Wednesday, October 21, 2015

Court: Citing FERPA, without more, is sufficient to justify sixty-three redactions.

In an October 20, 2015 oral decision, Mercer County Assignment Judge Mary C. Jacobson dismissed an Open Public Records Act (OPRA) case that challenged the legality of the New Jersey Department of Education's (DOE) justification of sixty-three separate redactions from two special education settlement agreements with the following blanket explanation: "The records have been redacted to protect the reasonable expectations of privacy related to student identification/confidentiality rights under Family Education Rights and Privacy Act ("FERPA") 20 U.S.C.Sect. 1232g and N.J.A.C. 6A:32-7.1, et. seq."  Judge Jacobson held that the DOE's invocation of "FERPA," without more, was sufficient.  Her written order is on-line here.

While the nature of many of the redactions at issue in the case of Paff v. New Jersey Department of Education, et al, Docket No. MER-L-1523-15 could be determined by the context of the sentence containing the redaction, others could not.  My brief, authored by CJ Griffin of the Hackensack-based Pashman Stein law firm, used the following two sentences from the agreement that settled P.A. and J.A. o/b/o A.A. v. Millburn Township Board of Education and Madison Board of Education, OAL Docket No. EDS-18665-2013N as an example:
The District agrees to reimburse Petitioners five thousand ($5,000) toward the educational costs of [REDACTION] for November 2011 through October 2012. The reimbursement shall be provided to the parents within 30 days of receipt of invoices, [REDACTION], and proof of payment. . 
While the first redaction is clearly the student's name, the second redaction appears to be the type of documentation that the parents need to provide in order to receive reimbursement.  It is difficult to see how disclosure of this reimbursement prerequisite could reveal the student's identity.

An October 8, 2015 certification by DOE Records Custodian Donna Fletcher-Lugo provides a bit more, but not much, additional information on the nature of each redacted element.

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