CHRIS DOE VS. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY (L-1651-18, MIDDLESEX COUNTY AND STATEWIDE)

C
                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5285-18T2

CHRIS DOE1,

      Plaintiff-Appellant,
                                                 APPROVED FOR PUBLICATION
v.
                                                        January 12, 2021

RUTGERS, THE STATE                                   APPELLATE DIVISION
UNIVERSITY OF NEW JERSEY,
and CASEY WOODS in his Official
Capacity as the OPRA Administrator
and Records Custodian of RUTGERS
UNIVERSITY,

     Defendants-Respondents.
_______________________________

            Argued October 28, 2020 – Decided       January 12, 2021

            Before Judges Alvarez2, Sumners and Geiger.


1
  Chris Doe is a fictitious name used to protect the plaintiff/student's right to
confidentiality of the plaintiff/student's records under state and federal law
which are the subject of civil action. Federal Family Educational Rights and
Privacy Act of 1974 (FERPA), 20 U.S.C.S. §1232g, New Jersey Pupil Records
Act, N.J.S.A. 18A:36-19, L.R. v. Camden City Pub. Sch. Dist., 

452 N.J. Super. 56

, 86 (App. Div. 2017) (“to safeguard the reasonable privacy interests of
parents and students against the opposing interests of third parties who may seek
access to their student records")
2
  Judge Alvarez did not participate in oral argument but has, with the consent
of counsel, been added to the panel deciding this matter.
             On appeal from the Superior Court of New Jersey, Law
             Division, Middlesex County, Docket No. L-1651-18.

             Jamie Epstein argued the cause for appellant.

             Michael O'B. Boldt argued the cause for respondents
             (McElroy, Deutsch, Mulvaney & Carpenter, LLP,
             attorneys; Michael O'B. Boldt, of counsel and on the
             brief).

      The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

      Defendant Rutgers University, through its records custodian defendant

Casey Woods, denied plaintiff Chris Doe's requests under the Open Public

Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, for various records, including

his own Rutgers graduate student records, and for attorney's fees and costs

(collectively "attorney's fees"). Following an order to show cause hearing to

determine whether defendants' denial violated OPRA, the trial court agreed

with defendants' action and issued an order dismissing the requests as

overbroad.

      We reverse the court's order that plaintiff is not entitled to his own

student records subject to redaction of personally identifiable information (PII)

and remand to the court to determine if plaintiff is entitled to attorney's fees

related to the release of those records. We also reverse and remand the court's

order that plaintiff is not allowed attorney's fees related to defendants'

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                                       2
voluntary release of information pertaining to copies of specific university

professors' and administrators' disclosable employment records. The remand is

to allow the court the opportunity to issue findings of facts and conclusions of

law regarding plaintiff's entitlement to attorney's fees. The court shall also

determine if plaintiff is entitled to attorney's fees related to the student records

that we conclude he is entitled to receive. We affirm all other aspects of the

court's order.

                                         I

      Plaintiff, a former student at the State University's Graduate School of

Business, Newark campus, submitted OPRA requests to Woods, Interim OPRA

Administrator and Records Custodian. On March 13, 2018, he sought the

following:

             [Request One]. Any and all documents, whether in
             electronic or paper media, which make reference to
             [Chris Doe or Chris Doe's initials] between 1/1/2017
             to present. Documents requested include, but are not
             limited to: (a) financial records (requested
             immediately pursuant to [N.J.S.A.] 47:1A-5) such as
             bills, invoices, receipts, ledger accounts, payments,
             both sides of canceled checks, etc.; (b) academic
             records such as records kept by staff who provided
             [Chris Doe] educational services, transcripts, notes,
             letters, emails, reports, tests, etc.; (c) administrative
             records such as health records, discipline records, etc.;
             (d) communications records such as emails, memos,
             text messages, voice mail, letters, etc., sent or
             received by staff, administrators, contractors or agents
             of the University. Email search: where the sender or
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                                         3
           recipients is a staff, administrator, contractor or agent
           of the University and the body or subject of the email
           refers to [Chris Doe or Chris Doe's legal name initials
           or Chris Doe's student number].

