Category Archives: Court opinions

Supreme Court Grants Review of Case on Access to Police Internal Affairs Records

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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.

An Important New Appellate Division Opinion on OPRA and Common Law Access to Internal Affairs Records

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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.

Appellate Division Issues Precedential Opinion on Access to Higher Education Student Records

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The Appellate Division recently issued a published opinion concerning an area of OPRA that’s rarely been addressed by the courts–access to student records held by higher education institutions. Doe v. Rutgers.

Doe, a Rutgers student, requested many different records, including some that contained student information. Rutgers argued that it could not release any records that have such information–including even Doe’s own records. The court rejected this position, and held that Rutgers must disclose “records that do not reveal the identity of other students. This includes plaintiff’s access to his own academic, discipline, and financial records as long as identifiable references to other students are removed.”

This is the first time I’ve seen the Appellate Division address this issue. Perhaps this is because OPRA is clear with regard to access to higher education student records: the statute says such records are exempt, but only “to the extent disclosure would reveal the identity of the student.” And there’s little doubt that a student should be entitled to obtain his own records.

The opinion also dealt with an issue that was settled many years ago, yet keeps coming up: the invalidity of overbroad OPRA requests that require research by the custodian. The court determined that much of Doe’s multi-part OPRA request was deficient on this basis.

The opinion contains an additional ruling that applies beyond the higher education context. Doe’s OPRA request included a demand for all records related to Rutgers’ response to the other parts of his request. The court stated that this was an invalid request, because the records sought did not exist at the time the request was made. And the court further indicated that these records would not be disclosable, because they would fall within the deliberative process exemption.

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: OPRA Does Not Require Disclosure of Identities of Members of a Review Committee

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Just before Thanksgiving, the Appellate Division issued a precedential opinion on a major OPRA issue of first impression. The court held that a public body may withhold disclosure of the names of those who reviewed applications that were submitted to the public body in a competitive process. IMO Application for Medicinal Marijuana ATC for Pangaea, etc.

When agencies render a decision choosing among applicants, whether in a formal bidding process or other type of competitive matter, OPRA requestors commonly ask for all information concerning the agency’s selection of the winning applicant. This includes the review and scoring of the applications by the agency’s review committee, as well as the identities of the members of the committee. Of course, the records showing the committee members’ evaluations of each application are public under OPRA, but it’s never been clear whether the names of those who made these evaluations must be disclosed.

In Pangaea, the court dealt with a challenge to the Department of Health’s selection of entities to grow, process and dispense marijuana under the State’s medicinal marijuana program. The opinion primarily focused on challenges to the scoring of the applications and the Department’s explanation for its decisions, but the court also firmly rejected the argument, made by some of the disappointed applicants, that OPRA requires disclosure of the identities of the review committee members. This information, the court said, is covered by the deliberative process privilege: revealing the identities would harm the agency’s decisionmaking process.

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.

An Interesting Appellate Opinion on OPRA Attorney Fee Awards

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The Appellate Division recently issued an opinion concerning an OPRA attorney fee award. Mills v. State of New Jersey. This unpublished opinion, while not precedential, is interesting for two reasons.

First, the court substantially reduced the requested fee award due to the plaintiff’s limited success in his OPRA suit. The requestor sought hundreds of documents, plus other records, but only obtained a single, 2-page document. According to the court, such minimal “qualitative” success, in an OPRA case that did not involve complex issues, justified reducing requestor’s attorney fee award by over 80%, to only $2376.

Second, and perhaps of more importance, the court rejected the requestor’s claim that he was entitled to fees for successfully obtaining some additional documents under the common law. As I’ve previously noted (see this post), litigants often point to language in the Supreme Court’s opinion in Mason v. Hoboken as requiring attorney fee awards in common law request cases, and some judges have made such awards. But the Appellate Division here correctly rejected the argument that Mason created a right to a mandatory attorney fee award when records are obtained through common law litigation.

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.