q OPRA Decision Affects Special Ed Settlements | OGC Attorneys

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Precedential OPRA Decision Affects Confidentiality of Special Education Settlements Reached after Litigation

By Laura A. Siclari

On May 18, 2022, the New Jersey Appellate Division, in a published decision entitled C.E. and B.E. o/b/o K.E. v. Elizabeth Public School District, et al., A-0173-20 (App. Div. May 18, 2022), held that special education settlements entered into by school districts in Office of Administrative Law (OAL) docketed cases were subject to disclosure as public records under the Open Public Records Act (OPRA). In issuing its ruling, the Court noted that there is a general “presumption of public access” for documents filed with a court in connection with civil litigation. See Est. of Frankl v. Goodyear Tire & Rubber Co., 373 N.J. Super. 509, 511 (App. Div. 2003). The Court also emphasized that, under the federal implementing regulations for the Individuals with Disabilities Education Act (IDEA), which is this country’s federal law governing special education disputes, special education settlement agreements reached after litigation mandated disclosure. Specifically, 34 C.F.R. §300.513(d)(2) states that “[t]he public agency, after deleting any [personally identifiable information], must . . . make those [special education settlement] decisions and findings available to the public.“ Lastly, the Court rejected the argument that a recent pair of New Jersey Supreme Court decisions in 2017 and 2019 in L.R. v. Camden City Public School District (known as L.R. I and L.R. II) that also involved OPRA requests for student records were controlling, because the L.R. decisions did not address records from cases decided before the OAL.

The L.R. decisions arguably created barriers to the disclosure of special education records and settlements to the public under OPRA unless certain criteria were met. This new decision in C.E. v. Elizabeth Public School District distinguishes itself from the overall L.R. holdings and serves to highlight an alternative pathway to obtaining important publicly available special education records and creating better transparency into to the special education settlements into which school districts enter.

The full Court opinion can be read here:
https://www.njcourts.gov/

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