Special Needs School Records and OPRA Requests: L.R. v. Camden City Public Schools

Legal Issue

On October 16, 2017 the Appellate Court published a decision in L.R. v. Camden City Public School District, et. al., pertaining to the Open Public Records Act.  The Court entered a decision addressing four (4) similar appeals concerning the release of special education records from public schools.  The opinion attempts to address transparency requirements under the Open Public Records Act (“OPRA”) with privacy interests as found in the New Jersey Pupil Records Act (“NJPRA,” N.J.S.A. 18A:36- 19, the Federal Family Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C.A. § 1232g and administrative regulations adopted thereunder.

Facts and Procedural History

There were four (4) separate cases with similar facts and issues addressed in this published Opinion.  The trial courts had split on the issues, with some courts requiring complete denial and other courts requiring redactions.  The “Innisfree Foundation” was involved as a Plaintiff or as an amicus in each of the four (4) respective trial court matters.  The Appellate Decision defined the “Innisfree Foundation” as a: “Organization that assists families of children with disabilities who reside in New Jersey to advocate for their children’s educational needs.”  The OPRA requests themselves largely consisted of requests for all settlement agreements between schools and parents pertaining to special education services.

Counsel for the Innisfree Foundation stated during oral argument at the Appellate level that the Foundation ultimately plans to make the same request to every public school district in the State of New Jersey. The OPRA requests themselves noted that personally identifiable information related to any individual students could be redacted prior to disclosure.  Cherry Hill and Hillsborough School Districts denied the request entirely (noting GRC decision of Popkin v. Englewood Board of Education, No. 2011-263, 2012).  Notably, Parsippany-Troy Hills sought approximately $96,815 for special OPRA service charges noting that LSEP’s would have to perform the review and redaction of records and that same would be estimated to take one (1) hour per student at a minimum of $67.00 per hour for the LSEP’s.

The Trial Court judge in Morris County upheld the special service charge estimate but also awarded counsel fees to the Plaintiff in connection with the trial court matter as a prevailing party under OPRA.  Two of the Amici to the Appellate case were the ACLU on behalf of the OPRA requestors and the New Jersey School Boards Association on behalf of the school districts.

Finally, it should be noted that similar cases (including many involving Innisfree Foundation) currently remain pending and thus the Appellate Court’s decision noted this could be viewed as a “test case” disposition of such issues as they remain pending in other jurisdictions in New Jersey.

The Holding

The Appellate Decision held that the plaintiffs were 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).”  The Appellate decision further stated that regardless, school districts must not turn over such redacted records until they first provide “reasonable advance notice” to each impacted child’s parent or guardian allowing them the independent opportunity to object.  This somewhat convoluted Opinion appears to stem from the following passage:

The trial judge in the Cherry Hill case reasoned that documents held by school districts are no longer “student records” once personally identifiable information is removed from those documents through redaction. We respectfully disagree…The record still “relates” to ‘Mary Jones’ (fictitious name) and discusses aspects of her life. The document does not cease becoming a ‘student record,’ or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child’s name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names. Jane Eyre surely was Charlotte Bronte’s novel even though it bore the pen name of “Currer Bell”

Accordingly, even though the Court finds that such documents should generally be turned over, OPRA itself states that records may not be transmitted if there is another law or regulation inuring against their release.  These somewhat inapposite legal positions therefore crystalize in a holding that requires redaction and release, but only if plaintiff’s can establish they are “bona fide” researchers or “obtain a Law Division Order authorizing such access.”  (note that the Decision does not reach a determination whether Plaintiff in these matters, Innisfree Foundation qualifies as a Bonafide researcher).  Thus it would appear that this holding may prove somewhat burdensome to both Plaintiff/requestors and school districts. The holding also requires parental opportunity to object, even with personal identifiers being redacted, one would presume.  The Court did not award fees noting that remand would have to display if Innisfree was a prevailing party or not.  Finally, although the Appellate Court itself does not provide insight into how requestors may obtain records by way of a “Law Division Order authorizing such access” it would appear to me that such a mechanism may be similar to protective orders obtained, for instance, for criminal records from a prosecutor’s office to be utilized in a subsequent civil litigation.


