The Town Crier - Legislative Backgrounder

For the second time in as many weeks, the Supreme Court of New Jersey released a decision examining record disclosure.  This week, the Court in Richard Rivera v. Union County Prosecutor’s Office, examined a request made under both the Open Public Records Act (OPRA) and the common law seeking access to a police internal affairs report.

This case is notable for two reasons.  First, it states unequivocally that OPRA does not permit access to police internal affairs reports, something the trial court and the Appellate Division had disagreed on in this matter. Second, and more importantly, the Court determined that under certain conditions police internal affairs reports can be subject to disclosure under the common law when interest that favor disclosure outweigh concerns for confidentiality.  The Court goes further, outlining a number of factors to be considered when courts evaluate the need for public disclosure of police internal affairs reports.

The factors set out this week in the Rivera decision are meant to supplement and be used in addition to the well-known factors laid out in Loigman v. Kimmelman. As the court explains, the Loigman factors focus primarily on the State’s interest in preventing disclosure, whereas the new Rivera factors focus on the public’s interest in disclosure.  These two sets of factors are to be considered by a court when conducting the balancing test needed when making a determination as to whether or not to release police internal affairs reports.  

The Rivera factors, used to examine the need for public disclosure, are as follows:

1. Nature and seriousness of the misconduct,
   • Serious misconduct gives rise to a greater interest in disclosure.  For example, misconduct that involves the use of excessive or deadly force, discrimination or bias, domestic or sexual violence, concealment or fabrication of evidence or reports, criminal behavior, or abuse of the public trust can all erode confidence in law enforcement and weigh heavily in favor or public disclosure.
2. Whether the alleged misconduct was substantiated
   • Unsubstantiated or frivolous allegations of misconduct present a less compelling basis for disclosure.
3. The nature of the discipline imposed,
   • Investigations that result in more serious discipline, like an officer’s termination, resignation, reduction in rank, or suspension for a substantial period of time, favor disclosure.
4. The nature of the official’s position,
   • Wrongdoing by high-level officials can impair the work of the department as a whole, including the functioning of the internal affairs process.
5. The individual’s record of misconduct.
   • The public’s interest in disclosure extends to all officers, regardless of rank, whose serious or repeated misconduct may pose a danger to the public.

These are contrasted with the Loigman factors, which are used to examine the need for confidentiality:

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 that individual’s asserted need for the materials.

The details of the Rivera matter help illustrate the application of the new factors within the balancing test.  The Rivera matter centered on an internal affairs investigation into misconduct by a former civilian police director. An investigation found that the former director engaged in racist and sexist behavior while in office.  A request was made under OPRA and the common law seeking access to the internal affairs report.  Access to the report was denied and the requestor filed suit.

The Court weighed the factors for disclosure and determined that a matter such as this, involving high-level officials and substantiated allegations of racist and sexist behavior, could undermine the public’s trust in police operations.  Consequently, the need for disclosure outweighed the need for confidentiality which was supported only by generalized claims.

It will be interesting to see how these factors and the balancing test are applied in future cases but one thing is clear, the courts and public policy lean heavily on the side of disclosure.  

Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x 137.