L.R. v. CHERRY HILL BOARD OF EDUCATION (L-5609-11, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1819-20

L.R., on behalf of J.R.,

Plaintiff-Appellant,
APPROVED FOR PUBLICATION

v. September 29, 2022
APPELLATE DIVISION
CHERRY HILL BOARD OF
EDUCATION and CUSTODIAN
OF RECORDS,

Defendants-Respondents.
_____________________________

Submitted September 12, 2022 — Decided September 29, 2022

Before Judges Whipple, Mawla, and Smith.

On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-5609-11.

Jamie Epstein and Cohn Lifland Pearlman Herrmann
& Knopf, LLP, attorneys for appellant (Jamie Epstein
and Walter M. Luers, on the brief).

Methfessel & Werbel, attorneys for respondent Cherry
Hill Board of Education Custodian of Records (Eric
Harrison, of counsel; Raina Marie Pitts, on the brief).

The opinion of the court was delivered by

MAWLA, J.A.D.
 Plaintiff L.R., individually and on behalf of her daughter J.R., appeals

from a March 5, 2021 order denying her motion to: overturn a special master's

order recommending dismissal of her complaint; remove her case from

arbitration; and dismiss her complaint with prejudice. We affirm.

The facts were previously detailed in L.R. v. Camden City Public School

District (L.R. I), 452 N.J. Super. 56, 61-72 (App. Div. 2017). To summarize,

plaintiff, the mother of a disabled student in the Camden County Public

Schools, made an Open Public Records Act 1 (OPRA) request of defendant

Cherry Hill Board of Education 2 and its records custodian for the following:

FROM 2006-2011 ALL SETTLEMENT
AGREEMENTS FROM ALL LAWSUITS IN WHICH
CHERRY HILL TOWNSHIP BOARD OF
EDUCATION OR CHERRY HILL BOARD OF
EDUCATION ARE NAMED AS A DEFENDANT
AND A STUDENT AND/OR THEIR PARENT IS
NAMED AS A PLAINTIFF . . . . PLEASE REDACT
THE NAMES OF ANY STUDENTS AND THEIR
PARENTS LEAVING ONLY THEIR INITIALS . . . .

Defendant provided the records sought, but redacted all parent and

student information, including initials. Plaintiff sued, asserting defendant

violated OPRA and improperly withheld information by redacting all

personally identifiable information (PII). She moved for summary judgment.

1
N.J.S.A. 47:1A-1 to -17.
2
Plaintiff requested documents from other districts but settled those cases.

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In opposition, defendant argued the documents requested were not public

records, rather student records under the Family Educational Records and

Privacy Act 3 (FERPA) and the New Jersey Pupil Records Act 4 (NJPRA), and

plaintiff was not an authorized requester under N.J.A.C. 6A:32-7.5. In January

2015, the trial court granted defendant's cross-motion for summary judgment,

finding the initials were exempt from disclosure under FERPA and the

NJPRA.

Plaintiff appealed. The matter was stayed pending the resolution of L.R.

I and L.R. v. Camden City Public School District (L.R. II), 238 N.J. 547

(2019). In L.R. I, we "attempt[ed] to construe and harmonize . . . various

provisions under the NJPRA, FERPA, OPRA, and the associated regulations,

particularly the detailed set of student record access provisions set forth in

N.J.A.C. 6A:32-7.1 to -7.8" to determine whether the plaintiffs in four related

appeals could obtain copies of students' settlement agreements and records

from school districts. 452 N.J. Super. at 61-62, 80.

We discussed the historical balance of access to education records and

privacy interests in the NJPRA, OPRA's predecessor the Right to Know Law

(RTKL), and FERPA. Id. at 72-77. L.R. I also addressed the then-current

3
20 U.S.C. 1232g.
4
N.J.S.A. 18A:36-19.

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NJPRA regulations defining "student record" and a school districts'

responsibility to regulate security and disclosure of student records. Id. at 77-

78. We noted N.J.A.C. 6A:32-7.5(a), stated: "Only authorized organizations,

agencies or persons, as defined in this section shall have access to student

records" and the list of authorized organizations, agencies, and persons set

forth in N.J.A.C. 6A:32-7.5(e). Id. at 78. The regulation similarly mandated

compliance with OPRA and FERPA requirements. Ibid. Further, OPRA's

privacy clause required protection of personal information "'when disclosure

thereof would violate the citizen's reasonable expectation of privacy[.]'" Id. at

80 (alteration in original) (quoting N.J.S.A. 47:1A-1).

