New Jersey Superior Court Addresses Issues of Access to School Records

The Appellate Division of the Superior Court of New Jersey has recently addressed issues of and concerning access to school records under the Open Public Records Act (OPRA), the New Jersey Pupil Records Act (NJPRA), and the Federal Family Educational Rights and Privacy Act of 1974 (FERPA.) Prior lawsuits involving access to student records and resulting confidentiality concerns had resulted in conflicting results by the trial courts asked where they were originally heard.

Four cases arose out of requests made to school district officials of different school districts where the lawsuits generated conflicting results, namely, L.R. v. Camden City Public School District, L.R. v. Parsippany-Troy Hills Township Public School District, The Innisfree Foundation v. Hillsborough Township Board of Education, and The Innisfree Foundation v. Cherry Hill Board of Education. In one jurisdiction, the trial judge had concluded that the Plaintiff advocacy organization’s request must be disallowed and conversely, in two other jurisdictions, the trial judges had ruled to allow the Plaintiff requestor’s access to the records, provided personally identifiable information was redacted. In one case, the judge upheld a special service charge of $96,815.00 calculated by the school board to perform the review and redaction process.

Interest in Access to New Jersey School Records Arises Out of Concern for Special Education Programs

All four of the cases, on appeal, involved The Innisfree Foundation either as Plaintiff or amicus curiae. The Innisfree Foundation is a non-profit foundation that “assists families of children with disabilities who reside in New Jersey to advocate for their children’s educational needs.” Innisfree’s interest in access to the school records it requested 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) U.S.C.A. sections 1400-1482. Innisfree is a certified pro bono entity.

In August, 2015, the Innisfree Foundation submitted requests under the Open Public Records Act (OPRA) to both the Cherry Hill and Hillsborough School districts seeking 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 parent) of a child or children for whom special education services were or are either provided or sought.

NJ Appellate Division Deems Plaintiffs Entitled to Appropriately Redacted Copies of Requested Records

The request added that personally identifiable information may be redacted. Innisfree has presented similar requests to many other school districts in New Jersey and plans to submit similar records requests to every New Jersey public school district. Others have also made similar requests for records to other school districts around the state. With more than a dozen appeals pending before the Appellate Division in these various cases, these four appeals are “test cases” whose disposition might provide guidance in the other pending cases.

Our New Jersey Appellate Division construed and harmonized the various provisions under the NJPRA, FERPA, OPRA, and the associated regulations, particularly the student record access provisions set forth at N.J.A.C. 6A:32-7 to7.8; and held that in the Hillsborough, Parsippany-Troy and Cherry Hill cases, the Plaintiffs are entitled to appropriately redacted copies of the requested records provided that, on remand, those plaintiffs either (1) establish they have the status of “bona 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).

Important Exception Noted to the Parental Consent Requirement for Redacted Education Records

The Appellate Division also noted that parental consent is not required under FERPA when records are shared with authorized persons…for a legitimate purpose. 20 U.S.C.A section 1232g(b0(1)(A) through (L) (2017). Additionally, within the federal regulations enacted pursuant to FERPA, 34 C.F.R. section 99.31(b)(1) contains an important exception to the parental consent requirement for “de-identified” or redacted education records:

An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by section 99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student’s identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information. The court held that the school districts shall not turn over the redacted records until they provide reasonable notice to each affected students’ 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 compromise or reveal personally identifying information in their child’s records before the redactions are finalized. In this regard, the Court noted that the three-day parental notice mandated in N.J.A.C. 6A:32-7.6(a)(4) for situations where a court order for disclosure is sought should be scrupulously observed.

Court Remands Camden City Case for Further Proceedings

The court also remanded the Camden City case for further proceedings with respect to documents naming Plaintiff’s child that could also refer to other students but affirmed the trial court’s grant of access concerning records that exclusively mention Plaintiff’s child.

To achieve consistency, efficiency, and uniformity, the Court directed that the venue for all four of the remanded cases be transferred to the Camden vicinage.