In Rivera v. Union County Prosecutor’s Office (A-58-20/084867) (Decided March 14, 2022), the Supreme Court of New Jersey held that the Open Public Records Act (OPRA) does not permit access to internal affairs reports, but those records can and should be disclosed under the common law right of access — subject to appropriate redactions — when interests that favor disclosure outweigh concerns for confidentiality. The New Jersey Supreme Court went on to provide guidance on how to conduct that balancing test.
Facts of Rivera v. Union County Prosecutor’s Office
In February 2019, an attorney made a complaint to the Union County Prosecutor’s Office on behalf of employees of the Elizabeth Police Department. The complaint alleged that Police Director James Cosgrove, the civilian head of the Department for more than two decades, used racist and sexist language to refer to employees on multiple occasions. In response, the Prosecutor’s Office conducted an internal affairs investigation. On April 16, 2019, the Office sustained the complaints; ten days later, the Attorney General issued a public statement describing the investigation and its conclusion and calling upon Cosgrove to resign, which he did.
In July 2019, plaintiff Richard Rivera filed a request for records with the Prosecutor’s Office based on OPRA and the common law. As relevant here, plaintiff asked for “all internal affairs reports regarding” Cosgrove. The Prosecutor’s Office denied the request on the ground that it was “exempt from disclosure under OPRA” and not subject to disclosure under the common law.
Plaintiff filed a complaint in 2019 against the Prosecutor’s Office and its records custodian, relying on OPRA and the common law. The Prosecutor’s Office answered, citing the need for confidentiality based on witnesses’ expectations of privacy and the need to preserve the Office’s ability to gather facts in similar investigations. The City of Elizabeth intervened and likewise stressed the importance of confidentiality, noting that witnesses’ identities could be determined even with redactions and that disclosure would make it less likely that employees would report alleged workplace policy violations.
The trial court concluded the internal affairs report should be made available under OPRA. The Appellate Division reversed, finding that the requested materials were not exempt as “personnel records” under OPRA (N.J.S.A. 47:1A-10), but that they could not be disclosed under OPRA on other grounds (N.J.S.A. 47:1A-1, -9(a) and (b)). Next, the Appellate Division rejected plaintiff’s common law claim, determining that defendant’s interest in preventing disclosure outweighed plaintiff’s right to the documents.
NJ Supreme Court’s Decision in Rivera v. Union County Prosecutor’s Office
The New Jersey Supreme Court reversed. It held that OPRA does not permit access to internal affairs reports, but those records can and should be disclosed under the common law right of access — subject to appropriate redactions — when interests that favor disclosure outweigh concerns for confidentiality. The court further found that the internal affairs report at issue in the case should be disclosed after the trial court reviews it and redacts parts that raise legitimate confidentiality concerns.
Writing on behalf of the New Jersey Supreme Court, Chief Justice Stuart Rabner first addressed whether internal affairs reports are exempt under OPRA. The court concluded that IA reports are exempt from public disclosure pursuant to Section 9(b) of OPRA, which states that OPRA “shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law.”
In reaching its decision, the New Jersey Supreme Court noted that the Attorney General’s Internal Affairs Policy and Procedures manual (IAPP), which was first issued in 1991, addresses complaints of police misconduct. The IAPP contains a confidentiality provision that only allows for disclosure in certain limited circumstances. In 1996, the Legislature enacted N.J.S.A. 40A:14-181, which directs all law enforcement agencies to “adopt and implement guidelines which shall be consistent with the” IAPP manual. As Chief Justice Rabner explained, “section 181, a statute, effectively recognizes a grant of confidentiality established by the IAPP, and OPRA may not abrogate that grant of confidentiality.”
Chief Justice Rabner next turned to the common law right of access, noting that the Court has previously looked to the common law to consider the release of law enforcement records that were not accessible under OPRA. He went on to explain the difference between OPRA and the common law right of access and emphasized that a requestor must make a greater showing than OPRA requires when seeking documents under the common law right of access. As set forth in N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 578 (2017), the requestor must establish an interest in the subject matter of the material; and the requestor’s right to access must be balanced against the State’s interest in preventing disclosure.
In Loigman v. Kimmelman, 102 N.J. 98 (1986), the New Jersey Court identified six factors to consider in balancing those interests. However, as Chief Justice Rabner noted, they largely examine only one side of the test — the need for confidentiality — which “should be balanced [against] the importance of the information sought to the plaintiff’s vindication of the public interest.”
In Rivera, the New Jersey Supreme Court provided guidance regarding the second half of the balancing test as applied to IA records. It advised that the public interest in transparency may be heightened in certain situations depending on a number of considerations, including: (1) the nature and seriousness of the misconduct; (2) whether the alleged misconduct was substantiated; (3) the nature of the discipline imposed; (4) the nature of the official’s position; and (5) the individual’s record of misconduct.
Applying the above factors, the New Jersey Supreme Court found that the public interest in disclosure is great. “As someone at the highest echelon of the department, [Cosgrove’s] behavior had the capacity to influence others and set the tone for the department,” Chief Justice Rabner wrote. “His position could also cast doubt on the department’s internal affairs process and its ability to monitor itself, and raise questions about whether others knew what was happening.”
He added: “Racist and sexist conduct by the civilian head of a police department violates the public’s trust in law enforcement. It undermines confidence in law enforcement officers generally, including the thousands of professionals who serve the public honorably.”
Based on the foregoing, the New Jersey Supreme Court concluded that the IA report should be disclosed after the trial court reviews it and redacts parts that raise legitimate confidentiality concerns.