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The Appellate Division recently issued an unpublished opinion reversing the denial of a common law request for IA reports, because the trial judge had failed to conduct a complete analysis of the factors of the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 And although 21st Century Media is an unpublished opinion, it is clearly consistent with precedential case law.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.