NJ Top Court Rules Student Records Not Covered by Open Access

Colleen O'Dea | July 18, 2019 | Education
In split decision, court upholds appellate ruling, shuts the door on all requests for confidential records, even those that have been redacted

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NJ Supreme Court
In a case with potentially broad implications for both public schools and public access to student records, the state Supreme Court on Wednesday ruled that those records are confidential and not subject to disclosure, even if redacted, under New Jersey’s public records law.

Still, in limited instances and under a separate state law governing student records, people may be able to access redacted documents. But the ruling will likely impact those specifically seeking information about special education services.

The case before the court came out of requests by the mother of a Camden student with disabilities for her child’s records and those of other students with special needs. A nonprofit organization that advocates for families with disabled students also requested records.

The high court’s split decision upholds an appellate ruling that consolidated those cases and restricted access to student records.

It was an unusual decision: Three justices agreed with the Appellate Division’s ruling restricting access to the records; three others wanted to allow public access to redacted records. The seventh, Justice, Faustino Fernandez-Vina, recused himself. When the high court deadlocks, the ruling being considered stands.

No precedent established?

Attorneys differed on the impact of the decision. Public records advocates bemoaned it as a blow to New Jersey’s Open Public Records Act and to government transparency (including school districts). Attorneys who supported the ruling said people with a legitimate reason to get the records will still be able to do so, but school districts will not have to pay potentially high legal fees blocking those who sue them under OPRA. While the decision stands for current cases, one lawyer said that since a majority of the justices did not agree to it, it will not serve as a precedent for future cases.

“Today’s decision is disappointing for those of us who believe that the people have a right to monitor their government and that transparency is important to preventing corruption, misconduct, and waste,” said C.J. Griffin, a lawyer specializing in public records access who submitted a friend-of-the-court brief on behalf of Libertarians for Transparent Government.

“We are gratified that the Supreme Court eliminated the Hobson’s choice previously facing school districts between protecting student confidentiality and avoiding costly litigation under the Open Public Records Act,” said Raina Pitts, who represented Cherry Hill, one of the districts that was a party to the case.

The case before the court involved the requests by the mother of a Camden student with disabilities for records relating to her child and from Parsippany for all requests for independent evaluations of students with special needs. She hoped that the latter would help with her dispute with Camden over her child’s education. It also included requests by the Innisfree Foundation, a nonprofit that helps families of children with disabilities advocate for their needs that sought records related to disputes over special education in Cherry Hill and Hillsborough. Trial courts had made conflicting rulings over whether the records — once redacted — were public and should be provided.

Redaction offers no exception

In 2017, an appeals court panel held that even if they were redacted to eliminate all personal information in accordance with federal law, the records could not be released under the stricter New Jersey Pupil Records Act (NJPRA). The only exceptions would be if the parent or nonprofit got a court order to have the records released or could demonstrate they were “bona fide researchers” who would agree to keep the information strictly confidential.

The court’s two more conservative justices and a swing justice agreed with the opinion written by Justice Anne Patterson that concurred with the appellate ruling. In that opinion, Patterson said that state education officials have twice amended regulations governing student records since the U.S. Department of Education allowed for redactions a decade ago but never included a provision to allow for redacted records to be made public in New Jersey.

“The Commissioner of Education has issued no rule, or even informal guidance, providing that the redaction of personally identifiable information from a student record is sufficient to satisfy the NJPRA’s student privacy goals,” Patterson wrote. “To date, the Department of Education simply has not taken the regulatory steps necessary to provide that a ‘student record’ … loses its privacy protection if a school district redacts the document.”

The dissenting opinion, written by Justice Barry Albin and joined by Chief Justice Stuart Rabner and Justice Walter Timpone, argued that the State Board of Education had intended to adopt the federal rules on redactions and noted that the DOE urged the court to allow public access to redacted documents.

“The views expressed by the DOE at oral argument are in accord with its position that once a student record has been properly redacted, it is no longer a student
record under its regulation,” and therefore no longer private, Albin wrote. “This Court should defer to the DOE’s reasonable interpretation of the NJPRA because of its ‘experience and specialized knowledge’ in the area of public education and because policy decisions concerning the proper balance between protecting the privacy interests of student records and making school districts accountable to the public fall within its purview.”

