Open Public Records Act

Editor: Sanmathi (Sanu) Dev, Esq.

In last week’s article, we discussed the New Jersey Supreme Court’s decision in L.R. v. Camden City Public School District, focusing on the Court’s decision to extend the protections for student records under the New Jersey Pupil Records Act (“NJPRA”) to include redacted records.

In its decision in L.R., the Court also affirmed the Appellate Division’s holding that a requestor could gain access to student records if they fell within one of the categories of “authorized” individuals and entities identified in N.J.A.C. 6A:32-7.5(e)(1) through (16). Specifically, the Appellate Division suggested, that the requestors could seek access to the requested records by means of a court order, as N.J.A.C. 6A:32-7.5(e)(15) provides, and also that either requestor might qualify as a “bona fide researcher” under N.J.A.C. 6A:32-7.5(e)(16). The Appellate Division remanded the matters for a determination of whether the requestors could establish a right of access under these two regulations.

The six members of the Court who participated in this matter agreed upon the following non-exclusive factors to be applied when a requestor seeks a “court order” pursuant to N.J.A.C. 6A:32-7.5(e)(15): (1) the type of student record requested; (2) the information that the student record contains; (3) the potential or 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.

In summary, although the Court in L.R. extended further protections to student records under NJPRA, it also provided that a requestor may still gain access to those records if they can show that they qualify as a “bona fide researcher” or obtain a court order satisfying the Court’s factor test showing that the requestor’s interest in obtaining the student records outweigh a School District’s interest in protecting the privacy of its students.

Questions regarding this article may be sent to Publications@Capehart.com.

Editor: Sanmathi (Sanu) Dev, Esq.

Under New Jersey law, student records are protected from public disclosure. “Student record” pursuant to N.J.A.C. 6A:32-2.1 means information related to an individual student gathered within or outside the school district and maintained within the school district, regardless of the physical form in which it is maintained. Essential in this definition is the idea that any information that is maintained for the purpose of second-party review is considered a student record. Access to student records by second-parties are governed by several state and federal laws including the federal Family Educational Rights and Privacy Act (“FERPA”), the New Jersey Pupil Records Act (“NJPRA”), New Jersey Open Public Records Act (“OPRA”), and common law right to access public records.

On July 17, 2019, in a split decision, the New Jersey Supreme Court in L.R. v. Camden City Public School District issued an opinion affirming a New Jersey Appellate Division’s decision holding that a requestor cannot gain access to a student record under OPRA, even if a public school district redacts the record per FERPA mandates. This decision involved litigation against four different public school districts by OPRA requestors that sought various student records, such as copies of settlement agreements and records reflecting provision of special services. All four districts denied the OPRA requests as student records within the meaning of N.J.A.C. 6A:32-2.1 and, thus, exempt from disclosure under OPRA.

The Court invited the New Jersey Department of Education (“NJDOE”), which promulgated the New Jersey regulations under consideration, to appear amicus curiae. The NJDOE challenged the Appellate Division’s application of NJPRA and its implementing regulations on the grounds that the court had construed New Jersey regulations to shield more than federal law requires. At oral argument, the NJDOE stated that it viewed “information related to a student” to denote information identifiable to a particular student. Thus, the NJDOE interpreted N.J.A.C. 6A:32-2.1 to mean that a redacted record that cannot be linked to a pupil is not a student record and therefore can be disclosed pursuant to an OPRA request.

Writing the concurring opinion for the Court, Justice Anne Patterson rejected the NJDOE’s interpretation of “student record” and found that the protections under NJPRA extend further than those under FERPA. Justice Patterson indicated that the NJDOE has twice amended NJPRA and its implementing regulations since FERPA incorporated the redaction of personally identifiable information but has chosen not to incorporate the concept in a proposed rule or adopted procedure themselves.

In dissent, Justice Barry Albin reasoned that the NJDOE’s interpretation of N.J.A.C. 6A:32-2.1 in no way endangers the privacy rights of pupils but allows members of the public to gather information that will shed light on matters of significant public importance. Further, Justice Albin argued that the Court should defer to the NJDOE’s interpretation because the NJDOE promulgated the regulation within the sphere of its authority and that its interpretation of the regulation was not “plainly unreasonable.”

As this was a split decision, the Appellate Division’s ruling stands. Ultimately, both Justice Patterson and Justice Albin left it in the NJDOE’s hands to provide greater guidance on the subject of student record disclosure going forward.

