Category Archives: Law enforcement records

Supreme Court Grants Review of Case on Access to Police Internal Affairs Records

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The Supreme Court recently announced that it will review the Appellate Division’s decision in Rivera v. Union County Prosecutor. According to the Court’s website, the question is, “are the police department internal affairs reports at issue subject to disclosure under the Open Public Records Act and the common law right of access?”

I’m not sure why the Court took this case, as it has already held, in a 2020 opinion concerning the powers of civilian review boards, that police internal affairs records are strictly confidential. FOP v. City of Newark. Based on this ruling, as well as many Appellate Division opinions, it’s settled that these records are not accessible under OPRA.

It’s possible that the key reason for the grant of certification in Rivera is for the Court to examine the issue of common law requests for internal affairs records. As I noted with regard to the Appellate Division’s opinion in Rivera, I was somewhat surprised the court denied the common law claim, because there did seem to be an extremely strong public interest in disclosure: the case involved a high profile matter concerning alleged misconduct by a former city police director. Perhaps the Supreme Court wants to give guidance on the proper weighing of interests in common law requests for sensitive internal affairs records.

An Important New Appellate Division Opinion on OPRA and Common Law Access to Internal Affairs Records

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The Appellate Division last week issued a published opinion that deals with several issues concerning public access to the internal affairs records of police officers. Gannett Sat. Info. Network v. Township of Neptune.

The court held, consistent with recent decisions of the Supreme Court and Appellate Division, that a police officer’s internal affairs (IA) file is exempt from disclosure under OPRA. However, the court determined that this particular IA file should be disclosed under the common law. The Appellate Division agreed with the trial court that the confidentiality of such records was outweighed by the “unique” facts here; the records related to a “horrific crime” committed by the officer, and much of the information in the records had already been made public.

This is a useful reminder of a basic public records law principle: even a record that’s exempt under OPRA may nevertheless be obtained under the common law.

In its most significant ruling, the Appellate Division stated that a litigant who obtains records under the common law, rather than OPRA, may be entitled to an award of attorney fees. As discussed here, I don’t think there’s any legal basis for awarding attorney fees in common law records cases, but that’s for the Supreme Court to say.

However, in this case, the court held that plaintiff should not receive an attorney fees award. The court said such an award (unlike under OPRA) is not automatic, but rather is within the judge’s discretion. In this case, where the IA records were actually independently released by the Attorney General, the Appellate Division saw no basis to grant attorney fees to the plaintiff newspaper.

2020 Case Law Review–A Year of Major OPRA Court Cases

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Despite the pandemic, the courts issued a surprisingly large number of significant OPRA opinions during 2020. Here is a quick review of these rulings.

There were two cases involving the critical question of public access to police internal affairs records. The Supreme Court ruled that these records are not accessible under OPRA. FOP v. City of Newark. However, in the summer of 2020 the Attorney General created an exception to this rule, adopting a policy that requires law enforcement agencies to disclose the identities of disciplined officers. See this post for a summary of the precedential Appellate Division opinion (now under review by the Supreme Court) upholding the policy’s validity.

The Supreme Court also granted review of two other 2020 Appellate Division that dealt with important OPRA issues: Bozzi v. Roselle Park and Simmons v. Mercado. In Bozzi, the court determined that OPRA’s privacy provision does not protect against the disclosure of home addresses that people have provided to the government. In Simmons, the court said, in a matter of first impression, that when an agency has access to another agency’s database, it is not the custodian of that system, and therefore cannot be required to answer OPRA requests for information contained in the database.

And there were three more precedential Appellate Division OPRA opinions:

–IMO Application for Med. Marijuana ATC for Pangaea, etc. –a public body may withhold disclosure of the names of the individuals who reviewed applications that were submitted to the public body in a competitive process.

–Libertarians for Transparent Govt. v. Cumberland County–a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

–Digital First Media v. Ewing Tp.–a Use of Force Report involving a juvenile must be disclosed under OPRA, with redactions to protect the juvenile’s identity.

Supreme Court Grants Review of Attorney General’s Directive on Disclosure of Names of Disciplined Officers

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As anticipated, the Supreme Court today granted review of the challenge to the Attorney General Directive that requires disclosure of the names of law enforcement officers who have been disciplined. The Court ordered acceleration of the case, with all amicus briefs to be filed no later than December 15th.

See this post for a summary of the Appellate Division opinion in the case, in which the court upheld the validity of the directive.

Appellate Division Upholds AG Directive Requiring Release of Names of Disciplined Police Officers

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The Appellate Division issued an opinion on October 16th upholding the Attorney General’s July 2020 Law Enforcement Directive that requires the public disclosure of the names of police officers who have committed serious disciplinary violations. The court determined that the Attorney General was empowered to enact this new requirement under his statutory law enforcement authority.

Since the Supreme Court is almost certainly going to review this case, the Appellate Division’s opinion is unlikely to be the final word on the validity of the Directive. However, it’s interesting to note that the Appellate Division emphasized that it was not basing its decision on OPRA, even though previous litigation seeking public disclosure of the identities of disciplined officers has been under OPRA. In this case, the court unambiguously stated that OPRA’s personnel exemption prohibits an OPRA requestor from obtaining the names of disciplined officers.

In reaching this conclusion, the court correctly rejected, as contrary to clearly settled law, the Attorney General’s argument that OPRA permits a public body to disclose exempt personnel information (as well as all other records exempted by OPRA) if the public body chooses to do so.

As a result, this precedential opinion reaffirms what has always been the law in New Jersey–the personnel information of public employees is not accessible under OPRA.

