MIKE ASSAD VS. ABSECON BOARD OF EDUCATION (L-0897-19, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0252-19T1
MIKE ASSAD,
Plaintiff-Appellant,
v.
ABSECON BOARD OF
EDUCATION, THOMAS GRITES,
CHRISTOPHER COTTRELL,
RAQUEL LAW, MEGAN MARCZYK,
ERIC NEAL, JOHN RYNKIEWICZ,
LINDA WALLACE, DANIEL
DOOLEY, TINA MARCURA,
LINDSAY REED, officially as
members, officers and employees of
the ABSECON BOARD OF
EDUCATION,
Defendants-Respondents.
________________________________
Submitted May 11, 2020 – Decided August 21, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0897-19.
Mike Assad, appellant pro se.
Parker McCay, PA, attorneys for respondents (Brett
Elliot John Gorman, of counsel and on the brief; Emily
Elizabeth Strawbridge, on the brief).
PER CURIAM
Plaintiff Mike Assad appeals from the Law Division's July 31, 2019 order
granting defendant Absecon Board of Education's1 Rule 4:6-2(e) motion to
dismiss plaintiff's complaint alleging defendant failed to maintain or turn over
to plaintiff copies of his grammar school records. In dismissing the complaint,
the trial court found that all of the documents defendant possessed that it was
obligated to maintain had been supplied to plaintiff, and therefore plaintiff could
not assert claims under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-
1 to -13, or under a common law right of access (CLRA), and that defendant was
not in violation of any applicable regulation. On appeal, plaintiff contends that
he was entitled to relief because defendant violated his CLRA to the requested
documents and that he was entitled to an award of attorneys' fees under OPRA.
We affirm as we conclude plaintiff's contentions are without merit, substantially
for the reasons expressed by the trial court.
1
Plaintiff's complaint also named members of defendant and its employees. For
clarity, we refer to them collectively as "defendant."
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The facts derived from the plaintiff's complaint and the motion record are
summarized as follows. Plaintiff was enrolled as a student in defendant's school
system from 1992 until 2001. On March 4, 2019, plaintiff wrote to defendant
asking it to certify details of his academic history to the National Conference of
Bar Examiners as part of his request for learning disability accommodations on
the Bar Exam's Multistate Professional Responsibility Exam. In a March 13,
2019 response, defendant notified plaintiff that all of his records had been sent
to his parochial high school upon his completion of the eighth grade in
defendant's district and that no records remained in defendant's possession.
Plaintiff then emailed defendant's superintendent of schools on March 21, 2019,
asking if he could locate plaintiff's records. The following day, the
superintendent responded that the requested documents did not exist and he
provided plaintiff with a copy of the district's "Records Retention and
Disposition Schedule" (RRDS) detailing how long various records were to be
kept and how they could be disposed of following the retention period.
On March 26, 2019, plaintiff requested his records from defendant citing
to OPRA and his CLRA. The next day, defendant denied plaintiff's OPRA
request stating student records were exempt. However, defendant agreed to
provide plaintiff with his records if he executed a release.
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Plaintiff sent another request on March 29, 2019, which included a release
for disclosure of his student records, but this time asked for "a copy of whatever
records the district [did] have concerning [his] enrollment there." Referring to
the RRDS, the superintendent responded and advised plaintiff that "we do not
keep any student documents for a greater length of time than is required by law."
He also directed plaintiff to defendant's attorney should plaintiff have any
questions.
On April 1, 2019, defendant's attorney sent plaintiff what the attorney
described as a copy of all of plaintiff's student records possessed by defendant.
The documents included: (1) a register entry stating name of parents, phone
number, years attended, homeroom assignments, and emergency contact; (2) an
individual education plan (IEP)2 dated May 12, 2003; and (3) another IEP dated
2
The statutory definition of IEP is a plan written for
"students with disabilities developed at a meeting
according to N.J.A.C. 6A:14-2.3 that sets forth present
levels of performance, measurable annual goals, and
short-term objectives or benchmarks, and describes an
integrated, sequential program of individually designed
instructional activities and related services necessary to
achieve the stated goals and objectives."
[Abbott v. Burke, 206 N.J. 332, 431 n.33 (2011)
(quoting N.J.A.C. 6A:8-1.3).]
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January 12, 2004. According to plaintiff, despite having received the IEPs, the
information provided still did not contain all the records plaintiff had been
seeking that defendant was obligated by regulation to maintain. Plaintiff
contended that the missing documents were his health history, standardized test
scores, grades, attendance records, and classes attended. Defendant's attorney
assured plaintiff that he would seek confirmation from defendant regarding its
possession of the missing documents.
