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.