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.

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 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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