L.R. v. Camden City Pub. Sch. Dist.

• Decision Date: 16 October 2017
• Docket Number: DOCKET NO. A–3972–14T4,A–3066–15T4,A–4214–14T4,A–2387–15T4
• Citation: 171 A.3d 227,452 N.J.Super. 56
• Parties: L.R., individually and on behalf of J.R., a minor, Plaintiffs–Appellants, v. 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, 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–Appellants/ Cross–Respondents. The Innisfree Foundation, Plaintiff–Appellant, v. Hillsborough Township Board of Education and Aiman Mahmoud, Records Custodian, Defendants–Respondents. The Innisfree Foundation, Plaintiff–Respondent, v. Cherry Hill Board of Education and James Devereaux, Records Custodian, Defendants–Appellants.
• Court: New Jersey Superior Court — Appellate Division

452 N.J.Super. 56

171 A.3d 227

L.R., individually and on behalf of J.R., a minor, Plaintiffs–Appellants,

v.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,

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–Appellants/ Cross–Respondents.

The Innisfree Foundation, Plaintiff–Appellant,

v.Hillsborough Township Board of Education and Aiman Mahmoud, Records Custodian, Defendants–Respondents.

The Innisfree Foundation, Plaintiff–Respondent,

v.Cherry Hill Board of Education and James Devereaux, Records Custodian, Defendants–Appellants.

DOCKET NO. A–3972–14T4

A–4214–14T4

A–2387–15T4

A–3066–15T4

Superior Court of New Jersey, Appellate Division.

Argued September 18, 2017

Decided October 16, 2017

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–2387–15 (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 appeals¹ 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.

I.

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. Englewood 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...