Supreme Court: Internal Affairs Records Are Confidential

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The Supreme Court has settled the longstanding question of whether police internal affairs records are accessible under OPRA. In ruling on the validity of a Newark ordinance that created a civilian board to investigate citizens’ complaints of police misconduct, the Supreme Court emphasized that all records of such investigations are confidential. FOP v. City of Newark.

The Court based this conclusion on the Attorney General’s internal affairs policy. The Court held that this policy, which includes strict confidentiality mandates for all information concerning police misconduct investigations, must be followed. This determination is consistent with the Court’s prior case law in OPRA matters, which states that Attorney General law enforcement policies constitute binding legal requirements that establish exemptions under OPRA.

Interestingly, the Court noted its awareness that the Attorney General has recently changed the internal affairs policy to allow public disclosure of the identities of some disciplined officers, but said it was not addressing this or expressing a view regarding the revised policy. I presume the Court made this statement because it is mindful that it will soon be reviewing the unions’ challenge to this new policy, which is currently before the Appellate Division.

Court Stays AG Directive Requiring Disclosure of Names of Disciplined Police Officers

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Three weeks ago, the Attorney General enacted a dramatic change in New Jersey public records law by requiring disclosure of the identities of police officers who have been the subject of serious discipline. As expected, the police unions appealed this decision. Yesterday the Supreme Court upheld the order of the Appellate Division staying implementation of the directive, pending resolution of the appeal.

As a result, the Attorney General’s new policy–even if it’s ultimately upheld by the courts–will not go into effect for at least a year. The Appellate Division scheduled argument in the case for October, meaning its decision will probably be issued in late in 2020, and then the Supreme Court’s review will take several additional months.

Appellate Division Confirms that Police Internal Affairs Records are Exempt from Disclosure under OPRA

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The Appellate Division has consistently rejected requestors’ efforts to access internal affairs (IA) investigation records under OPRA. The court recently did so again, in an unpublished opinion, Rivera v. Union County Prosecutors Office.

As in previous cases, the Appellate Division held that these records are exempt because the Attorney General’s Internal Affairs Policy and Procedure, which has the force of law, requires their confidentiality.

The court also rejected the requestor’s common law claim, holding that the strong public interest in maintaining confidentiality of these records outweighed the requestor’s interest in disclosure. This result is somewhat surprising, as this case involved a high profile matter. The IA records were from an investigation by the Union County Prosecutor’s Office, which looked into and sustained complaints that the Elizabeth Police Director, James Cosgrove, had used racist and sexist epithets when referring to his staff. The IA report resulted in Cosgrove’s resigning from his position.

A final comment about the opinion: in my view, the court incorrectly rejected the alternative argument of the Prosecutor’s Office that IA records fall within OPRA’s personnel exemption. The court based its conclusion on a requirement in the Attorney General’s Policy that IA records must not be placed within an employee’s personnel records. But this recordkeeping requirement does not change the fact that IA records are personnel records–they are investigations undertaken on behalf of an employer to determine if an employee committed misconduct and should face discipline.

Attorney General Requires The Public Disclosure of Identities of Police Officers Who Have Disciplinary Infractions

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The Attorney General has announced an important police reform policy that has a major impact on New Jersey public records law. Attorney General Law Enforcement Directive 2020-5 requires, for the first time in New Jersey, that the names of police officers who have committed serious disciplinary violations must be released to the public.

The Directive states that police departments must publicly disclose the identity of an officer who has been the subject of a disciplinary sanction involving termination of employment, reduction in rank or grade, and/or a suspension greater than five days. The Directive takes effect at the end of August, and requires law enforcement agencies to publish reports listing recently-disciplined officers by the end of 2020. The Directive also notes that agencies have the discretion to release historical information about prior disciplinary violations by police officers; the Department of Law and Public Safety will do this, with regard to its law enforcement officers, by July 15.

The Attorney General’s mandate is obviously a crucial step in trying to accomplish much-needed police reform, consistent with recent national efforts to increase transparency regarding police misconduct. It also represents a momentous change in New Jersey’s public records law. When OPRA was enacted in 2001, it codified and continued what had been the law for many decades: public employee personnel information, including an employee’s disciplinary record, may not be disclosed to the public.

I think it’s inevitable that affected officers will file litigation over the Directive’s legality. It will be interesting to see if the Attorney General’s reasonable decision to require greater transparency with regard to law enforcement officers’ disciplinary information will withstand a legal challenge.

An Important Appellate Division Opinion: OPRA Requests For Information From A Database May Only Be Made To The Agency That Maintains The Database

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Today the Appellate Division issued a published opinion that resolves a longstanding question: is an agency that has access to another agency’s database, but is not the custodian of that system, required to answer OPRA requests for information in the database? In this case of first impression, the court held that the answer is no.

In Simmons v. Mercado, the requestors sought from the Millville Police Department DWI, drug possession, and drug paraphernalia complaints and summonses. The request was denied on the basis that the police do not maintain these records; instead, they enter information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records.

The trial judge ruled against the department, reasoning that it has access to the eCDR system and so must fulfill the OPRA request.

The Appellate Division firmly rejected this view. It held that the records in the CDR system are the records of the Judiciary, not the police department, and therefore the department is not the custodian of these records under OPRA. The fact that the police are required to input some information into this system does not make it a record of the police department for purposes of OPRA. Moreover, said the court, that the police have access to this system does not change the fact that the Judiciary maintains it. The court concluded that the request here should have been directed to the Judiciary, not the police department.

The Appellate Division’s ruling is highly significant. It affects many agencies, not just police departments. There are many situations where State and local agencies must submit information into electronic databases maintained by other agencies, and they often have access to these other agencies’ systems. As in Simmons, OPRA requests are often directed to the agency that is not the custodian of the database, but has access to it, raising the question of whether the agency must satisfy the request. The court has now issued a clear standard that resolves this problematic situation.