L.R. v. Camden City Public School District (080333)(Camden, Morris, and Somerset Counties and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
L.R. v. Camden City Public School District (A-61/62-17) (080333)
Argued January 28, 2019 -- Decided July 17, 2019
PER CURIAM
These consolidated appeals arise from two actions brought by a parent of a public
school student under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and
two actions brought by a nonprofit foundation under OPRA and the common law right of
access to government documents. Two cases were brought by L.R. against the Camden
City Public School District and the Parsippany-Troy Hills Township Public School
District, respectively. Two other cases were brought by the Innisfree Foundation
(Innisfree) against the Cherry Hill Board of Education and the Hillsborough Township
Board of Education, respectively. The four trial courts that considered the issues reached
inconsistent decisions, and their judgments were appealed.
The four matters were consolidated by the Appellate Division, which affirmed in
part and reversed in part the trial courts’ determinations, and remanded for further
proceedings. 452 N.J. Super. 56, 96-97 (App. Div. 2017). The court concluded that the
records sought in the four matters constituted “government records” under OPRA,
N.J.S.A. 47:1A-1.1, and “education records” under the Federal Family Educational
Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g(a)(4)(A). Id. at 82-83. It
ruled that the documents would comprise “student records” within the meaning of
N.J.A.C. 6A:32-2.1, which are protected from disclosure under the New Jersey Pupil
Records Act, N.J.S.A. 18A:36-19, and its implementing regulations, even if redacted to
eliminate personally identifiable information in accordance with FERPA. Id. at 83.
Accordingly, the Appellate Division held that a requestor cannot gain access to a student
record unless the requestor is within one of the categories of “authorized” individuals and
entities identified in N.J.A.C. 6A:32-7.5(e)(1) through (16). Id. at 86-87. The Appellate
Division suggested, however, that L.R. and Innisfree 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 held
that either requestor might qualify as a “bona fide researcher[]” under N.J.A.C. 6A:32-
7.5(e)(16). Id. at 87-89. It directed the trial court on remand to determine the
applicability of those two potential regulatory pathways to access. Id. at 88, 91-92. To
govern the trial court’s inquiry as to whether to enter an order permitting access, the
Appellate Division adopted the factors set forth in Loigman v. Kimmelman, 102 N.J. 98,
113 (1986). Id. at 89.
1
L.R. and Innisfree filed petitions for certification, which the Court granted, limited
to two issues: the Appellate Division’s construction of the term “student record” under
N.J.A.C. 6A:32-2.1, and the standard to be applied when a requestor seeks a “court
order” pursuant to N.J.A.C. 6A:32-7.5(e)(15). 233 N.J. 222-23 (2018).
HELD: The six members of the Court who participated in this matter agree upon the
non-exclusive factors identified in the concurring opinion that govern a court’s
determination when a requestor, not otherwise authorized by statute or regulation to have
access to a given student record, seeks a court order mandating disclosure of that record
pursuant to N.J.A.C. 6A:32-7.5(e)(15). An equally divided Court affirms the Appellate
Division’s determination that a “student record” under N.J.A.C. 6A:32-2.1 retains its
protected status under New Jersey law notwithstanding the school district’s redaction
from that record of “personally identifiable information,” as required by FERPA and its
implementing regulations.
1. The Court considers the following non-exclusive factors, adopted both from Loigman
and from Doe v. Poritz, 142 N.J. 1 (1995), to provide a workable framework for a court
order for the production of student records under 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 for 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. The Court stresses
that not all of the factors will apply in every case and that additional factors not identified
in the Appellate Division’s opinion or in this opinion may be relevant to a given case.
(Patterson, J., concurring, at 41-44; Albin, J., dissenting, at 5, 17)
JUSTICE PATTERSON, CONCURRING, joined by JUSTICES
LaVECCHIA and SOLOMON, expresses the view that, as currently drafted, N.J.A.C.
6A:32-2.1 includes in the definition of a “student record” a document containing
information relating to an individual student, even if that document has been stripped of
personally identifiable information in compliance with federal law. Justice Patterson
notes that FERPA regulations envision that once “personally identifiable information” is
redacted, and the educational institute reasonably determines that the record will not
reveal the identity of the student at issue, the record may be publicly disclosed; however,
the New Jersey Department of Education has not incorporated in a proposed rule the
concept of personally identifiable information, or adopted a procedure whereby student
2
records may be disclosed following the redaction of such information. Justice Patterson
observes that the Department has acknowledged the need for greater clarity in the
regulations that govern access to New Jersey public school student records and adds that
the Court welcomes the Department’s commitment to provide more detailed guidance.
JUSTICE ALBIN, DISSENTING IN PART, joined by CHIEF JUSTICE
RABNER and JUSTICE TIMPONE, is of the view that the Department’s
interpretation of N.J.A.C. 6A:32-2.1 -- 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
-- 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, such
as student achievement test scores, district graduation rates, district violence and
vandalism incidents, bullying and harassment reports, injury and safety records, the cost
of lawsuits filed against school districts, and the effectiveness of school programs.
Justice Albin notes that N.J.A.C. 6A:32-2.1 is not a model of clarity and lends itself to
more than one reasonable interpretation; therefore, Justice Albin explains, because the
Department’s interpretation of that regulation is not “plainly unreasonable,” it is entitled
to substantial deference. Justice Albin respectfully dissents from the concurrence’s
rejection of the Department’s reasoned interpretation of N.J.A.C. 6A:32-2.1, but agrees
with the concurrence’s multi-factor test for securing a court order for pupils’ records
pursuant to N.J.A.C. 6A:32-7.5(e)(15).
The members of the Court being equally divided, the judgment of the Appellate
Division is AFFIRMED.
JUSTICES LaVECCHIA, PATTERSON, and SOLOMON concur in the judgment of
the Court and join fully the concurring opinion filed by JUSTICE PATTERSON.
JUSTICE ALBIN filed a partially dissenting opinion, in which CHIEF JUSTICE
RABNER and JUSTICE TIMPONE join, agreeing with the concurrence’s multi-factor
test for securing a court order for pupils’ records pursuant to N.J.A.C. 6A:32-
7.5(e)(15), but dissenting as to the interpretation of N.J.A.C. 6A:32-2.1. JUSTICE
FERNANDEZ-VINA did not participate.
3
SUPREME COURT OF NEW JERSEY
A-61/62 September Term 2017
080333
L.R., individually and on
behalf of J.R., a minor,
Plaintiffs,
v.
Camden City Public School
District and John C. Oberg in his
official capacity as Interim School Business
Administrator and Board Secretary,
Defendants.
L.R., individually and on
behalf of J.R., a minor,
Plaintiffs-Appellants,
v.
Parsippany-Troy Hills Township
Public School District and David F. Corso
in his official capacity as Records Custodian
of the Parsippany-Troy Hills Township Public
School District,
Defendants-Respondents.
1
The Innisfree Foundation,
Plaintiff-Appellant,
v.
Hillsborough Township Board
of Education and Aiman Mahmoud,
Records Custodian,
Defendants-Respondents.
The Innisfree Foundation,
Plaintiff-Appellant,
v.
Cherry Hill Board of Education
and James Devereaux, Records Custodian,
Defendants-Respondents.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
452 N.J. Super. 56 (App. Div. 2017).
Argued Decided
January 28, 2019 July 17, 2019
John D. Rue argued the cause for appellant The Innisfree
Foundation (John Rue & Associates, attorneys; John D.
Rue and Krista L. Haley, of counsel and on the briefs).
Jamie Epstein argued the cause for appellants L.R.,
individually and on behalf of J.R., a minor (Jamie Epstein
and Law Offices of Walter M. Luers, attorneys; Jamie
Epstein and Walter M. Luers, on the briefs).
2
Vittorio S. LaPira argued the cause for respondents
Hillsborough Township Board of Education and Aiman
Mahmoud (Fogarty & Hara, attorneys; Vittorio S. LaPira
of counsel and on the briefs, and Robert D. Lorfink on
the briefs).
Raina M. Pitts argued the cause for respondents Cherry
Hill Board of Education and James Devereaux
(Methfessel & Werbel, attorneys; Raina M. Pitts and Eric
L. Harrison, of counsel and on the briefs).
Eric L. Harrison argued the cause for respondents
Parsippany-Troy Hills Township Public School District
and David F. Corso (Methfessel & Werbel, attorneys;
Eric L. Harrison, of counsel and on the briefs, and Raina
M. Pitts, on the briefs).
Donna Arons, Deputy Attorney General, argued the cause
for amicus curiae New Jersey Department of Education
(Gurbir S. Grewal, Attorney General, attorney; Melissa
Schaffer, Assistant Attorney General, of counsel, and
Donna Arons, on the brief).
Cynthia J. Jahn argued the cause for amicus curiae New
Jersey School Boards Association (New Jersey School
Boards Association, attorneys; Cynthia J. Jahn, on the
briefs).
Jeanne LoCicero argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Jeanne LoCicero, Tess Borden, Alexander
Shalom, and Edward Barocas, on the briefs).
CJ Griffin submitted a brief on behalf of amicus curiae
Libertarians for Transparent Government (Pashman Stein
Walder Hayden, attorneys).
3
Catherine Merino Reisman submitted a brief on behalf of
amici curiae Education Law Center and Council of Parent
Attorneys and Advocates, Inc. (Reisman Carolla Gran,
attorneys).
Krista L. Haley submitted a brief on behalf of amici
curiae New Jersey Foundation for Open Government,
Brechner Center for Freedom of Information, and Student
Press Law Center (John Rue & Associates, attorneys).
PER CURIAM
The judgment of the Appellate Division is affirmed by an equally
divided Court.
