The New Jersey Supreme Court recently decided four consolidated matters regarding the disclosure of documents that include student information pursuant to the Open Public Records Act (“OPRA”) requests. The first two matters were filed by a parent on behalf of her minor son, J.R., seeking copies of J.R.’s student records as well as the records of other students who were similarly situated academically to her son. L.R., individually and on behalf of J.R., a minor v. Camden City Public School District and John C. Oberg, BA/BS and L.R., individually and on behalf of J.R., a minor v. Parsippany-Troy Hills Township and David Corso, Records Custodian. The other two matters were filed by a non-profit organization, The Innisfree Foundation, and sought the disclosure of settlement agreements reached in special education matters. The Innisfree Foundation v. Hillsborough Township Board of Education and Aiman Mahmoud, Records Custodian and The Innisfree Foundation v. Cherry Hill Board of Education and James Devereaux, Records Custodian.
At the Appellate level, the court held that the records sought in all four matters were considered “government records” subject to OPRA as well as “education records” under the federal Family Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C. §1232g(a)(4)(A). The Appellate Division also determined that the documents in question were “student records” protected from disclosure by the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19, even after the personally identifying information was redacted from the documents.
The New Jersey statute takes a more restrictive approach to protecting student records than FERPA, as it considers the act of redaction. N.J.A.C. 6A:32-2.1 defines a “student record” as “a document containing information relating to an individual student, even if that document has been stripped of personally identifiable information that might identify the student in compliance with federal law.” The Appellate Division concluded that despite the redaction of the requested records pursuant to federal FERPA mandates, the records nonetheless constituted “student records” exempt from disclosure under the New Jersey Pupil Records Act.
The Appellate Division held that there were two possible avenues available to plaintiffs in the pending cases to obtain the requested documents: 1) If plaintiffs obtained a court order authorizing the disclosure of the records; and 2) If plaintiffs fit within one of the exceptions carved out of the New Jersey Pupil Records Act. Neither plaintiff qualified for any of the enumerated exceptions.
Upon review of the Appellate determination, the Supreme Court limited its review to two specific issues: 1) The Appellate Division’s working definition of the term “student record” under N.J.A.C. 6A:32-2.1; and 2) The appropriate standard to be applied when a requestor of documents seeks a court order pursuant to N.J.A.C. 6A:32-7.5(e)(15).
With respect to the first issue, the Justices could not reach a majority decision and as a result, the Appellate Division ruling was affirmed and plaintiffs did not obtain access to the requested documents.
Regarding the second issue, the Justices engaged in a more generalized review of the need to balance the privacy interests of the students against the public interest in disclosure of the records. The Court assessed whether the balancing should be evaluated according to the common-law right of access to government records or the factors set out in Doe v. Poritz, 142 N.J. 1 (1995). Although plaintiffs in this case did not seek court orders, but the Court nonetheless found it imperative to issue guidance in this realm
The Supreme Court held that neither the common law factors nor the Doe factors completely resolved the question, and instead set out its own factors. The Court determined that the following factors should be considered, but not to the exclusion of any other relevant considerations: (1) the type of student record requested; (2) the information that the student record contains; (3) the potential for harm in any subsequent nonconsensual disclosure of the student record; (4) the injury from disclosure to the relationship between the educational agency and the student and his or her parents or guardians; (5) the extent to which disclosure will impede the educational agency’s functions by discouraging candid disclosure of information regarding students; (6) the effect disclosure may have upon persons who have provided such information; (7) the extent to which agency self-evaluation, program improvement, or other determinations will be chilled by disclosure; (8) the adequacy of safeguards to prevent unauthorized disclosure; (9) the degree of need for access to the student records; and (10) whether there is an express statutory or regulatory mandate, articulated public policy, or other recognized public interest militating toward access. The Court stated, “Not all of the factors stated above will apply in every case; additional factors not identified in [this opinion] may be relevant to a given case.”
In conclusion, custodians of records are cautioned to remember that redaction alone does not render student records subject to an OPRA disclosure. Boards are encouraged to confer with legal counsel prior to releasing any student records, redacted or unredacted, to a party other than the student or the student’s parent/guardian.
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Anthony P. Sciarrillo of Sciarrillo Cornell at edlawgroup@sciarrillolaw.com.