Category Archives: Personnel records

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.

2020 Will See Major OPRA Court Opinions Affecting Law Enforcement Agencies

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The Supreme Court will hear argument this year in two separate cases that challenge longstanding OPRA law protecting the confidentiality of law enforcement officers’ personnel information. The requestors in these cases essentially seek to have the Supreme Court hold that OPRA’s personnel exemption doesn’t apply to law enforcement officers.

FOP v. City of Newark raises the issue of whether records of police internal affairs investigations are entirely exempt under OPRA. And the requestor in Libertarians for Transparent Govt. v. State Police contends that OPRA compels the disclosure of the name of law enforcement officers who were terminated for misconduct.

The Supreme Court’s opinions in these two cases will obviously have a major impact on law enforcement employees. But the treatment of the personnel records of all other types of government employees also is at stake in these cases. The Court is being asked to interpret OPRA’s personnel exemption, which does not differentiate between law enforcement and other public employees. As a result, the Court’s ruling will necessarily affect access to all personnel information under OPRA.

Supreme Court to Review a Second Case on the Confidentiality of Police Personnel Information

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Less than two weeks ago, the Supreme Court granted review of a case to consider whether OPRA’s personnel exemption bars disclosure of the name of a state trooper who was fired for misconduct. The Court recently granted review of a second case, FOP v. City of Newark, which similarly involves the application of OPRA’s personnel exemption to police officers accused of misconduct.

FOP v. City of Newark concerns the validity of a Newark ordinance creating a civilian board empowered to investigate citizens’ complaints of police misconduct. As I discussed here, the Appellate Division struck down one part of the ordinance, allowing public disclosure of the identities of the complainants and the affected police officers, noting that this conflicts with OPRA’s requirement that personnel records are confidential.

Supreme Court To Review Scope Of OPRA’s Personnel Exemption

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The Supreme Court recently announced it will review an OPRA case with major implications for the privacy of public employees’ personnel records. Libertarians for Transparent Govt. v. NJ State Police.

The Court’s website states the issue in the case is whether OPRA’s personnel exemption “require[s] disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

The Appellate Division upheld the denial of this request based on OPRA’s exemption that prohibits public disclosure of personnel information. Its straightforward rationale was that revealing the trooper’s name would disclose the precise information made confidential by OPRA’s personnel exemption–the fact that the employee was disciplined.

It’s not clear why the Supreme Court would want to review this unambiguous OPRA provision. It’s possible the Court wants to consider creating a new exception that would grant the public access to disciplinary information about law enforcement officers. Or, perhaps it recognizes that there’s a need for a precedential opinion upholding personnel privacy; as I’ve discussed, OPRA requestors often demand disclosure of personnel information, despite the clear legislative statement that such information is confidential.

Court Holds That Identities of Those Who File Internal Affairs Complaints Against Police, and The Identities of the Subjects of the Complaints, Are Confidential

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Requestors often argue that OPRA requires the release of police internal affairs records, such as the names of people who file police misconduct complaints and the names of the officers who were the targets of the complaints. Both the Appellate Division and the GRC have rejected efforts to compel disclosing this information under OPRA, but because these opinions were not precedential, the issue remained unsettled.

That changed today: the Appellate Division issued a published opinion which holds that the names of the complainants, and the officers who were the subjects of these complaints, must be kept confidential.

In FOP v. City of Newark, the court upheld the validity of a Newark ordinance creating a civilian board empowered to investigate citizens’ complaints of police misconduct. In addition, the court determined that the ordinance had two invalid aspects, one of which is pertinent here–it permitted public disclosure of the identities of the complainants and the police officers.

The court said that allowing such disclosure is improper, as it is directly contrary to the requirement of the Attorney General’s Law Enforcement Guidelines that this information must remain confidential. And the court also specifically noted that the ordinance’s disclosure requirement did not comply with OPRA, which provides for the confidentiality of personnel records.

In addition to settling the question of the confidentiality of internal affairs information, this opinion should put to rest the argument made by some requestors, recently discussed here, that OPRA’s personnel exemption should not be applied to law enforcement officers.

Appellate Division Again Rejects Attempt To Compel Disclosure of Personnel Records

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The Appellate Division recently upheld the denial of an OPRA request for the name of a State Trooper who had been discharged for misconduct. Libertarians for Transparent Govt v. NJ State Police.

This unpublished opinion applied settled law here; there’s simply no question that OPRA prohibits public disclosure of this confidential personnel information. What’s notable about this case is that it provides another example of an ongoing problem I’ve noted previously: some requestors seem to think that OPRA overrides legitimate personal privacy interests.