A later search of defendant's computer hard drives by its business
administrator did not yield any additional information. Defendant's attorney
notified plaintiff that "due to software/computer system updates and
compatibility issues, the District's electronic records, including those 'that may
be from the years in which [plaintiff was] a student'" were "inaccessible" at that
point in time. He assured plaintiff that defendant had "undertaken good-faith
efforts" to "access the records" and that he would "continue to provide update s
as additional information [became] available."
On April 26, 2019, plaintiff filed his complaint alleging violations of
OPRA, CLRA, and education regulations. Defendant filed a motion to dismiss
on July 15, 2019, which was supported by a certification from defendant's
business administrator confirming that she searched defendant's "online system"
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and "old boxes in storage," and provided plaintiff with all of the documents she
could find. She then "located hard drives" that defendant used when plaintiff
"was a student," and hired a "computer specialist" to review the "antiquated"
hard drives, but did not find any "additional documents regarding [plaintiff]."
The business administrator certified that "all documents in [defendant's]
possession have been provided to [plaintiff] and [she was] not aware of any other
documents that may exist."
After considering the parties' oral arguments and placing its decision on
the record that day, the trial court granted defendant's motion, and dismissed the
complaint with prejudice on July 31, 2019. In its decision, the trial court found
plaintiff "concede[d] to receiving the requested information." Applying the
standard of review for Rule 4:6-2 motions under Printing Mart-Morristown v.
Sharp Elecs. Corp., 116 N.J. 739, 772 (1989), to the allegations of the complaint,
and noting that there was not a dispute that defendant supplied all documents it
had in its possession, the court concluded plaintiff could not state a viable claim
under OPRA or the CLRA. As to OPRA, the court found plaintiff's request "was
not a valid OPRA request." As to the regulation, defendant supplied the
requested information, including those that plaintiff requested about his learning
disability. Turning to plaintiff's claim for counsel fees under OPRA, the court
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concluded there was no basis for an award of fees under that act. This appeal
followed.
On appeal, plaintiff argues that he asserted a viable cause of action under
a CLRA as the records he requested were subject to that right and defendant's
failure to provide him with the missing documents violated the CLRA.
Moreover, he contends that we should "decide that OPRA's statutory fulfillment
processes apply to [his] CLRA," that defendant violated those processes, and
that as a prevailing party he was "entitled to an award of costs" under OPRA.
We find no merit to any of these contentions.
We "review[] de novo [a motion judge's] determination of [a] motion to
dismiss under Rule 4:6-2(e). [In doing so, we] owe[] no deference to the [motion
judge's] legal conclusions." Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019) (citation omitted). In
our review, we "apply[] the same standard under Rule 4:6-2(e) that governed the
motion [judge,]" Wreden v. Township of Lafayette, 436 N.J. Super. 117, 124
(App. Div. 2014), that is, whether the pleadings even "suggest[]" a basis for the
requested relief, Printing Mart-Morristown, 116 N.J. at 746 (quoting Velantzas
v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). Where a complaint raises
statutory and regulatory legal issues, we afford no special deference to the trial
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court's interpretation of the law and the legal consequences that flow from
established facts. L.R. v. Camden City Pub. Sch. Dist., 452 N.J. Super. 56, 82
(App. Div. 2017), aff'd, 238 N.J. 547 (2019).
As a reviewing court, we assess only the legal sufficiency of the claim.
Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005).
Consequently, "[a]t this preliminary stage of the litigation [we are] not
concerned with the ability of plaintiffs to prove the allegation contained in the
complaint." Printing Mart-Morristown, 116 N.J. at 746. Rather, we accept the
factual allegations as true, Sickles, 379 N.J. Super. at 106, and "search[] the
complaint in depth and with liberality to ascertain whether the fundament of a
cause of action may be gleaned even from an obscure statement of claim."
Printing Mart-Morristown, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel
Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). "However, we
have also cautioned that legal sufficiency requires allegation of all the facts that
the cause of action requires." Cornett v. Johnson & Johnson, 414 N.J. Super.
365, 385 (App. Div. 2010), aff'd as modified, 211 N.J. 362 (2012). In the
absence of such allegations, the claim must be dismissed. Ibid.
A motion to dismiss for failure to state a claim must be denied if, giving
plaintiff the benefit of all his allegations and all favorable inferences, a claim
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has been established. R. 4:6-2(e); see also Banco Popular N. Am. v. Gandi, 184
N.J. 161, 165 (2005). "A complaint should be dismissed for failure to state a
claim pursuant to Rule 4:6-2(e) only if 'the factual allegations are palpably
insufficient to support a claim upon which relief can be granted.'" Frederick v.