           [Request Two]. Regarding each employee listed
           below, the following information is requested: title,
           position, salary, payroll record, length of service, data
           contained in the information which disclose
           conformity with specific experiential, educational or
           medical qualifications required for employment, date
           of separation (if any) and the reason and the
           employee's employment contract (which is requested
           immediately pursuant to [N.J.S.A.] 47:1A-5)[:] (a) Dr.
           Edward Bonder, Associate Professor, Faculty of Arts
           and Sciences – Department of Biological Sciences; (b)
           Dr. Wayne Eastman, Professor[,] Rutgers Business
           School – Supply Chain Management; (c) Dr. Francis
           Bartkowski, Professor[,] Faculty [of] Arts and
           Sciences – Department of English; (d) Dr. Kinna
           Perry, Associate Dean of Graduate School-Newark;
           (e) Dr. Kyle Farmbry, Dean of the Graduate School-
           Newark.

           [Request Three]. Any and all documents or emails
           which refer to Record Request Information Item[s]
           [One] and [Two] above either in the body of the email
           or document or in its attachment.

           [Request Four]. Any and all records created including
           metadata in responding to this OPRA request.

     Defendants replied that same day that Request Two records would be

provided "as soon as is practicable," but the other requests were denied

because they were "overly broad" and did not adequately "describe the




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documents sought."     To obtain his academic transcript that was sought in

Request One, plaintiff was directed to a university website.

      Three days later, plaintiff submitted another OPRA request (Request

Five) seeking documents in electronic or paper media of "[t]he disciplin ary

case file of any and all Rutgers Newark Graduate [s]tudent charged with a

separable offense from 1/1/2013 to present" but "with all [PII] redacted."

Defendants denied that request on March 28 as "overly broad" and requiring

research by the custodian.

      Within a few days of the original request, and before receiving the

Request Two records that defendants advised would be provided, plaintiff filed

an order to show cause and verified complaint in the Law Division to obtain all

the sought-after records.    After the court entered an order to show cause,

plaintiff filed a second amended verified complaint. Defendants provided the

records responsive to Request Two shortly thereafter: forty-five days after the

request was initially made. The court subsequently issued an order and written

opinion denying plaintiff's OPRA requests for unprovided records and

attorney's fees.

                                        II

      We first point out, with the exception of attorney's fees, we reject

plaintiff's contention that a remand is necessary because the trial court failed to

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                                        5
comply with Rule 1:7-4(a), which requires the court to set forth its factual

findings and conclusions of law dismissing his OPRA requests. Relying upon

MAG Ent., LLC v. Div. of Alcoholic Beverage Control, 

375 N.J. Super. 534

,

549 (App. Div. 2005), the court found that plaintiff made "'[w]holesale

requests' for generalized information to be analyzed and compiled by the

responding agency [that were] outside of OPRA's scope." Plaintiff did not

comply with defendants' request by narrowing the emails sought by "content

and/or subject," "specific date or range of [transmission] dates," and

"identify[ing] the sender and[/]or recipient thereof." Finding the demand was

inconsistent with OPRA's legislative intent, the court explained plaintiff's

requests were not "well defined," thereby requiring Woods to make an

impermissibly subjective analysis to determine what records were sought. Paff

v. Galloway Twp. (Paff II), 

229 N.J. 340

, 355 (2017).

                                      III

      "OPRA provides for ready access to government records by the citizens

of this State." Burnett v. Cnty. of Bergen, 

198 N.J. 408

, 421-22 (2009) (citing

Mason v. City of Hoboken, 

196 N.J. 51

, 64-65 (2008)). Government records

are defined as

            any paper, written or printed book, document,
            drawing, map, plan, photograph, microfilm, data
            processed or image processed document, information
            stored or maintained electronically or by sound-
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                                      6
            recording or in a similar device, or any copy thereof,
            that has been made, maintained or kept on file in the
            course of his or its official business by any officer,
            commission, agency or authority of the State or of any
            political subdivision thereof, including subordinate
            boards thereof, or that has been received in the course
            of his or its official business by any such officer,
            commission, agency or authority of the State or of any
            political subdivision thereof, including subordinate
            boards thereof. The terms shall not include inter-
            agency or intra-agency advisory, consultative, or
            deliberative material.

