By Alison Kenny, Esq.

On May 18, 2022, the New Jersey Appellate Division issued an opinion in the case of C.E. and B.E. individually and o/b/o K.E. v. Elizabeth Public School District, in which the Court held that settlement agreements resolving special education disputes that have been docketed in the Office of Administrative Law (OAL) and incorporated into final decisions are subject to disclosure under New Jersey’s Open Public Records Act (OPRA). While prior to this decision non-special education settlement agreements generally qualified as government records disclosable under OPRA, it was common practice for boards of education to deem special education agreements confidential student records exempt from disclosure. In this decision, the Appellate Division explained that despite special education agreements being student records, the documents become judicial filings subject to a presumption of public access because they have been submitted to the Office of Administrative Law (“OAL”) for incorporation into a final decision.

Though special education settlement agreements often include a substantial amount of personally identifiable information about a student, this Appellate Division decision establishes that to comply with OPRA a board of education must redact a student’s personally identifiable information prior to disclosing a special education settlement agreement which have been incorporated into a final decision at the OAL. Therefore, in processing future OPRA requests for special education settlement agreements, it is imperative that any information which would allow the recipient to identify the student be redacted prior to disclosure. Additionally, it is important to remember that this decision is currently only applicable to settlements that have been incorporated into a final decision by the OAL. At this time, it appears that agreements resolving special education disputes prior to the matter being transmitted to OAL, such as mediation agreements or resolution agreements, or agreements that have not been incorporated into a final decision by the OAL, remain student records that are exempt from OPRA disclosures.

For more information on this Legal Alert or related issues, please contact the education law attorneys at Schenck Price.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.