In next week’s article, we will discuss the second part of the New Jersey Supreme Court’s decision in this case involving the circumstances under which a court may order the production of student records under N.J.A.C. 6A:32-7.5(e)(15).

Questions regarding this article may be sent to Publications@Capehart.com.

On May 23, 2018, the New Jersey Supreme Court in Brennan v. Bergen County Prosecutor’s Office, issued an important decision regarding the Open Public Records Act’s (“OPRA”) privacy provisions. Often times, school districts and other public entities deny OPRA requests on the basis that they are protecting the privacy of others. In these situations, the Court clarified that the public entity must first show that disclosure of the records would invade a “person’s reasonable expectation of privacy” before advancing any privacy arguments to withhold the documents.

This case involved Plaintiff’s OPRA request to the Bergen County Prosecutor’s Office (“BCPO”) seeking payment receipts and contact information of successful bidders of sports memorabilia during the BCPO’s public auction. The BCPO provided copies of receipts but redacted names and addresses. Plaintiff was not satisfied with the BCPO’s response and challenged the denial.

The trial court agreed with Plaintiff reasoning that the successful bidders had a “limited” interest in their names and addresses being released when analyzing the privacy argument under Doe v. Poritz, 142 N.J. 1, 88 (1995). The Appellate Division reversed the trial court reasoning that the individuals had a reasonable expectation of privacy. For example, the successful bidders could be targets of theft.

The New Jersey Supreme Court reversed the Appellate Division and agreed with Plaintiff. With regard to the BCPO’s redaction of the names and addresses of successful bidders, the Court determined that it is not reasonable to expect that details about a public auction of government property will remain private. In short, the Court reasoned:

[T]he sale of government property at a public auction is a quintessential public event that calls for transparency. To guard against possible abuses, the public has a right to know what property was sold, at what price, and to whom.

In addition, the Court clarified that the balancing factors in Doe with regard to a privacy argument only apply after the public entity presents a “colorable claim that public access to the records requested would invade a person’s objectively reasonable expectation of privacy.” That is, the Doe factors do not automatically apply every time a privacy interest exists.

School districts and other public entities should be careful when they assert privacy interests as a basis for nondisclosure of a government record. This case demonstrates that the burden has increased for public entities to deny an OPRA request on the basis of protecting privacy.

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

School districts sometimes receive requests for public records from a requestor in another state. Some of these requests come from data mining companies that seek to provide information about school district contracts and vendors to commercial entities. Fulfilling these requests can involve a considerable expenditure of time and effort by the records custodian. Trial court decisions addressing the question of whether an out-of-state requestor may make a valid request for records under the Open Public Records Act (“OPRA”) have reached different conclusions. On May 16, 2018, in Scheeler v. Atlantic County Municipal Joint Insurance Fund, et al., the Appellate Division resolved the disagreement by holding that OPRA does not limit the right to request access to citizens of New Jersey.

The Court’s conclusion rests mainly on the parts of the statute which mandate disclosure of public records and which permit enforcement actions for failure to disclose. These provisions use the broad terms such as “person” or “requestor.” The Court explained that the term “citizen” when used in other parts of the statute which protect privacy or personal information is not intended as a restrictive word since specific provisions, like the one protecting personnel information, speak of “any individual” or “an individual.” These findings, combined with the legislative policy of promoting broad access to public records, persuaded the Court that a requestor seeking public records under OPRA is not limited to a citizen of New Jersey. Therefore, those individuals who reside outside of New Jersey are clearly permitted to make OPRA requests.

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Now and then even the Government Records Council (“GRC”) is sued. In a published decision issued on January 26, 2018 by the New Jersey Appellate Division in Libertarians for Transparent Government v. Government Records Council and Frank Caruso, the plaintiff alleged that the GRC violated the Open Public Records Act (“OPRA”) and the common law by failing to produce draft minutes of a GRC meeting. Finding that the draft minutes were protected by the deliberative process privilege, the trial court rejected the plaintiff’s claims. The plaintiff appealed.

On appeal, the plaintiff argued that the draft minutes were not subject to the privilege simply because they were not approved and that the GRC should have produced the minutes with redactions. The Appellate Division disagreed with the plaintiff and affirmed the trial court’s decision.

