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Posted by Kyle S. Clauss | Jul 07, 2022 | 0 Comments

The New Jersey Open Public Records Act (OPRA) was designed to provide the public with ready access to all government records “made, maintained or kept on file in the course of . . . official business,” unless the record falls into one of the statute's many exemptions.  Although OPRA shields a public employee's personnel records, the individual's “name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of pension received” remain subject to disclosure.  In two recent decisions, the New Jersey Supreme Court granted access to law enforcement personnel records, citing the public's interest in transparency and accountability.

In Libertarians for Transparent Gov't v. Cumberland County, a nonprofit group sought a copy of a settlement agreement between a former corrections officer and his employer, Cumberland County, after an inmate had filed suit alleging the officer had forced her to engage in nonconsensual sexual acts.  The group learned that the officer was permitted to retire in good standing with a reduced pension in exchange for cooperating with the County's investigation of four other officers suspected of similar conduct.  Consequentially, the group sent the County an OPRA request seeking the settlement agreement.  Declining to produce the document, the County claimed it was a personnel record exempt from disclosure and stated that the officer “was charged with a disciplinary infraction and was terminated.”

The Supreme Court ruled that while most personnel records remain shielded under OPRA, to the extent that the settlement agreement contained the employee's name, title, date of separation, and reason for leaving, the record should have been made available subject to appropriate redactions.  The Court recognized that OPRA empowers the public to play a role in ferreting out corruption and misconduct.  Because the County had erroneously stated that former corrections officer was terminated when, in reality, he was allowed to retire in good standing with only a partial pension forfeiture, the Court saw a compelling public interest in the record's disclosure.

In Rivera v. Union County Prosecutor's Office, the Court held that internal affairs reports concerning the former director of the Elizabeth Police Department and his alleged use of racist and sexist language should be disclosed under common law with appropriate redactions, but not under OPRA.  In 1996, the Legislature enacted a law directing all law enforcement agencies to adopt and implement guidelines consistent with the “Internal Affairs Policy Procedures” manual issued by the Department of Law and Public Safety five years earlier, which conferred confidentiality on internal affairs records.  Because OPRA “shall not abrogate or erode any . . . grant of confidentiality . . . recognized by statute,” the Court concluded that the reports were exempt from public disclosure under OPRA.

Turning to the common law right of access, the Court balanced the State's interest in preventing the reports' disclosure against the public's interest in transparency, which may be heightened depending on the nature and seriousness of the misconduct, whether the alleged misconduct was substantiated, the nature of the discipline imposed, the nature of the official's position, and the individual's record of misconduct.  “Public access helps deter instances of misconduct and also helps ensure an appropriate response when misconduct occurs,” the Court ruled, remanding the case for further proceedings.  “In the long run, access to reports of police misconduct like the one sought here promotes public trust.”  Although the Court noted “many instances” where internal affairs reports ought remain confidential at common law, “[t]his is not one of them.”

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Kyle S. Clauss



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