JUSTICE PATTERSON, concurring.
These consolidated appeals arise from two actions brought by a parent of
a public school student under the Open Public Records Act (OPRA), N.J.S.A.
47:1A-1 to -13, and two actions brought by a nonprofit foundation under
OPRA and the common law right of access to government documents. The
requestors sought to compel disclosure of certain educational records
maintained by the defendant public school districts. In each case, the school
district declined to produce the requested records. The four trial courts that
considered the issues reached inconsistent decisions, and their judgments were
appealed.
4
The Appellate Division consolidated the cases and determined that the
disputed records constituted “student records” protected from disclosure under
the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-19, and its
implementing regulations. L.R. v. Camden City Pub. Sch. Dist., 452 N.J.
Super. 56, 83-87 (App. Div. 2017). It held that pursuant to N.J.A.C. 6A:32-
7.5(e), only authorized individuals and entities would be permitted access to
such records. Id. at 86-87. The Appellate Division remanded the matters for a
determination of whether the requestors could establish a right of access under
two regulations that had not been considered by the trial courts, N.J.A.C.
6A:32-7.5(e)(15), which authorizes such access “upon the presentation of a
court order,” and N.J.A.C. 6A:32-7.5(e)(16), which grants “bona fide
researchers” access to student records. Id. at 87-92. It also concluded that the
common law right of access factors prescribed in Loigman v. Kimmelman, 102
N.J. 98, 113 (1986), prescribed the governing standard for the issuance of a
court order. Id. at 89.
We granted the requestors’ petitions for certification, limited to two
issues: the Appellate Division’s construction of the term “student record”
under N.J.A.C. 6A:32-2.1, and the standard to be applied when a requestor
seeks a “court order” pursuant to N.J.A.C. 6A:32-7.5(e)(15).
5
We concur with the Appellate Division that a “student record” under
N.J.A.C. 6A:32-2.1 retains its protected status under New Jersey law
notwithstanding the school district’s redaction from that record of “personally
identifiable information,” as required by the Federal Family Educational
Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, and its
implementing regulations. Although New Jersey school districts are required
to comply with FERPA and its regulations, no New Jersey statute or regulation
authorizes the disclosure of student records after redaction of personally
identifiable information or provides that school districts satisfy New Jersey’s
privacy mandate if they adhere to federal law. To the contrary, the text and
history of New Jersey’s student record privacy regulations suggest that those
regulations are intended to be distinct from -- and stricter than -- those
imposed by FERPA and federal regulations.
We conclude that, as currently drafted, N.J.A.C. 6A:32-2.1 includes in
the definition of a “student record” a document containing information relating
to an individual student, even if that document has been stripped of personally
identifiable information that might identify the student in compliance with
federal law.
Second, we identify non-exclusive factors to govern a court’s
determination when a requestor, not otherwise authorized by statute or
6
regulation to have access to a given student record, seeks a court order
mandating disclosure of that record pursuant to N.J.A.C. 6A:32-7.5(e)(15).
Those factors are derived from Burnett v. County of Bergen, 198 N.J. 408, 427
(2009), in which we applied the standard of Doe v. Poritz, 142 N.J. 1 (1995) in
the OPRA setting, and from Loigman, 102 N.J. at 113, in which we addressed
the common law right of access to government records.
The New Jersey Department of Education, which participated in these
appeals as amicus curiae at our request, acknowledged the need for greater
clarity in the regulations that govern access to New Jersey public school
student records. We welcome the Department’s commitment to provide
students, parents, school districts, other educational agencies, and the public
with more detailed guidance regarding the sensitive issues raised by these
appeals.
I.
We begin by reviewing each of the four underlying suits and trial court
decisions. Two cases were brought by L.R. against the Camden City Public
School District (Camden) and the Parsippany-Troy Hills Township Public
School District (Parsippany-Troy Hills), respectively. Two other cases were
brought by the Innisfree Foundation (Innisfree) against the Cherry Hill Board
of Education (Cherry Hill) and the Hillsborough Township Board of Education
7
(Hillsborough), respectively. We then turn to the single Appellate Division
decision in which the four cases were consolidated.
A.
1.
Plaintiff L.R. is the mother of J.R. In 2014, when this litigation
commenced, J.R. was a minor and attended a school operated by Camden.
L.R., acting on J.R.’s behalf, served two records requests pursuant to
OPRA on Camden’s records custodian. In those requests, L.R. sought an
access log identifying all individuals permitted to view J.R.’s school records.
She also sought records, letters, and e-mails containing J.R.’s name from
sources specified in her request.
Camden produced redacted versions of the list of individuals with access
and other documents but declined L.R.’s requests for several categories of
student records on confidentiality grounds. It also responded that it was not in
possession of certain requested categories of documents.
L.R. filed a complaint and an Order to Show Cause in the Law Division
against Camden, its records custodian, and the Department of Education,
seeking access to the requested documents. The trial court granted L.R.’s
application with respect to the access log, but held that FERPA, not OPRA,
8
was the source of L.R.’s right to that log. It denied L.R.’s application with
respect to the other categories of records sought. L.R. appealed.
2.
L.R. served a request for records pursuant to OPRA on Parsippany-Troy
Hills to permit comparative analysis that would assist in a pending dispute
between L.R. and Camden concerning J.R.’s educational needs. L.R. sought
the following records:
1. All requests made on behalf of students for
independent educational evaluations and all
responses to those requests.
2. All requests made on behalf of students for
independent evaluations and all responses to those
requests[.]
([P]lease provide all records with personal identifiers
of students and their parents or guardians redacted
leaving only initials).
Parsippany-Troy Hills denied the OPRA requests. It contended, among
other assertions, that the records sought “would constitute [] pupil record[s]
under N.J.A.C. 6A:32-1.1 et seq. and thus would be exempt from disclosure
under OPRA.”
L.R. filed a complaint and an Order to Show Cause in the Law Division
against Parsippany-Troy Hills and its records custodian. She asserted that
OPRA entitled her to other parents’ requests for independent educational
9
evaluations of their children, and responses thereto, “with personal identifiers
redacted from all documents and, with respect to names, redacting names and
leaving only initials.”
The trial court ordered disclosure of the requested documents, redacted
to remove personally identifiable information, including the initials of the
students whose records would be disclosed. 1 The court reasoned that once
redacted, the documents would no longer constitute educational records under
FERPA, or student records within the meaning of the NJPRA. Applying the
factors set forth in Doe, 142 N.J. at 88, the court ordered disclosure of the
documents, redacted in accordance with FERPA to remove personally
identifiable information. Based on the volume of the records requested and the
anticipated cost of the redactions, the trial court imposed a special service
charge of $96,815 on the counsel who had requested the records. See N.J.S.A.
47:1A-5(c). It awarded attorneys’ fees to L.R. and J.R. pursuant to N.J.S.A.
47:1A-6.
1
Because L.R. and Camden settled their dispute concerning J.R.’s educational
needs while the Parsippany-Troy Hills action was pending, and her counsel
represented at oral argument that the records were being requested to assist in
other litigation, the trial court sua sponte found that L.R. and J.R. no longer
had standing to pursue the matter, and substituted their counsel as the named
plaintiff. The Appellate Division reversed the trial court’s decision that
substituted L.R.’s counsel for L.R. as the named plaintiff. L.R., 452 N.J.
Super. at 88 n.10.
10
Parsippany-Troy Hills appealed the trial court’s determination, and L.R.
cross-appealed to challenge the trial court’s substitution of her counsel for her
as the plaintiff, as well as the court’s holding that students’ initials should be
redacted from the records prior to disclosure.
3.
Innisfree Foundation (Innisfree) states that it is a nonprofit organization
that “assists families of children with disabilities who reside in New Jersey to
advocate for their children’s educational needs.”
Innisfree served OPRA requests on Cherry Hill, seeking the following
records:
All settlement agreements executed in the past two
years and related to disputes between Cherry Hill
School District and parents of students related to the
provision of special education services, where the
counterparties were parents (or a single parent) of a
child or children for whom special education services
were or are either provided or sought. (Personally
identifiable information may be redacted).
Innisfree requested that Cherry Hill redact any personally identifiable
information related to an individual student before disclosing the records, and
further that it provide an index of any requested records withheld as exempt
from disclosure under OPRA.
Citing a Government Records Council decision deeming settlement
agreements to be “student records” exempt from disclosure under N.J.A.C.
11
6A:32-2.1, Cherry Hill denied Innisfree’s request for the documents and the
index of records withheld from disclosure.
Innisfree filed a complaint and an Order to Show Cause in the Law
Division, asserting claims under OPRA and the common law right of access
against Cherry Hill and its records custodian. The trial court ordered Cherry
Hill to produce the requested settlement agreements with appropriate redaction
and serve an index of documents withheld. It also granted Innisfree’s
application for attorneys’ fees. Cherry Hill appealed.
4.
Innisfree served on Hillsborough an OPRA request -- virtually identical
to the request served on Cherry Hill -- for settlement agreements between
Hillsborough and parents, related to the provision of special education services
to students.
Hillsborough denied Innisfree’s OPRA request. It contended that even if
the documents at issue were redacted, they would remain education records for
purposes of FERPA and “student records” protected by N.J.A.C. 6A:32-2.1,
because the records would still contain “information related to an individual
student gathered within or outside the school district and maintained within the
school district.”
12
Innisfree filed a complaint and an Order to Show Cause against
Hillsborough and its records custodian in the Law Division, asserting claims
based on OPRA and the common law right of access. The trial court denied
Innisfree’s application and dismissed its complaint. The court held that a
document constituting a “student record” under N.J.A.C. 6A:32-2.1 does not
lose its protected status under state regulations by virtue of FERPA-mandated
redactions. Innisfree appealed.