We concluded the school records were within OPRA's definition of a

"government record" and FERPA's definition of "education records." Id. at

82-83. However, student records remain such even when PII is removed. Id.

at 83. Therefore, we held the information exempt from disclosure under

OPRA. Ibid.

We noted the NJPRA provisions specifically limit access to student

records "to only parties on the authorized list serve to protect the privacy of

students and parents from intrusion by random third parties, except where

there is written parental consent or a court order requiring such disclosure."

Id. at 85. Noting the 2005 amendment to N.J.A.C. 6A:32-7.5(g), explicitly

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mandating districts adhere to OPRA or FERPA, we concluded the "regulatory

history shows that the Department of Education [(DOE)] has consistently

administered the NJPRA to allow public access to student records to only a

finite group of individuals and organizations, absent parental consent or a

court order, in the interest of maintaining the privacy and confidentiality of

those records." Id. at 86. As such, in compliance with OPRA and FERPA,

only persons fitting into the authorized categories listed in N.J.A.C. 6A:32-

7.5(e)(1) through (16) can gain access to a student record. Id. at 86-87.

L.R. I addressed two specific authorized categories, one of which was

the court order pathway, N.J.A.C. 6A:32-7.5(e)(15). Id. at 88. While the

statute does not describe the process to obtain records by court order, we held:

[I]f the records sought qualify as common-law public
records, then a court must conduct a two-step analysis
to determine whether a request . . . is entitled to
access. [Educ. L. Ctr. v. N.J. Dep't of Educ., 198 N.J.
274, 284, 302 (2009)]. First, the court must determine
whether the requestor has established "an interest in
the public record." Ibid. That interest may be "a
wholesome public interest or a legitimate private
interest." Ibid. Second, the court must determine
whether the requestor has demonstrated that its
interest in the public records sought "outweigh[s] the
State's interest in non-disclosure." Id. at 303 (citations
omitted).

[L.R. I, 427 N.J. Super. at 88-89 (third alteration in
original).]

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 In analyzing the second step, we stated courts should consider the six

factors identified in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). Id. at

89. This process would allow courts to perform an in-camera inspection of

requested records in balancing the relevant factors. Ibid. Also, regulations

mandating confidentiality on an otherwise public document should weigh

heavily in the balancing process, and the safeguarding of a student's reasonabl e

privacy should be given strong consideration. Id. at 90.

We noted the use of students' initials may not be enough to protect

identity, and FERPA and federal schema requiring redaction do not allow a

person to reasonably determine a party's identity once PII is redacted. Id. at

90-91 (citing 34 C.F.R. § 99.3(f); 34 C.F.R. § 99.31(b)(1)). We remanded the

issue for review on a case-by-case basis, "depending on the specific nature of

the request and particular kind(s) of records sought." Id. at 91-92.

We concluded plaintiffs were entitled to "appropriately-redacted copies

of the requested records, provided that on remand those plaintiffs . . . obtain

from the Law Division a court order authorizing such access pursuant to

N.J.A.C. 6A:32-7.5(e)(15)." Id. at 63. Plaintiff's case against defendant was

returned to the trial court for further proceedings regarding documents

including J.R.'s, which refers to other students, but we affirmed the trial court's

granting of access to records exclusively mentioning J.R. Ibid.

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 In L.R. II, an evenly divided Supreme Court affirmed our decision. 238

N.J. at 548. The Court confirmed a student record "retains its protected status

under New Jersey law notwithstanding the school district's redaction from that

record of '[PII],' as required by [FERPA], and its implementing regulations."

Id. at 550. The central issue was whether the documents sought were student

records, and therefore exempt from OPRA disclosure, even if appropriately

redacted. Id. at 560-61.

The Court concluded "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 [PII] that might identify the

student in compliance with federal law." Id. at 550. It identified non-

exclusive factors where parties seek a court ordered disclosure under N.J.A.C.

6A:32-7.5(e)(15). Ibid.

