OPRA has several exemptions that apply exclusively to higher education institutions, involving records concerning academic research, examinations, charitable donations and individual admission applications, as well as information regarding student records. Surprisingly, there is no case law dealing with any of these exemptions.

The GRC has occasionally issued decisions on the higher education exemptions. See, e.g., White v. William Paterson U. (2008-216) (audio tape of a student disciplinary hearing was properly redacted); Rosenbaum v. Rutgers (2002-91) (survey responses were exempt as academic research). But there are no court opinions providing precedential guidance on these sections of OPRA.

This occurred to me as I read the recent report on Rutgers football coach Kyle Flood’s attempt to get a professor to change the grade of a player on the team. The report contains Flood’s initial email to the professor, which discusses the request for a grade change and encloses a letter from the student concerning his behavior during the semester.

Flood sent the email through personal email accounts “to ensure there will be no public vetting of the correspondence.” The report explains that he did this to avoid an OPRA request. Apparently, Flood was not aware that an email by a public employee discussing a work matter is subject to OPRA, regardless of whether it was sent through a personal account or the public employer’s account.

The more important question for higher education institutions is whether, under OPRA, Flood’s email to the professor should be considered confidential under OPRA’s exemption for “information concerning student records…to the extent disclosure would reveal the identity of the student.” It is not clear whether the email constitutes information concerning student records, although it would seem that a discussion of a student’s performance in a course should meet this definition.

It’s also possible that the student’s identity would be revealed by disclosure of this type of email. Although this is a moot point in this matter, because the student in question has been identified in media reports, a college confronted with a similar OPRA request would have to make a delicate judgment as to whether disclosure might reveal the subject student’s identity.

The problem, as noted above, is that there is no case law interpreting the scope of OPRA’s exemption for student records, as well as the other exemptions that apply only to higher education institutions.