Jamie Epstein is a New Jersey attorney who primarily represents students and their families who have had their regular education, special education, or higher education law rights violated. He has a long record of obtaining access to student records pursuant to the New Jersey Open Public Records Act.

The New Jersey Senate’s adoption of the recent amendment to the Open Public Records Act  (“OPRA”), Bill S-2930, indicates a troubling future for a cornerstone of state law that has  promoted government transparency for over two decades. The amendment cleverly removes the  critical first section of the Act which determines that “government records shall be readily  accessible for inspection, copying, or examination by the citizens of the State.” For students and  their parents in particular, this alteration signifies that danger looms beyond the horizon.  

Since the Act’s adoption in 2001, OPRA has acted as a safeguard against opaque governance,  enshrining the public’s right to access with only a few, well-defined exceptions. These limitations were designed to be narrowly interpreted, thus favoring the public’s right to know and restricting  the potential for government agencies to conceal unfavorable records. However, the recent  legislative changes to OPRA indicate that New Jersey’s troubled history of corruption and dismal transparency– at a time when these accusations are reaching yet another climax– will not be  reformed.  

As a seasoned attorney in education and school law, I have witnessed firsthand the  transformative impact of OPRA. When I first began practicing in 1990, the market for education  attorneys was underrepresented, in no small part because of the unforgiving bureaucratic process through which students and their families had to leap through to obtain records necessary for  litigation. Before OPRA, the only way to gain access to a client’s student records was through  the Family Educational Rights and Privacy Act (“FERPA”) and New Jersey New Jersey’s Pupil  Records Act (“NJPRA”), or through New Jersey’s “Right to Know” Law. Pursuing each avenue  was inevitably futile because there was no enforcement mechanism, save for the U.S. or New  Jersey Department of Education, neither of which were particularly effective in enforcing student’s rights. FERPA itself is a mere funding statute with corresponding regulations  establishing remedies for improper disclosure of student records, itself having no established  procedures for the actual disclosure of those records.  

Prior to OPRA, obtaining access to student records was a negative feedback loop– though you  needed the records to pursue a violation of student’s rights, they could only be obtained through  a judge’s order, which would not be granted in the absence of records demonstrating that a  violation had occurred.  

When OPRA emerged as a replacement statute of the old “Right to Know” Law, I was one of the first attorneys to use it to obtain student records held by public schools via a Court Order. (See Appellate Division opinions in L.R. v. Camden BOE, K.E. v. Evesham BOE, C.E. v. Elizabeth  BOE.) Not only were the Courts now permitted to order access to student records, but also to award prevailing party’s attorney’s fees in OPRA cases. Not only could parents gain access to  their children’s records, but the financial burden of pursuing violations committed by public  school districts was significantly lessened.  For example, in Doe v. Rutgers, State Univ. of N.J.  (2022), the university’s denial of a graduate student’s access to his own student records was  reversed because his access was guaranteed under OPRA. The Court noted that FERPA outlined no such procedures by which government entities were required to disclose student records. 

This amendment ensures that a return to the days of pre-OPRA litigation is imminent. The procedural roadblocks in obtaining student records that the amendment would diminish is the capacity of parents to ensure that public schools are adhering to New Jersey education laws.  Without access to their child’s education records, how is a parent to know what transpires during the eight hours per day that they are made to blindly entrust their child to their school?  

Further, not only does the amendment unreasonably narrow the scope of requests– requiring the  naming of government officials and their proper titles in the request, for example– but it also  provides for government agencies to sue records requesters. The threat of retaliation already looms large in cases involving public schools that children remain enrolled in through and after  litigation. This threat will only be exacerbated if districts are green-lighted to counter-sue  parents seeking to enforce their child’s rights.  

As this bill now heads to the Governor’s desk, it is crucial to consider its implications for an  under-represented but significantly affected party: students and their families. All New Jersey  students and their parents should immediately contact the Governor’s Office before it’s too late.

[photo credit] Flickr: Phil Murphy