Furthermore, the Court found the plain language of N.J.A.C. 6A:32-2.1

means a document need not include PII to be a student record, and a student

record does not lose its protected status under state law because PII is

redacted. Id. at 567-68, 571. The Court described the different types of

documents sought in the appeals and how they could potentially reveal

information related to a student, regardless of redactions. Id. at 568.

Ultimately, the Court concluded N.J.A.C. 6A:32-7.5 did not "support the

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contention that a 'student record' loses that status if it is redacted to remove

[PII]." Id. at 571.

As for the court order pathway, the Court rejected the factors listed in

Doe v. Rutgers, State University of New Jersey, 466 N.J. Super. 14 (App. Div.

2021) and Loigman, and created new non-exclusive factors 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)[.]" Id. at 575. The Court called for

clearer regulations regarding public access to education records. Id. at 575-76.

In response to L.R. II the DOE promulgated amended regulations

effective July 5, 2022, 54 N.J.R. 1276(a) (July 5, 2022), to "further protect

student privacy while ensuring the public continues to have access to

government records." 53 N.J.R. 1307(a). The amendments make clear a

district board of education (BOE) "shall compile and maintain student records

and regulate access in accordance with [FERPA], 20 U.S.C. § 1232g, and 34

CFR [§] 99, disclosure, or communication of information contained in student

records in a manner that assures the security of the records . . . ." N.J.A.C.

6A:32-7.1(b).

The regulations require districts provide "written notification to parents,

adult students, and emancipated minors of their rights in regard to student

records . . . ." N.J.A.C. 6A:32-7.1(d). The district also has the duty to

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"[m]aintain the confidentiality of all student records containing the name,

Social Security number, address, and telephone number information, or the

address for certified participants in the Address Confidentiality Program . . . ."

Id. § 6A:32-7.1(g)(10).

The amended regulations define PII and student records as follows:

"Personally identifiable information" means, but is not
limited to:

1. The student's name;

2. The name of the student's parent(s) or other
family members;

3. The address of the student or the student's
family;

4. The email address of the student, the student's
parent(s), or other family members;

5. The telephone number of the student, the
student's parent(s), or other family members;

6. A personal identifier, such as the student's
Social Security number, student number, or
biometric record;

7. A photo of the student;

8. The location and times of class trips;

9. Other indirect identifiers, such as the
student's date of birth, place of birth, and
mother's maiden name;

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 10. 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

11. Information requested by a person who the
district board of education, or privacy agency
that provides educational services by means of
public funds, reasonably believes knows the
identity of the student to whom the student
record relates.

....

"Student record" means 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 and not for the use
of a second party is excluded from this definition. In
the absence of any "information related to an
individual student," the document(s) no longer meets
the definition of "student record."

[N.J.A.C. 6A:32-2.1 (emphasis added).]

According to the DOE, "[i]nformation that can be released after [PII] has been

removed would not be attributable to any student" and "[t]he proposed

definition . . . when applied to a student record, will result in the record no

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longer being considered a student record, which will make it releasable under

OPRA." 54 N.J.R. 1276(a).

The regulation governing access to student records states:

(a) Only authorized organizations, agencies, or
persons, as defined in this section, shall have access to
student records, including student health records.

....

(e) Organizations, agencies, and persons authorized to
access student records shall include only the
following:

....

15. Organizations, agencies and individuals
outside the school, other than those specified in
this section, upon the presentation of a court
order; and

....

(g) In complying with this section, district [BOEs] . . .
shall adhere to the requirements pursuant to . . .
[OPRA], and . . . [FERPA].

1. When responding to OPRA requests from any
party, including parties other than those listed at
(e) above, a district [BOE] . . . may release,
without consent, records removed of all [PII], as
such documents do not meet the definition of a
student record. Before making any release, the
district [BOE] . . . shall have made a reasonable
decision that a student's identity cannot be
determined whether through single or multiple
releases, or when added to other reasonably
available information.

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 [N.J.A.C. 6A:32-7.5 (emphasis added).]

The regulation governing the conditions for access to student records

states:

Prior to disclosure of student records to organizations,
agencies, or persons outside the school district
pursuant to a court order, the district [BOE] shall 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. The notification shall be provided in
writing, if practicable. Only records related to the
specific purpose of the court order shall be disclosed.

[N.J.A.C. 6A:32-7.6(a)(4).]