The test for the application of the deliberative process privilege requires a showing that the document is (1) pre-decisional (meaning it was generated before the adoption of an agency’s policy or decision); and (2) deliberative (in that it contains opinions, recommendations, or advice about agency policies). The Appellate Division found that both prongs of the test were met. It concluded that the draft of the minutes was pre-decisional because it remained subject to revisions and recommendations, and because it was not yet approved for public circulation. The Appellate Division emphasized that “a draft is not a final document.”  The Appellate Division also concluded that that the draft was deliberative because it was merely a recommendation of what occurred subject to the members who attended the meeting making additions, deletions and suggestions with which the other members may or may not agree. The Appellate Division reached this conclusion despite the fact that large portions of the approved minutes mirror the agenda published by the GRC prior to the meeting.

Of particular interest, the Appellate Division rejected the plaintiff’s argument that the GRC had an obligation under the Act to produce the minutes with redactions. Plaintiff pointed to the statutory provision N.J.S.A. 47:1A-5(g), which permits deletion of a portion of a record deemed to be exempt from public access. Reiterating its conclusion that the draft minutes were subject to the deliberative process privilege (and to potential revision), the Appellate Division concluded that the section of OPRA authorizing redaction cannot apply to draft minutes because producing an entire document redacted would be illogical and serve no purpose. In sum, the entire document is privileged and exempt until approved by the public body.

While this litigation was brought against the GRC, its holding applies to school districts and all public agencies subject to OPRA.

In June 2017, the New Jersey Supreme Court in Paff v. Galloway Township expanded the scope of the Open Public Records Act (“OPRA”) to require public entities to produce information relating to the “sender,” “recipient,” “date,” and “subject” of emails even if that means the agency would need to create a new document. On January 12, 2018, the New Jersey Appellate Division continued to expand the right to electronically stored information under OPRA in the published decision Conley v. New Jersey Department of Corrections, Docket No. A-4754-14T3. The legal question before the Appellate Division in this case was whether data previously maintained by the New Jersey Department of Corrections (“DOC”) in the form of monthly reports is a government record when the DOC implemented a new data collection system in which the monthly reports were no longer generated.

Plaintiff Kevin Conley is an inmate at the New Jersey State Prison. In January 2014, he submitted an OPRA request to the DOC seeking copies of various monthly reports containing data that the DOC is statutorily required to maintain. The information at the center of this litigation was statistical grievance reports. Prior to January 2014, the DOC provided these reports to Plaintiff. In response to the January 2014 OPRA request, the DOC explained that it began using a new technology system in which the information sought is no longer generated in a monthly report and therefore not available. The DOC also explained that it is not obligated under OPRA to create a new document.

Plaintiff challenged the DOC’s denial before the Government Records Council (“GRC”), which found in favor of the DOC.  The GRC agreed with the DOC’s argument that if “no responsive records exist, no unlawful denial of access occurred.”

Plaintiff then appealed to the Appellate Division, which reversed the GRC. In finding in favor of Plaintiff, the Appellate Division reasoned that a government record is information made, maintained, or received by a public agency in the course of its official business. It was undisputed that federal and state regulations required the DOC to keep statistical grievance information. Whether such information was stored as a hardcopy or electronic version was not of importance to the Appellate Division. It rejected the DOC’s argument that the manner in which the DOC chose to store the information dictates whether it is a government record. In emphasizing the public policy of transparency and openness, the Appellate Division ordered the DOC to provide the information sought by Plaintiff.

As a result of this case and Paff v. Galloway Township, public entities must be cautious in the way they respond to OPRA requests seeking information that is stored electronically as opposed to what we may have traditionally viewed as a government record.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

In a case construing the “personnel records” exception to the Open Public Records Act (“OPRA”), the Appellate Division recently held that OPRA does not require disclosure of detailed reasons for a government employee’s resignation, where public records do not contain such information.

There are 21 exceptions to the definition of a “government record” under the OPRA statute, few of which are as frequently the source of litigation as the exception for personnel records. This is most likely because there are three exceptions to that exception itself, two of which permit access to (1) the employee’s name, title, position, salary, payroll record, length of service, date of separation and the reasons therefore, and the amount and type of any pension received,” and (2) “data contained in information which discloses conformity with specific experiential, educational, or medical required for public employment or for receipt of a public pension.”  N.J.S.A. 47:1A-10.

In Libertarians for Transparent Gov’t v. Ocean Cnty. Prosecutor’s Office, No. A-1608-16T1 (App. Div. January 5, 2018), the Appellate Division considered the manner in which the Ocean County Prosecutor’s Office (“OCPO”) handled an OPRA request seeking certain information concerning a former employee who had resigned from his post.  The requestor sought the employee’s “name, title, position, salary, payroll record, length of service, date of separation and the reasons therefore,” as well as any agreements regarding his separation from service.  After a search of the employee’s personnel file, the OCPO responded with the requested information, except that it did not initially provide any information on the reasons for the employee’s separation.  In a brief follow-up, the custodian of records furnished a memo from the First Assistant Prosecutor stating that the employee’s resignation became effective on a specified date and clarifying that there were no agreements regarding the employee’s departure.

