The Appellate Division recently held that police internal affairs files were not subject to disclosure under the state’s Open Public Records Act (OPRA)…
In Gannett Satellite Information Network, LLC v. Township of Neptune, the Appellate Division held that police internal affairs files were not subject to disclosure under the state’s Open Public Records Act (OPRA). However, the court held that, under the circumstances presented, the plaintiff was entitled to them under the common law right of access, but was not entitled to attorney’s fees, even though the award of such fees were within the discretion of a court to award, because the defendant had raised good faith arguments, and the records sought were independently released by the Attorney General.
The Appellate Division also held that so long as the issue of entitlement to attorney’s fees remains unresolved, a case under OPRA and the common law is not moot, even if the records had been earlier produced.
Facts of the Case
In May 2017, Gannett Satellite Information Network, LLC (Gannett), an entity that publishes the Asbury Park Press, submitted a request to the Township of Neptune seeking copies of the Internal Affairs (IA) file of Philip Seidle, who had been a Sergeant in the Township’s Police Department. On June 16, 2015, Seidle shot and killed his ex-wife Tamara, using his service revolver, in the presence of their seven-year-old daughter. Seidle pled guilty to aggravated manslaughter and was later sentenced to a thirty-year prison term.
The Monmouth County Prosecutor’s Office (MCPO) investigated the response of law enforcement to Tamara’s death and issued a report that detailed the Seidles’ history of domestic violence. The MCPO stated that its investigation had “disclosed a critical flaw in the domestic violence policies and procedures that currently exist statewide.” It found “domestic violence incidents” that do not result in the “filing of criminal charges or a temporary restraining order may still call into question the fitness-for-duty of a police officer.” The MCPO added that “a police officer who has numerous [IA] complaints – either due to internal departmental policy violations or from complaints by citizens – raises a red flag which may warrant a fitness-for-duty evaluation by the agency.” To address these concerns, the MCPO implemented an Early Warning System for all law enforcement agencies in Monmouth County.
Gannett sought access to the IA records pursuant to OPRA and the common law right of access. The Township denied the request, and Gannet filed suit. The trial court determined that the records were exempt from disclosure under OPRA, but Gannett was entitled to the records under the common law. The court also awarded Gannett attorney’s fees.
Appellate Division’s Decision
The Appellate Division reversed in part and affirmed in part. [W]e conclude the trial court correctly found that Gannett was not entitled to access to Seidle’s IA file pursuant to OPRA, but disclosure was required under the common law right of access,” the court wrote. “We also conclude the trial court erred in awarding of attorney’s fees to Gannett.”
Records Exempt Under OPRA
The Appellate Division affirmed the trial court’s determination that the police internal affair files were not subject to disclosure under OPRA. In support of its conclusion that the IA records sought by Gannett are personnel records under OPRA, the court cited Libertarians for Transparent Government v. Cumberland County and In re Attorney General Law Enforcement Directive Numbers 2020-05 and 2020-6.
The Appellate Division further concluded, consistent with Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark and In re AG Directives, that the Attorney General’s Internal Affairs Policy and Procedures (IAPP) has the force of law and pursuant to N.J.S.A. 47:1A-9, and OPRA does not abrogate the IAPP’s confidentiality provisions.
However, the trial court went on to grant access to the records under the common right of access.
Access Granted Under Common Law
The Appellate Division agreed with the trial court’s conclusion that Gannett is entitled to Seidle’s IA file under the common law right of access to public records.
As explained by the court, to prevail on a claim for access to a public record under the common law, the party seeking access must establish that: (1) the document is a public record under the common law; (2) the party has an “interest in the subject matter” of the record; and (3) a balancing of the party’s right to access and the State’s interest in non-disclosure favors access.
Like the trial court, the Appellate Division focused on the third factor. It agreed that “generally, disclosure of IA files would discourage citizens and fellow officers from reporting police misconduct, which would undermine the purposes of the IAPP and also undermine public confidence in the police.” However, it found that “the unique circumstances of this matter tipped the balance in favor of disclosure.” Based on these circumstances, the Appellate Division agreed that the “public has a strong interest in knowing how such an event could have occurred.”
It was emphasized that the records sought related to a horrific crime, in which an off-duty officer shot and killed his wife, with his service revolver, in the presence of their young child. Moreover, it was recognized that the “public has a strong interest in knowing how such an event could have occurred.” As noted in the opinion, Seidle’s IA file included records pertaining to twenty-eight interactions with the NTPD by Seidle or his ex-wife.
The Appellate Division also noted that the potential harm from disclosure was minimal because much of the information was already public and that any harm from disclosure could be mitigated by redactions that would protect the identity of other officers, complainants, or witnesses, and “there was no indication that any complaint was provided by a person or officer on condition of anonymity.”
Notably, the Appellate Division rejected the argument that the trial court failed to consider the State-wide ramifications of publicly releasing IA documents to a newspaper and the effect such disclosure will have on future IA investigations. “As we have explained, the judge carefully considered the effect disclosure of an IA file could have upon the agency’s functions and other IA investigations. The judge concluded, however, based on the specific facts and circumstances of this matter, that disclosure was required under the common law,” the court wrote. “Because the judge’s decision was limited to the facts of this case” the Appellate Division was not concerned “that the trial court’s decision will have an adverse impact upon IA investigations generally.” In other words, the Appellate Division’s determination that the records were subject to disclosure under the common law, was dependent on the circumstances of the case before it.
Denial of Attorney’s Fees
The Appellate Division, nevertheless, concluded that Gannett was not entitled to the award of attorney’s fees, overturning the trial court’s decision.
As read by the Appellate Division, in Mason v. City of Hoboken, 196 N.J. 51 (2008), the New Jersey Supreme Court considered whether the plaintiff was entitled to attorney’s fees when a government agency voluntarily disclosed records after the plaintiff filed a lawsuit claiming a right to access to the records under OPRA and the common law.
However, the Appellate Division did not read Mason as requiring the award of attorney’s fees in all actions under the common law right of access. Instead, it held that the award of attorney’s fees under the common law is committed to the “sound discretion” of the trial court, after consideration of all relevant factors. In assessing these factors, the Appellate Division reversed the award of attorneys fees.
“In this case, the Township advanced good faith arguments in support of its contention that Gannett should not be granted access to the records under the common law. The trial court found a right of access but only after a careful examination of the relevant factors under Loigman,” the court wrote. “There is no reason to assume that Gannett is not able to bear the cost and expense of pursuing this lawsuit, and the denial of fees under the particular facts and circumstances presented, would not dissuade other litigants from pursuing such claims.”
The Appellate Division also concluded that Gannett was not entitled to an award of fees under the catalyst theory, because the Attorney General independently ordered the release of the file as “warranted in the public interest” prior to the records being released to Gannett by the Township.
We encourage local governments to stay on top of legal updates. For guidance about the implications arising from the Appellate Division’s decision or more information concerning the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group at 201-896-4100.