N.J.A.C. 6A:32-2.1 does not lose its protected status under state regulations by virtue of FERPA-mandated redactions. Innisfree appealed.

         B.

         The four matters were consolidated by the Appellate Division, which granted amicus curiae status to the New Jersey School Boards Association (NJSBA) and the American Civil Liberties Union -- New Jersey (ACLU), as well as to Innisfree in the two cases to which it was not a party. L.R., 452 N.J.Super. at 71-72.

         The Appellate Division affirmed in part and reversed in part the trial courts' determinations, and remanded for further proceedings.[2] The court concluded that the records sought in the four matters constituted "government records" under OPRA, N.J.S.A. 47:1A-1.1, and "education records" under FERPA, 20 U.S.C. § 1232g(a)(4)(A). Id. at 82-83. It ruled that the documents would comprise "student records" within the meaning of N.J.A.C. 6A:32-2.1, even if redacted to eliminate personally identifiable information in accordance with FERPA. Id. at 83. The Appellate Division acknowledged that N.J.A.C. 6A:32-7.5(g) directs adherence to OPRA and FERPA, but it did not construe that provision to mean that either statute mandated disclosure of student records protected by N.J.A.C. 6A:32-2.1. Id. at 85. Accordingly, the Appellate Division held that a requestor cannot gain access to a student record, even if that record is redacted as FERPA mandates, unless the requestor is within one of the categories of "authorized" individuals and entities identified in N.J.A.C. 6A:32-7.5(e)(1) through (16). Id. at 86-87.

         The Appellate Division suggested, however, that L.R. and Innisfree could seek access to the requested records by means of a court order, as N.J.A.C. 6A:32-7.5(e)(15) provides, and also held that either requestor might qualify as a "bona fide researcher[]" under N.J.A.C. 6A:32-7.5(e)(16). Id. at 87-89. It directed the trial court on remand to determine the applicability of those two potential regulatory pathways to access. Id. at 88, 91-92.

         To govern the trial court's inquiry as to whether to enter an order permitting access, the Appellate Division adopted the factors set forth in Loigman, 102 N.J. at 113. Id. at 89. It required school districts to "afford parents and guardians a reasonable opportunity to comment upon the proposed redactions of records relating to their own child," and cautioned them to "scrupulously observe[]" the three-day parental notice mandated by N.J.A.C. 6A:32-7.6(a)(4) in that regard. Id. at 92.

         C.

         L.R. and Innisfree filed petitions for certification. We granted certification limited to the following issues:

(1) Whether the Appellate Division improperly broadened the definition of "student record" embodied in N.J.A.C. 6A:32-2.1 to extend beyond "information related to an individual student" to the entire document in which that information resides; and
(2) Whether the Appellate Division improperly ordered that the balancing of the privacy interests against the interest in disclosure be conducted under the common law right to access rather than the factors ...

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