Both opinions invited the state to adopt regulations. Patterson wrote, “This protracted litigation illustrates an urgent need for greater clarity in the law governing public access to educational records. New Jersey’s current NJPRA regulations state general principles, but provide scant guidance to both requestors seeking access under OPRA and the common law.”

A spokesman for the DOE referred a request for comment to the attorney general’s office, which represents state departments in legal matters. That department did not return a request for comment.

‘Terrible for access’

Walter Luers, a prominent public records attorney who represented the parent seeking records from Camden and Parsippany, called the ruling “terrible for access.” He said it will prevent the public from seeing a host of documents that would help monitor the actions of school officials.

“This analysis extends not only to internal documents such as IEPs (special education plans for students) or educational evaluations, but extends to the types of records that have long been viewed as public, such as settlement agreements, lawsuit papers, attorney invoices, and private school agreements,” he said. “The case closes the door to broad swathes of records that ought to be public, and now we can only hope that the Department of Education or the New Jersey Legislature issues regulations or changes the law to allow access to even basic documents, such as invoices, contracts, and settlement agreements.”

Others did not agree. Cynthia Jahn, general counsel to the New Jersey School Boards Association, which was also an amicus curiae in the case, said individuals who are truly doing research or meet one of the other 15 exceptions allowed by the NJPRA will still be able to access redacted records.

“NJSBA reads the NJ Pupil Records Act as more restrictive than FERPA (the federal law),” she said. “NJSBA’s interest was to settle the law, consistent with the plain language of the NJPRA.”

Savings for school districts

Jahn and others were pleased that the decision may make it less expensive for school districts to oppose requests for student records. By requesting documents through the NJPRA, and not OPRA, an individual who uses an attorney will not be able to collect attorney’s fees, which he can receive under OPRA if he wins his case.

“The Supreme Court confirmed that third parties seeking access to student records without parental consent can seek a court order, and unanimously agreed upon the framework that judges should use when determining whether they should issue such an order,” said Vittorio S. LaPira, who represented Hillsborough. “That process gives parents advance notice of the disclosure … as well as ensuring the protection of students’ privacy through appropriate redactions. As a result, since the right to access such records flows from the common law, and not OPRA, public school districts will not have to worry about a court order that awards prevailing-party attorney’s fees to third-party requestors, which has an impact on those districts’ budgets.”

But John Rue, who represented Innisfree, said districts are spending a lot more money on special education services and it is in the interest of parents and taxpayers to be able to see how that money is being spent, which is at the core of OPRA.

“Tens of millions of dollars in public funds are expended on special education services,” he said in an email. “Without any government transparency about the services being provided, the system is ripe for corruption (for example, giving more or better services to politically connected parents) and inequity (providing better or different services to parents with the means to fight lawsuits). Only transparency in these agreements will put the appropriate check on the natural tendencies of local school officials to treat similarly situated families differently, based on factors that shouldn’t be relevant to educational decisions.”

Rue added that the ruling hurts the ability of families of students with disabilities from advocating from the strongest position for these children.

“The interests of third-party parents remain very strong, even though the redacted records cannot be attached to specific children or their families,” he said. Public school districts often tell parents that they don’t send students to a particular private school that a parent might believe to be most appropriate for his child or that the district doesn’t provide such services as at-home behavioral therapy for autism, which can be very expensive. “Innisfree believes that parents should have a right to know if they’re hearing the truth. And if they’re not … the question arises about why that parent is being treated differently from other parents.”

He said that Innisfree is involved in a number of other similar pending cases that had been stayed, awaiting the outcome of this one. But because of the lack of a majority opinion, “the non-precedential decision provides no such guidance.”

This case is headed back to a trial court to determine whether Innisfree and possibly the parent, if deciding to continue, are bona fide researchers entitled to the documents. The judge will have the 10-factor test that all justices did agree on to use as guidance on that question. Future cases may have to wait for another court ruling or new DOE regulations.

Both Jahn and LaPira would like to see the latter.

“Then the public will get the opportunity to comment” as part of the rule-making process, Jahn said. “It’s very important that parents and the public are able to comment.”