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2003-84

- Final Decision on Access
- Findings and Recommendations of Executive Director

Final Decision on Access

Linda and Mark Bava,
Complainant
v.
Bergen County School District,
Custodian of Record
Complaint No. 2003-84
Decision Issued: January 8, 2004
Decision Effective: January 23, 2004

At its January 8, 2004 public meeting, the Government Records Council considered the December 31, 2003 Findings and Recommendations of Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt said Findings and Recommendations and, therefore, finds that:

  1. In response to an oral request made between April 15, 2003 and early May 2003, the custodian provided access to Ashley Bava's completed application to Bergen County Academy (BCA), her Franklin Avenue Middle School (FAMS) grade transcripts and her BCA mathematics admission test results.
  2. A student's teachers' recommendations are part of a student’s "pupil record" pursuant to N.J.A.C. 6:3-6.1-6.3 and are not publicly accessible under Open Public Records Act (OPRA).
  3. Based on the information presented to the custodian regarding "comparison test scores," the Custodian reasonably interpreted the term as a request for all BCA applicants test scores and names.
  4. A student's score on an admissions test is part of their "pupil record" pursuant to N.J.A.C. 6:3-6.1-6.3 and is not publicly accessible under OPRA.
  5. The requestor's letter of November 30, 2003 limiting the term "comparison test scores" only to successful BCA applicants, without names and ranked by district is materially different from the written OPRA request made to the custodian and should not be considered part of the Complaint. The requestor may submit a new OPRA request to the custodian for this data.
  6. The custodian responded to the requestor in a timely manner.
  7. The complaint is dismissed.

Vincent P. Maltese, Chairman
Government Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Virginia Hook, Secretary
Government Records Council

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Findings and Recommendations of Executive Director

Linda and Mark Bava,
Complainant
v.
Bergen County School District,
Custodian of Record
Complaint No. 2003-84

Relevant Records Requested: Admissions file, test scores, teacher recommendations, comparison test scores for requestors' daughter
Request made: May 22, 2003
Response made: June 2, 2003
Number of Business Days for the Response: 6 business days
Custodian: Dr. Ostfeld
GRC Complaint filed:   June 23, 2003

Executive Director's Recommendation

This complaint involves a request for records pertaining to Ashley Bava who was a student at Franklin Middle School ("FAMS") and whose application for admission into one of the Bergen County Academies (“BCA”) was denied.  The requesting party was Ashley Bava's parents and the record request was made to the custodian of the "BCA."

In response to an oral request made between April 15, 2003 and early May 2003, the custodian provided access to Ashley Bava's completed application to Bergen County Academy (BCA), her Franklin Avenue Middle School (FAMS) grade transcripts and her BCA mathematics admission test results.

In May an OPRA request was made by the requestor with BCA seeking the "admissions file, test scores, teacher recommendations and comparison test scores for Ashley Bava."  The custodian denied access to Ashley's teachers' recommendations citing "confidentiality" as well as Department Of Education (DOE) regulations and denied access to the admissions test scores of other students citing DOE regulations restricting access to "pupil records" to parents of those students.

The Acting Executive Director respectfully recommends the Council find that:

  1. In response to an oral request made between April 15, 2003 and early May 2003, the custodian provided access to Ashley Bava's completed application to Bergen County Academy (BCA), her Franklin Avenue Middle School (FAMS) grade transcripts and her BCA mathematics admission test results.
  2. A student's teachers' recommendations are part of a student’s "pupil record" pursuant to N.J.A.C. 6:3-6.1 and are not publicly accessible under Open Public Records Act (OPRA).
  3. Based on the information presented to the custodian regarding "comparison test scores," the Custodian reasonably interpreted the term as a request for all BCA applicants test scores and names.
  4. A student's score on an admissions test is part of their "pupil record" pursuant to N.J.A.C. 6:3-6.1 and is not publicly accessible under OPRA.
  5. The requestor's letter of November 30, 2003 limiting the term "comparison test scores" only to successful BCA applicants, without names and ranked by district is materially different from the written OPRA request made to the custodian and should not be considered part of the Complaint. The requestor may submit a new OPRA request to the custodian for this data.
  6. The custodian responded to the requestor in a timely manner.
  7. The complaint should be dismissed.

Statement of Facts

April 15, 2003 through Early May, 2003  - Linda Bava telephones Dr. Ostfeld and seeks a copy of "admissions file" of Ashley Bava, her daughter.

May 22, 2003  - Faxed OPRA request to Dr. Ostfeld from Linda Bava seeking "admissions file, test scores, teacher recommendations and comparison test scores for Ashley Bava."

May 22, 2003 - Fax from Mark Bava to Dr. Ostfeld contesting denial of access to records under OPRA and N.J.A.C. 6:3-6.1 and providing copies of both laws.