B.
The four matters were consolidated by the Appellate Division, which
granted amicus curiae status to the New Jersey School Boards Association
(NJSBA) and the American Civil Liberties Union -- New Jersey (ACLU), as
well as to Innisfree in the two cases to which it was not a party. L.R., 452 N.J.
Super. at 71-72.
The Appellate Division affirmed in part and reversed in part the trial
courts’ determinations, and remanded for further proceedings. 2 The court
2
In L.R. v. Camden City Pub. Sch. Dist., the Appellate Division affirmed the
trial court’s order as to the release of J.R.’s school records, and remanded for
further proceedings as to the remaining records in dispute. L.R., 452 N.J.
Super. at 96. In L.R. v. Parsippany-Troy Hills Twp. Pub. Sch. Dist., the court
vacated the trial court’s order mandating disclosure of the requested records,
and remanded for further proceedings as to those documents as well. Ibid. In
Innisfree Found. v. Hillsborough Twp. Bd. of Educ., the Appellate Division
affirmed in part the trial court’s order denying access to the documents,
without prejudice to Innisfree’s right to seek access to those documents
13
concluded that the records sought in the four matters constituted “government
records” under OPRA, N.J.S.A. 47:1A-1.1, and “education records” under
FERPA, 20 U.S.C. § 1232g(a)(4)(A). Id. at 82-83. It ruled that the documents
would comprise “student records” within the meaning of N.J.A.C. 6A:32-2.1,
even if redacted to eliminate personally identifiable information in accordance
with FERPA. Id. at 83. The Appellate Division acknowledged that N.J.A.C.
6A:32-7.5(g) directs adherence to OPRA and FERPA, but it did not construe
that provision to mean that either statute mandated disclosure of student
records protected by N.J.A.C. 6A:32-2.1. Id. at 85. Accordingly, the
Appellate Division held that a requestor cannot gain access to a student record,
even if that record is redacted as FERPA mandates, unless the requestor is
within one of the categories of “authorized” individuals and entities identified
in N.J.A.C. 6A:32-7.5(e)(1) through (16). Id. at 86-87.
The Appellate Division suggested, however, that L.R. and Innisfree
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 held that either requestor might
pursuant to N.J.A.C. 6A:32-7.5(e)(15) or (16). Ibid. In Innisfree Found. v.
Cherry Hill Bd. of Educ., the court vacated the trial court’s order compelling
disclosure of records, and remanded for further proceedings. Ibid. The
Appellate Division determined that all four matters should be considered on
remand by a single trial judge. Id. at 96-97.
14
qualify as a “bona fide researcher[]” under N.J.A.C. 6A:32-7.5(e)(16). Id. at
87-89. It directed the trial court on remand to determine the applicability of
those two potential regulatory pathways to access. Id. at 88, 91-92.
To govern the trial court’s inquiry as to whether to enter an order
permitting access, the Appellate Division adopted the factors set forth in
Loigman, 102 N.J. at 113. Id. at 89. It required school districts to “afford
parents and guardians a reasonable opportunity to comment upon the proposed
redactions of records relating to their own child,” and cautioned them to
“scrupulously observe[]” the three-day parental notice mandated by N.J.A.C.
6A:32-7.6(a)(4) in that regard. Id. at 92.
C.
L.R. and Innisfree filed petitions for certification. We granted
certification limited to the following issues:
(1) Whether the Appellate Division improperly
broadened the definition of “student record” embodied
in N.J.A.C. 6A:32-2.1 to extend beyond “information
related to an individual student” to the entire document
in which that information resides; and
(2) Whether the Appellate Division improperly
ordered that the balancing of the privacy interests
against the interest in disclosure be conducted under the
common law right to access rather than the factors set
forth in Doe v. Poritz, 142 N.J. 1 (1995).
[233 N.J. 222-23 (2018).]
15
Following the grant of certification, counsel for L.R. notified the Court
that L.R. and Camden had resolved their dispute, and her action against
Camden was dismissed.
We granted amicus curiae status to the Education Law Center, the
Council of Parent Attorneys and Advocates, the New Jersey Foundation for
Open Government, the Brechner Center for Freedom of Information, the
Student Press Law Center, Libertarians for Transparent Government, and the
New Jersey Board of Education. NJSBA and ACLU continued to participate
in the appeals as amicus curiae. -----
See R. 1:13-9(d).
At our request, the Department of Education (the Department), which
promulgated the New Jersey regulations under consideration, also appeared as
amicus curiae. In its brief, the Department 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
student records than federal law requires, and that the decision unreasonably
restricted public access to anonymized aggregate data.
At oral argument, the Department stated that it views “information
related to a student” under N.J.A.C. 6A:32-2.1 to denote information
identifiable to a particular student. It noted, however, that some categories of
student records are so permeated with confidential information about
16
individual students that redaction of personally identifiable information may
not sufficiently protect student privacy. The Department argued that in a close
case, a school district should err on the side of redacting student information.
The Department acknowledged that the dispute in these matters signals the
need for clarification of current student record privacy regulations.
II.
A.
The first question on certification requires that we construe OPRA, the
NJPRA, and FERPA, as well as regulations adopted pursuant to the NJPRA
and FERPA.
When we interpret a statute, our paramount goal is to ascertain the
Legislature’s intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005). “When
the Legislature’s chosen words lead to one clear and unambiguous result, the
interpretive process comes to a close, without the need to consider extrinsic
aids.” State v. Shelley, 205 N.J. 320, 323 (2011). Only if the statute is
ambiguous, or if a literal reading gives rise to an absurd result, do we consider
legislative history or other extrinsic information. See State v. Harper, 229 N.J.
228, 237 (2017). “When interpreting multiple statutes governing the same
subject, the Court should attempt to harmonize their provisions.” Town of
Kearny v. Brandt, 214 N.J. 76, 98 (2013).
17
“We interpret a regulation in the same manner that we would interpret a
statute.” U.S. Bank, N.A. v. Hough, 210 N.J. 187, 199 (2012). “Generally,
under those standards, the intent of the drafters is to be found in the plain
language of the enactment.” Bedford v. Riello, 195 N.J. 210, 221 (2008)
(citing DiProspero, 183 N.J. at 492). “We look to extrinsic evidence if a plain
reading of the enactment leads to more than one plausible interpretation.” Id.at 222 (citing DiProspero, 183 N.J. at 492-93).
B.
In 2001, the Legislature enacted OPRA, N.J.S.A. 47:1A-1 to -13, L.
2001, c. 404, replacing the Right to Know Law, N.J.S.A. 47:1A-2 (repealed by
L. 2001, c. 404, § 17, effective July 7, 2002). Through the new law, the
Legislature “intended to bring greater transparency to the operations of
government and public officials.” Paff v. Galloway Township., 229 N.J. 340,
352 (2017); see also Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531,
541 (2012) (noting the Legislature’s goal to “promote transparency in the
operation of government”).
Under OPRA, a requestor whose demand for government records has
been denied may challenge that denial by filing an action in court, or by filing
a complaint with the Government Records Council. N.J.S.A. 47:1A-6. In
either proceeding, “[t]he public agency shall have the burden of proving that
18
the denial of access is authorized by law.” Ibid. A requestor who prevails in
such a proceeding “shall be entitled to a reasonable attorney’s fee.” Ibid.; see
also Courier News v. Hunterdon Cty. Prosecutor’s Office, 378 N.J. Super. 539,
546 (App. Div. 2005) (holding that fee-shifting under OPRA provides “a vital
means of fulfilling” the Legislature’s declaration of public policy in favor of a
right of access).
To further its goal of ensuring transparency in government, the
Legislature provided that “any limitations on the right of access accorded by
[the Right to Know Law] as amended and supplemented, shall be construed in
favor of the public’s right of access.” N.J.S.A. 47:1A-1. The Legislature also
broadly defined the term “government record” subject to public access. Ibid.As the parties agree, all documents disputed in these appeals constitute
“government records” for purposes of OPRA.
Notwithstanding OPRA’s expansive reach, “the right to disclosure is not
unlimited, because as we have previously found, OPRA itself makes plain that
‘the public’s right of access [is] not absolute.’” Kovalcik v. Somerset Cty.
Prosecutor’s Office, 206 N.J. 581, 588 (2011) (alteration in original) (quoting
Educ. Law Ctr. v. Dep’t of Educ., 198 N.J. 274, 284 (2009)). “That conclusion
rests on the fact that OPRA exempts numerous categories of documents and
information from disclosure.” Ibid.19
In its findings and declarations of public policy, the Legislature required
public agencies subject to OPRA “‘to safeguard from public access a citizen’s
personal information’ when ‘disclosure thereof would violate the citizen’s
reasonable expectation of privacy.’” In re N.J. Firemen’s Ass’n Obligation,
230 N.J. 258, 277 (2017) (quoting N.J.S.A. 47:1A-1). That privacy language
“appears after OPRA’s enactment clause, making the provision part of the
body of the law,” and it “imposes an obligation on public agencies to protect
against disclosure of personal information which would run contrary to
reasonable privacy interests.” Burnett, 198 N.J. at 423.
Two OPRA provisions exempt from public access government records
that are excluded from such access by enumerated sources of law. First, the
Legislature’s findings and declarations exempt from public access government
records that are
exempt from such access by: L. 1963, c. 73 as amended
and supplemented; any other statute; resolution of
either or both houses of the Legislature; regulation
promulgated under the authority of any statute or
Executive Order of the Governor; Executive Order of
the Governor; Rules of Court; any federal law, federal
regulation, or federal order.
