Presented by the Public Entity & Civil Rights Litigation Practice Group

New Jersey Supreme Court Holds That Internal Affairs Investigations May Be Provided Under the Common Law Right of Access

On March 14, 2022, the New Jersey Supreme Court unanimously held that internal affairs investigations are not protected under the common law right of access and, therefore, cannot be withheld based on confidentiality in certain circumstances. In Rivera v. Union County Prosecutor’s Office (A-58-20), the Union County Prosecutor’s Office conducted an internal affairs investigation regarding complaints that the civilian police director of the Elizabeth Police Department used racist and sexist language. The complaints were sustained, and the police director resigned. 

The plaintiff Richard Rivera requested the internal affairs investigation documents based on the Open Public Records Act (OPRA) and the common law. 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. The plaintiff then filed his complaint. The trial court held that the records should be made available pursuant to OPRA. The Appellate Division reversed, holding that the records could not be released pursuant to OPRA and that the interest in preventing disclosure outweighed the plaintiff’s rights to the documents under the common law claim.

The New Jersey Supreme Court found that the internal affairs documents were exempt from disclosure pursuant to N.J.S.A. 47:1A-9(b), which clearly exempts internal affairs reports from public disclosure. However, even though the documents could not be disclosed pursuant to OPRA, OPRA did not limit the right of access to government records under the common law. 

The Court also determined that the lower courts had to decide whether the state’s interest in preventing disclosure outweighed the public’s level of interest. When this balancing test was applied, the Court found that the public’s interest in transparency was paramount in learning of racist and sexist comments made by the head of a police department. The Court set forth factors that the lower courts should use in analyzing this balancing test, including the nature and seriousness of the misconduct, whether it was substantiated, the discipline imposed, the nature of the official’s position and the person’s record of misconduct. However, the Court also ruled that proper redactions would be permitted as to names of complainants, witnesses, informants and cooperators, as well as information that could reasonably lead to the discovery of their names, home addresses, phone numbers and other personal information. The Court remanded the matter to the trial court to apply these factors, to determine if disclosure was appropriate and what redactions would be permitted prior to possible disclosure. 

Based on this ruling, it is imperative that every request for internal affairs investigation documents under both OPRA and the common law right of access be properly reviewed and analyzed based on the language in Rivera. Please do not hesitate to contact me with any questions concerning this case or other issues under the OPRA or the common law right to know. 

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