Category Archives: Personnel records

Once Again, Appellate Division Rules That A Request Requiring Research Is Invalid

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It’s a bedrock OPRA principle, stated consistently by the courts, that a request must be for a specific record, and cannot require the custodian to conduct research to fulfill the request. For this reason, the Appellate Division recently upheld the denial of a request that sought the “real reason” for the separations of various police officers from employment. Owoh v. Maple Shade Police Department.

The request asked the police department for personnel information that’s not exempt from disclosure under OPRA–the “[n]ames, date of hire, date of separation and reason for separation and salary of
individuals who…[were separated] in the last [five] years from [the] police department.” The department provided the requested information. For the reasons for separation, it properly indicated whether the officer resigned, retired or was terminated.

The requestor objected that this did not show the “real reason” for separation, which might be due to a plea agreement or a conviction. The court rejected this argument, concluding that the department complied with OPRA by giving the requestor the reasons for the officers’ separations.

Regarding the requestor’s interest in finding the so-called “real reasons” for officers’ separations from employment, the court indicated that the custodian was not obligated to try to figure out what records might contain such information. The court emphasized that the request did not identify any specific records that have the “real reasons,” and the custodian was not required to conduct research and analyze the agency’s records to attempt to find this information.

2022 OPRA Case Law Review

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Here’s a look back at the most important OPRA opinions issued by the courts this year.

The Supreme Court issued two OPRA opinions in 2022, both in March–Libertarians for Transp. Govt. v. Cumberland County and Rivera v. Union County Prosecutor. In Libertarians, the Court held that an internal settlement agreement between a public employer and its employee is an exempt personnel record, but the portion of the agreement that contains the reason for the employee’s separation from employment must be disclosed. In Rivera, the Court reaffirmed that records of police internal affairs investigations are exempt under OPRA, but may be disclosable under the common law ability to access government records.

See also this post for additional analysis of how these two opinions have a significant impact on OPRA law and practice.

The Appellate Division also issued some major OPRA opinions, addressing issues of first impression:

–Underwood Properties v. Hackensack dealt with a common problem in OPRA matters–an attorney, in the course of representing a client, submits an OPRA request under his own name, rather than the client’s name, and then the client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is also one of the few published opinions that addresses the calculation of a requestor’s attorney fee award.

–C.E. v. Elizabeth Public Sch. Dist. held that settlements of OAL cases involving IDEA special education challenges must be disclosed under OPRA.

–ACLU v. CPANJ held that the County Prosecutors Association of New Jersey is not an agency subject to OPRA.

Supreme Court Upholds Validity of Attorney General’s Directive Mandating Disclosure of Names of Disciplined Officers

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Today the Supreme Court issued its opinion upholding the Attorney General’s June 2020 Law Enforcement Directive that requires the public disclosure of the names of police officers who have committed serious disciplinary violations. The court determined that the Attorney General reasonably exercised his power to enact this new requirement under his statutory law enforcement authority. In re AG Law Enforcement Directives 2020-5 and 2020-6.

The Court dealt with the threshold issue–the apparent conflict between the Directive and OPRA’s personnel records exemption–in an elegant and straightforward fashion. Chief Justice Rabner, writing for the unanimous Court, found that there is no conflict: OPRA expressly states that the personnel exemption does not apply to personnel records “required to be disclosed by another law,” and, the Court said, the Attorney General’s Directive is such a law.

The name of any law enforcement officer subjected to serious discipline after the date of promulgation of the Directive now must be publicly disclosed.

However, the Attorney General had also ordered the release of the identities of State troopers and other State law enforcement officers who settled serious disciplinary matters in the 20 years before the Directive was enacted. The Court held that these names cannot currently be released. It ordered that there first must be additional litigation, to be held before a judge to be designated, concerning whether officers who settled their disciplinary cases prior to the Directive have valid promissory estoppel claims precluding the public release of their identities.

Police department custodians should note that the Court said similar court proceedings will likely be needed if their departments, which are not covered by the Attorney General’s requirement to disclose the names of officers who were disciplined in the past, also decide to release the names of officers who fall within this category.

Supreme Court To Decide Another OPRA Case

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The Supreme Court recently granted review of a case to determine whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. Libertarians for Transparent Govt v. Cumberland County.

For many decades, it has been settled law in New Jersey that an internal disciplinary action taken by a public employer against its employee is a personnel record of that employee, and therefore cannot be disclosed. The Supreme Court would effectively abolish this rule if it were to determine that the internal resolution of such a disciplinary matter, through a settlement between the employer and employee, is not covered by OPRA’s personnel exemption.

Libertarians is the fourth OPRA matter currently pending before the Supreme Court.

2020 Case Law Review–A Year of Major OPRA Court Cases

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Despite the pandemic, the courts issued a surprisingly large number of significant OPRA opinions during 2020. Here is a quick review of these rulings.

There were two cases involving the critical question of public access to police internal affairs records. The Supreme Court ruled that these records are not accessible under OPRA. FOP v. City of Newark. However, in the summer of 2020 the Attorney General created an exception to this rule, adopting a policy that requires law enforcement agencies to disclose the identities of disciplined officers. See this post for a summary of the precedential Appellate Division opinion (now under review by the Supreme Court) upholding the policy’s validity.

