Monthly Archives: June 2020

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

Leave a reply

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 The court recently did so again, in an unpublished opinion, Rivera v. Union County Prosecutors Office.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

Attorney General Requires The Public Disclosure of Identities of Police Officers Who Have Disciplinary Infractions

Leave a reply

The Attorney General has announced an important police reform policy that has a major impact on New Jersey public records law. Attorney General Law Enforcement Directive 2020-5 requires, for the first time in New Jersey, that the names of police officers who have committed serious disciplinary violations must be released to the public.

The Directive states that police departments must publicly disclose the identity of an officer who has been the subject of a disciplinary sanction involving termination of employment, reduction in rank or grade, and/or a suspension greater than five days. The Directive takes effect at the end of August, and requires law enforcement agencies to publish reports listing recently-disciplined officers by the end of 2020. The Directive also notes that agencies have the discretion to release historical information about prior disciplinary violations by police officers; the Department of Law and Public Safety will do this, with regard to its law enforcement officers, by July 15.

The Attorney General’s mandate is obviously a crucial step in trying to accomplish much-needed police reform, consistent with recent national efforts to increase transparency regarding police misconduct. It also represents a momentous change in New Jersey’s public records law. When OPRA was enacted in 2001, it codified and continued what had been the law for many decades: public employee personnel information, including an employee’s disciplinary record, may not be disclosed to the public.

I think it’s inevitable that affected officers will file litigation over the Directive’s legality. It will be interesting to see if the Attorney General’s reasonable decision to require greater transparency with regard to law enforcement officers’ disciplinary information will withstand a legal challenge.

Appellate Division Addresses Novel Issue on OPRA’s Deadline for Responding to Requests

Leave a reply

Last week, in addition to releasing a major, precedential OPRA opinion, the Appellate Division issued an interesting unpublished opinion that also may have a significant impact on OPRA matters. In Smith v. Moorestown Twp., the Appellate Division addressed a novel issue under OPRA–when a requestor receives the requested record within 7 business days, may he appeal to the GRC on the basis that the custodian did not respond to the request “as soon as possible?”

In this case, Smith filed a GRC complaint 5 business days after submitting his request, and the custodian granted his request on the 6th business day. The GRC dismissed his complaint as “unripe,” because it was filed during the statutory 7-business-day period. But Smith pointed out that OPRA requires custodians to grant or deny access to a government record “as soon as possible, but not later than seven business days after receiving the request.” (Italics added). He argued that this language gave him the right to challenge whether the custodian here failed to respond as soon as possible to his request.

The Appellate Division rejected this argument because OPRA only permits appeals to the GRC by a person who is “denied access” to a record. Smith was not denied access to the record he requested. And, the court said, the statute does not define the custodian’s failure to respond “as soon as possible” as a denial of access; instead, only the failure to respond within 7 business days is deemed a denial under the statute.

The Smith case is the first time I’ve seen the statute’s “as soon as possible” language directly addressed by a court. The court’s conclusion that this phrase does not override the statute’s language concerning the right to challenge the custodian’s denial of access is important. Requestors often complain that their requests were not answered quickly enough. The Appellate Division’s opinion makes clear that this type of claim cannot be the basis of an appeal to the GRC, or a court complaint, if the custodian grants the request by the specific deadline set by the statute.

It’s worth noting that the argument raised in Smith is likely to come up more often in the near future, due to the recent amendment to OPRA suspending the 7-business day response deadline during public health emergencies. The amendment says that although this deadline does not apply, custodians must make an effort to answer requests “as soon as possible.”

An Important Appellate Division Opinion: OPRA Requests For Information From A Database May Only Be Made To The Agency That Maintains The Database

Leave a reply

Today the Appellate Division issued a published opinion that resolves a longstanding question: is an agency that has access to another agency’s database, but is not the custodian of that system, required to answer OPRA requests for information in the database? In this case of first impression, the court held that the answer is no.

In Simmons v. Mercado, the requestors sought from the Millville Police Department DWI, drug possession, and drug paraphernalia complaints and summonses. The request was denied on the basis that the police do not maintain these records; instead, they enter information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records.

The trial judge ruled against the department, reasoning that it has access to the eCDR system and so must fulfill the OPRA request.

The Appellate Division firmly rejected this view. It held that the records in the CDR system are the records of the Judiciary, not the police department, and therefore the department is not the custodian of these records under OPRA. The fact that the police are required to input some information into this system does not make it a record of the police department for purposes of OPRA. Moreover, said the court, that the police have access to this system does not change the fact that the Judiciary maintains it. The court concluded that the request here should have been directed to the Judiciary, not the police department.

The Appellate Division’s ruling is highly significant. It affects many agencies, not just police departments. There are many situations where State and local agencies must submit information into electronic databases maintained by other agencies, and they often have access to these other agencies’ systems. As in Simmons, OPRA requests are often directed to the agency that is not the custodian of the database, but has access to it, raising the question of whether the agency must satisfy the request. The court has now issued a clear standard that resolves this problematic situation.