Following L.R. II, defendant moved before the master to dismiss

plaintiff's complaint. The master adjudicated the motion under Rule 4:6-2(e)

as a motion to dismiss for failure to state a claim, and recommended the court

grant the motion. Plaintiff appealed from the recommendation and the trial

judge affirmed, adopting the master's findings of fact and conclusions of law.

The trial judge agreed with the master's finding the court had already

determined plaintiff was not entitled to the records under the court order

pathway when the court granted defendant's motion for summary judgment in

2015 because plaintiff did not qualify as an "authorized" figure under N.J.A.C.

6A:32-7.5(e). The judge discussed Doe v. Rutgers, State University of New

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Jersey, and noted the case had "narrow application" because it concerned a

person seeking their own records and plaintiff was a third-party requestor.

The trial judge also addressed Keddie v. Rutgers, which held there is a

common law right to records. 148 N.J. 36, 40 (1997). She found "unlike in

Keddie, regardless of whether the requested documents are filed under seal,

defendants have an expectation of privacy in protecting 'student records'

containing [PII] under FERPA and NJPRA." The judge also noted in Keddie

the defendant did not assert a claim of confidentiality to the legal submissions

as defendant did here. The trial judge, quoting C.G. v. Winslow Township

Board of Education, stated: "Accordingly, 'simply because the information

may ordinarily be available to and accessible by the public' — as 'legal

submissions' filed with the court — '[that] does not ipso facto mean that no

legitimate privacy interest predominates.'" 443 N.J. Super. 415, 423 (Law Div.

2015).

The trial judge dismissed plaintiff's argument she had a common law

right of access because plaintiff never asserted the claim, and it was separate

from OPRA. Regardless, the trial judge determined a common law right of

access would be futile because defendant had a legitimate claim for

confidentiality under FERPA and NJPRA. She found plaintiff failed to meet

Keddie's requirement that the requestor "'establish that the balance of its

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interest in disclosure against the public interest in maintaining confidentiality

weighs in favor of disclosure.'" 148 N.J. at 50. The judge concluded it did not

matter whether the records were legal submissions not protected under NJPRA

and FERPA.

The trial judge also rejected plaintiff's assertion defendant was in

violation of its obligations to disclose records because plaintiff found records

defendant had not previously disclosed. The judge noted in 2015, plaintiff

agreed defendant provided all the records she sought, and the case was "no

longer a case about obtaining access to records; it is about the propriety of

redactions."

I.

On appeal, plaintiff argues she is entitled to access to the student records

under the court order pathway, N.J.A.C. 6A:32-7.5(e)(15). She asserts the

master erred by deciding otherwise because he relied on the 2015 summary

judgment decision, which did not thoroughly analyze N.J.A.C. 6A:32-7.5(e),

and misunderstood L.R. I and L.R. II, both of which recognize a court order

pathway under OPRA as an NJPRA exception. She contends the trial judge

did not follow the Supreme Court's instructions to address this issue on

remand.

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 Plaintiff argues the master did not address her argument the documents

she sought were legal submissions and therefore accessible via OPRA and the

common law as public records. She asserts records with initials and no other

PII are sufficient to protect privacy, the documents are not under seal, and

defendant admitted using initials in legal submissions involving student cases.

Even so, plaintiff claims defendant should have created a privilege log and the

court should have conducted an in camera review to determine whether the

redactions were required. She argues that settlement agreements with a

governmental entity, including those resolving tort claims against a school, do

not fall within the definition of a student record protected by FERPA or the

Individuals with Disabilities Education Act (IDEA). She re-asserts she

discovered records defendant failed to disclose.

"On appeal, we apply a plenary standard of review from a trial court's

decision to grant a motion to dismiss pursuant to Rule 4:6-2(e)." Rezem Fam.

Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.

2011) (citing Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.

2005) certif. denied, 185 N.J. 297 (2005))). No deference is owed to the trial

court's conclusions. Ibid. Similarly, "'[t]he trial court's determinations with

respect to the applicability of OPRA are legal conclusions subject to de novo

review.'" K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super. 337, 349 (App.

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Div. 2011) (quoting O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 379

(App. Div. 2009)).

II.

Pursuant to our de novo review, we affirm substantially for the reasons

expressed by the trial judge. We add the following comments.

