On July 17, the New Jersey Supreme Court, in a split decision, affirmed that requested student records may not be disclosed under the Open Public Records Act (OPRA) even if personally identifiable information is redacted. Further, disclosure of the records would require a court order if the requestor did not otherwise qualify for access under the New Jersey Pupil Records Act (NJPRA) (N.J.S.A. 18A:36-19, together with related regulations, N.J.A.C. 6A:32-7.1 et seq.).

The high court’s decision clarifies that the NJPRA provides enhanced protection to student records, above and beyond the protections provided by federal law, and gives guidance to school district records custodians in responding to requests for student records. Additionally, it should be noted that this case was decided under the NJPRA, and not OPRA, the latter of which permits the award of attorney’s fees to a successful records requestor. This distinction is significant because districts who follow the NJPRA requirements to protect student records from improper disclosure may avoid the threat of having to pay out attorney’s fees in litigation.

In L.R. o/b/o J.R. v. Camden City Public School District, the named plaintiff, a parent, submitted two records requests to the school district that the child attended, asking for the access log of persons permitted to view the child’s records, as well as records, letters and emails from specified sources that contained the child’s name. The parent also filed an OPRA request in another district for the purposes of obtaining comparative information, asking for requests made on other students’ behalf for independent evaluations and responses to such requests.

Another plaintiff, the nonprofit Innisfree Foundation, submitted OPRA requests in other districts for special education settlement agreements. Both plaintiffs’ requests were representative of similar requests received by various school districts.

OPRA is the New Jersey statute that generally governs the public’s access to government records in the state. Student education records are provided privacy protections under the Family Educational Rights and Privacy Act (FERPA) that, among other things, limits what student information may be disclosed in response to requests for government records. Additionally, New Jersey has separate regulations providing privacy protections for student records.

This case considered whether the NJPRA prevented disclosure of the requested government records. In the New Jersey Superior Court, Appellate Division’s prior October 2017 decision, that court found that the records requested were student educational records that were covered by FERPA, but, even if a school district redacted personally identifying student information from the records as required by FERPA, the records were still protected from disclosure under the NJPRA. Similarly, the privacy protections provided by the state regulations prevented disclosure of the requested records under OPRA.

The Appellate Division found that the plaintiffs may be able to access the requested records if they could establish that they were a bona fide researcher as permitted by the NJPRA, which includes an exception to allow researchers to access otherwise-confidential student records. Alternatively, the plaintiffs could obtain a court order allowing access to protected student records.

Because a majority of N.J. Supreme Court justices could not reach an agreed-upon opinion in this case, the Appellate Division’s decision was affirmed. Two separate opinions were filed in this case, with three justices joining each opinion and one justice not participating in the case. A majority of justices did agree, however, to 10 non-exclusive factors that should be considered by a court in deciding whether access to protected student records should be granted.

NJSBA entered the case as a friend of the court to settle the law based on the plain language of the NJPRA.

Specifically, NJSBA argued that the regulations clearly establish only very limited categories of persons or parties who may access protected student records. The Supreme Court decision in this case continues to provide broad protections to student records from public access.

The prolonged litigation in this case highlights that there was a lack of clarity concerning the scope of privacy protections for student records under NJPRA. The N.J. Department of Education may decide to provide additional clarity by promulgating new or amended regulations. In the meantime, school districts may want to consult with their board attorney regarding OPRA requests for student records in view of the L.R. decision.

For more information about this case or general questions about requests for student records, please contact the NJSBA Legal and Labor Relations Department at 609-278-5254 or your local board attorney.