In In re Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6, the Appellate Division of the New Jersey Superior Court upheld directives issued by the New Jersey Attorney General requiring the state to release information about police officers subjected to major discipline. According to the appeals court, the Attorney General was well within his authority when issuing Directives 2020-5 and 2020-6.
AG Law Enforcement Directives
In June, the Office of the Attorney General issued two directives, Law Enforcement Directive Numbers 2020-5 and 2020-6 (collectively, the “Directives”), amending the statewide rules for internal affairs investigations, known as the Internal Affairs Policy and Procedures (IAPP). Shortly thereafter, several police unions representing law enforcement officers filed suit.
Directive 2020-5 amends the IAPP to require every law enforcement agency in the State to publish a synopsis of all complaints in which an officer received final discipline of termination, demotion, or a suspension of more than five days, including the name of the officer, a summary of the misconduct, and the sanction imposed. Initial reports, covering all discipline imposed during this calendar year, are due by December 31, 2020. Subsequent reports must be published at least annually thereafter. The Directive further permits, but does not require, county and municipal agencies to release similar information about earlier incidents of officer misconduct resulting in the same sanctions.
Directive 2020-6 orders all law enforcement agencies within the Department of Law and Public Safety, which the Attorney General heads, the Division of State Police and the Division of Criminal Justice, as well as the Juvenile Justice Commission, which is in but not of the Department, to publish no later than July 15, 2020, the same information required by Directive 2020-5 from January 1, 2000 to the present. The Directive orders the three agencies to provide notice to each officer it intends to identify at least seven days prior to publication, whenever possible making reasonable efforts.
The plaintiffs challenging the Directives argued that the Attorney General lacks the authority to issue the Directives because they conflict with a provision of the Open Public Records Act, a regulation promulgated by the Department of Law and Public Safety, N.J.A.C. 13:1E-3.2(a)(4), and various Executive Orders, most notably Executive Order 11 (Byrne), all of which protect the confidentiality of personnel records of public employees. Among other arguments, the plaintiffs also alleged that the Attorney General promulgated the Directives in violation of the Administrative Procedures Act and acted outside his authority by giving them retroactive application.
Appellate Division’s Decision
The Appellate Division upheld the Directives. “[W]e conclude the Attorney General acted within the authority conferred on him by the Legislature in the Law and Public Safety Act of 1948, the Criminal Justice Act of 1970, and N.J.S.A. 40A:14-181 in issuing Directives 2020-5 and 2020-6, and they therefore withstand petitioners’ facial challenge,” the court wrote.
In finding that the Directives did not run afoul of the rights of the State’s law enforcement officers in the privacy of their personnel records under Executive Order 11, section 10 of OPRA, or N.J.A.C. 13:1E-3.2, the Appellate Division emphasized that police officers have long been distinguished from other public employees, “by virtue of the public trust reposed in them to enforce and uphold the law, and the manifest ‘need in a democratic society for public confidence, respect and approbation of the public officials on whom the state confers’ the authority to use lawful force to arrest and detain their fellow citizens.”
The Appellate Division further noted that every iteration of the IAPP has expressly provided that the information and records of an internal investigation could be released at the direction of the Attorney General, “an authority the Legislature has never acted to limit or complaints of police misconduct and provided an explanation for the outcome.”
The Appellate Division did not “pass on the wisdom of the policy embodied in these Directives.” As the court explained:
The erosion of confidence in our law enforcement agencies is a serious problem, and it is enough that the Attorney General, New Jersey’s chief law enforcement officer tasked with the general supervision of criminal justice in our State, has determined that publishing the names of officers incurring major discipline for misconduct will increase public trust in those agencies and make them more accountable to the communities they serve. It is not for this court to assess the Attorney General’s policy choice. Our only focus is on his authority to implement the policy choice he has made.
Notably, the Appellate Division did not foreclose challenges to retroactive application of the Directives. “Our conclusion that the Directives constitute a valid exercise of the Attorney General’s authority does not preclude any officer from bringing an as-applied challenge to publication of his or her name pursuant to Directives 2020-5 and 2020-6 for discipline finalized before release of those Directives,” the court wrote.
We encourage local governments to review the Directives in their entirety with their law enforcement leaders. If you have questions about the new requirements, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.