We decline to apply the amended regulations because they are not

retroactive. "Generally, a regulation only applies prospectively." Rahway

Hosp. v. Horizon Blue Cross Blue Shield of N.J., 374 N.J. Super. 101, 112

(App. Div. 2005) (citing In re Failure by Dep't of Banking & Ins., 336 N.J.

Super. 253, 267 (App. Div. 2001)). "A regulation may apply retroactively if

the Legislature or agency has expressed that intent, either explicitly or

impliedly, and retroactive application would not cause a manifest injustice or

an interference with a vested right." Ibid. (citing State Troopers Fraternal

Ass'n v. State, 149 N.J. 38, 54 (1997).

The amendment to the regulation defining student records bears no

intent to apply it retroactively. More importantly, the regulation now states

"[i]n the absence of any 'information related to an individual student,' the

document(s) no longer meets the definition of 'student record.'" N.J.A.C.

6A:32-2.1 (emphasis added). Further, student "records removed of all [PII]"

may now be released without consent. N.J.A.C. 6A:32-7.5(g)(1) (emphasis

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added). Therefore, the trial judge's conclusion, that under the 2015 ruling and

ensuing decisions plaintiff was not entitled to the unredacted records, is

unaffected by the amended regulation as providing plaintiff the initials would

still constitute information related to an individual student. Plaintiff has not

convinced us otherwise.

The parties' briefs rely on Keddie and our recent decision in C.E. v.

Elizabeth Public School District, 472 N.J. Super. 253 (App. Div. 2022), which

plaintiff argues prove the information she seeks is public record. In Keddie,

the plaintiff asserted a statutory and common-law right to access the

documents, including "(1) attorneys bills; (2) documents Rutgers generates

internally from the legal bills; and (3) pleadings, briefs, affidavits, and other

filings made with courts, agencies, and arbitral forums and the decisions or

awards rendered ('legal submissions')." 148 N.J. at 41.

In C.E., the plaintiff submitted an OPRA request for settlement

agreements entered by defendant Elizabeth Public School District in the Office

of Administrative Law (OAL) special education dockets and final decisions

incorporating the settlement agreements, among other items. 472 N.J. Super.

at 258. The defendant denied the request, alleging the documents were

confidential student records under N.J.A.C. 6A:32-7.5 and therefore exempt

from disclosure. Ibid. Plaintiff filed an OPRA suit, and the trial court ordered

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defendants to produce the settlement agreements with redacted names and

addresses, leaving initials. Id. at 258-59. Defendant appealed, L.R. I and II

were decided, and C.E.'s case was consolidated with the pending cases in

Camden Vicinage, including L.R.'s, then severed, and tried separately. Id. at

259. The C.E. trial court held L.R. I and II did not apply because neither

opinion addressed cases adjudicated before the OAL and declared the

documents public records subject to OPRA because they were legal

submissions. Id. at 260-61 (citing Keddie, 148 N.J. at 36).

We discussed the interplay of OPRA, L.R. I and II, the IDEA, and

federal and state regulations governing special education. Id. at 262-67. We

concluded the trial court did not err in declining to follow either L.R. opinion

because those opinions did not discuss cases on the OAL docket and the IDEA

was not at issue. Id. at 265-66. Furthermore, federal special education rules

and the New Jersey regulations adopting them allow fact findings from

hearings and settlement decisions to be made public. Id. at 265. We also

relied on Keddie in concluding there is no expectation of confidentiality in

documents filed with courts, agencies, or arbitral forums. We determined:

Keddie was applicable and distinguishable from L.R. I
and L.R. II. . . . L.R. I did not address student records
already filed in court proceedings. The student
records here were submitted as part of legal filings
without a protective order in proceedings before the
OAL, an "agenc[y], or arbitral forum" as described in

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 Keddie. . . . When defendants settled with parents or
guardians pursuant to their IDEA claims in the OAL,
these documents became judicial filings and are
subject to a "presumption" of public access.

[Id. at 267.]

The holding in C.E. was limited to documents filed in the OAL.

Moreover, the defendant in C.E. failed to produce the OAL-related documents.

Keddie and C.E. are inapposite because they do not address the discrete issue

raised on this appeal: whether defendant should have redacted the PII

altogether as opposed to leaving the initials intact. We are satisfied not to

second-guess the trial judge's reasoning on this account for the reasons we

have expressed. The remainder of plaintiff's arguments lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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