C.E. v. Elizabeth Pub. Sch. Dist.
| Decision Date | 18 May 2022 |
| Docket Number | DOCKET NO. A-0173-20 |
| Citation | 472 N.J.Super. 253,276 A.3d 662 |
| Parties | C.E. and B.E., individually and on behalf of K.E., Plaintiffs-Respondents, v. ELIZABETH PUBLIC SCHOOL DISTRICT and Harold E. Kennedy, Jr. in his official capacity as School Business Administrator/Board Secretary of the Elizabeth Public School District, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
Robert F. Varady, Union, argued the cause for appellants (La Corte, Bundy, Varady & Kinsella, attorneys; Robert F. Varady, of counsel and on the briefs; Christina M. DiPalo, on the briefs).
Jamie Epstein, Collingswood, argued the cause for respondents (Jamie Epstein and Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Walter M. Luers and Jamie Epstein, on the brief).
Before Judges Haas,1 Mawla, and Mitterhoff.
The opinion of the court was delivered by
MAWLA, J.A.D.
Defendants Elizabeth Public School District and Harold E. Kennedy, the district's business administrator and school board secretary, appeal from an August 28, 2020 order entered pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, in favor of plaintiffs C.E. and B.E. and on behalf of their child K.E. We affirm.
This litigation began in April 2015 when plaintiffs filed a complaint and order to show cause to enforce their OPRA request, seeking the following information:
Defendants denied the first request, alleging the documents were exempt from disclosure as confidential student records under N.J.A.C. 6A:32-7.5, and denied the second request, asserting it was "vague and does not seek identifiable government records." They produced redacted invoices and purchase orders and two board resolutions of special education settlements, redacting identities, in response to the third and fourth requests.
Plaintiffs' complaint was dismissed without prejudice for reasons unrelated to this appeal. They filed a second amended verified complaint containing one count alleging an OPRA violation and seeking a judgment ordering defendants to provide responses to the first and second requests and "unredacted copies of the requested invoices and vouchers" relating to the third request. The complaint also sought attorney's fees.
Defendants moved for a stay arguing we were considering an appeal that would bear on the outcome of this case. That appeal was L.R. v. Camden City Public School District (L.R. I ), 452 N.J. Super. 56, 171 A.3d 227 (App. Div. 2017).
On December 18, 2015, the trial judge entered an order requiring defendants produce: "(1) all settlement agreements entered into by the [b]oard in ... OAL EDS docketed cases from January 1, 2013 to April 2, 2015; and (2) any final decisions incorporating or pertaining to those settlement agreements." He ordered defendants to redact the names and addresses of parents in the relevant records, and dismissed, with prejudice, plaintiffs' request for unredacted invoices and vouchers. The judge found plaintiffs were entitled to attorney's fees as a partially prevailing party for services rendered after August 7, 2015, and permitted defendants to file opposition to the fee request. He denied, without prejudice, defendants' request for a special service charge and stayed the order pending defendants' appeal.
Defendants appealed and we subsequently dismissed it in March 2016. L.R. I was decided in October 2017 and in April 2018, the Supreme Court granted certification, which further stayed this case. In July 2019, an evenly divided Supreme Court decided L.R. v. Camden City Public School District (L.R. II ), 238 N.J. 547, 213 A.3d 912 (2019) and remanded the matter to the trial court.
This case was consolidated with others and heard in the Camden Vicinage action, along with the L.R. II remand. In December 2019, the Camden Vicinage judge granted plaintiffs' request to sever this matter and return it to the Union Vicinage because plaintiffs were not asserting common law claims and only pursuing their OPRA claim. After a round of motion practice, the trial judge concluded additional hearings were necessary to determine the special service charge, attorney's fees, and other remaining issues.
On May 22, 2020, the judge issued a tentative decision, finding "plaintiffs have made a narrow request limited to only those cases ... actually docketed in the [OAL] then settled, and those settlements then being incorporated into a termination of the formal OAL litigation." He noted the request was not adjudicated in either L.R. decision, and plaintiffs relied on 34 C.F.R. § 300.513(d)(2), a federal regulation, which "appears to mandatorily make such documents public records" and preempts state law on the subject. He found that pursuant to precedent, once a document is filed in court as a settlement, there is no longer an expectation of privacy. Citing Keddie v. Rutgers, 148 N.J. 36, 689 A.2d 702 (1997), he stated: "[T]he fact that the records may be available from the OAL does not relieve the public office from providing the record under OPRA." He requested defendants estimate the number of cases fitting plaintiffs' narrow criteria.
Defendants' response argued the judge erred because he relied on the dissent in L.R. II, and the case was not binding precedent because it was decided by an evenly divided Supreme Court. Defendants asserted our holding in L.R. I controlled, and the settlement agreements entered in the OAL are confidential student records. They argued the judge improperly applied the preemption doctrine in concluding 34 C.F.R. § 300.513(d)(2) mandated release of the documents.
Plaintiffs claimed defendants had not met their burden to establish the documents were lawfully withheld because defendants estimated there were less than five settlements since 2016, despite claiming a search would be unduly burdensome. Further, because defendants failed to address Keddie and L.R. I's so-called "court order" pathway, N.J.A.C. 6A:32-7.5(e)(15), requiring production of documents, their argument was waived, and they were required to disclose the documents. They claimed the judge's reliance on L.R. II was appropriate because the New Jersey Department of Education (NJDOE) participated as amicus and took the position that de-identified student records are subject to public access under FERPA3 or OPRA.
At a June 12, 2020 hearing, the trial judge reiterated his tentative decision that L.R. I did not apply because it did not address cases adjudicated before the OAL. He noted the NJDOE's position in L.R. II and that it did not participate in L.R. I and concluded:
The judge concluded the records were public records subject to OPRA and must be produced.
On June 15, 2020, plaintiffs filed an OPRA request with the OAL seeking: "Each case activity sheet or docket sheet that shows an entry of activity in cases in which Elizabeth [BOE] ... is a party between [January 1, 2013] and [April 2, 2015]." The OAL identified twenty special education cases for the relevant time period and provided a caption of the case, a docket number, and a notation of the matter's disposition. Eleven of these cases were marked "FS-Final Decision/Settlement-EDS," indicating the case was settled and the settlement approved by the OAL.4
The judge held a hearing on August 10, 2020, to address defendants' special service charge. Defendants asserted they would incur the charge by parsing through 2,800 special education students' records. The judge denied the request, concluding "it would not be that difficult to find this limited number of cases that had actually been presented to the [OAL]."
A final hearing was held on August 28, 2020, to address plaintiffs' attorney's fee request. After analyzing the RPC 1.5 factors, the judge granted plaintiffs $78,646 in attorney's fees. He entered an order the same day denying defendants' OPRA service charge and ordering defendants to provide plaintiffs with "copies of all decisions with settlements, with non-exempt portions redacted, entered into by the [b]oard in the [OAL] EDS cases dated between [January 1, 2013 and April 2, 2015.]" The judge stayed the order on September 25, 2020, pending this appeal.
Defendants raise the following points on appeal:
We address these arguments in turn.
We review a trial court's interpretation of OPRA de novo. O'Boyle v. Borough of Longport, 426 N.J. Super. 1, 8, 42 A.3d 910 (App. Div. 2012). "Findings of fact, however, are reviewed deferentially." Ibid. (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J....
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