Smith, 416 N.J. Super. 594, 597 (App. Div. 2010) (quoting Rieder v. State Dep't
of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). "[P]leadings reciting
mere conclusions without facts and reliance on subsequent discovery do not
justify a lawsuit," and warrant dismissal. Glass v. Suburban Restoration Co.,
317 N.J. Super. 574, 582 (App. Div. 1998).
We begin our de novo review by observing that plaintiff does not contend
that defendant withheld documents from him to which he was entitled. Rathe r
he maintains that the failure to preserve records violated the CLRA and the
controlling regulation. We address each claim.
At the outset, to the extent plaintiff argues OPRA applies to the CLRA,
we conclude that, as plaintiff concedes in his reply brief, OPRA is not applicable
to student records, or to an analysis of whether his CLRA was violated. OPRA
requires that government records be readily accessible to the citizens of the State
of New Jersey, subject to certain exceptions. N.J.S.A. 47:1A-1. Pursuant to
OPRA, government records are those "that ha[ve] been made, maintained or kept
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on file . . . or that have been received in the course of . . . official business" by
a designated official. N.J.S.A. 47:1A-1.1. However, confidential school records
that are subject to the New Jersey Pupil Rights Act, (NJPRA), N.J.S.A. 18A:36-
19, are not subject to disclosure under OPRA. See L.R. v. Camden City Pub.
Sch. Dist., 238 N.J. 547, 560 (2019) (Patterson, J., concurring) ("[T]o the extent
that the disputed student records in these matters are protected from public
disclosure by the NJPRA and its implementing regulations, those records are not
subject to disclosure under OPRA.").3
Here, there is no dispute that plaintiff sought records that are specifically
protected by the NJPRA. Therefore, to the extent plaintiff asserted any claim in
his complaint under OPRA, including his claim for counsel fees, the trial court
correctly dismissed it with prejudice. 4
3
Where they are not protected by NJPRA, school districts releasing documents
to an authorized person must "adhere to requirements pursuant to N.J.S.A.
47:1A-1 et seq., [OPRA] and 20 U.S.C. § 1232g; 34 CFR Part 99, the Family
Educational Rights and Privacy Act (FERPA)." N.J.A.C. 6A:32-7.5(g).
4
Even if the plaintiff had a viable claim for fees, because he was self-
represented an award of counsel fees was not warranted, Segal v. Lynch, 211
N.J. 230, 262-64 (2012), and since defendant supplied plaintiff with all
documents it possessed relating to plaintiff, plaintiff was not a catalyst under
OPRA such that an award of fees would be appropriate. See Jones v. Hayman,
418 N.J. Super. 291, 305 (App. Div. 2011) ("In order to be awarded counsel fees
under the catalyst theory, a plaintiff must demonstrate '(1) a factual causal nexus
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Turning to plaintiff's claims for release of documents under a CLRA, we
initially observe that such claims exist parallel to and unrestricted by OPRA.
See Mason, 196 N.J. at 67. "The [CLRA] to public documents provides that a
party shall have access to public documents when the party seeking access has
an interest in the documents and the party's interest outweighs the public's
interest in preventing disclosure." Commc'ns Workers of Am. v. Rousseau, 417
N.J. Super. 341, 363 (App. Div. 2010) (citing Keddie v. Rutgers, 148 N.J. 36,
50 (1997)). Under the common law, a public record is more broadly defined as
one required by law to be kept, or necessary to be kept
in the discharge of a duty imposed by law, or directed
by law to serve as a memorial and evidence of
something written, said, or done, or a written memorial
made by a public officer authorized to perform that
function, or a writing filed in a public office.
[Nero v. Hyland, 76 N.J. 213, 222 (1978) (quoting
Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App.
Div. 1954)); see also Keddie, 148 N.J. at 49.]
A party seeking access to a public record "must make a greater showing
than required under OPRA," Mason, 196 N.J. at 67, and "establish an interest in
the subject matter of the material," ibid. (quoting Keddie, 148 N.J. at 50). The
between the litigation and the relief ultimately achieved; and (2) that the relief
ultimately secured by plaintiff had a basis in law.'" (quoting Mason v. City of
Hoboken, 196 N.J. 51, 67 (2008))).
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requestor's interest "may be either a wholesome public interest or a legitimate
private interest." Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub.
Safety, 421 N.J. Super. 489, 499 (App. Div. 2011) (quoting Educ. Law Ctr. v.
