Defense Digest, Vol. 30, No. 4, December 2024

Just Because You Expunge a Record Does Not Mean Internal Affairs Records Are Not Subject to an Open Public Records Act Request

By
Matthew J. Behr

Key Points: 

  • New Jersey Statutes Annotated 2C:52-1(a) protects records of expunged criminal charges from disclosure. 
  • In States Newsroom, Inc. v. City of Jersey City, the New Jersey Superior Court, Appellate Division, determined how far an expungement order reaches when a separate, independent, Internal Affairs investigation has occurred.
  • The Appellate Division held that the trial court should have analyzed the facts of the case to determine if there was common law right of access to the records, suggesting that the public would have an interest in disclosure and transparency.

New Jersey Statutes Annotated 2C:52-1(a) protects records of expunged criminal charges from disclosure, namely: “[r]ecords on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.” The question recently presented in States Newsroom, Inc. v. City of Jersey City, 2024 WL 4296597 (N.J. Super. App. Div. Sept. 26, 2024), was how far an expungement order reaches when a separate, independent Internal Affairs investigation has occurred. The Appellate Division concluded the expungement statute does not unequivocally exclude Internal Affairs documents from release pursuant to the Open Public Records Act (OPRA) and the common law right to access. 

In August 2019, a lieutenant with the Jersey City Police Department hosted a barbeque for friends and family at his home. At the end of the party, there was an argument about what to do with leftovers. The fight escalated when the lieutenant retrieved his shotgun from a locked safe inside his home and then discharged the weapon. 

State Police responded to the house and found the lieutenant’s girlfriend and her son restraining him. The State Police incident report noted the lieutenant appeared to be under the influence. Police charged the lieutenant with making terroristic threats and possession of a weapon for an unlawful purpose. The lieutenant pled guilty to a lesser charge and completed pre-trial intervention.
 
Afterwards, he sent notice to all relevant agencies to expunge their records of his criminal matter pursuant to N.J.S.A 2C:52-1. Separately, the Jersey City Police Department conducted an Internal Affairs investigation into the incident. The Internal Affairs report concluded the lieutenant had negligently used a firearm while under the influence. Consequently, the Jersey City Police Department suspended the lieutenant for 90 days. 

In Rivera v. Union County Prosecutor’s Office, 250 N.J. 124, 135 (2022), the New Jersey Supreme Court ruled that Internal Affairs reports can be accessed pursuant to a common law right of access. 

Based on Rivera, the plaintiff submitted an OPRA request for a copy of the Internal Affairs report from the defendants, who denied the request. The plaintiff then filed a lawsuit seeking the Internal Affairs documents pursuant to OPRA and the common law right to access. The trial judge denied the request. Relying upon the expungement statute, the trial judge found Rivera inapplicable to the facts of this case. 

The common law right of access requires courts to consider the following: 

  1. the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; 
  2. the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; 
  3. the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; 
  4. the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; 
  5. whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and 
  6. whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual’s asserted need for the materials. 

Rivera, 250 N.J. at 144 (quoting Loigman v. Kimmelman, 102 N.J. 98, 113 (1986)).

Generally, the public has an interest in the disclosure of Internal Affairs reports in order to hold officers accountable and deter misconduct. Other reasons are to ensure the Internal Affairs process is working properly and to foster public trust in law enforcement. 

The Appellate Division reversed and remanded this case, holding that the trial court should have analyzed the facts of the case by applying Rivera and Loigman. While the Appellate Division did not decide the ultimate issue of whether the Internal Affairs records would be discoverable, the court did strongly suggest that it would appear that the lieutenant’s position, the misconduct he engaged in outside the scope of his work, the charges he faced, the subsequent guilty plea to a different offense and pre-trial intervention, and the Internal Affairs investigation generated in the aftermath, point to the fact the public would have an interest in disclosure and transparency. The court further required the trial judge to review the Internal Affairs report in camera and, if a determination is made for disclosure, the appropriate redactions to protect legitimate confidential information should be made.

While New Jersey generally favors disclosure of public documents, case law has made it clear that the courts must carefully review all of the factors set forth in Rivera and Loigman to determine whether Internal Affairs documents are subject to disclosure, whether an expungement order has been entered or not. As a result, whether disclosure will ultimately be ordered will be highly fact sensitive, and lawyers must be careful not to overreach in arguments, but provide the courts with practical reasons for non-disclosure. 

*Matt, a shareholder, is a member of our Professional Liability Department and works in our Mount Laurel, New Jersey, office. 

 

Defense Digest, Vol. 30, No. 4, December 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.