            [N.J.S.A. 47:1A-1.1 (emphasis added).]

      Our "overarching public policy" favors "a citizen's right of access."

Courier News v. Hunterdon Cnty. Prosecutor's Off., 

358 N.J. Super. 373

, 383

(App. Div. 2003) (citing N.J.S.A. 47:1A-1). Accordingly, OPRA directs that

"all government records shall be subject to public access unless exempt[,]" and

"any limitations on the right of access . . . shall be construed in favor of the

public's right of access." N.J.S.A. 47:1A-1. OPRA only applies to records

"made, maintained or kept on file in the course of [a public agency's] official

business[,]" as well as any document "received in the course of [the agency's]

official business[.]" N.J.S.A. 47:1A-1.1.

      Among the records specifically exempted under OPRA are those kept by

"any public institution of higher education, . . . deemed to be privileged and

confidential[,]" such as "information concerning student records or grievance

or disciplinary proceedings against a student to the extent disclosure would
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reveal the identity of the student."

Ibid. (emphasis added). Also

exempt are

"any federal law, federal regulation, or federal order[,]" N.J.S.A. 47:1A -1, and

any information that is protected by any "federal law[,] federal regulation[,] or

federal order[,]" N.J.S.A. 47:1A-9(a). We review de novo the trial court's

legal conclusions regarding plaintiff's OPRA requests. Paff v. Galloway Twp.

(Paff I), 

444 N.J. Super. 495

, 501 (App. Div. 2016) (citation omitted).

      Both parties rely on our decision in L.R. v. Camden City Pub. Sch. Dist.,

(L.R. I), 

452 N.J. Super. 56

, 95 (App. Div. 2017), affirmed by an equally

divided Supreme Court, L.R. v. Camden City Pub. Sch. Dist. (L.R. II), 

238 N.J. 547

, 550 (2019) (Patterson, J., concurring), where we ruled that a request

under OPRA, the New Jersey Pupil Records Act, N.J.S.A. 18A:36-19, and the

Federal Family Educational Rights and Privacy Act of 1974 (FERPA), 20

U.S.C. § 1232g, for unredacted "[student] records" 3 that do not "incidentally

mention or identify other students[,]" are accessible to the student or the

student's parent, guardian, or authorized legal representative. Plaintiff argues

he is entitled to his own student records that were deemed disclosable under

OPRA in the L.R. decisions. Plaintiff also cites published responses by the


3
  N.J.A.C. 6A:32-2.1 defines a student record as "information 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."

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Department of Education to comments made to the agency's proposed

regulations, Family Educational Rights and Privacy, 73 Fed. Reg. 15,574,

15,583 (Mar. 24, 2008); 73 Fed. Reg. 74,806, 74,831 (Dec. 9, 2008), that

support, respectively, the proposition that disclosure is not barred under

FERPA once "all identifiers have been removed[.]" 73 Fed. Reg. at 15,583.

      Defendants contend that L.R. I, albeit in dicta, specifically stated its

ruling does not apply to higher education institutions:

            As a starting point to our de novo legal analysis, we
            note it is clear and essentially undisputed that the
            school records sought here are within the scope of
            OPRA's broad definition of "government record[s.]"
            N.J.S.A. 47:1A-1.1. They are not "higher education"
            records exempted from OPRA under N.J.S.A. 47:1A-
            1.1.

            [452 N.J. Super. at 82-83 (alteration in original).]

In response, plaintiff maintains that L.R. I recognized that disclosure of higher

education student records after redaction of PII was permitted under N.J.S.A.

47:1A-1.1.

Id. at 79.

Although the parties argued the impact of the L.R.

decisions before the trial court, the court did not address their arguments.

      Considering OPRA's commitment to allowing access to public records,

we conclude that OPRA requires the disclosure of higher education records if

they do not contain PII. "Generally, the public's interest in nondisclosure is

based on the need to keep the information confidential."           L.R. I, 452 N.J.

