Taking up a series of cases in which records relating to settlements and programs involving disabled students were sought, the Supreme Court was evenly split on the release of potentially personal information about students.

“The members of the court being equally divided, the judgment of the Appellate Division is affirmed,” the opinion said, effectively letting stand an October 2017 ruling allowing access to redacted student records to only a few authorized parties.

In the July 17 decision in L.R. v. Camden City Public School District, Justice Anne Patterson wrote for the three-justice concurrence: “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.”

Documents defined as “student records” under N.J.A.C. 6A:32-2.1 aren't public records and are protected from disclosure, according to the New Jersey Pupil Records Act.

The Appellate Division's ruling said access should be allowed to a “bona fide researcher” if the documents are appropriately redacted to protect the privacy rights of other students and the seeker obtains a court order. Parents should be given advance notice and the right to object to any release, or to ask for further redactions or modifications, the court said.

The plaintiffs were a parent of a public school student, who sought disclosure under the New Jersey Open Public Records Act, and a nonprofit organization, which sought disclosure under OPRA and common law. The four cases were consolidated.

Patterson's concurring opinion was joined by Justices Jaynee LaVecchia and Lee Solomon. Justice Barry Albin issued a dissenting opinion joined by Chief Justice Stuart Rabner and Justice Walter Timpone. Justice Fausto Fernandez-Vina didn't participate.

The Supreme Court was unanimous on one point of law: the nonexclusive factors to be used when evaluating applications for court-ordered production of student records under state regulations, including the type of student record requested, the information contained in the record, the potential for harm if the record is disclosed, and potential damage to the relationship between the student and the school or his or her parent or guardian.

But the court was divided on the main issue of whether a “student record” retains its protection from disclosure, even if personal identifiers are redacted as required under federal law. The concurrence said yes, while the dissent said no.

The concurring justices said that, even though federal law might allow for public release of redacted educational records, New Jersey is free to afford more privacy protection than that offered under federal law. Until such time as the New Jersey Department of Education or the Legislature speaks to the public release of such redacted records, the three concurring justices concluded, the records should remain confidential.

“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,'” Patterson wrote. “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.'”

She added, “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 … 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.”

In the partial dissent, Albin wrote that “the Department of Education'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.”

He added that N.J.A.C. 6A:32-2.1 “is not a model of clarity” but because the department's interpretation is not “plainly unreasonable,” it is entitled to substantial deference.

The concurrence's interpretation of N.J.A.C. 6A:32-2.1 “leads to a lack of transparency in government operations,” Albin wrote. “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.”

Sparta attorney John Rue, counsel to Innisfree, said in an email that it's “unfortunate that the Supreme Court was unable to issue a clear decision” because now lower courts are left with the “messy task of sorting out the answer to the question of third party access to redacted student records.”

He said the outcome “over-protects the records at the cost of crucial government transparency in the expenditure of public moneys,” noting that the Department of Education “itself supported disclosure of the records in its amicus brief before the Supreme Court.”

“What everyone missed is that Innisfree's constituents, parents of children with disabilities, want only to know that their local school districts are not lying to them about the deals they make with other parents,” Rue said. “The outcome here leaves settlement agreements governing tens of millions of dollars of state and federal money hidden under a shroud of secrecy.”

Attorneys for the various school districts could not be reached for comment.

Cherry Hill attorney Jamie Epstein, counsel to L.R. and the family, also couldn't be reached.

L.R.'s cases were against the Camden City Public School District and the Parsippany-Troy Hills Township Public School District. And the Innisfree Foundation, an organization based in Montclair that advocates on behalf of disabled and special-needs students, sued the Cherry Hill Board of Education and the Hillsborough Township Board of Education. They sought documents and records outlining settlements reached between school districts and the parents of individual disabled or special-needs students for information about services that have been offered as terms of those settlements. The affected school districts, along with some parents, objected to the plaintiffs' requests for the records, primarily citing students' privacy rights.

Rulings at the trial court level diverged. In Somerset County, a judge ruled that there could be no disclosure, citing a ruling by the Government Records Council. A judge in Camden County ruled that the documents could be released, provided that the identification of affected students is redacted. In the last case, a Camden County judge said a parent could be allowed to see the records concerning her own child, so long as any information involving any other student was redacted.

A series of appeals followed, and the Appellate Division consolidated the cases.

The Appellate Division in 2017 concluded that the records sought were “government records” under OPRA and “education records” under the Federal Family Educational Rights and Privacy Act of 1974 (FERPA), and would comprise “student records” protected from disclosure under N.J.A.C. 6A:32-2.1. The court said a requester cannot gain access to a student record unless the requester 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), or could seek a court order per N.J.A.C. 6A:32-7.5(e)(15) as a “bona fide researcher.”

Patterson noted in the concurrence that FERPA regulations provide that a redacted record may be publicly disclosed, but 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 records may be disclosed following the redaction of such information.” The department has “acknowledged the need for greater clarity in the regulations that govern access to New Jersey public school student records,” she noted.

She wrote: “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 FERPA … 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,” she added. “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.”