H.E. NO. 78-15

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RIDGEFIELD PARK BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-77-284-126

MARK PRESS AND RIDGEFIELD PARK

EDUCATION ASSOCIATION,

Petitioner.

Appearances:

For the Ridgefield Park Board of Education, Parisi, Evers, & Greenfield, Esqs. (Irving C. Evers, Of Counsel)

For Mark Press and Ridgefield Park Education Association, Goldberg, Simon & Selikoff, Esqs. (Theodore M. Simon, Of Counsel)

DECISION ON MOTION TO QUASH A SUBPOENA DUCES TECUM

At a hearing in this matter before a Hearing Examiner of the Public Employment Relations Commission ("Commission") on September 27, 1977, the Petitioner Mark Press and Ridgefield Park Education Association, served a subpoena duces tecum upon the Respondent Ridgefield Park Board of Education requiring the production of the records of one Mr. Massey, a member of the Respondent Board. The Respondent moved to quash the subpoena on the ground that complying with the same would be violative of both Federal and State law, specifically 20 U.S.C. §1232G and N.J.S.A. 18A:36-19, N.J.A.C. 6:3-2.1. At the hearing Mr. Massey refused to answer a question regarding those same school records under a claim of privilege pursuant to the above statutes and regulations.

Taking the latter problem first, neither the Federal statute nor the State regulations create a privilege. Both refer only to educational institutions and agencies. They grant no right of privilege but, rather, are designed to curb abuses which might arise from the public's unlimited access to such documents. There is nothing in either statute which shields an individual from testifying about his own school performance.1/ Accordingly, I will order Mr. Massey to answer questions concerning his high school records.

As to the question of the subpoena duces tecum, the validity of this agency's subpoena power in unfair practice proceedings has been affirmed by the Superior Court, Appellate Division, in Newark Board of Education v. Newark Teachers Union, Local 881, 152 N.J. Super. 51 (App. Div. 1977). 20 U.S.C. §1232G(b)(2)(B) provides that the sanctions imposed on a school, institution or agency "shall not apply when records are released in compliance with a lawfully issued subpoena upon condition that the parents and students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency."2/ Accordingly, the Board's compliance with the subpoena will not be violative of Federal law. As to State law, here again there are specific provisions for the release of student records. However, they are more strict. The rules promulgated by the Commissioner of Education, N.J.A.C. 6:3-
2 et seq., provide that a school board may only release records to those "organizations, agencies and individuals outside the school upon presentation of a court order." (Subsection 5(d)(9)). The rule apparently does not grant a board of education the right to release student records on the basis of a subpoena.3/ The Board of Education cannot be expected to act contrary to the plain language of the Commission's Rules. Nonetheless, it would seem that a court of law can issue an order compelling the release of these records in question. See N.J. Court Rules 1:9. Accordingly, although the subpoena is not self-
executing a court of law can apparently convert such subpoena to an order in compliance with the Commissioner of Education's regulations. The order to quash is accordingly denied.

Edmund G. Gerber

Hearing Examiner

DATED:	Trenton, New Jersey

November 18, 1977