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                                        9
Super. at 89 (quoting Keddie v. Rutgers, 

148 N.J. 36

, 51 (1997)). N.J.S.A.

47:1A-1.1 only exempts public higher education records from disclosure that

reveal a student's identity. Plaintiff should be given copies of the requested

Rutgers's records that do not reveal the identity of other students.       This

includes plaintiff's access to his own academic, discipline, and financial

records as long as identifiable references to other students are removed. In

reaching this conclusion, we are fully cognizant of defendants' need to

maintain and implement system-wide protocols under FERPA to safeguard

confidentiality of its students' records. Gundlach v. Reinstein, 

924 F. Supp. 684

, 692 (E.D. Pa. 1996) (citation omitted) ("FERPA was adopted to address

systematic, not individual, violations of students' privacy and confidentiality

rights through unauthorized releases of sensitive educational records."), aff'd,

114 F.3d 1172

(3d Cir. 1997). That said, allowing plaintiff access to his own

university records with appropriate redactions does not breach OPRA's go al to

protect confidential information.

      Defendants contend plaintiff requested confidential "education records"

that are subject to and protected by FERPA. Defendants argue that requiring a

public university to disclose a student's own records to the student under

OPRA would "substantially and needlessly impede [their] compliance with




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                                      10
FERPA's requirements" and increase the chances that student privacy would be

violated. We disagree.

      There is nothing in FERPA or its regulations that precludes higher

education students from obtaining their own student records through OPRA.

"FERPA is a funding statute with corresponding regulations establishing

procedures for administrative enforcement and administrative remedies for

improper disclosure of student records." State v. J.S.G., 

456 N.J. Super. 87

,

100 (App. Div. 2018) (citations omitted). It "prohibit[s] the federal funding of

educational institutions that have a policy or practice of releasing education

records to unauthorized persons." Gonzaga v. Doe, 

536 U.S. 273

, 276 (2002).

"FERPA does not itself establish procedures for disclosure of school records."

K.L. v. Evesham Twp. Bd. of Educ., 

423 N.J. Super. 337

, 363 (App. Div.

2011). It defines education records as "records, files, documents, and other

materials" containing information directly related to a student, which "are

maintained by an educational agency or institution or by a person acting for

such agency or institution." Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 

534 U.S. 426

, 429 (2002) (quoting 20 U.S.C. § 1232g(a)(4)(A)).              FERPA

regulations provide that third parties without parental consent are allowed

access to education records where PII is removed. 34 C.F.R. § 99.31(b)(1).




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                                      11
Defendants fail to cite any provision of FERPA or its regulations that

precludes plaintiff's access to the requested records under OPRA.



                                       IV

      Concluding that FERPA does not preclude plaintiff's OPRA requests

does not end our inquiry. We must consider whether the trial court properly

denied his requests based upon OPRA's limitations.

      If a public agency denies a requestor access, OPRA places the burden on

the agency to prove "the denial . . . [was] authorized by law." N.J.S.A. 47:1A -

6. An agency "seeking to restrict the public's right of access to government

records must produce specific reliable evidence sufficient to meet a statutorily

recognized basis for confidentiality." Courier 

News, 358 N.J. Super. at 382

-

83. Absent the necessary proofs, "a citizen's right of access is unfettered."

Id. at 383.

In assessing the sufficiency of the agency's proofs submitted in support

of its claim for nondisclosure, "a court must be guided by the overarching

public policy in favor of a citizen's right of access."

Ibid. (citing N.J.S.A. 47:1A-1).

If it is determined access has been improperly denied, the access

sought shall be granted, and a prevailing party shall be entitled to a reasonable

attorney's fee. N.J.S.A. 47:1A-6.




                                                                         A-5285-18T2
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      OPRA "only allows requests for records, not requests for information."

