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Judge demands Northern Valley Regional documents in battle over random drug testing

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SPECIAL REPORT: A judge in Hackensack has ordered the Northern Valley School District to send him 57 documents that it has denied showing a parent who is fighting its attempt to create a random student drug-testing program.

Superior Court Judge Peter Doyne also rejected a request by the district that he toss out a complaint brought by parent Ann Hausmann, who accused the Northern Valley Regional Board of Education of violating the state’s Open Public Records Act (OPRA).

Acting on behalf of a group of parents, Hausmann submitted a June 24 request under OPRA for all “notes, documents, communications and other information between and among board members[,] as well as from board meetings,” that led board members to propose random drug testing for all students participating in extracurricular activities, including sports.

Hausmann said the parents are trying to verify a claim by Northern Valley Board President John Schettino and other board members that they “had evidence and data from the police and from the State to support their assertions that there is a drug epidemic in the [d]istrict, and that [random drug testing] will work to combat the drug epidemic.”

Board members also said during a May meeting that they received “more letters and e-mails from parents supporting RDT than opposing it” and that an ad hoc committee supported the move, Hausmann noted.

The parents simply want proof, she said.

The drug-testing issue has brought large numbers of parents and students to board meetings — and even prompted teens from the district’s high schools in Demarest and Old Tappan to attend dressed in caricatured prisoner-styled costumes, saying that’s how the proposal would make them feel. Students from seven towns attend the district’s schools.

Board members say the use of heroin and other drugs is rising in North Jersey, and that random drug testing helps fight its spread. Opposing parents point to studies that show such programs don’t work, that the figures the district is using are inflated and that board members are overstepping their public authority by seeking to invade their children’s privacy.

Nearly three dozen school districts in New Jersey have established random drug testing for students since the U.S. Supreme Court ruled in 2002 that its purpose outweighs Fourth Amendment concerns.

Board members haven’t committed to specific testing yet, but they’ve said that heroin, marijuana and alcohol consumed more than a day earlier might be detected. No one would be arrested or suspended, nor would the information appear on a student’s record, they promised. However, he or she would be banned from activities.

Two days after Hausmann’s request was filed, Joanette Femia, the Northern Valley district clerk, requested an additional two weeks to respond, according to Doyne’s ruling.

In exchange for the extension, it says, Hausmann asked that the district produce the documents before the July 17 board meeting, during which the plan was supposed to be discussed.

She agreed that production of the records could be “rolling” – as in: The district make available what it can as soon as possible and continue providing documents until the request was fulfilled. But she wanted it by July 12 and she wanted to know of any objections by July 3.

The district agreed, Doyne said, pointing to an email in which Femia’s assistant, Susan Parducci, wrote: “I spoke with the Board Attorney and your request is acceptable.”

An attorney for the district, Yaacov Brisman, later told Hausmann that “production would not be complete by July 12.” Brisman gave her some documents, explaining that he was “editing agendas and minutes to reduce cost,” Doyne wrote in his ruling last week.

The district lawyer also asked for another 10 days.

Hausmann’s attorney, Bruce Rosen, said she later got only “one small box of documents, three-quarters of which were copies of studies and reports that were sent to the Board[,] plus nine copies each of letters sent by 40 families stating their opposition to random drug testing.”

The rest of the material, Doyne said, was “correspondence between the Superintendent of the Northern Valley Regional High School District (“NVRHS”) and the Superintendents of 10 other school districts regarding random drug testing and copies of random drug testing policies from some of those school districts, a copy of the New Jersey Drug Testing Act, a copy of the NVRHS Policy and Regulation on Alcohol, Drugs and Tobacco, multiple copies of some press clippings, a copy of the NVRHS Strategic Plan, copies of correspondence with drug testing companies, a copy of the Superintendent’s contract, and redacted copies of the Superintendent’s executive cabinet minutes and report to the Board.”

Rosen told Brisman on July 16 that the district has violated their agreement. With the July 17 meeting date upon them, Rosen said, there were “15 subject areas from the OPRA request for which documents had not been received on July 12.”

Rosen insisted the vote be tabled.

That night, the board voted to delay the vote — but also sent the issue to a committee to draft a policy for the trustees to consider. The committee is made up of 30 or so parents, teachers, police officers, government officials and medical professionals.

Hausmann said the district deliberately kept materials she requested from her that could have convinced board members to vote differently that night.

By Aug. 6, she had received what the district said was the last of the documents, along with a list of 57 others that were withheld. Of these, 47 were listed as “inter-agency or intra-agency advisory, consultative or deliberative material,” six were withheld “under the attorney-client privilege” and four as “personnel records,” Doyne wrote in his decision.

A frustrated Hausmann went to court in September.

The district countered, among other arguments, that her request was improper because it sought information “from many different sources of documents,” including a “blanket request” seeking information “spanning a time period greater than three years” and one seeking information spanning seven years.

Hausmann’s request for information from the district, although “exhaustive,” was neither “overbroad,” “vast,” nor “unduly burdensome,” Doyne ruled last week.

Nothing in New Jersey’s Open Public Records Act allows the district to avoid complying because “information from a diverse source of documents” is sought, or because it will require a “substantial expenditure of time and effort,” the judge found.

In fact, he said, Hausmann’s request “suffices to guide [the district] in locating the requested records.”

Doyne said the district also erred in trying to argue that the additional time needed to fulfill the request made it improper to begin with.

“Nothing in the Act allows for a custodian to avoid its responsibility to respond simply because the request entails a substantial amount of effort,” the judge wrote in his decision.

Although extensions “are appropriate in  certain  circumstance[s],” the board did agree to fulfill the request before the July 17 board meeting, Doyne noted.

“[E]ven today it is uncertain [the district] completed production,” he added in Friday’s ruling.

“The most disappointing argument presented in defendant’s motion to dismiss is the denial of an agreement between the parties,” the judge said. “To suggest no agreement exists as it was not formally reached by counsel is strained, at best.”

For one thing, Doyne said, the district requested an extension.

Some of the records should be kept private, the judge emphasized. Those involve deliberations among board members and administrators of the merits of a random drug testing policy, he explained.

One of the exceptions involves emails, which Rosen notes, don’t say who sent or received them, nor any specific information “concerning the content.”

“These descriptions are insufficient to allow plaintiff’s counsel to decide whether defendant has properly invoked any privilege… or is outweighed by the public interest in disclosure,” Doyne wrote.

The district argued that the description “need not be specific” and that “only when challenged by plaintiff should defendant be required to provide greater detail,” which Doyne said is “untenable and finds no basis in statutory or case law.”

Doyne also rejected the district’s argument that he should dismiss Hausmann’s complaint outright because it wasn’t filed in a timely enough fashion.

He said he will decide whether the district must pay her legal fees at a later date.

First, Doyne said, the district’s custodian of records must provide the withheld documents, so that he can decide whether or not any should be given to Hausmann.

The custodian must also “certify to her good faith effort to locate the requested documents, the nature of her search, that all responsive documents have been produced and no further responsive documents exist which have not been produced,” the judge ordered. “The custodian shall directly reference the categories of documents listed which plaintiff asserts have not been produced.”

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