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OPRA & Common Sense Redactions
Common sense dictates that a person can be identified through their initials, particularly when that person is a member of a discrete group such as the student body of a given school or school district. It should not take a court decision to confirm this tautology, but in the legal world, where even the perfectly obvious is hotly contested, the New Jersey Superior Court Appellate Division found itself doing just that. In Wolosky v. Sparta Bd. of Ed., Dkt. No. A-4536-14T2, 2017 (App. Div. January 13, 2017) (“Sparta”), the appellate court recently handed down another opinion in the ongoing flurry of litigation concerning the privacy of student information contained in documents requested under the Open Public Records Act (“OPRA”) and the common law right of access.
The Plaintiff in Sparta. submitted a records request, pursuant to OPRA and common law, seeking invoices from the Board of Education’s attorney covering a three-month period. The Board produced the invoices, but with all references to student initials redacted. The Plaintiff sought to compel production of the unredacted documents. The trial court found that the redactions were proper under OPRA and common law because the students’ privacy interests outweighed the Plaintiff’s asserted right to the information.
Plaintiff argued in Sparta that use of initials is generally considered sufficient to protect the identity of minors in court proceedings. However, relying heavily on the reasoning of C.G. v. Winslow Twp. Bd. Of Ed., 443 N.J. Super. 415 (Law Div. 2015), the Sparta Court found that disclosing the students’ initials “could reveal information about the students’ special education classifications and the extent of legal involvement in their educations. The students have significant interests in maintaining the confidentiality of this information.” Furthermore, the Plaintiff failed to show that he had a legitimate interest in the information, as is required in common law right-to-know claims, because student initials are clearly not needed to compare the costs of the invoice line items. The Appellate Court thus affirmed the trial court’s decision, under OPRA and common law, that the Board properly redacted the students’ initials.
The Sparta decision adds further clarification to the body of law regarding public records requests touching on student privacy issues. See The Innisfree Foundation v. Hackensack Bd. Of Ed., et al. Dkt. No. BER-L-2268-16, 2016 N.J. (Law Div. May 6, 2016) (finding that special education settlement agreements, if redacted to remove student identifiers, are obtainable through OPRA and common law document requests, and holding that initials qualify as student identifiers and should be redacted); Winslow Twp. Bd. Of Ed., supra, (“initials, standing alone, may permit a reasonable person in the school community to identify [the student] with reasonable certainty”). While there are a few recent decisions finding that special education-related settlement agreements and/or contracts with third-party educational service providers are not reachable through records requests, the issue is yet to be resolved in an appellate decision. L.R. o/b/o/ J.R. et al. v. Hillsborough Twp. Bd. Of Ed., et al., Dkt. No. SOM-L-1671-14 (Law Div. January 8, 2016); and The Innisfree Foundation v. Jersey City Bd. Of Educ., et al., Dkt. No. HUD-L-4414-15 (Law Div. February 9, 2016). As such, reliance on the holdings of the unreported Hillsborough and/or Jersey City decisions as a basis for denial of a document request is a risky and quite possibly costly proposition.
Stay tuned for future updates as these matters work their way through the courts, and, as always, be sure to contact counsel should you have any questions concerning the propriety of a given document request or whether any specific information should be redacted.