Burke v. Brandes, 

429 N.J. Super. 169

, 174 (App. Div. 2012) (quoting Bent v

Twp. of Stafford Police Dep't., 

381 N.J. Super. 30

, 37 (App. Div. 2005)). The

custodian is obliged to "locate and redact [the requested] documents, isolate

exempt documents, . . . identify requests that require 'extraordinary

expenditure of time and effort' and warrant assessment of a 'service charge,'

and, when unable to comply with a request, 'indicate the specific basis'"

thereof. Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth., 

416 N.J. Super. 565

, 576 (App. Div. 2010) (quoting N.J. Builders Ass'n v. N.J. Council on

Affordable Hous., 

390 N.J. Super. 166

, 177 (App. Div. 2007) (quoting

N.J.S.A. 47:1A-5(a)- (j))). If "the custodian is unable to comply with a request

for access, the custodian shall indicate the specific basis therefor on the

request form and promptly return it to the requestor." N.J.S.A. 47:1A -5(g).

      While an exact definition of an impermissibly overly broad request is

abstract, courts have found requests that require a custodian to exercise his

discretion, survey employees, or undertake research to determine whether a

record is responsive are overly broad and not encompassed by OPRA. We

have concluded plaintiff's requests for "any and all documents and data . . .

relied upon, considered, reviewed, or otherwise utilized" were impermissibly

overbroad because they require the custodian to exercise discretion to

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                                      13
determine whether to comply. N.J. Builders 

Ass’n, 390 N.J. Super. at 172

.

Thus, an OPRA applicant "must identify with reasonable clarity those

documents that are desired, and a party cannot satisfy this requirement by

simply requesting all of an agency's documents. OPRA does not authorize

unbridled searches of an agency's property." 

Bent, 381 N.J. Super. at 37

; see

also Renna v. Cnty. of Union, 

407 N.J. Super. 230

, 245 (App. Div. 2009)

("The custodian must have before it sufficient information to make the

threshold determination as to the nature of the request and whether it falls

within the scope of OPRA.").

      As to Request One, we conclude some of the records sought are

disclosable and some are not. Woods's certification in response to the order to

show cause provides that "searching all of the mail accounts on the

University's email systems is practically impossible and also very disruptive to

certain other operations within the University's Office of Information

Technology, which is impossible for gathering electronic documents from the

University's e-mail servers[.]" He suggests "narrowing the search to specific

senders/recipients as well as a date range could greatly improve the chances

[of] having a successful search[.]"        This limitation should not impede

defendants' ability to respond to plaintiff's request in subcategory (a) for

financial records.   Rutgers, like any organization that maintains financial

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                                      14
records for its clients, in this case students, should be able to generate its

financial history with plaintiff. Defendants have not proffered any reason that

suggests an impediment to locating those records.

      With the exception of plaintiff's academic transcripts and discipline

records, we agree with the trial court that subcategories (b), (c), and (d) are

overbroad as they require Woods to exercise his discretion, survey staff, or

undertake research to determine if he was responsive to the request.

Educational service records sought in subcategory (b) are undefined.          The

subcategory's request for "records kept by staff" such as "notes, letters, emails,

reports, tests, etc.[,]" requires Woods to identify and search the universe of

locations where these records might be maintained and thus constitutes an

unbridled records search.    In the initial reply to plaintiff's request, Woods

noted "[d]ue to the University's size and the sheer number of employees, we

cannot perform open-ended searches on our servers using only a keyword, our

[Office of Information Technology] staff require[s] individual sender/receiver

identities to perform an email search."

      Subcategory (c)'s request for "health records" is not subject to OPRA

because the Health Insurance Portability and Accountability Act of 1996

(HIPAA), 42 U.S.C. §§1320d-1 to -9, and its related regulations govern a

patient's right to inspect and obtain copies of the patient's medical records to

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protect unauthorized disclosure. See Smith v. Datla, 

451 N.J. Super. 82

, 102

(App. Div. 2017); Bernetich, Hatzell & Pascu, LLC v. Med. Records Online,

Inc., 

445 N.J. Super. 173

, 180 (App. Div. 2016).            Plaintiff's claim that

defendants did not rely upon HIPAA as a reason for denying his request is of

no import because the release of health care is of significant public interest for

us to consider.    See Zaman v. Felton, 

219 N.J. 199

, 226-27 (2014).              In

addition, the requests would require research to determine where plaintiff

received health care through or at the university. Subcategory (d)'s request for

"communications records" is overbroad as it is not the type of routine search

required by OPRA. The request would be disruptive to defendants' operations

because it would require an unreasonable labor expense given the university's

numerous departmental servers, faculty and staff desktop computers, email

accounts, and individual voicemail accounts. In fact, defendants sought to

resolve the request by telling plaintiff he would need to identify senders and/or

recipients instead, but he chose not to respond.