[N.J.S.A. 47:1A-1.] 3
3
This provision closely tracked the language of OPRA’s predecessor statute,
the Right to Know Law, which exempted records from disclosure to the extent
“provided in this act or any other statute, resolution of either or both houses of
the Legislature, executive order of the Governor, rule of court, any Federal
20
Second, OPRA “exempts from disclosure any information that is
protected by any other state or federal statute, regulation, or executive order.”
Brennan v. Bergen Cty. Prosecutor’s Office, 233 N.J. 330, 338 (2018). OPRA
states that its provisions
shall not abrogate any exemption of a public record or
government record from public access heretofore made
pursuant to L. 1963, c. 73; any other statute; resolution
of either or both Houses of the Legislature; regulation
promulgated under the authority of any statute or
Executive Order of the Governor; Executive Order of
the Governor; Rules of Court; any federal law; federal
regulation; or federal order.
[N.J.S.A. 47:1A-9(a).]
Accordingly, to the extent that the disputed student records in these
matters are protected from public disclosure by the NJPRA and its
implementing regulations, those records are not subject to disclosure under
OPRA.
C.
1.
The central issue in these appeals is whether the documents sought by
L.R. and Innisfree constitute “student records” under N.J.A.C. 6A:32-2.1 --
law, regulation or order, or by any regulation promulgated under the authority
of any statute or executive order of the Governor.” N.J.S.A. 47:1A-2 (repealed
by L. 2001, c. 404, § 17, effective July 7, 2002).
21
and are thus exempt from disclosure under OPRA -- even if they are redacted
to remove personally identifiable information pursuant to FERPA and federal
regulations. Our consideration of that issue is informed by the historical
development of state and federal student privacy law.
2.
The Legislature enacted the NJPRA in 1944. L. 1944, c. 217. In its
original form, the NJPRA did not expressly pronounce on the privacy of
student records. It mandated, however, that the State Board of Education
develop rules “governing the public inspection of pupil records and the
furnishing of any other information relating to the pupils and former pupils of
any school district,” L. 1944, c. 217, § 1, thereby implicitly recognizing the
need for controlled inspection of such information.
In 1967, the Legislature took a further step, amending the NJPRA to
mandate promulgation of regulations so that “[p]ublic inspection of pupil
records may be permitted and any other information relating to the pupils or
former pupils of any school district may be furnished.” L. 1967, c. 271
(emphasis added). A regulation adopted pursuant to the NJPRA opened pupil
records to inspection by, among other categories of authorized individuals,
“persons who, in the judgment of the board of education . . . have a legitimate
interest in the records for purposes of systematic educational research,
22
guidance, and social service.” N.J.A.C. 6:3-1.3(b) (1969). That said, New
Jersey law explicitly acknowledged the privacy of student records -- the
regulation authorized a board of education to “withhold items of information
which, in the judgment of the said board . . . are of a confidential nature or in
which the applicant for such information has no legitimate interest.” N.J.A.C.
6:3-1.3(e) (1969). No regulation guided boards of education in making such
confidentiality judgments.
2.
Federal law governing the privacy of student records underwent
comprehensive reform when Congress enacted FERPA in 1974. Pub. L. No.
93-380, § 438, 88 Stat. 571 (1974). That statute barred federal funding “under
any applicable program to any State or local educational agency . . . which has
a policy of permitting the release of personally identifiable records or files (or
personal information contained therein) of students without the written consent
of their parents to any individual, agency, or organization” other than those
enumerated. 20 U.S.C. § 1232g(b)(1) (1974). In FERPA, however, Congress
did not define either “personally identifiable records or files” or “personal
information.” ---
See 20 U.S.C. § 1232g (1974).
In an amendment later that year, Congress clarified that FERPA
protected “education record[s],” a term defined to mean “records, files,
23
documents, and other materials,” which (1) “contain information directly
related to a student,” and (2) “are maintained by an educational agency or
institution or by a person acting for such agency or institution.” Pub. L. No.
93-568, § 2(a)(2)(F), 88 Stat. 1859 (1974). In federal regulations proposed in
1975, “education records” were defined as records that: (1) “contain
information directly related to a student; and (2) are maintained by an
educational agency or institution, or by a party acting for such agency or
institution.” Privacy Rights of Parents and Students, 40 Fed. Reg. 1208(proposed Jan. 6, 1975). 4
The proposed federal regulations limited access, without consent, to
“education records” if they contained “personally identifiable” data or
information, which was defined to include:
(a) the name of a student, the student’s parent, or other
family member, (b) the address of the student, (c) a
personal identifier, such as the student’s social security
number or student number, (d) a list of personal
characteristics which would make it possible to identify
4
In its current form, FERPA permits the release of education records without
parental consent: to certain school officials at the student’s current school and
to certain school officials at a school in which the student seeks to or intends
to enroll; to certain government officials or contractors; to organizations
conducting specified studies for, or on behalf of, educational agencies or
institutions for specified purposes and under conditions set forth in the statute;
to accrediting organizations; to parents of a dependent student as defined in the
statute; to certain enumerated persons in case of emergency; and in connection
with financial aid applications. 20 U.S.C. § 1232g(b)(1)(A) to (L).
24
the student with reasonable certainty, or (e) other
information which would make it possible to identify
the student with reasonable certainty.
[Id. at 1211.]
Thus, by 1975, FERPA and its proposed implementing regulations had
limited the meaning of “education records” to records containing “information
directly related to a student,” 20 U.S.C. § 1232g (1974); 40 Fed. Reg. 1208,
and the proposed regulations incorporated the concept of “personally
identifiable” data or information into federal student privacy law, 40 Fed. Reg.
at 1211. With their federal funding at stake, see 20 U.S.C. § 1232g(a), (b)
(1974), New Jersey educational agencies were required to meet those federal
privacy standards.
3.
When it addressed the privacy of student records under state law in the
wake of FERPA, the New Jersey Department of Education could have based
state regulations on implemented and proposed federal standards, thereby
incorporating into New Jersey law the redaction of “personally identifiable
information” as the linchpin of student record privacy. Had the Department
conformed New Jersey’s regulations to their proposed federal counterparts in
that manner, student records redacted to remove student and parent names,
addresses, social security numbers, and other personally identifiable
25
information would be subject to public disclosure, even if those records
retained other information relating to the individual student. See 40 Fed. Reg.
1208.
When it implemented student privacy regulations, however, New Jersey
followed a different path. As the Legislature later noted, New Jersey
undertook “more than a year of study by the department in consultation with
various educational associations and interest groups.” S. Educ. Comm.
Statement to S. 260 2 (Mar. 29, 1976).
The regulations that resulted from that review were proposed on
December 5, 1974, 6 N.J.R. 465, and adopted on June 5, 1975, 7 N.J.R. 251-
52. Those regulations did not track their federal counterparts. They limited
access to “pupil records,” defined as “information related to an individual
pupil gathered within or without the school system and maintained within the
school system, regardless of the physical form in which it is maintained.”
N.J.A.C. 6:3-2.2 (1975). The regulations made no mention of the “personally
identifiable information” concept at the core of the federal approach. See ibid.They did not authorize school districts to publicly disclose anonymized “pupil
records.” See ibid.26
In short, although the New Jersey Department of Education clearly
adopted its student privacy regulations in response to FERPA’s enactment, it
did not model those regulations on federal law.
Nor did the Legislature base its post-FERPA amendments to the NJPRA
on FERPA itself. When it amended the NJPRA in 1976, the Legislature cited
“two central areas of concern pertaining to the problem of pupil records: the
confidentiality of these records and their accessibility to parents and adult
students,” and cited “general agreement that the current statutes, rules and
regulations should be revised to afford greater protection to both parents and
students.” S. Educ. Comm. Statement to S. 260 1 (Mar. 29, 1976). Although
the Legislature acknowledged the role that federal law played in prompting it
to amend the NJPRA, see ibid., it nonetheless included in the statute student
privacy language specific to New Jersey:
The State Board of Education shall provide by
regulation for the creation, maintenance and retention
of pupil records and for the security thereof and access
thereto, to provide general protection for the right of the
pupil to be supplied with necessary information about
herself or himself, the right of the parent or guardian
and the adult pupil to be supplied with full information
about the pupil, except as may be inconsistent with
reasonable protection of the persons involved, the right
of both pupil and parent or guardian to reasonable
privacy as against other persons and the opportunity for
the public schools to have the data necessary to provide
a thorough and efficient educational system for all
pupils.
27
[L. 1977, c. 346 (codified at N.J.S.A. 18A:36-19).]
That statutory provision remains in effect today.
In the wake of the NJPRA’s 1977 amendment, there were no changes to
the regulations implementing the NJPRA. Those regulations were next
amended effective September 6, 2005. Pursuant to the amended regulations,
“[o]nly authorized organizations, agencies or persons as defined in this section
[had] access to student records, including student health records.” N.J.A.C.
6A:32-7.5(a) (2005). The term “student record,” which replaced the term
“pupil record” in the amended regulations, was defined to mean:
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. Therefore, information
recorded by certified school personnel solely as a
memory aid, not for the use of a second party, is
excluded from this definition.
[N.J.A.C. 6A:32-2.1 (2005).]
As amended in 2005, the regulations identified categories of individuals
and entities entitled to view student records. N.J.A.C. 6A:32-7.5(e) (2005).
Among those categories of individuals and entities authorized to view student
records were “[o]rganizations, agencies and individuals outside the school,
28
other than those specified in this section, upon the presentation of a court
order.” Id. § 7.5(e)(14). “Bona fide researchers” were also permitted access
under conditions specified in the regulation. Id. § 7.5(e)(15).