N.J. Dep't of Educ., 198 N.J. 274, 302 (2009)).
The CLRA, however, is not absolute. Keddie, 148 N.J. at 49-50. An
individual seeking public records under the common law must meet the
following requirements. Id. at 50. First, the records sought "must be common-
law public documents." Ibid. Second, "the person seeking access must
'establish an interest in the subject matter of the material.'" Ibid. (quoting S.
Jersey Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478, 487 (1991)). Third,
a "citizen's right to access 'must be balanced against the State's interest in
preventing disclosure.'" Ibid. (quoting Higg-A-Rella, Inc. v. County of Essex,
141 N.J. 35, 46 (1995)); see also L.R., 238 N.J. at 575 (identifying the
nonexclusive considerations in determining whether to release confidential
school records to third parties); Drinker Biddle, 421 N.J. Super. at 500
(identifying the considerations in performing a balancing test under a CLRA
generally).
Here, there was no need for any balancing test as plaintiff was entitled to
his school's records and there was no State interest in nondisclosure asserted in
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response to his request. An adult student is entitled to his or her records,
N.J.A.C. 6A:32-7.5(e)(1), and defendant immediately recognized plaintiff's
entitlement to the documents and provided plaintiff with a release to sign for the
purpose of turning over all of the documents it had on file. The issue here is not
whether defendant was entitled to his records, but whether defendant violated
plaintiff's CLRA by failing to maintain copies of documents it was obligated to
keep on file.
The NJPRA requires that school boards
maint[ain] and ret[ain] . . . pupil records and for the
security thereof and access thereto, to provide general
protection for the right of the pupil to be supplied with
necessary information about herself or himself, the
right of the parent or guardian and the adult pupil to be
supplied with full information about the pupil, except
as may be inconsistent with reasonable protection of the
persons involved, the right of both pupil and parent or
guardian to reasonable privacy as against other persons
and the opportunity for the public schools to have the
data necessary to provide a thorough and efficient
educational system for all pupils.
[State v. J.S.G., 456 N.J. Super. 87, 102 (App. Div.
2018) (quoting N.J.S.A. 18A:36-19).]
"N.J.A.C. 6A:32-7.1(b), requires school districts to 'compile and maintain
student records . . . .'" Ibid. (quoting N.J.A.C. 6A:32-7.1(b)).
"Student record" is defined as:
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[I]nformation 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.
[N.J.A.C. 6A:32-2.1.]
"Mandated student records" that school districts must maintain
include
1. The student's name, address, telephone number, date
of birth, name of parent(s), gender, standardized
assessment results, grades, attendance, classes
attended, grade level completed, year completed, and
years of attendance;
2. Record of daily attendance;
3. Descriptions of student progress according to the
student evaluation system used in the school district;
4. History and status of physical health compiled in
accordance with State regulations, including results of
any physical examinations given by qualified school
district employees and immunizations;
5. Records pursuant to rules and regulations regarding
the education of students with disabilities; and
6. All other records required by N.J.A.C. 6A.
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[N.J.A.C. 6A:32-7.3.]
The last public school district that a student attended is responsible for
"keep[ing] for 100 years a mandated record of a student's name, date of birth,
name of parents, gender, health history and immunization, standardized
assessment results, grades, attendance, classes attended, grade level completed,
year completed, and years of attendance." N.J.A.C. 6A:32-7.8(e).
There is no dispute here that defendant did not maintain all of plaintiff's
"mandated student records." The gravamen of plaintiff's claim is not that
defendant did not give him access to all of the records defendant had on file, but
that defendant did not have in its possession the documents which it was
obligated to keep on file and turn over to him upon request. That failure,
however, does not give rise to a cause of action. "The NJPRA and its governing
regulations merely provide administrative remedies for a violation and do not
provide for a private right of action . . . ." J.S.G., 456 N.J. Super. at 105 (citing
L.S. v. Mount Olive Bd. of Educ., 765 F. Supp. 2d 648, 664 (D.N.J. 2011)
(holding that FERPA and the NJPRA do not provide a private right of action) ).
We conclude, therefore, as did the trial court, that plaintiff was not denied
access where "the undisputed evidence [demonstrated there] was full disclosure
of all . . . documents in [defendant's] possession[, and] to the extent [plaintiff's]
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request was for records that either did not exist or were not in [defendant's]
possession, there was, of necessity, no denial of access at all." Bent v. Township
of Stafford, 381 N.J. Super. 30, 38 (App. Div. 2005) (footnote omitted).
To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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