In response, the plaintiff made a second OPRA request seeking a “more descriptive” explanation of the employee’s reasons for separation, which he prefaced with the statement that he had received information that the employee in question had failed a drug test and resigned in lieu of adverse employment action.  The requestor suggested that the OCPO could satisfy the request by clarifying whether the employee resigned voluntarily or under threat of termination.  The OCPO denied the second request, asserting that it was under no obligation to create records which did not exist or provide a more detailed statement of the reason for the employee’s separation.

The Appellate Division affirmed the trial court’s dismissal of the complaint.  While the court recognized that the three exceptions to the personnel records exemption require disclosure of the information itself as a “government record,” regardless of whether it is reflected in a specific document, the court found that the OCPO had fully complied with the statute.  The court held that the personnel records exception required only disclosure of the reason for separation, in this case resignation.  By its plain terms, the court held, the statute “does not require the provision of the circumstances that may have caused the employee to choose to resign, the employee’s motivation for resigning, or anything beyond the reason for the employee’s “date of separation.”  (Emphasis added.)

Distinguishing two earlier New Jersey Supreme Court cases, the court held that where the information providing reasons for the employee’s separation is not contained in a specific document that falls within the definition of a government record, the public entity is not required to create additional records to satisfy a requestor’s desire for additional clarity on the reasons for resignation.  While the court found that the OCPO erred in limiting its search to only the personnel file of the employee in question, rather than all potentially relevant records, this case represents a continuation of an important limitation curtailing the public from accessing personnel files of public employees under the above exceptions.

Complying with OPRA requests can be confusing and burdensome for records custodians.  With a little assistance from the courts, the OPRA statute’s clarification should come in handy for custodians having to parse the tricky intersection of the exception regarding personnel records when complying with requests.

On November 15, 2017, the New Jersey Appellate Division issued an unpublished decision in Scheeler v. Galloway Township regarding an Open Public Records Act (“OPRA”) request seeking a settlement agreement between Galloway Township (“Galloway”) and its former manager. In short, the Appellate Division found that the document in question constituted a final settlement agreement subject to disclosure under OPRA contrary to the position of Galloway.

On November 12, 2014, Galloway adopted a resolution in public session authorizing the settlement of the litigation between it and the former manager. Specifically, the resolution stated that Galloway’s agreement to settle was subject to (1) execution and delivery of a general settlement agreement and release, (2) counsel for Galloway’s review and approval of the settlement agreement and release, (3) execution of the settlement agreement and release by Galloway’s mayor, and (4) attestation of the mayor’s signature by Galloway’s township clerk. Prior to Galloway formally adopting the resolution, it released a payment to the former manager per the terms of the settlement.

On November 20, 2014, Plaintiff Harry B. Scheeler, Jr. made an OPRA request to Galloway seeking the settlement agreement between Galloway and the former manager. Galloway denied the OPRA request that same day explaining that the settlement agreement has not been executed. Approximately one month later on December 22, 2014, Plaintiff made the same OPRA request. On December 29, 2014, Galloway provided the same response as it did in November.

On January 1, 2015, Plaintiff informed Galloway that he learned that a check was issued to the former manager and asked how Galloway could do so if there was no executed settlement agreement. In response, Galloway provided Plaintiff a document entitled “RELEASE AND SETTLEMENT AGREEMENT” (“Release”). This document released Galloway from all claims that the former manager may have against it. The Release was signed by the former manager. However, the document did not require or permit execution by anyone on behalf of Galloway.

Plaintiff then filed two complaints with the Government Records Council (“GRC”) alleging that Galloway unlawfully denied access to the Release in response to his November 20, 2014 and December 22, 2014 OPRA requests. The GRC disagreed with Plaintiff and reasoned that the settlement between Galloway and the former manager was not finalized nor executed consistent with Galloway’s resolution. The GRC also found it relevant that Galloway’s records custodian had not seen the Release prior to Plaintiff’s November 20, 2014 OPRA request and that she reasonably believed no settlement had been reached because she had not been asked to attest to the mayor’s signature per the resolution. With respect to the December 22, 2014 OPRA request, the GRC reasoned that no violation occurred because Galloway provided the Release within seven business days of Plaintiff’s request.