Thus, as it did when it adopted the original NJPRA regulations, the
Department of Education maintained the distinctions between New Jersey’s
student record privacy standard and federal regulations adopted pursuant to
FERPA. The regulations did not incorporate the FERPA regulations’
requirement that records be “directly related to the student” in order to
constitute “education records.” Compare N.J.A.C. 6A:32-2.1 (2005), and
N.J.A.C. 6A:32-7.5 (2005), with 34 C.F.R. § 99.31 (2005). Nor did they limit
protection to records containing “personally identifiable” data or information,
as did the federal regulations in effect at that time. Ibid.
4.
In January 2009, the United States Department of Education
implemented a procedure for the redaction of “personally identifiable
information” from educational records before disclosing such records as a
method of protecting student privacy. 34 C.F.R. § 99.3 (2009). Two years
later, it adopted a regulation defining “personally identifiable information” to
include, but not be limited to:
(a) The student’s name;
29
(b) The name of the student’s parent or other family
members;
(c) The address of the student or student’s family;
(d) A personal identifier, such as the student’s social
security number, student number, or biometric record;
(e) Other indirect identifiers, such as the student’s date
of birth, place of birth, and mother’s maiden name;
(f) Other information that, alone or in combination, is
linked or linkable to a specific student that would allow
a reasonable person in the school community, who does
not have personal knowledge of the relevant
circumstances, to identify the student with reasonable
certainty; or
(g) Information requested by a person who the
educational agency or institution reasonably believes
knows the identity of the student to whom the education
record relates.
[34 C.F.R. § 99.3.]
As amended, FERPA regulations envision that once “personally
identifiable information” is redacted, and the educational institute reasonably
determines that the record will not reveal the identity of the student at issue,
the record may be publicly disclosed:
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
§ 99.30 after the removal of all personally identifiable
information provided that the educational agency or
30
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.
[34 C.F.R. § 99.31(b)(1).]
The New Jersey Department of Education has twice amended N.J.A.C.
6A:32-7.5 since the federal regulations incorporated the redaction of
personally identifiable information as a means of ensuring student privacy, see
45 N.J.R. 419(a) (proposed Mar. 4, 2013), 45 N.J.R. 2590(a) (adopted Nov. 14,
2013); 46 N.J.R. 1775(a) (proposed Aug. 18, 2014), 47 N.J.R. 464(a) (adopted
Feb. 17, 2015). The Department, however, has not incorporated in a proposed
rule the concept of personally identifiable information, or adopted a procedure
whereby student records may be disclosed following the redaction of such
information. 5
5
New Jersey has declined in other respects to conform its NJPRA regulations
to FERPA regulations. For example, federal regulations allows for production
of educational records in response to a “lawfully issued subpoena” as well as a
court order, 34 C.F.R. § 99.31(a)(9)(i) to (ii), but only a court order warrants
such production under New Jersey regulations, N.J.A.C. 6A:32-7.5(e)(15).
Under state regulations, a New Jersey school district served with a court order
authorizing disclosure of student records must “give the parent or adult student
at least three days’ notice of the name of the requesting agency and the
specific records requested unless otherwise judicially instructed.” N.J.A.C.
6A:32-7.6(a)(4). FERPA regulations, in contrast, require only that the school
district “make a reasonable effort to notify the parent or eligible student” of an
impending release. 34 C.F.R. § 99.31(a)(9)(ii). In both regards, New Jersey
safeguards student privacy more strictly than does federal law.
31
In sum, although New Jersey educational agencies must comply with
FERPA and its regulations, and although that introduction of those federal
standards prompted state officials to address the question of student record
privacy, New Jersey has diverged from the federal path.
C.
Against that backdrop, we review the Appellate Division’s holding that a
“student record” protected from disclosure under the NJPRA, as defined in
N.J.A.C. 6A:32-2.1, remains a student record and retains its protected status
even if all “personally identifiable information,” as defined in FERPA, is
redacted from that record.
1.
We concur with the Appellate Division that the regulation’s plain
language indicates that a document need not include “personally identifiable
information” to constitute a “student record.” ---
L.R., 452 N.J. Super. at 82-87.
N.J.A.C. 6A:32-2.1 expansively defines a “student record” to denote
“information related to an individual student gathered within or outside the
school district and maintained within the school district.”
Categories of documents addressed in these appeals illustrate the
meaningful distinction between that regulatory language and federal law. A
settlement agreement between a student’s parents and a school district, for
32
example, might be redacted pursuant to 34 C.F.R. § 99.3 to delete personally
identifiable information so that the agreement could not be traced to an
individual student. If that redaction left in the agreement information about
the student’s disability, however, the record would contain “information
related to” that student, and would still constitute a “student record” under the
plain language of N.J.A.C. 6A:32-2.1. -------
See L.R., 452 N.J. Super. at 84-85.
Similarly, an individualized education program developed in accordance with
20 U.S.C. § 1414(d) and N.J.A.C. 6A:14-3.7 might be redacted so the student
could not readily be identified, thus satisfying 34 C.F.R. § 99.31(b)(1) and
FERPA. If, however, “information related to the student” remained, that
document would constitute a “student record” under N.J.A.C. 6A:32-2.1
notwithstanding the federally-mandated redactions.
In short, as the Appellate Division concluded, N.J.A.C. 6A:32-2.1’s
plain language indicates that a “student record” does not necessarily lose its
protected status under state law merely because it is redacted in compliance
with FERPA regulations.
2.
We likewise share the Appellate Division’s view that N.J.A.C. 6A:32-
7.5(g), which states that “[i]n complying with this section, individuals shall
33
adhere to requirements pursuant to [OPRA] and [FERPA],” does not alter the
analysis. See L.R., 452 N.J. Super. at 85-86.
We do not construe N.J.A.C. 6A:32-7.5(g)’s reference to OPRA to
suggest that a requestor’s invocation of OPRA undermines the privacy
protections set forth in NJRPA regulations. Instead, N.J.A.C. 6A:32-7.5(g)
confirms that individuals and entities may request student records in
accordance with OPRA’s provisions, and that educational agencies must
comply with those provisions when they respond to such requests. See, e.g.,
N.J.S.A. 47:1A-5 (prescribing procedure for inspection of public records);
N.J.S.A. 47:1A-6 (authorizing requestor to challenge denial of access in
Superior Court or Government Records Council). 6 In mandating compliance
with OPRA, N.J.A.C. 6A:32-7.5(g) does not purport to determine whether a
given OPRA request will ultimately prevail; indeed, that regulation
underscores the Legislature’s recognition of exemptions to OPRA created by
statute, regulation, and other enumerated sources of law. N.J.S.A. 47:1A-1, -9.
N.J.A.C. 6A:32-7.5(g)’s mention of OPRA does nothing to resolve the core
inquiry in these appeals: whether the requested documents, if redacted to
6
N.J.A.C. 6A:32-7.5(c) permits a district board of education to charge “a
reasonable fee for reproduction of student records,” not to exceed the schedule
of costs set forth in an OPRA provision, N.J.S.A. 47:1A-5.
34
remove personally identifiable information, remain “student records” that the
NJPRA and its regulations exempt from disclosure under OPRA.
N.J.A.C. 6A:32-7.5(g)’s general reference to FERPA is no more
significant to these appeals than its allusion to OPRA. As a matter of New
Jersey administrative law, N.J.A.C. 6A:32-7.5(g)’s general reference to
FERPA does not incorporate into that regulation the redaction and disclosure
procedure set forth at 34 C.F.R. § 99.31(b)(1), or the provisions of any federal
statute or regulation addressing the privacy of student records.
When agencies adopt New Jersey administrative regulations, they may
“incorporate[] into a rule by reference” sections of New Jersey Statutes
Annotated, the United States Code, and the Code of Federal Regulations, as
well as other enumerated sources of authority. N.J.A.C. 1:30-2.2(a). They
must do so, however, with precision, so that regulated persons and entities are
on notice of the requirements imposed on them:
Any agency incorporating any section of a source by
reference shall adopt and file as a rule appropriate
language indicating:
1. What is incorporated including either:
i. The specific date or issue of the section of the
source incorporated; or
ii. A statement indicating whether the section
incorporated includes future supplements and
amendments.
35
2. Where and how a copy of the section can be obtained.
[N.J.A.C. 1:30-2.2(c).]
N.J.A.C. 6A:32-7.5(g) contains no cross-reference to any federal
regulation enacted under FERPA, let alone the specific regulation, 34 C.F.R.
§ 99.31(b)(1), that addresses the disclosure of educational records after
redaction of personally identifiable information. It cannot be read to
substantively import that regulation into New Jersey student privacy law.
Significantly, as to a subset of student records -- student health records
-- the regulation requires that “[a]ccess to and disclosure of” such records
“meet the requirements of” FERPA. N.J.A.C. 6A:32-7.5(d). Even that limited
provision does not incorporate the redaction procedure prescribed by 34 C.F.R.
§ 99.31(b)(1) into New Jersey’s rule. Moreover, the Commissioner of
Education has issued no rule, or even informal guidance, providing that the
redaction of personally identifiable information from a student record is
sufficient to satisfy the NJPRA’s student privacy goals. See In re Request for
Solid Waste Util. Customers Lists, 106 N.J. 508, 518-520 (1987) (discussing
informal agency action). In short, although N.J.A.C. 6A:32-7.5 generally
refers to FERPA, neither 34 C.F.R. § 99.31(b)(1) nor the redaction and
disclosure procedure that it prescribes has been made part of New Jersey law.
36
To date, the Department of Education simply has not taken the
regulatory steps necessary to provide that a “student record” under N.J.A.C.
6A:32-2.1 loses its privacy protection if a school district redacts the document
in accordance with 34 C.F.R. § 99.31(b)(1) -- or to give parents, students,
requestors and the public notice of such a provision. Accordingly, we concur
with the Appellate Division’s conclusion that N.J.A.C. 6A:32-7.5 does not
support the contention that a “student record” loses that status if it is redacted
to remove personally identifiable information.
