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.