With many public school districts noting settlements in board meeting minutes and agendas (although perhaps often discussed in executive sessions), it’s unclear to me how the request for specific settlement documents will provide much greater clarity for requested materials.  In some respects, this decision is in line with prior holdings that public entities must disclose settlements and cannot mark them as confidential.  However, records involving minors generally trigger heightened privacy concerns.  This Decision also appears to show the impact of the recent Supreme Court of New Jersey decision in North Jersey Media Group v. Township of Lyndurst; specifically in its philosophy of requiring fact-sensitive determinations to be rendered for large classes of documents. Such decisions may render the already burdensome role of OPRA custodian (or lawyer advising on such issues) even more difficult and I personally find this philosophical shift somewhat dispiriting given what appeared to be an Appellate level trend towards contracting the oftentimes onerous OPRA requirements and interpretations (as I discussed in the New Jersey Law Journal article I co-authored June 19, 2017, OPRA Law Comes of Age).   For instance, the Appellate Court states in this Decision that:

The review of such requests should be conducted on a case-by-case basis, depending on the specific nature of the request and particular kind(s) of records sought. Because none of the trial courts in the present appeals addressed these common law balancing issues, we do not resolve them here Instead, the balancing of interests should be adjudicated in the first instance in the trial court on remand.

The simple fact is this: if the Appellate Court itself believes it lacks sufficient documentation and information to render a decision (such as here), then remand may be appropriate regarding the four matters currently pending before the Court…but what about all the potentially countless future requests where a government entity and its custodian will have 7 days to interpret this Decision (and others like it) to try and make a proper judgment call–one where a false step–regardless of good intent–may later lead to the imposition of expensive reimbursement of counsel fees for the requestor? I can speak from some experience that being on the front-lines of these decisions is not always easy. Moreover, the following language from the Decision may be somewhat difficult to reconcile (what if OPRA requirements and parents’ opinions differ, as they surely will at times?)

As a key procedural facet of the redaction process, we hold that school districts must afford parents and guardians a reasonable opportunity to comment upon the proposed redactions of records relating to their own child. A parent or guardian may possess background and contextual information that could show how his or her child might be readily identified within the community, despite good faith efforts by school employees to perform effective and thorough redactions of the child’s records. Their voices should be heard in the process…To be sure, it is not our role in this appellate opinion to micro-manage the precise manner in which the redaction process is conducted. In particular, we do not resolve at this time whether the substantial special services charge quoted by the ParsippanyTroy Hills district of nearly six figures is reasonable and justified. Instead, if any right of access is established, an evidentiary hearing must be conducted on remand in the trial court to develop the record further on that issue, and to enable that court14 to make a more informed ruling.

Perhaps itself noting the difficult position the Court itself was in rendering a decision on such competing and specific issues, the Court further stated:

As a parting subject, we encourage the New Jersey Department of Education to consider formulating “best practices” guidance – perhaps expanding or revising the existing regulations – to address the myriad issues of implementation that have been presented by these four cases.

A practical issue that I noted in this Opinion—from a government perspective–is that the school districts appeared to not have a “central repository” of settlement agreements.  With this Opinion now serving as binding law, creation of  such a database for easy-access should be considered moving forward, particularly with other Appellate Decisions stating that OPRA documents must be retained from 3rd party lawyers or insurance carriers even if the records are not directly under a government entity’s control.  Regarding redactions, the Court Opinion notes that initials would likely not be sufficient–meaning wholesale removal of identifiers would be appropriate.

Given the somewhat contradictory nature of these issues–including what I view as certain contradictions within this Decision (as well as contradictory results in the trial courts), this would appear to be a proper case for certiorari to the Supreme Court of New Jersey.  In such a scenario, however, the expectations of government entities should well be tempered given the recent Supreme Court of New Jersey decisions in Lyndhurst and Galloway.  Indeed, towards the end of this Decision the Court noted that:

Lastly, because we readily appreciate that one or more parties may pursue Supreme Court review of our decision, we stay this opinion, sua sponte, for thirty days. If a petition for certification or motion for leave to appeal is filed with the Supreme Court by any party in any of these four cases before that thirty-day period lapses, the automatic stay shall remain in force until such time as the Supreme Court may otherwise direct. We hope that preserving the status quo in such a manner, pending the Court’s anticipated review, will minimize disruption and avoid the harmful consequences of any improvident interim disclosures.

In other words, [most likely] to be continued….