3.
Our dissenting colleagues contend that, in its amicus curiae brief, the
Department of Education expressed its intention to integrate the FERPA
regulations’ provisions for redaction and disclosure, 34 C.F.R. § 99.3, into the
NJPRA’s student privacy regulations. They urge deference to what they
characterize as the Department’s position. Post at ___ (slip op. at 10-15).
Our dissenting colleagues may be correct in that the Department of
Education may indeed intend to incorporate FERPA redaction and disclosure
procedures into New Jersey’s student privacy regulations, subject to
exceptions such as those explained by its counsel at oral argument in this
appeal. If it is the Department’s intention to incorporate FERPA regulations
into their New Jersey counterparts, however, it cannot accomplish that
37
objective in an appellate brief. The Department has yet to “adopt and file as a
rule appropriate language indicating . . . [w]hat is incorporated” from federal
law into New Jersey even in general terms, much less the precise terms that
N.J.A.C. 1:30-2.2(c) requires. Accordingly, the setting of this case is distinct
from the ordinary administrative setting in which the agency has promulgated
rules under the APA, and its interpretation of those rules is afforded
considerable deference.
The provision of clear and specific guidance to the public is a core
regulatory function; “[t]he regulated community . . . has a reasonable
expectation that known and uniform rules, standards, interpretations, advice
and statements of policy will be applied to them.” Catholic Family & Cmty.
Servs. v. State-Operated Sch. Dist. of City of Paterson, 412 N.J. Super. 426,
442 (App. Div. 2010). In the rulemaking setting, the Department will have
ample opportunity to reconcile the compelling interests of public disclosure,
parental and student rights of access, and student privacy, and to unmistakably
identify any federal regulatory provisions that will be made part of New Jersey
student privacy regulations, as N.J.A.C. 1:30-2.2(c) mandates that it do. We
anticipate that the rulemaking process that will follow this decision will afford
essential guidance to the parties and the public.
4.
38
We offer two additional comments about the Appellate Division’s
analysis of the regulations promulgated pursuant to NJPRA.
First, we agree with the Department that the term “student records” in
N.J.A.C. 6A:32-2.1 should not be construed to generally bar public disclosure
of aggregate data such as average standardized test scores for a school or
district, or similar statistical information. 7 Indeed, a restriction on access to
aggregate test score data by those authorized to access student records under
N.J.A.C. 6A:32-7.5 could run afoul of the NJPRA, which charges the
Department to ensure “the opportunity for the public schools to have the data
necessary to provide a thorough and efficient educational system for all
pupils.” N.J.S.A. 18A:36-19. We do not view the Appellate Division’s
decision to undermine the Department’s policy of publicly disclosing certain
categories of aggregate data.
As the Department’s counsel explained, pursuant to that policy, the
public has access to information about student achievement test scores, district
graduation rates, district violence and other safety issues, as well as other areas
7
At oral argument, counsel for the Department explained that the Department
and districts make aggregate test score data publicly available on their
websites, but that data is withheld if the sample size from which the aggregate
data is derived is so small that the aggregate data may reveal a test score of an
individual child.
39
of concern identified by our dissenting colleagues. Post at ___ (slip op. at 3).
Our colleagues’ suggestion that public access to such composite information is
somehow at stake in this appeal is simply wrong.
Second, although neither L.R. nor Innisfree claimed to be a “bona fide
researcher” authorized to request “student records” pursuant to N.J.A.C.
6A:32-7.5(e)(16), or asserted “bona fide researcher” status in the OPRA
requests, the Appellate Division remanded for a determination of whether
either plaintiff constituted such a “researcher.” L.R., 452 N.J. Super. at 87-88.
As counsel for the Department explained, school districts must comply with
FERPA regulations that govern “researcher” access to personally identifiable
information in educational records. See, e.g., 34 C.F.R. § 99.31(a)(6)(i)
(addressing “researcher” status of “organizations conducting studies for, or on
behalf of, educational agencies or institutes to: (A) [d]evelop, validate, or
administer predictive tests; (B) [a]dminister student aid programs; or (C)
[i]mprove instruction”); id. § 99.31(a)(6)(iii) (imposing requirements on
researchers). It is unclear whether the Appellate Division considered federal
regulations when it suggested that L.R. and Innisfree might be authorized, as
“bona fide researchers” under N.J.A.C. 6A:32-7.5(e)(16), to have access to the
documents requested.
40
If, on remand, either L.R. or Innisfree seeks authorization to view
student records based on “bona fide researcher” status under N.J.A.C. 6A:32-
7.5(e)(16), we caution the remand court to carefully consider both federal and
state standards that govern requests by researchers for student records such as
those at issue here.
5.
For the reasons stated, we conclude that the Appellate Division did not
improperly broaden the definition of “student record” embodied in N.J.A.C.
6A:32-2.1 when it construed that regulation in these appeals.
III.
We next consider the second question on which we granted certification:
whether the Appellate Division improperly ordered that the balancing of the
privacy interests against the interest in disclosure be conducted under the
common-law right to access rather than the factors set forth in Doe v. Poritz,
142 N.J. 1 (1995).
The question of a governing standard for a balancing test arose in the
context of the Appellate Division’s observation that its construction of the
term “student records” under N.J.A.C. 6A:32-2.1 did not bar L.R. and
Innisfree from seeking a court order within the meaning of N.J.A.C. 6A:32-
75(e)(15), and thereby qualifying as “authorized organizations, agencies, or
41
persons” under N.J.A.C. 6A:32-7.5(a). L.R., 452 N.J. Super. at 88-93. In that
setting, the Appellate Division noted the two-part common law test requiring a
requestor asserting a common law right of access to (1) establish “‘an interest
in the public record,’” which can be “‘a wholesome public interest or a
legitimate private interest,’” and (2) “demonstrate[] that its interest in the
records sought ‘outweigh[s] the State’s interest in non-disclosure.’” Id. at 89
(second alteration in original) (quoting Educ. Law Ctr., 198 N.J. at 302-03).
As the standard for that second determination, the Appellate Division relied on
the common law factors set forth in Loigman:
(1) the extent to which disclosure will impede agency
functions by discouraging citizens from providing
information to the government; (2) the effect disclosure
may have upon persons who have given such
information, and whether they did so in reliance that
their identities would not be disclosed; (3) the extent to
which agency self-evaluation, program improvement,
or other decision making will be chilled by disclosure;
(4) the degree to which the information sought includes
factual data as opposed to evaluative reports of
policymakers; (5) whether any findings of public
misconduct have been insufficiently corrected by
remedial measures instituted by the investigative
agency; and (6) whether any agency disciplinary or
investigatory proceedings have arisen that may
circumscribe the individual’s asserted need for the
materials.
[Loigman, 102 N.J. at 113.]
42
Cherry Hill and Hillsborough, supported by the Department on this
issue, urge the Court to adopt the Loigman test.
Innisfree, supported by amicus curiae Libertarians for Transparent
Government, urges the Court to instead apply the factors of Doe v. Poritz,
adopted by this Court in Burnett for the evaluation of privacy claims under
OPRA. Those factors are:
(1) the type of record requested; (2) the information it
does or might contain; (3) the potential for harm in any
subsequent nonconsensual disclosure; (4) the injury
from disclosure to the relationship in which the record
was generated; (5) the adequacy of safeguards to
prevent unauthorized disclosure; (6) the degree of need
for access; and (7) whether there is an express statutory
mandate, articulated public policy, or other recognized
public interest militating toward access.
[Burnett, 198 N.J. at 427 (quoting Doe, 142 N.J. at 88).]
We do not find either test to be completely pertinent to the issues raised
by this appeal. See N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229
N.J. 541, 579 (2017) (noting that not all factors in the Loigman test were
relevant to public access to the police-shooting documents at issue). We
consider the following non-exclusive factors, adopted from both tests, to
provide a workable framework for a court order for the production of student
records under 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
43
for 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.
Not all of the factors stated above will apply in every case; additional
factors not identified in the Appellate Division’s opinion or in this opinion
may be relevant to a given case.
IV.
This protracted litigation illustrates an urgent need for greater clarity in
the law governing public access to educational records. New Jersey’s current
NJPRA regulations state general principles, but provide scant guidance to both
requestors seeking access under OPRA and the common law, and to the
44
agencies charged with balancing the interest in transparent government with
the privacy rights implicated in these appeals. With the law uncertain,
educational professionals must divert time and resources from their imperative
task of educating the students in their charge.
As this Court has observed, “[t]he basic purpose of establishing agencies
to consider and promulgate rules is to delegate the primary authority of
implementing policy in a specialized area to governmental bodies with the
staff, resources, and expertise to understand and solve those specialized
problems.” Bergen Pines Cty. Hosp. v. Dep’t of Human Servs., 96 N.J. 456,
474 (1984). Administrative regulation also “has elasticity that permits it to
adapt to changing circumstances and conditions.” Glukowsky v. Equity One,
Inc., 180 N.J. 49, 67 (2004).
“[T]he promulgation of administrative rules and regulations lies at the
very heart of the administrative process . . . .” Pugliese v. State-Operated Sch.
Dist. of City of Newark, 440 N.J. Super. 501, 512 (App. Div. 2015) (alteration
in original) (quoting In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100, 115
(App. Div. 2013)). “The rulemaking procedures set forth in the Administrative
Procedure Act, N.J.S.A. 52:14B-1 to -15, are designed to take advantage of the
agencies’ resources and expertise.” Bergen Pines Cty. Hosp., 96 N.J. at 474.
