Internal Affairs reports not disclosable under OPRA but may be disclosed under common law
NJ STATE PBA LEGAL CORNER
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
The issue of whether internal affairs reports are disclosable under the Open Public Records Act (OPRA) has been the subject of lawsuits over the years. Disclosure turns on whether an IA report is a government record subject to disclosure under OPRA or whether it falls within an exception in OPRA and, therefore, not disclosable. A recent decision of the New Jersey Supreme Court provides some answers to these questions. According to the court, IA reports are not disclosable under OPRA. However, they may be disclosable pursuant to the common law right of access, although disclosure is not automatic.
By way of background, OPRA is intended to expand the public’s right of access to government records. Under OPRA, a government record must be disclosed unless it falls within one of 27 exemptions set forth in the statute. There is also a separate common law right of access to any public record. Therefore, even if the information requested falls within one of the exceptions in OPRA, individuals requesting documents may still obtain documents under this common law right, which provides greater access than OPRA. Individuals who request disclosure of documents under OPRA also request them under the common law right of access.
The New Jersey Supreme Court recently addressed these issues in Rivera v. Union County Prosecutor’s Office which involved an internal affairs investigation into misconduct by a former police director and a request for the IA report. The court unanimously concluded that OPRA did not permit access to the internal affairs report. However, after redacting parts that raised legitimate confidentiality concerns, the court also concluded that the IA report should be disclosed under the common law right of access.
In Rivera, an attorney filed a complaint with the Union County Prosecutor’s Office on behalf of employees of the Elizabeth Police Department alleging that a police director used racist and sexist language to refer to employees on multiple occasions. The prosecutor’s office subsequently conducted an internal affairs investigation and ultimately sustained the complaints. It was the subject of media reports. A few months later, the plaintiff, Richard Rivera, filed a request for records with the prosecutor’s office based on OPRA and the common law right of access. Rivera requested the report regarding the Elizabeth Police Department’s internal affairs issues and claims of racism and misogyny, and all internal affairs reports regarding the police director. The prosecutor’s office denied both requests. Regarding the first item, it stated that, “in general…no such report exists.” Regarding the internal affairs report on the police director, it claimed that the report was “exempt from disclosure under OPRA” as a “personnel and/or internal affairs record,” and because the interest in maintaining confidentiality significantly outweighed Rivera’s interests in disclosure.
Rivera then filed a complaint in Superior Court against the prosecutor seeking the reports based on both OPRA and common law. Alternatively, Rivera requested that the trial court review the records, redact parts that were exempt from public access and disclose the remainder. After the City of Elizabeth intervened in the case, the city’s attorney argued in part that disclosure “would have a chilling effect upon city employees to report any future alleged violation of workplace policies.” The trial court concluded that the internal affairs report should be made available under OPRA and requested that the complete set of investigation materials into the conduct of the police director be provided to the court for review. Because it ruled that Rivera was entitled to access under OPRA, the trial court did not reach Rivera’s common law claim.
The Appellate Division reversed the trial court’s judgment, finding that the requested materials were not exempt as “personnel records” under OPRA, but that the reports could not be disclosed on other grounds. The Appellate Division concluded that the IA records were exempt from disclosure based the Attorney General’s Internal Affairs Policy and Procedures and the confidentiality provisions of that policy which ensured that internal affairs records would be confidential subject to some exceptions.
Further, the Appellate Division noted that disclosure could impair the “laudable” goals of internal affairs investigations and that redaction of names and identifying circumstances “would likely prove very difficult, if not impossible.” Lastly, the Appellate Division rejected Rivera’s common law claim because disclosure would discourage witnesses from coming forward, would likely disclose their identity and would frustrate the internal affairs process. Redaction would also likely be inadequate.
On appeal, the Supreme Court agreed that OPRA exempted internal affairs reports from public disclosure. However, under the common law right of access, the Supreme Court held that the internal affairs report should be disclosed following appropriate redaction by the trial court of parts of the report that raised legitimate confidentiality concerns. In reaching this decision, the court explained that OPRA does not limit the right of access to government records under the common law, and that the common law definition of a public record is broader than under OPRA. On the issue of whether the requested report constituted a public record at common law, the court concluded that the records should be released in this case because they were a written memorial made by a public officer authorized to do so.
However, to obtain access to public records under common law, a greater showing is required than under OPRA. The individual requesting the records must establish an interest in the subject matter of the material, and right to access must be balanced against the state’s interest in preventing disclosure. The Supreme Court noted that, although not a complete list of relevant considerations, there are several factors that should be considered to evaluate the need for confidentiality. These include, but are not limited to, whether disclosure will interfere with agency functions by discouraging citizens from providing information to the government, the effect disclosure may have upon persons who have given such information, whether they did so in reliance that their identities would not be disclosed and the extent to which agency self-evaluation, program improvement or other decision-making will be chilled by disclosure.
Applying these factors, the court determined that although there are good reasons to protect the confidentiality of internal affairs reports under common law in many instances, this case was not one of them. Here, the allegations against the police director involved serious misconduct over an extended period, and an investigation substantiated these claims and led to his resignation. As someone at the highest echelon of the department, his behavior had the capacity to set the tone for the department and could cast doubt on the department’s internal affairs process, its ability to monitor itself and raise questions about whether others were aware of what was happening. The court noted that, in cases like this, public access helps deter instances of misconduct and ensure an appropriate response when misconduct occurs. However, it concluded that it could not fully evaluate the prosecutor’s office concerns about confidentiality because they were supported by general arguments. Therefore, the court remanded the case to the trial court to review the internal affairs report and make the necessary redactions prior to disclosure.
This decision by the New Jersey Supreme Court illustrates the importance placed by the legislature and the courts upon the public’s right to access to government and public records. However, the court clearly stated that IA reports are not disclosable under OPRA. Even though it also concluded that the records could be disclosed in this case under the common law right of access, it is important to note that the court concluded that the common law right of access does not allow disclosure in all cases. It will depend on a balancing of several factors. But even if the courts permit disclosure, confidential information should be redacted before disclosure. And finally it should be obvious that a request for IA reports under the common law right of access involves a significantly more complex process, including litigation, than an OPRA request for documents not subject to an OPRA exemption.