Tag Archives: internal affairs records

A Reminder from the Appellate Division: When Internal Affairs Reports are Requested, Make a Complete Analysis of the Factors of the Common Law Balancing Test

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In its 2022 opinion in Rivera v. Union County Prosecutor’s Office, the Supreme Court held that police internal affairs (IA) records are exempt under OPRA, but may be disclosable under the common law right to know. A common law records request requires the public body to conduct a balancing test, which evaluates whether the public interest in disclosure outweighs the need for confidentiality of the record.

The Appellate Division recently issued an unpublished opinion reversing the denial of a common law request for IA reports, because the trial judge had failed to conduct a complete analysis of the factors of the balancing test. 21st Century Media v. Ewing Twp.

In Rivera, the Supreme Court directed that in conducting the balancing test with regard to a request for IA records, courts and record custodians must consider certain factors: those that apply to all common law record requests (referred to as the “Loigman” factors), as well as other factors that relate specifically to IA reports. The additional considerations for IA records, identified by the Rivera Court, are:

-the nature and seriousness of the misconduct, and whether it was substantiated;

-the nature of the discipline imposed on the official;

-the nature of the official’s position, and

-the official’s record of misconduct.

In 21st Century Media, neither the town nor the trial judge referred to these criteria in denying the request for disclosure of IA reports concerning certain indicted police officers. The town’s denial letter said only that the public interest in disclosure “does not outweigh the rights of [the officers] to a fair and impartial trial, and the presumption of innocence….” The judge’s ruling that the records should not be released did not mention this rationale, and instead was based on the conclusion that there was no showing the officers had engaged in repeated misconduct.

The Appellate Division reversed, because the judge had not evaluated the common law balancing test factors. The Appellate Division remanded the case to the trial judge, ordering the judge to review the IA reports in camera and apply the Rivera and Loigman factors to determine whether the IA reports should be released.

This opinion shows that a denial of a common law request for IA reports (or any other type of government record) will not be upheld if the public body fails to demonstrate that it took the various balancing test factors into account. And although 21st Century Media is an unpublished opinion, it is clearly consistent with precedential case law. In fact, the Supreme Court in 2023 expressly cautioned that record custodians must “carefully review each [common law] request and provide a response that comports with the law.” Gannett Satellite Network v. Neptune Tp.

Supreme Court to Review Whether Attorney Fees May Be Awarded in Common Law Records Cases

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The Supreme Court will decide a longstanding, problematic issue in government records law: whether a requestor who obtains records through a common law request may be awarded attorney fees.

In a 2021 opinion, Gannett v. Tp. of Neptune, the Appellate Division held that a successful common law requestor may receive an attorney fee award. However, the court denied a fee award in this case, based on the conclusion that the request was not the catalyst for the eventual release of the records in question. See this post for a summary of the opinion.

The Supreme Court granted certification in this case last week. According to the Supreme Court’s website, the Court will consider: “In this lawsuit seeking police department internal affairs records, was plaintiff entitled to attorneys’ fees and does the catalyst theory apply to a common law right of access claim?”

No court has ever squarely held that there is a legal basis for common law requestors to receive attorney fee awards. Instead, as I’ve discussed previously (in this 2021 post), the argument that common law requestors are entitled to attorney fees is based exclusively on dicta; specifically, a brief comment made in a Supreme Court opinion in a 2008 case in which the Court was considering only an OPRA request, not a common law request. In Gannett, for the first time, the Court will be able to review the common law attorney fee question fully and resolve the uncertainty over this important issue that has existed since 2008.

Analysis: The Supreme Court’s Recent Opinions Strengthen OPRA Exemptions

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In March, the Supreme Court issued two highly consequential OPRA opinions. These cases are particularly significant because, in both matters, the Court rejected arguments that the applicable OPRA exemptions should be cast aside. Instead, the Court ensured the continuing viability of the exemptions for personnel records and police internal affairs records.

In Libertarians for Transparent Govt. v. Cumberland County, the requestor, the ACLU, and other organizations asked the Court to disregard OPRA’s personnel exemption and hold that the public is entitled to disclosure of all settlements of internal disciplinary actions. The Court declined this invitation to weaken the personnel exemption. Instead, it reiterated the longstanding requirement of OPRA that public employee personnel records–which include records of disciplinary settlements–are strictly confidential. A limited exception to this rule is that OPRA expressly designates certain personnel information as public, including the reason for the employee’s separation from employment.

In Rivera v. Union County Prosecutor, the Court similarly rejected the requestor’s main argument–that OPRA does not exempt police internal affairs records from disclosure. The Court unambiguously held that these records are exempt under OPRA, thereby precluding automatic public access to them. The Court said such records are only potentially disclosable through a common law records request.

Thus, these cases are important in two ways: they provide guidance on crucial OPRA issues, and they conclusively reject efforts to undermine OPRA’s confidentiality guarantees.

Supreme Court Holds That Police Internal Affairs Reports are Confidential Under OPRA, But May be Accessed Under The Common Law

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The Supreme Court issued its second OPRA opinion in March, Rivera v. Union Prosecutor. As I predicted, the Court held that records of police internal affairs investigations are exempt under OPRA, but ordered release of the internal affairs report in question under the common law.

Prior Supreme Court opinions indicated that internal affairs records are not accessible under OPRA. In Rivera the Court put to rest any possible claim that these records may be obtained through an OPRA request. It held that internal affairs reports are exempt because the Attorney General’s Internal Affairs Policy and Procedure, which has the force of law, requires their confidentiality.

The Court also stated, consistent with settled law, that this type of exempt record may be accessed under the common law, if in the particular situation, the interest in disclosure outweighs the need for confidentiality. The Court reiterated the important confidentiality considerations that must be taken into account in conducting this balancing, and it also provided guidance on the factors that may favor disclosure of an internal affairs report.

The Court held that the report at issue in the case should be made public under the common law, as it concerned a matter of considerable public interest, involving racist and sexist misconduct by the City of Elizabeth Police Director. The Court remanded the case to the trial court to conduct the common law balancing test to determine specifically what portions of the report should be made public. Notably, the Court also stated that the trial court must ensure redaction of information in the report that warrants confidentiality, including names of complainants, witnesses, informants, and cooperators; personal information of officers and other individuals; and other information protected by privacy interests.