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NJ Open Government Notes

Appellate Division exempts all “student records,” even those from which all student personal identifying information is redacted, from OPRA.

In an October 16, 2017 published (and thus precedential) decision, a three-judge panel of the New Jersey Superior Court, Appellate Division ruled that unless a record requestor is an “authorized person or organization” defined by New Jersey regulations, no record “related to an individual student” may be disclosed by school officials absent parental consent or a court order.  According to the opinion:

For example, a document reflecting a school district’s settlement of claims for special services by a hypothetical disabled student, Mary Jones, remains a “student record,” even if her name and other personal identifiers are removed from the settlement agreement. The record still “relates” to Mary Jones 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.

If such a court order is sought, the Appellate panel requires that parents must be given an opportunity to comment on proposed redactions to any records relating to their children.

This sweeping decision appears to justify the complete suppression, at least initially, of all settlement agreements that resolve lawsuits filed by or against students.  Thus, when a settlement is reached in the lawsuit filed by “Jane Doe,” a fourth grade girl who claimed she was “raped ‘hundreds of times'” by a now retired Hillsborough (Somerset County) elementary school principal, Hillsborough taxpayers will not be entitled to disclosure of even a heavily redacted version of the settlement agreement without first obtaining a court order. 

It is not clear at this point whether taxpayers who sue to obtain such a court order will be entitled to recover their attorney fees from the school district if they are successful.  Under the Open Public Records Act (OPRA), successful litigants are entitled to recover their attorney fees and court costs from the agency that wrongfully withheld the records.  The Appellate panel likened a lawsuit filed in accordance with its opinion to a common-law public records access case where the availability of attorney fees and court costs is at best unclear.

While I appreciate the need to keep some student records confidential, I believe that some categories of student records, including those that disclose settlements paid by taxpayer dollars, must remain readily available to the public.

In its opinion, the panel recognized the likelihood of an appeal to the New Jersey Supreme Court and “encourage[d] 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 [this opinion].”  Hopefully, either the Supreme Court or the Department will ensure that this need is accommodated. 

By John Paff

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project