      With respect to Request Three, seeking documents or emails regarding

Requests One and Two, and Request Four, seeking metadata responding to all

requests, they both seek records that did not yet exist at the time of the request.

Hence, they are not yet government records. OPRA's plain language defines a

record as a document, information, or data "that has been made, maintained or

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                                        16
kept on file . . .   or that has been received."     N.J.S.A. 47:1A-1.1.       See

McGovern v. Rutgers, 

211 N.J. 94

, 108 (2012) (looking first to the plain

language of the statute to determine the Legislature's intent). Both requests are

also not subject to disclosure under OPRA because they are open-ended

demands tantamount to an "any and all" request disfavored by caselaw. To

comply, defendants would have to search through all of Rutgers's files and

analyze the information contained therein to identify for plaintiff the records

sought. Moreover, the requests are not permissible under OPRA because they

seek

"inter-agency or intra-agency advisory, consultative[,] or deliberative material"

that is part of the decision-making process as to implementation of policy.

Ciesla v. N.J. Dep't of Health & Senior Servs., 

429 N.J. Super. 127

, 137 (App.

Div. 2012) (citing N.J.S.A. 47:1A-1.1; Educ. Law Ctr. v. N.J. Dep't of Educ.,

198 N.J. 274

, 284 (2009); In re Liquidation of Integrity Ins. Co., 

165 N.J. 75

,

83 (2000)).

       Lastly, we turn to Request Five seeking disciplinary files – with PII

redacted – of all Rutgers Newark graduate students charged with a separable

offense from January 1, 2013 to the present.       Despite plaintiff's efforts to

comply with OPRA's requirement that student records not disclose the

student's identity, N.J.S.A. 47:1A-1.1(21)(f), the trial court was correct in

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                                       17
ruling the records were not subject to disclosure because the request was

overbroad. Plaintiff fails to provide any reference to disciplinary guidelines

indicating what charge might result in a student being separated or expelled

from a graduate program. Leaving it to defendants to research and compile a

database to determine what discipline records were exempted or could be

redacted makes the request overbroad. 4

                                         V

        In sum, we conclude OPRA only allows plaintiff to obtain copies of his

own academic transcripts, discipline records, and financial records subject to

redaction to preclude the identity of other students. We remand for the trial


4
    In L.R. I, we held

              that school districts must afford parents and guardians
              a reasonable opportunity to comment upon the
              proposed redactions of records relating to their own
              child. . . . [This allows them to] show how his or her
              child might be readily identified within the
              community, despite good faith efforts by school
              employees to perform effective and thorough
              redactions of the child's records.

              [452 N.J. Super. at 92.]

Thus, we question whether a more circumscribed OPRA request would require
that graduate students be afforded the opportunity to review and object to a
proposed redaction of their disciplinary files to prevent disclosure of their
identity. Because this issue was not before us, we do not address it.


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                                         18
court to determine whether plaintiff is entitled to any attorney's fees related to

his efforts to obtain these records.        Each party should be afforded the

opportunity to present their respective positions to the court. We leave it to

the court's discretion to allow oral argument. We also remand for the court to

issue findings of facts and conclusions of law regarding plaintiff's enti tlement

to attorney's fees related to defendants' voluntary release of information

pertaining to specific university professors' and administrators' disclosable

records.   We take no position as to whether plaintiff is entitled to any

attorney's fees that the court shall consider on remand.

      Affirmed in part and reversed and remanded in part consistent with this

opinion. We do not retain jurisdiction.




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