Supreme Court to Review Another OPRA Case

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2021 is shaping up to be a year of major developments in OPRA law, with the Supreme Court reviewing three OPRA cases.

A few weeks ago, the Supreme Court decided to resolve the long unsettled issue of whether home addresses must be disclosed under OPRA, and it will most likely soon be reviewing the validity of the Attorney General’s requirement that the names of disciplined police officers be made public.

And last week, the Court granted review in another OPRA matter, Simmons v. Mercado. The Court’s website states that the question in the case is whether “complaints and summonses in the State’s Electronic Complaint Disposition Record (ECDR) system [are] subject to production under the Open Public Records Act?”

This bland statement doesn’t reflect the real importance and broad scope of this matter. As I discussed in this post, the case deals, for the first time, with an OPRA issue that affects all agencies: 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 that database?

Attorney General Stays His Directive on Disclosure of Names of Disciplined Officers

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As discussed here, last week the Appellate Division rejected a challenge to the legality of the new Attorney General Directive requiring public disclosure of the names of officers who have committed serious disciplinary infractions. The challengers quickly sought Supreme Court review, and the Attorney General notified the Supreme Court that the State will not publish the names of disciplined officers until the Supreme Court resolves the case.

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.

Supreme Court to Review Whether OPRA Requires Disclosure of Home Addresses

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The Supreme Court recently granted review of a case to decide a longstanding, unsettled OPRA issue: whether OPRA’s privacy provision protects against the disclosure of the home addresses of individuals who provide this information to the government when applying for a pet license. Bozzi v. Jersey City.

In Bozzi v Jersey City, the Appellate Division held, relying on its precedential opinion in Bozzi v. Roselle Park, that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply to the municipality for a dog license. As I noted in my post about this opinion, the court’s ruling doesn’t just affect OPRA requests for pet license records; the Appellate Division interpreted OPRA’s privacy provision to mean that public bodies may not deny the disclosure of names and home addresses that are in any government record.

Accordingly, this case requires the Supreme Court to determine the meaning and scope of OPRA’s privacy requirement, and as a result, the Court’s opinion will have a significant impact on a wide range of OPRA requests.

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.

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.

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

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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.