Those procedures “give those affected by the proposed rule an opportunity to
45
participate in the process, both to ensure fairness and also to inform regulators
of consequences which they may not have anticipated.” In re Provision of
Basic Generation Servs. for Period Beginning June 1, 2008, 205 N.J. 339, 349
(2011) (quoting In re Adoption of 2003 Low Income Hous. Tax Credit
Qualified Allocation Plan, 369 N.J. Super. 2, 43 (App. Div. 2004)).
As was confirmed by the able presentation of its counsel in these
appeals, the New Jersey Department of Education has substantial experience in
the creation, content, function, and maintenance of student records in our
public schools. The Department recognizes the need to balance public access
to government documents, the privacy of students and their families, and the
rights of students and their parents to demand access to records that are not
available to third parties. The complex task of reconciling those compelling
interests requires the Department’s expertise.
We appreciate the Department’s commitment to give clearer guidance to
individuals and entities seeking educational records, and to school districts and
other agencies charged with responding to those requests in accordance with
OPRA and the common law.
46
JUSTICES LaVECCHIA, PATTERSON, and SOLOMON concur in the
judgment of the Court and join fully the concurring opinion filed by JUSTICE
PATTERSON. JUSTICE ALBIN filed a partially dissenting opinion, in which
CHIEF JUSTICE RABNER and JUSTICE TIMPONE join, agreeing with the
concurrence’s multi-factor test for securing a court order for pupils’ records
pursuant to N.J.A.C. 6A:32-7.5(e)(15), but dissenting as to the interpretation of
N.J.A.C. 6A:32-2.1. JUSTICE FERNANDEZ-VINA did not participate.
47
L.R., individually and on
behalf of J.R., a minor,
Plaintiffs,
v.
Camden City Public School
District and John C. Oberg in his
official capacity as Interim School Business
Administrator and Board Secretary,
Defendants.
L.R., individually and on
behalf of J.R., a minor,
Plaintiffs-Appellants,
v.
Parsippany-Troy Hills Township
Public School District and David F. Corso
in his official capacity as Records Custodian
of the Parsippany-Troy Hills Township Public
School District,
Defendants-Respondents.
The Innisfree Foundation,
Plaintiff-Appellant,
v.
1
Hillsborough Township Board
of Education and Aiman Mahmoud,
Records Custodian,
Defendants-Respondents.
The Innisfree Foundation,
Plaintiff-Appellant,
v.
Cherry Hill Board of Education
and James Devereaux, Records Custodian,
Defendants-Respondents.
JUSTICE ALBIN, dissenting in part.
This appeal is about the public’s right to know how taxpayer monies are
spent on public education and whether students are receiving a thorough and
efficient education when the students’ right to privacy is not at issue. The
heart of this case is the interpretation of a regulation promulgated by the New
Jersey State Board of Education, N.J.A.C. 6A:32-2.1, which defines a “student
record” under the New Jersey Pupil Records Act (NJPRA), N.J.S.A. 18A:36-
19. A student record that identifies a particular pupil is subject to disclosure
only to specifically authorized entities, N.J.A.C. 6A:32-7.5(a), and is not
subject generally to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13
2
(OPRA). A record, however, that is so thoroughly scrubbed that the student
cannot be identified in the record raises no privacy concerns. That is the
position of the New Jersey Department of Education (DOE).
The DOE’s interpretation of N.J.A.C. 6A:32-2.1 is 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. That interpretation in no way
endangers the privacy rights of pupils but allows members of the public to
gather information through OPRA requests that will shed light on matters of
significant public importance -- student achievement test scores, district
graduation rates, district violence and vandalism incidents, bullying and
harassment reports, injury and safety records, the cost of lawsuits filed against
school districts, and the effectiveness of school programs.
My concurring colleagues’ interpretation of N.J.A.C. 6A:32-2.1 is that
even a thoroughly redacted record -- one that removes any possibility of
linking the identity of a pupil with the record -- remains a non-disclosable
student record. That interpretation leads to a lack of transparency in
government operations. It denies the public, through OPRA disclosures,
vitally important information about the expenditure of billions of dollars on
public education each year -- expenditures that account for the greatest
percentage of the State’s budget. See Department of the Treasury, Citizens’
3
Guide to the Budget 56-60 (Nov. 2017), https://www.nj.gov/treasury/omb/
publications/18citizensguide/citguide.pdf (reporting that $13,385,291,000 was
appropriated to education in 2017, and $13,299,566,000 in 2018, the highest
amount compared to other areas such as human services, corrections, and
environmental protection).
Because the text of N.J.A.C. 6A:32-2.1 is not a model of clarity and
lends itself to more than one reasonable interpretation, this Court invited the
DOE to tell us how it construes the regulation it must enforce. 1 The DOE’s
interpretation of that regulation within its administrative purview is not
“plainly unreasonable” and, for that reason, is entitled to substantial deference.
US Bank, N.A. v. Hough, 210 N.J. 187, 200 (2012) (quoting In re Election
Law Enforcement Comm’n Advisory Op. No. 01-2008, 201 N.J. 254, 262
(2010)). That interpretation advances the DOE’s policy goals of maintaining
the privacy of pupil records while making our public education system
transparent and therefore accountable to the citizens of this State.
1
The DOE consists of, among other things, a State Board of Education and a
Commissioner. N.J.S.A. 18A:4-1. The State Board of Education has
rulemaking authority under the NJPRA. N.J.S.A. 18A:36-19. The
Commissioner enforces “all rules prescribed by the state board.” N.J.S.A.
18A:4-23. Therefore, the DOE has the authority not only to make rules but
also to enforce them.
4
I respectfully dissent from my concurring colleagues’ rejection of the
DOE’s reasoned interpretation of N.J.A.C. 6A:32-2.1. In the wake of this
decision, our citizens will be denied access to critical information about the
education of their children, including the safety of school facilities and the
effectiveness of a school’s curriculum. In the end, the DOE has the authority
to remain the master of its own policy. The State Board of Education need
only promulgate a clear regulation -- a regulation not susceptible to
misinterpretation -- expressing the views the DOE has already presented to this
Court.
I agree with the concurrence’s multi-factor test for securing a court order
for pupils’ records pursuant to N.J.A.C. 6A:32-7.5(e)(15).
I.
At its inception in 1944, the New Jersey Pupil Records Act (NJPRA) did
not address privacy interests of pupils and parents. L. 1944, c. 217. The then-
NJPRA simply provided that pupil records could be inspected in accordance
with rules adopted by the State Board of Education. Ibid. Our Legislature
first recognized the privacy rights of pupils in the wake of federal legislation
addressing that subject.
5
A.
In 1974, Congress enacted the Family Educational Rights and Privacy
Act (FERPA), 20 U.S.C. § 1232g. One purpose of FERPA is to ensure that
students’ education records are protected from impermissible disclosures to
unauthorized entities. Id. § 1232g(b). Except as specifically authorized by
statute, FERPA prohibits federal funding of an educational agency or
institution that permits the release of education records without the written
consent of parents. Id. § 1232g(b)(1). FERPA defines “education records” as
records, files, and documents which (1) “contain information directly related to
a student,” and (2) “are maintained by an educational agency or institution or
by a person acting for such agency or institution.” Id. § 1232g(a)(4)(A)(i)-(ii).
In the face of this legislation, some federal courts considered a fully redacted
education record not to be a protected record under FERPA because the
information in the record no longer related to the student. See, e.g., United
States v. Miami Univ., 294 F.3d 797, 824 (6th Cir. 2002) (“Nothing in the
FERPA would prevent the Universities from releasing properly redacted
records.”).
Consonant with that view, in 2008, the United States Department of
Education added language to FERPA’s regulations explicitly permitting
disclosure of de-identified education records to make clear that fully redacted
6
education records could be disclosed. 34 C.F.R. § 99.31(b)(1) (An educational
agency or institution “may release the records . . . without the consent required
by § 99.30 after the removal of all personally identifiable information provided
that the educational agency . . . has made a reasonable determination that a
student’s identity is not personally identifiable.” (emphasis added)). The
addition of section 99.31(b)(1) was intended to clarify that the practice of
disclosing fully redacted records was permissible. In explaining the 2008
amendments to FERPA’s regulations, the United States Department of
Education stated that “the regulatory standard for de-identifying information
from education records establishes an appropriate balance that facilitates the
release of appropriate information for school accountability and educational
research purposes while preserving the statutory privacy protections in
FERPA.” Family Education Rights and Privacy, 73 Fed. Reg. 74806-01,
74834 (Dec. 9, 2008).
B.
Following FERPA’s enactment, in 1977, the Legislature amended the
NJPRA to its current form. N.J.S.A. 18A:36-19. The statute empowers the
State Board of Education to “provide by regulation for the creation,
maintenance and retention of pupil records and for the security thereof and
access thereto” and for “the right of both pupil and parent or guardian to
7
reasonable privacy as against other persons.” Ibid. (emphasis added). The
Senate Education Committee issued an explanatory statement with the
amendment providing that, “[o]ver the past year, two developments have
occurred regarding the pupil records, both of which have been carefully
considered by the committee.” S. Educ. Comm. Statement to S. 260 (L. 1977,
c. 346). One of those developments “carefully considered” by the Committee
was FERPA. Ibid.Nothing in the NJPRA’s legislative history suggests that its privacy
protections were intended to be different from those in FERPA. Nothing in
that history indicates that the Legislature intended to make de-identified
student records less accessible to the public than the records targeted by
FERPA.
