Citizens for Better Ed. v. Board of Ed. of City of Camden

• Decision Date: 12 July 1973
• Citation: 124 N.J.Super. 523,308 A.2d 35
• Parties: CITIZENS FOR BETTER EDUCATION et al., Petitioners-Appellants, v. BOARD OF EDUCATION OF the CITY OF CAMDEN and Dr. Charles Smerlin, Superintendent of Schools, Camden County, Respondents-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 523

124 N.J.Super. 523

308 A.2d 35

CITIZENS FOR BETTER EDUCATION et al., Petitioners-Appellants, v. BOARD OF EDUCATION OF the CITY OF CAMDEN and Dr. Charles

Smerlin, Superintendent of Schools, Camden County,

Respondents-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued June 4, 1973.

Decided July 12, 1973.

Robert D. Pitt, for petitioners-appellants (Carl S. Bisgaier, Director, Camden Regional Legal Services, Inc., Camden, attorney).

Raymond Kassekert, Pennsauken, for respondents-respondents (Leonard A. Spector, Camden, attorney).

George F. Kugler, Jr., Atty. Gen., filed a statement in lieu of brief on behalf of New Jersey State Board of Education (Lewis M. Popper, Deputy Atty. Gen., of counsel).

Before Judges CARTON, MINTZ and SEIDMAN.

The opinion of the court was delivered by

SEIDMAN, J.A.D.

This is an appeal by petitioners pursuant to R. 2:2--3(a)(2) from an affirmance by the New Jersey State Board of Education of an adverse decision of the Commissioner of Education.

The principal question is whether petitioners have a statutory or common law right to require respondent school board to disclose the results of standardized achievement tests on a school-by-school and grade-by-grade basis. They do not seek access to the records of individual pupils.

Citizens for Better Education is an unincorporated association which describes itself as 'an informal group of citizens, parents, and professional people who take an active interest in education in general and in the schools of the City of Camden, in particular.' The individual petitioners are residents of Camden, most of whom are parents of children enrolled in the school system. They had requested the local board of education to make public the results of standardized achievement tests administered in the public schools of the city. Specifically, they sought the median reading level scores by school and grade for the years 1968 to 1970 and also, on an annual basis, the test results in a form which gave the mean or median for each grade in each school and the national norm for each grade. It is not disputed that reports of the test results in the form sought are in respondents' possession. The board furnished test results by grade but regionally by groups of schools. It has refused to give the data by grade and by school as requested.

Petitioners then sought an order from the Commissioner of Education requiring the local board and its superintendent to disclose the information in the form sought by petitioners. Testimony and documentary evidence were presented at a hearing conducted June 1, 1971, by a hearing officer appointed by the Commissioner. On December 20, 1971 the Commissioner issued a decision adverse to petitioners. On appeal to the State Board of Education the decision was affirmed. This appeal followed.

The Commissioner characterized the testimony presented as 'consist(ing) almost entirely of expressions of differing points of view of educational philosophy and both personal and professional judgment, regarding the role of the public schools with respect to community interest generally, and certain specific concerns of a diverse group of citizens.' He saw the issue as turning on the discretionary exercise of power by the school board. He reasoned that '(s)ince local boards of education are not required by law to administer comprehensive achievement tests of basic skills, the test-results data sought by petitioners do not constitute a public record'; consequently, petitioners' right to the test results was not protected by the so-called Right-to-Know Law, N.J.S.A. 47:1A--1 et seq. He said, further, that the board's decision to publish the data by region was an exercise of its discretionary authority which the Commissioner would not disturb in the absence of a showing that it was arbitrary or unreasonable.

We disagree with the conclusions of the Commissioners.

If the test results are available in the form desired by petitioners, as they seem to be the question to be resolved is whether they are public records. If they are, petitioners would have a statutory right to inspect them. The Right-to-Know Law, N.J.S.A. 47:1A--2, declares that every citizen of this State, during regular business hours, shall have the right to inspect and copy or purchase copies of public records. No showing of any personal or particular interest in the material is required. Irval Realty v. Bd. of Pub. Util. Comm'rs, 61 N.J. 366, 372--373, 294 A.2d 425 (1972). There is also a common law right to inspect such records. In the Irval Realty case the court said:

At common law a citizen had an enforceable right to require custodians of public records to make them available for reasonable inspection and examination. It was, however, necessary that the citizen be able to show an interest in the subject matter of the material he sought to scrutinize. Such interest need not have been purely personal. As one citizen or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records bearing upon the problem, even though his individual interest may have been slight. Ferry v. Williams, 41 N.J.L. 332 (Sup.Ct.1879); Taxpayers Association v. City of Cape May, 2 N.J.Super. 27, 64 A.2d 453 (App.Div.1949); Moore v. Board of Chosen Freeholders of Mercer County, 76 N.J.Super. 396, 184 A.2d 748 (App.Div.1962), mod. 39 N.J. 26, 186 A.2d 676 (1962). Yet some showing of interest was required. (at 372, 294 A.2d at 428)

The Commissioner's conclusion that since local boards are not required to administer...