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 The court recently did so again, in an unpublished opinion, Rivera v. Union County Prosecutors Office.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.