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  • Anthony E. Russo

RECENT STATE APPELLATE COURT DECISION ENABLES GREATER PUBLIC ACCESS TO SPECIAL EDUCATION RECORDS

The New Jersey Appellate Court recently held that settlement agreements approved by the Office of Administrative Law in special education matters, are subject to disclosure under the Open Public Records Act (“OPRA”).


At issue in the case of C.E. and B.E., individually and on behalf of K.E. v. Elizabeth Public School District, et al., was enforcement of the following OPRA request:

1. From [January 1, 2013] to present, all settlements entered into by the [school b]oard in [the New Jersey Office of Administrative Law (OAL)] EDS docketed cases;

2. Any final decisions incorporating or pertaining to item #1;

3. [May 1, 2014], any purchase orders, vouchers, bills, invoices and cancelled checks for payment(s) made for legal services rendered to the [b]oard in regards to [an]…OPRA [r]equest of [May 17, 2014,] and the subsequent civil action…

4. Any [b]oard [r]esolution(s) which refer[(s)] to item[] #1.


The Elizabeth Public School District (the “District”), denied the first request, asserting that “…the documents were exempt from disclosure as confidential student records under N.J.A.C. 6A:32-7.5…” and further asserting that the second request was “…vague and does not seek identifiable government records.” In response, this action was instituted, alleging a violation of OPRA, and seeking an order, inter alia, requiring a response to the first and second requests.


Prior to the C.E. decision being rendered, the ability to obtain settlement agreements and final decisions pertaining to special education matters was limited by two decisions. In the Appellate Division’s ruling in the matter of L.R. v. Camden City Public School District, 452 N.J. Super 56 (App. Div. 2017), colloquially known as L.R. I, obtaining redacted copies of such settlement agreements required parties to demonstrate that (1) they were a “bona fide researcher” within the scope of N.J.A.C. 6A:32-7.5(e)(16) or (2) they were entitled to obtain an order from the Court permitting authorization, in accordance with N.J.A.C. 6A:32-7.5(e)(15). In a subsequently consolidated case before the New Jersey Supreme Court, L.R. v. Camden City Public School District, 238 N.J. 547 (2019) (“L.R. II”), the Court held:


…as currently drafted, 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

personally identifiable information that might identify the student

in compliance with federal law. L.R. II, 238 N.J. at 550.


Despite these holdings, the Court in C.E. did not extend the scope of the decisions in L.R. I or L.R. II to settlements before the Office of Administrative Law. Following the logic of the Court’s decision in Keddie v. Rutgers, the State University, 148 N.J. 36 (1997), addressing the predecessor to OPRA in its current form, the Appellate Division found that special education settlements previously filed or issued by the Office of Administrative Law, constitute “judicial filings” regardless of their relation to special education matters, and as such, are entitled to a “presumption of access.”


While further action may be taken should the Appellate Court’s decision be appealed, this case creates an increased degree of disclosure of special education settlements and final decisions under OPRA. Many districts have already received these OPRA requests. Prior to disclosure, appropriate redactions must be made to preclude the disclosure of personally identifiable information.