Plaintiff appealed to the Appellate Division, which reversed the GRC. The Appellate Division determined that Galloway and the former manager reached a final settlement at the time Plaintiff made his OPRA requests and Galloway should have provided the Release immediately. In overturning the GRC, the Appellate Division explained that the GRC made no factual findings supported by substantial evidence that the settlement was not final on November 20, 2014. The Appellate Division criticized the GRC for assuming the Release was advisory, consultative, or deliberative material not subject to disclosure. The Appellate Division reasoned that all of the terms of the settlement agreement were agreed to by the attorneys for the parties, the attorneys executed and exchanged stipulations of dismissal pursuant to the terms of the agreement, and Galloway even issued a payment to the former manager. No evidence suggested that prior to November 20, 2014, the attorneys negotiated or agreed to different terms.

Even though the Release was only signed by the former manager, the Appellate Division determined that based on the circumstances, a final settlement was reached between the parties. Therefore, Galloway was required to disclose the Release upon Plaintiff’s OPRA request.

When is a student record, such as a settlement agreement involving a special education student or a request for an independent special education evaluation, subject to disclosure in response to a request under the Open Public Records Act (“OPRA”)? According to the Appellate Division’s published decision dated October 16, 2017 in L.R. v. Camden City Public School District, et al., the answer is that disclosure is permitted when the requestor is one of the sixteen (16) authorized organizations, agencies, or persons identified in regulations adopted by the New Jersey Department of Education to implement the New Jersey Pupil Records Act (“NJPRA”).

This decision involved litigation against four different school districts by OPRA requestors that sought various student records. The requestors sought copies of settlement agreements, requests for independent evaluations, and other documents related to special education students. The school districts denied the requests for various reasons, including that they are required to protect the privacy of the student whose personal information is contained within the documents.

Authorized persons and entities identified in  N.J.A.C. 6A: 32-7.5(e) include parents, students, certified educational personnel, clerical personnel, board of education, accrediting organizations, state and federal educational officials, child welfare caseworkers and bona fide researchers. Most of the categories do not apply to a typical OPRA requestor. The Court focused on two of the categories, namely, whether the plaintiffs were entitled to the records upon the presentation of a court order or on the basis of the plaintiffs being bona fide researchers. Ultimately, the Appellate Division remanded all four consolidated cases for development of a record on these issues.

Critical to the Court’s analysis are the following conclusions. The Court recognized the breadth of the definition of public records under OPRA and determined that the requested student records are public records. However, the Court concluded that the Legislature and Department of Education, by enactment of NJPRA and promulgation of implementing regulations, intended student records to carry confidentiality protections which are preserved under OPRA. According to the Court, redactions do not eliminate the status of the record as a student record entitled to those protections.

Remarkably, the Court remanded the cases to the trial court despite the fact that there appears to be nothing in the record indicating that at the time the OPRA requests were made to the school districts, the requestors presented a court order permitting disclosure of the records or that plaintiffs claimed to be bona fide researchers. Further, while recognizing that one of the plaintiffs is participating in or supporting litigation to vindicate the rights of disabled students, the Court concluded that it does not believe that facet per se eliminates that plaintiff’s arguable status as a bona fide research organization.

The Court suggested that the trial court should be “guided by the balancing of competing interests that courts typically employ in resolving common-law access requests.” The balancing test involves a two-step analysis to determine (1) whether the requestor has established a public interest in the record, and (2) whether the requestor has demonstrated that its interest in the public records sought outweighs the State’s interest in non-disclosure. The Court explained that the trial court may perform an in camera (closed) inspection of the requested records as it balances the relevant factors, and in the process may require redaction of the records to maintain confidentiality.

Of significance, the Court held that the three (3) day parental notice mandated in N.J.A.C. 6A:32-7.6(a)(4) should be followed in both the court order and bona fide researcher situations. This regulatory provision provides that prior to disclosure of student records to organizations, agencies or persons outside the school district pursuant to a court order, the school district shall give the parent or adult student at least three (3) days’ notice of the name of the requesting agency and the specific records requested unless otherwise judicially instructed. Referring to the privacy interest established under NJPRA, the Court explained, “This leads us to underscore the vital importance of a careful redaction process, and the functional benefits of allowing parental input into that process.”

It is likely that the Appellate Division’s decision will be appealed to the New Jersey Supreme Court given the holdings and the remand, and in particular, the process put in place for further court evaluation of the requestors’ status. In recognition of the appeal potential, the Appellate Division stayed its decision. In the interim, a school district receiving an OPRA request for similar student records should consult legal counsel.