The requestor here, the Libertarians for Transparent Government organization, seems dedicated to getting a court to declare that OPRA’s personnel exemption is void, at least with regard to law enforcement officers. It argued in this case that OPRA’s exemption for disciplinary information should not apply to law enforcement. And the Appellate Division rejected this group’s similar effort to disregard personnel privacy in another OPRA case last year, involving a prosecutor’s office employee.

Appellate Division: Reasons For Separation From Employment Are Confidential

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The new year has started with issuance by the Appellate Division of an important opinion that addresses a longstanding problematic OPRA question–whether the statute requires public bodies to provide an explanation of the reasons underlying an employee’s separation from employment. The court held that OPRA does not require a public body to disclose information about the circumstances surrounding the separation; this means, for example, where the employee has resigned, the public is not entitled to learn his motivation for doing so. Libertarians for Transparent Government v. Ocean County Prosecutor.

The claim that public bodies must provide an explanation of the reasons why an individual is no longer employed is based on one of the statute’s exceptions to the personnel records exemption, which states that “the date of separation and the reason therefor” must be disclosed. Requestors often argue (as the requestor did in this case) that this phrase means that it is insufficient for a public body to indicate simply that an employee “resigned,” “retired,” or “was discharged.” They contend that OPRA requires the employer to reveal the “real” reasons an employee was separated, even if there are no records reflecting these reasons.

The Appellate Division rejected this argument as contrary to the statute’s plain language and intent. It held that the Prosecutor’s Office complied with OPRA’s requirement by indicating that the employee in question had resigned. The court refused to read into the statute the obligation to create records containing an explanation of the reasons underlying the resignation.

This is the first time an appellate court has addressed this issue. Unfortunately (and surprisingly), the opinion is not a published, precedential opinion.

Appellate Division Upholds Agency’s Decision To Redact Employee Resumes

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In an unpublished opinion issued today, the Appellate Division rejected the argument that OPRA requires the disclosure of employee resumes with no redactions. Scheeler v. NJ Dept. of Children and Families.

OPRA exempts personnel records, which includes resumes, from disclosure. The statute permits only limited resume information to be disclosed–information which shows that a public employee meets the specific education and experience qualifications that are prerequisites for his job. In this appeal, the agency complied with the statute and released employee resumes with much information redacted.

The requestor argued that Executive Order 26 (McGreevey) overrides this statutory requirement and mandates release of unredacted resumes. The Appellate Division rejected this position, because it would nullify the legislative protection of personnel records in OPRA.

The court’s conclusion that the executive order cannot supersede the statute seems self-evident, but nevertheless OPRA requestors often rely on Executive Order 26  in seeking access to resumes. For example, see this post concerning an (unsuccessful) effort to obtain applicants’ resumes. The appellate and trial courts have consistently rejected the Executive Order 26 argument and upheld the confidentiality of resumes, but there is no precedential opinion addressing this precise issue.

Appellate Division Rejects Another OPRA Requestor Assault On Government Employees’ Personal Privacy

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Some requestors attempt to use OPRA to evade basic notions of privacy and gain access to personal information held by the government. This post from early 2017 discusses how public bodies frequently must defend OPRA litigation seeking disclosure of clearly private information. A recent Appellate Division case presents yet another example of this.

In Wolosky v. Boro of Washington, the requestor sought the municipal clerk’s 2015 payroll record. The Boro provided this document, redacting the deductions for pension contributions, pension loan payments and health insurance payments. The Appellate Division upheld this decision, because the redacted material is exempt personnel information.

The requestor also argued that the employee’s privacy interest in the withheld information should not block disclosure. The Appellate Division agreed with the trial judge’s rejection of this claim. The trial judge said that any public interest in disclosure of how much money the employee contributes for her health insurance and pension is “heavily outweighed” by her expectation of privacy in this information.

 

Appellate Division Upholds Confidentiality of Employee Outside Activity Records

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It’s clear that outside activity records of public employees are exempt under OPRA. In an unpublished opinion issued today, the Appellate Division emphasized that these records also are typically not accessible under the common law. New York Public Radio v. Gov. Office.

The requestor in this case sought outside activity notifications submitted to the Governor’s Office’s ethics liaison officer. The trial judge ruled that these are exempt under OPRA because they are personnel records, but ordered disclosure under the common law. The Appellate Division disagreed. It held that the significant privacy interest of employees in their outside activities  outweighs the limited public interest in disclosure of this information.

The court also noted the importance of maintaining the confidentiality of ethics communications, to ensure that public employees will not be deterred from making such inquiries.

The Appellate Division also dealt with a separate OPRA request that presented the issue of whether the deliberative process privilege applied to a “Town Priority List” used by the Governor’s Office. The appellate court again reversed the trial court’s disclosure order. It ruled that this list was covered by the deliberative process privilege, in that it was a key component of the Governor’s Office’s decisionmaking process regarding allocation of resources.