Boards of education and school districts are subject to the Open Public Records Act (OPRA), which became law in 2002. (The comparable law that covers public meetings is the Open Public Meetings Act, or “Sunshine Law,” first enacted in 1975.)
The idea behind both of these laws is that the meetings that public governance bodies hold, the decisions they make, and the documents they generate belong to the public and should be available to public scrutiny, with certain limited exceptions in the public’s interest.
The Open Public Records Act defines what is – and what isn’t – a government record. It establishes how a public body grants access to a government record. It also gives citizens the right of appeal if a record has been denied by a government agency.
In New Jersey, an agency called the Government Records Council (GRC) is charged with interpreting OPRA. The group consists of five members; three public members appointed by the governor and approved by the state Senate; and the commissioners of the New Jersey Department of Education and state’s Department of Community Affairs.
The GRC adjudicates complaints concerning denial of access to a public record, issues advisory opinions as to whether a particular type of record should be accessible to the public, trains records custodians, and operates a website and toll-free telephone helpline.
Below are some of the recently issued decisions that pertain to OPRA. While some of the cases involved municipalities, rather than school districts, the decisions would apply to all public bodies.
In Havlusch v. Borough of Allenhurst, issued in January 2013, the GRC determined that employee sign-in sheets qualify as disclosable payroll records. The GRC determined that sign-in sheets were not a personnel record that would be exempt from disclosure. The GRC reasoned that because employee sign-in sheets detail the number of weeks and dates specifically worked as required by the New Jeresy Department of Labor, they are, therefore a payroll record subject to disclosure under OPRA.
Similarly, in April 2013 in Vargas v. Camden City School District, the GRC determined that attendance records of a former superintendent, including total number of absences, including sick days, personal days, and vacation days for each school year, are payroll records accessible under OPRA.
The GRC also determined in Krrywda v. Pinelands Regional School District, that teacher certifications are public records that can be disclosed. Even though teacher certifications are personnel records, which are typically exempt from the requirements of OPRA, the law makes an exception for those personnel records that disclose conformity with specific experiential and/or educational qualifications required for government employment.
Because teacher certification is a requirement to teach in New Jersey, the specific certifications held could be disclosed. Similarly, the GRC determined in Herron v. N.J. Department of Education that the grade point average (GPA) attained by a teacher in college could also be disclosed. Because a minimum GPA is required to obtain licensure from the state education department, the GPA is information which discloses conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension. As such, the GPAs contained on the requested transcripts are public. While the specific GPA on a transcript is disclosable, the redaction of individual grades, dates of birth, and Social Security numbers contained in the requested transcripts is lawful. Furthermore, a requestor has no right to the original transcript, only a copy.
Mayer v. Borough of Tinton Falls is a case that may impact how a board of education provides outreach to the community. The GRC determined that email addresses received through a solicitation posted on a town’s website were received “in the course of official business,” making such email addresses disclosable government records.
In this case, a councilman invited citizens to subscribe to his personal town newsletter through the town’s website. The councilman also used those email addresses to keep in touch with constituents and for political campaigning. The GRC reasoned that because the solicitation was on the district website and the email list was used for political purposes, the interest in disclosure was greater than the need to keep the email addresses private.
While this case was very fact-specific, a board of education should ask its superintendent and attorney whether the district collects email addresses from citizens and whether those email addresses might be considered disclosable public records. In the previous session of the Legislature, which ended in January 2014, there was a bill, A-1280, which would have made email addresses exempt from disclosure under OPRA. The bill passed the Assembly, and was released by a Senate committee but never progressed further. When the new legislative session began Jan. 14, the bill expired.
In a case that demonstrates some of the limits of OPRA, Kohn v. Township of Livingston, the GRC determined last May that “as-built drawings” that are in the possession of a zoning board are exempt from disclosure as they contain security information or procedures for a building facility which, if disclosed, would jeopardize the safety of the building or facility or persons therein pursuant to OPRA.
The decision in Inzelbuch v. Hamilton Twp Board of Educ. indicates that not all requests for records are actual OPRA requests that must be fulfilled. A proper request under OPRA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency’s documents. A request for “Any and all Board minutes, documentation, emails, and/or any other written instrument” is insufficient as an OPRA request. “Because the complainant’s request items no. 4-5 fail to identify the specific government records sought, the complainant’s request items are overly broad and are invalid under OPRA,” the GRC decision explained.
Finally, in Popkin v. Englewood Board of Educ., a case that demonstrates again that there is a limit to the information available to the public under OPRA, the GRC determined that the law does not extend to the requested settlement of a special education matter. That was determined to be a student record, and student records laws provide that only authorized persons enumerated in the regulation shall have access to such records. The complainant was not such an authorized person, therefore the district did not violate OPRA when it denied the complainant access to the settlement agreement.
The GRC maintains a website which includes a “Frequently Asked Questions” section that may help answer board member questions. Boards with questions about specific circumstances are encouraged to consult with their board attorney.