The Supreme Court also granted review of two other 2020 Appellate Division that dealt with important OPRA issues: Bozzi v. Roselle Park and Simmons v. Mercado. In Bozzi, the court determined that OPRA’s privacy provision does not protect against the disclosure of home addresses that people have provided to the government. In Simmons, the court said, in a matter of first impression, that when an agency has access to another agency’s database, it is not the custodian of that system, and therefore cannot be required to answer OPRA requests for information contained in the database.

And there were three more precedential Appellate Division OPRA opinions:

–IMO Application for Med. Marijuana ATC for Pangaea, etc. –a public body may withhold disclosure of the names of the individuals who reviewed applications that were submitted to the public body in a competitive process.

–Libertarians for Transparent Govt. v. Cumberland County–a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

–Digital First Media v. Ewing Tp.–a Use of Force Report involving a juvenile must be disclosed under OPRA, with redactions to protect the juvenile’s identity.

Appellate Division Upholds AG Directive Requiring Release of Names of Disciplined Police Officers

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The Appellate Division issued an opinion on October 16th upholding the Attorney General’s July 2020 Law Enforcement Directive that requires the public disclosure of the names of police officers who have committed serious disciplinary violations. The court determined that the Attorney General was empowered to enact this new requirement under his statutory law enforcement authority.

Since the Supreme Court is almost certainly going to review this case, the Appellate Division’s opinion is unlikely to be the final word on the validity of the Directive. However, it’s interesting to note that the Appellate Division emphasized that it was not basing its decision on OPRA, even though previous litigation seeking public disclosure of the identities of disciplined officers has been under OPRA. In this case, the court unambiguously stated that OPRA’s personnel exemption prohibits an OPRA requestor from obtaining the names of disciplined officers.

In reaching this conclusion, the court correctly rejected, as contrary to clearly settled law, the Attorney General’s argument that OPRA permits a public body to disclose exempt personnel information (as well as all other records exempted by OPRA) if the public body chooses to do so.

As a result, this precedential opinion reaffirms what has always been the law in New Jersey–the personnel information of public employees is not accessible under OPRA.

Important New Appellate Division Opinion Holds That Settlements of Internal Disciplinary Actions Are Exempt Personnel Records

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The Appellate Division recently issued a precedential OPRA opinion on an issue of first impression. The court held that a settlement agreement between a public body and its employee, resolving an internal disciplinary action against that employee, is exempt from disclosure as a personnel record. Libertarians for Transparent Govt v. Cumberland County.

It’s well-settled and unquestionable that litigation settlements are public under OPRA, but what about agreements resolving employee disciplinary charges before litigation ensues? The Appellate Division recognized that these internal agreements are not subject to the case law requiring disclosure of the settlement of public litigation matters.

The court concluded that this type of agreement between employer and employee is an exempt personnel record. The court’s analysis was straightforward: because an employee’s disciplinary records are covered by OPRA’s personnel exemption, it follows that the settlement of disciplinary charges are also covered by the personnel exemption.

The Appellate Division’s opinion contains a second significant holding–the court determined that under OPRA’s personnel exemption, the entire settlement agreement must be withheld. The appellant argued the document should have been released with redactions, but the court properly rejected this as inconsistent with OPRA’s requirement that personnel records are completely confidential.

Although the court rejected the requestor’s OPRA arguments, it remanded the case for the trial court to consider the requestor’s effort to obtain the settlement under the common law right of access.

Supreme Court: Internal Affairs Records Are Confidential

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The Supreme Court has settled the longstanding question of whether police internal affairs records are accessible under OPRA. In ruling on the validity of a Newark ordinance that created a civilian board to investigate citizens’ complaints of police misconduct, the Supreme Court emphasized that all records of such investigations are confidential. FOP v. City of Newark.

The Court based this conclusion on the Attorney General’s internal affairs policy. The Court held that this policy, which includes strict confidentiality mandates for all information concerning police misconduct investigations, must be followed. This determination is consistent with the Court’s prior case law in OPRA matters, which states that Attorney General law enforcement policies constitute binding legal requirements that establish exemptions under OPRA.

Interestingly, the Court noted its awareness that the Attorney General has recently changed the internal affairs policy to allow public disclosure of the identities of some disciplined officers, but said it was not addressing this or expressing a view regarding the revised policy. I presume the Court made this statement because it is mindful that it will soon be reviewing the unions’ challenge to this new policy, which is currently before the Appellate Division.

Court Stays AG Directive Requiring Disclosure of Names of Disciplined Police Officers

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Three weeks ago, the Attorney General enacted a dramatic change in New Jersey public records law by requiring disclosure of the identities of police officers who have been the subject of serious discipline. As expected, the police unions appealed this decision. Yesterday the Supreme Court upheld the order of the Appellate Division staying implementation of the directive, pending resolution of the appeal.

As a result, the Attorney General’s new policy–even if it’s ultimately upheld by the courts–will not go into effect for at least a year. The Appellate Division scheduled argument in the case for October, meaning its decision will probably be issued in late in 2020, and then the Supreme Court’s review will take several additional months.

Appellate Division Confirms that Police Internal Affairs Records are Exempt from Disclosure under OPRA

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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.