L.R. ex rel. J.R. v. Cherry Hill Bd. of Educ.

• Decision Date: 29 September 2022
• Docket Number: DOCKET NO. A-1819-20
• Citation: 473 N.J.Super. 568,283 A.3d 780
• Parties: L.R., ON BEHALF OF J.R., Plaintiff-Appellant, v. CHERRY HILL BOARD OF EDUCATION and Custodian of Records, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

473 N.J.Super. 568

283 A.3d 780

L.R., ON BEHALF OF J.R., Plaintiff-Appellant,

v.CHERRY HILL BOARD OF EDUCATION and Custodian of Records, Defendants-Respondents.

DOCKET NO. A-1819-20

Superior Court of New Jersey, Appellate Division.

Submitted September 12, 2022

Decided September 29, 2022

Jamie Epstein, Collingswood, and Cohn Lifland Pearlman Herrmann & Knopf, LLP, attorneys for appellant (Jamie Epstein and Walter M. Luers on the brief).

Methfessel & Werbel, attorneys for respondent Cherry Hill Board of Education Custodian of Records (Eric Harrison, of counsel; Raina Marie Pitts, on the brief).

Before Judges Whipple, Mawla, and Smith.

The opinion of the court was delivered by

MAWLA, J.A.D.

Plaintiff L.R., individually and on behalf of her daughter J.R., appeals from a March 5, 2021 order denying her motion to: overturn a special master's order recommending dismissal of her complaint; remove her case from arbitration; and dismiss her complaint with prejudice. We affirm.

The facts were previously detailed in L.R. v. Camden City Public School District (L.R. I ), 452 N.J. Super. 56, 61-72, 171 A.3d 227 (App. Div. 2017). To summarize, plaintiff, the mother of a disabled student in the Camden County Public Schools, made an Open Public Records Act¹ (OPRA) request of defendant Cherry Hill Board of Education² and its records custodian for the following:

FROM 2006-2011 ALL SETTLEMENT AGREEMENTS FROM ALL LAWSUITS IN WHICH CHERRY HILL TOWNSHIP BOARD OF EDUCATION OR CHERRY HILL BOARD OF EDUCATION ARE NAMED AS A DEFENDANT AND A STUDENT AND/OR THEIR PARENT IS NAMED AS A PLAINTIFF .... PLEASE REDACT THE NAMES OF ANY STUDENTS AND THEIR PARENTS LEAVING ONLY THEIR INITIALS ....

Defendant provided the records sought, but redacted all parent and student information, including initials. Plaintiff sued, asserting defendant violated OPRA and improperly withheld information by redacting all personally identifiable information (PII). She moved for summary judgment. In opposition, defendant argued the documents requested were not public records, rather student records under the Family Educational Records and Privacy Act³ (FERPA) and the New Jersey Pupil Records Act⁴ (NJPRA), and plaintiff was not an authorized requester under N.J.A.C. 6A:32-7.5. In January 2015, the trial court granted defendant's cross-motion for summary judgment, finding the initials were exempt from disclosure under FERPA and the NJPRA.

Plaintiff appealed. The matter was stayed pending the resolution of L.R. I and L.R. v. Camden City Public School District (L.R. II ), 238 N.J. 547, 213 A.3d 912 (2019). In L.R. I, we "attempt[ed] to construe and harmonize ... various provisions under the NJPRA, FERPA, OPRA, and the associated regulations, particularly the detailed set of student record access provisions set forth in N.J.A.C. 6A:32-7.1 to - 7.8" to determine whether the plaintiffs in four related appeals could obtain copies of students' settlement agreements and records from school districts. 452 N.J. Super. at 61-62, 80, 171 A.3d 227.

We discussed the historical balance of access to education records and privacy interests in the NJPRA, OPRA's predecessor the Right to Know Law (RTKL), and FERPA. Id. at 72-77, 171 A.3d 227. L.R. I also addressed the then-current NJPRA regulations defining "student record" and a school districts' responsibility to regulate security and disclosure of student records. Id. at 77-78, 171 A.3d 227. We noted N.J.A.C. 6A:32-7.5(a), stated: "Only authorized organizations, agencies or persons, as defined in this section shall have access to student records" and the list of authorized organizations, agencies, and persons set forth in N.J.A.C. 6A:32-7.5(e). Id. at 78, 171 A.3d 227. The regulation similarly mandated compliance with OPRA and FERPA requirements. Ibid. Further, OPRA's privacy clause required protection of personal information " ‘when disclosure thereof would violate the citizen's reasonable expectation of privacy[.]’ " Id. at 80, 171 A.3d 227 (alteration in original) (quoting N.J.S.A. 47:1A-1 ).

We concluded the school records were within OPRA's definition of a "government record" and FERPA's definition of "education records." Id. at 82-83, 171 A.3d 227. However, student records remain such even when PII is removed. Id. at 83, 171 A.3d 227. Therefore, we held the information exempt from disclosure under OPRA. Ibid.