In 2005, the State Board of Education promulgated N.J.A.C. 6A:32-2.1,
which defines a “student record.” That regulation provides that a “student
record” is “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.” N.J.A.C. 6A:32-2.1 (emphasis
added). The DOE submits that N.J.A.C. 6A:32-2.1 -- like its federal cognate
provision in FERPA -- does not protect from disclosure information that
cannot identify an individual student. A completely de-identified record
8
cannot intrude on the reasonable privacy rights of a parent or pupil because no
one could know the student’s identity from reading the record. By the DOE’s
reasoning, an anonymized record is not a student record. The NJPRA’s
objective of protecting “the right of both pupil and parent or guardian to
reasonable privacy as against other persons” is accomplished once a document
is fully redacted of all personally identifiable information. See N.J.S.A.
18A:36-19. In short, no privacy interest remains in a record in which all
personally identifiable information is eliminated.
In 2005, the State Board of Education also adopted N.J.A.C. 6A:32-7.5,
which details those “authorized organizations, agencies or persons” that have
access to unredacted student records. Significantly, N.J.A.C. 6A:32-7.5(g)
provides that “[i]n complying with this section, individuals shall adhere to
requirements pursuant to N.J.S.A. 47:1A-1 et seq., the Open Public Records
Act (OPRA) and 20 U.S.C. § 1232g; 34 CFR Part 99, the Family Educational
Rights and Privacy Act (FERPA).” The State Board of Education’s enactment
of N.J.A.C. 6A:32-7.5(g) illustrates its intention to integrate the policies of
OPRA and the disclosure processes permitted by FERPA.
C.
In 2002, the Legislature enacted the Open Public Records Act, N.J.S.A.
47:1A-1 to -13. Under OPRA, “government records shall be readily accessible
9
for inspection, copying, or examination by the citizens of this State, with
certain exceptions, for the protection of the public interest.” N.J.S.A. 47:1A-1.
OPRA is “designed to promote transparency in the operation of government,”
Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 541 (2012), and “to
maximize public knowledge about public affairs in order to ensure an informed
citizenry and to minimize the evils inherent in a secluded process,” Mason v.
City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury Park Press v. Ocean
Cty. Prosecutor’s Office, 374 N.J. Super. 312, 329 (Law Div. 2004). The
drafters of “OPRA understood that knowledge is power in a democracy, and
that without access to information contained in records maintained by public
agencies citizens cannot monitor the operation of our government or hold
public officials accountable for their actions.” Fair Share Hous. Ctr., Inc. v.
State League of Municipalities, 207 N.J. 489, 502 (2011).
OPRA encourages private citizens to serve as watchdogs guarding
against “wasteful government spending” and “corruption and misconduct.”
Carter v. Doe (In re N.J. Firemen’s Ass’n Obligation), 230 N.J. 258, 276
(2017) (quoting Burnett v. County of Bergen, 198 N.J. 408, 414 (2009)).
OPRA allows for the release of information that might shed light on failed
school programs and administrative incompetence. Under OPRA, “any
10
limitations on the right of access . . . shall be construed in favor of the public’s
right of access.” N.J.S.A. 47:1A-1.
The DOE’s interpretation of the definition of “student record” in
N.J.A.C. 6A:32-2.1 harmonizes both the NJPRA and OPRA and aligns with
FERPA. Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013) (“When
interpreting multiple statutes governing the same subject, the Court should
attempt to harmonize their provisions.”). The DOE maintains that a
thoroughly de-identified record is no longer “related to an individual student”
and therefore is not a “student record,” as defined in N.J.A.C. 6A:32-2.1. That
approach accords with OPRA’s command that statutory interpretive doubts
about the disclosure of government documents “shall be construed in favor of
the public’s right of access.” See N.J.S.A. 47:1A-1.
II.
A.
Most importantly, because this Court is interpreting a regulatory scheme
overseen and enforced by the Department of Education, and because we
invited the DOE to appear as amicus curiae to explain the regulation’s
intended meaning, we accord its interpretation substantial deference. See In re
Adoption of a Child by W.P., 163 N.J. 158, 173-74 (2000) (granting
substantial deference to “the position of the Division of Youth and Family
11
Services . . . , which intervened as amicus curiae in this interlocutory appeal”
to express its interpretation of the Grandparent Visitation Statute -- an
enactment falling within its area of expertise). “We do so because ‘a state
agency brings experience and specialized knowledge to its task of
administering and regulating a legislative enactment within its field of
expertise.’” Ibid. (quoting In re Election Law Enforcement Comm’n, 201 N.J.
at 262). We therefore must “defer to an agency’s interpretation of . . . [a]
regulation, within the sphere of [its] authority, unless the interpretation is
‘plainly unreasonable.’” Ibid. (alterations in original) (quoting In re Election
Law Enforcement Comm’n, 201 N.J. at 262).
B.
Because the concurrence’s characterization of the DOE’s position is not
consistent with the DOE’s brief or oral argument, the DOE’s own words, as set
forth in its brief to this Court, are presented here:
[B]oth the language and history of the pupil records law
and regulations support the Department’s interpretation
that the definition of protected student record embodied
in N.J.A.C. 6A:32-2.1 extends only to information
identifiable to an individual student or students; once
that [personally identifiable information] is removed,
the remainder of the document is subject to access
under OPRA.
***
12
[T]he legislative and regulatory history of the state
provisions . . . evince an intention to conform to the
provisions of FERPA, which likewise strictly protects
student privacy while permitting access to educational
records stripped of any identifiable student
information.
***
Once an education record has met the standard for
release under the FERPA requirements, in that it is de-
identified and there has been ‘a reasonable
determination that a student’s identity is not personally
identifiable . . . [,’] no reasonable privacy interest under
State law is served by withholding the remainder of the
document.
***
[S]hutting down access to sanitized education records
. . . ignore[s] the strong policy interest in ensuring that
citizens can hold public school districts accountable by
obtaining information, largely derived from student
records, about school/district performance and
compliance.
During oral argument before this Court, moreover, the DOE stated that
“information related to an individual student” means “information identifiable
to a particular student” and that “the New Jersey Pupil Records Act permits
disclosure of education records provided that they are de-identified.”
(emphasis added). The DOE explained its reasoning for that interpretation:
[The] interests in student privacy and district
accountability can both be served by requiring de-
identification and removal of all [personally
identifiable information] sufficient to meet the
13
[standards] of FERPA before disclosure of a record.
Once that [personally identifiable information] is
removed, no reasonable privacy interest is served by
banning disclosure of all information in the student
records. . . . The Department urges this court to . . .
hold, consistent with the Department’s interpretation of
its own regulations, that the definition of student record
prohibits public access only to identifiable student
information in education records.
The concurrence highlights that during oral argument, the DOE “noted
. . . that some categories of student records are so permeated with confidential
information about individual students that redaction of personally identifiable
information may not sufficiently protect student privacy,” and that “in a close
case, a school district should err on the side of redacting student information.”
Ante at ___ (slip op. at 16-17). Those views speak only to the difficulty of
----
proper redaction. Surely, proper redaction -- ensuring that a student is not
identifiable -- may be, in some cases, difficult or even impossible. The views
expressed by the DOE at oral argument are in accord with its position that
once a student record has been properly redacted, it is no longer a student
record under its regulation.
The DOE has made clear its interpretation of “student record” in
N.J.A.C. 6A:32-2.1, its understanding of the statutory and regulatory history of
the NJPRA, and its conviction that the NJPRA and FERPA are aligned in
authorizing the release of a completely de-identified student record. That the
14
concurrence has reached one reasonable interpretation of the text of N.J.A.C.
6A:32-2.1 does not render the DOE’s interpretation “plainly unreasonable.”
See US Bank, N.A., 210 N.J. at 200.
This Court should defer to the DOE’s reasonable interpretation of the
NJPRA because of its “experience and specialized knowledge” in the area of
public education and because policy decisions concerning the proper balance
between protecting the privacy interests of student records and making school
districts accountable to the public fall within its purview. See ibid.The concurrence “agree[s] with the Department of Education that the
term ‘student records’ in N.J.A.C. 6A:32-2.1 should not be construed to
generally bar public disclosure of aggregate data” published by the DOE or
school districts. Ante at ___ (slip op. at 39). The DOE has told us, however,
that the transparency and accountability of government operations should not
depend on what the government decides to release to the public in an aggregate
form. OPRA allows private citizens to extract pieces of information from
government records and to aggregate that data for the benefit of the public.
See Paff v. Galloway Township, 229 N.J. 340, 357 (2017). A democratic
society cannot function without an informed citizenry. That is the view
strongly expressed by the DOE.
15
C.
Ultimately, the State Board of Education is responsible for adopting
clear regulations that advance the legislative policies embodied in the NJPRA.
The DOE conveyed to this Court -- in its brief and at oral argument -- its view
of the meaning of a student record in the State Board’s regulation, N.J.A.C.
6A:32-2.1. The concurrence has rejected that interpretation. Now the State
Board, if it wishes, can draft a new regulation that will not be susceptible to
misinterpretation. It can provide greater guidance than previously afforded by
N.J.A.C. 6A:32-2.1 by specifically articulating in a new regulation the process
for de-identifying a student record and the standard for determining whether
de-identification is possible or not possible in a particular case. FERPA gives
much more precise direction than the NJPRA on the subject of the disclosure
of student records. School districts need detailed guidelines on how to
effectuate the de-identification of student records. A new regulation can
assure that a student record is not sufficiently redacted unless a school
administrator makes “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.” 34 C.F.R. § 99.31. That
would address the legitimate privacy concerns of students and parents.
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III.
For the reasons expressed, I respectfully dissent because the concurrence
has not accorded the DOE’s interpretation of its regulatory scheme the
deference to which it is entitled. The State Board of Education has the power
to promulgate a new regulation in furtherance of its policy goals.
I agree with Part III of the concurrence’s opinion.
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