June 2, 2003  - Letter from custodian's counsel to Mark M. Bava asserting that admissions files, test scores and teacher recommendations are not "public records" under OPRA and are confidential "to maintain the student's right to such confidentiality," to honor the district’s promise to teachers to hold their recommendations in confidence, and to maintain the integrity of the BCA admissions process.   Blank copies of the Academy’s admission forms and teacher recommendation forms are attached.

June 23, 2003 - Denial of Access Complaint from Mark and Linda Bava reciting that Linda Bava telephoned Dr. Ostfeld in early May 2003 to get a copy of Ashley’s "admissions file." The requestors admit that Dr. Ostfeld faxed to them a copy of Ashley's application for admission, FAMS transcript and standardized test scores but denied access to all other items sought in the faxed request on the grounds of confidentiality.

July 17, 2003 - Letter from custodian's counsel to the GRC with enclosed Board policy/regulation R8330M Student Records, identifying mandated and permitted pupil records, establishing parental rights of access to pupil records and methods for parents to correct or alter contents of pupil records and to appeal Superintendent's decisions in such matters to the Board and the Commissioner of the Department of Education.

July 29, 2003 - Requestor's agreement to mediate; Board declined mediation.

November 24, 2003 - Custodian's Statement of Information (SOI), alleging that Ashley's teacher recommendations and students’ "comparison test scores" are pupil records confidential by regulation. SOI states that original request did not seek "comparison test scores," that the term is not defined, and that the custodian assumed it to mean all applicants' test scores, successful and unsuccessful along with identifying information. Custodian states that the requestor was provided Ashley's completed application, middle school/junior high transcript and her application test scores "required in the Academies’ application process." Custodian states that he offered to "go over the applicant's testing scores" with the requester, but the option was not pursued by the requester.   

November 30, 2003 - Requestor’s response to custodian's SOI arguing that teacher recommendations are not "pupil records" because Ashley was never enrolled in BCA as a pupil; rejecting claim that teacher recommendations can be confidential by school agreement with teacher; advising that "comparison test scores" means only the raw test scores of successful applicants to BCA without any identifying information, but ranking Ashley’s score as to those from her district as well all other admitted to BCA. Requestor claims that access to some of Ashley’s file was accomplished over a "period of weeks" from denial of her application on April 15, 2003, but that the process “culminated” in formal denial by letter dated June 2, 2003.

Legal Issues and Considerations

Ashley Bava was a student at Franklin Middle School ("FAMS") whose application for admission into one of the Bergen County Academies ("BCA") was denied. The parties agree that there was an oral request for information by Linda Bava to BCA custodian Dr. Robert Ostfeld sometime after Ashley's application was denied on April 15, 2003 and early May, 2003, and that in response, Dr. Ostfeld provided access to a copy of Ashley's completed application form, her transcript of grades and her BCA Mathematics admission test results. On May 27, 2003 her parents filed an OPRA request with BCA seeking the "admissions file, test scores, teacher recommendations and comparison test scores for Ashley Bava."[1] The custodian denied access to Ashley's teachers' recommendations citing “confidentiality” as well as Department Of Education (DOE) regulations and denied access to the admissions test scores of other students citing DOE regulations restricting access to "pupil records" to parents of those students.

Teacher recommendations which reflect evaluations of minor pupils and pupil examinations reflecting pupil performance are confidential "pupil records" (N.J.A.C. 6:3-6.1, -6.3) and not publicly accessible. Parents have certain rights of access to their child's school records pursuant to N.J.A.C. 6:3-6.5(c), although not absolute, and a mechanism is available under DOE regulations to address Board denial of a parent’s request to access their child’s record. Under these circumstances, the portion of the Complaint seeking access to the teacher recommendations under OPRA should be dismissed.

The request for "comparison test scores" was so vague that the custodian reasonably interpreted it as a request for all applicant test scores, successful and unsuccessful The custodian correctly concluded, however, that this information was not publicly accessible because it constituted "pupil records" of the students in question under N.J.A.C. 6:3-6.1. The requestor's November, 2003 letter limiting "comparison test scores" to scores only, without any identifying information, and only to successful BCA applicants is materially different from the May, 2003 request and should not be considered in connection with this OPRA complaint. The requestor may, of course, submit this new request to the BOE at any time and challenge the BOE's response in a complaint filed with Superior Court or the GRC. Under these circumstances, the portion of the Complaint seeking access to "comparison test scores" should be dismissed.

Paul F. Dice, Acting Executive Director
Government Records Council
December 31, 2003


[1] The custodian's SOI states that the BCA "admissions file" constitutes the application form filled out by the student, the applicant’s BCA admission test score and the student’s transcript of grades from middle school or junior high. SOI, p.4, Item 10(a).

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