We noted the NJPRA provisions specifically limit access to student records "to only parties on the authorized list serve to protect the privacy of students and parents from intrusion by random third parties, except where there is written parental consent or a court order requiring such disclosure." Id. at 85, 171 A.3d 227. Noting the 2005 amendment to N.J.A.C. 6A:32-7.5(g), explicitly mandating districts adhere to OPRA or FERPA, we concluded the "regulatory history shows that the Department of Education [(DOE)] has consistently administered the NJPRA to allow public access to student records to only a finite group of individuals and organizations, absent parental consent or a court order, in the interest of maintaining the privacy and confidentiality of those records." Id. at 86, 171 A.3d 227. As such, in compliance with OPRA and FERPA, only persons fitting into the authorized categories listed in N.J.A.C. 6A:32-7.5(e)(1) through (16) can gain access to a student record. Id. at 86-87, 171 A.3d 227. L.R. I addressed two specific authorized categories, one of which was the court order pathway, N.J.A.C. 6A:32-7.5(e)(15). Id. at 88, 171 A.3d 227. While the statute does not describe the process to obtain records by court order, we held:

[I]f the records sought qualify as common-law public records, then a court must conduct a two-step analysis to determine whether a request ... is entitled to access. [ Educ. L. Ctr. v. N.J. Dep't of Educ., 198 N.J. 274, 284, 302, 966 A.2d 1054 (2009) ]. First, the court must determine whether the requestor has established "an interest in the public record." Ibid. That interest may be "a wholesome public interest or a legitimate private interest." Ibid. Second, the court must determine whether the requestor has demonstrated that its interest in the public records sought "outweigh[s] the State's interest in non-disclosure." Id. at 303, 966 A.2d 1054 (citations omitted).

[ L.R. I, Des Champs Laboratories, Inc. v. Martin, 427 N.J. Super. 84, 88-89, 47 A.3d 25 (2012) (third alteration in original).]

In analyzing the second step, we stated courts should consider the six factors identified in Loigman v. Kimmelman, 102 N.J. 98, 113, 505 A.2d 958 (1986). Id. at 89, 47 A.3d 25. This process would allow courts to perform an in-camera inspection of requested records in balancing the relevant factors. Ibid. Also, regulations mandating confidentiality on an otherwise public document should weigh heavily in the balancing process, and the safeguarding of a student's reasonable privacy should be given strong consideration. Id. at 90, 47 A.3d 25.

We noted the use of students' initials may not be enough to protect identity, and FERPA and federal schema requiring redaction do not allow a person to reasonably determine a party's identity once PII is redacted. Id. at 90-91, 47 A.3d 25 (citing 34 C.F.R. § 99.3(f) ; 34 C.F.R. § 99.31(b)(1) ). We remanded the issue for review on a case-by-case basis, "depending on the specific nature of the request and particular kind(s) of records sought." Id. at 91-92, 47 A.3d 25.

We concluded plaintiffs were entitled to "appropriately-redacted copies of the requested records, provided that on remand those plaintiffs ... obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15)." Id. at 63, 171 A.3d 227. Plaintiff's case against defendant was returned to the trial court for further proceedings regarding documents including J.R.'s, which refers to other students, but we affirmed the trial court's granting of access to records exclusively mentioning J.R. Ibid.

In L.R. II, an evenly divided Supreme Court affirmed our decision. 238 N.J. at 548, 213 A.3d 912. The Court confirmed a student record "retains its protected status under New Jersey law notwithstanding the school district's redaction from that record of ‘[PII],’ as required by [FERPA], and its implementing regulations." Id. at 550, 213 A.3d 912. The central issue was whether the documents sought were student records, and therefore exempt from OPRA disclosure, even if appropriately redacted. Id. at 560-61, 213 A.3d 912.

The Court concluded " 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 [PII] that might identify the student in compliance with federal law." Id. at 550, 213 A.3d 912. It identified non-exclusive factors where parties seek a court ordered disclosure under N.J.A.C. 6A:32-7.5(e)(15). Ibid.

Furthermore, the Court found the plain language of N.J.A.C. 6A:32-2.1 means a document need not include PII to be a student record, and a student record does not lose its protected status under state law because PII is redacted. Id. at 567-68, 571, 213 A.3d 912. The Court described the different types of documents sought in the appeals and how they could potentially reveal information related to a student, regardless of redactions. Id. at 568, 213 A.3d 912. Ultimately, the Court concluded N.J.A.C. 6A:32-7.5 did not "support the contention that a ‘student record’ loses that status if it is redacted to remove [PII]." Id. at 571, 213 A.3d 912.

As for the court order pathway, the Court rejected the factors listed in Doe v. Rutgers, State University of New Jersey, 466 N.J. Super. 14, 245 A.3d 261 (App. Div. 2021) and Loigman, and created new non-exclusive factors from both tests "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) [.]" Id. at 575, 213 A.3d 912. The Court called for clearer...