Police officers in Orange watch an anti-police protest march by them on Oct. 8, 2021. (Daniella Heminghaus for New Jersey Monitor)
Public officials must release police disciplinary records in New Jersey when the public’s interest in them outweighs an officer’s confidentiality concerns, the state’s top court ruled Monday.
Reformers, who have been fighting to open police records for years to increase accountability for misconduct, hailed the decision as a significant win for transparency.
New Jersey Supreme Court Chief Justice Stuart Rabner, writing for a unanimous court, wrote that several factors should prompt the release of internal affairs records: the nature and seriousness of an officer’s misconduct, whether it was substantiated, the discipline imposed, the nature of the official’s position, and the person’s record of misconduct.
Police internal affairs records are exempt from disclosure under the state’s Open Public Records Act (OPRA), Rabner acknowledged. But under the state’s common law right of access, he said, the public interest must be considered.
“The key question is how to balance the need for confidentiality in internal affairs investigations with the public’s interest in transparency when a member of the public seeks access to records of an investigation,” he wrote.
Attorney CJ Griffin, who argued the case on behalf of plaintiff Richard Rivera, said the ruling should help open internal affairs records, at least in the most egregious cases of police misconduct. The decision sets a bar for why such records should be disclosed, unlike previous precedents, which outlined reasons supporting non-disclosure, Griffin added.
“Maybe we’re not going to get the records that are like ‘so-and-so was punished because they were tardy,’ but we’re going to get the ones that are about excessive force and discrimination and cases like this,” Griffin said. “We will have to keep litigating because police departments are so secretive. But I think this decision is going to go a long way to opening these records.”
Public access helps deter instances of misconduct and also helps ensure an appropriate response when misconduct occurs. In the long run, access to reports of police misconduct like the one sought here promotes public trust.
– New Jersey Supreme Court Chief Justice Stuart Rabner
The case stems from a February 2019 internal affairs complaint several Elizabeth Police Department employees filed against James Cosgrove, then the department’s director. The employees reported he used racial and misogynistic slurs in referring to his staff. Internal affairs officers investigated for two months and sustained the allegations, determining he violated Elizabeth’s anti-discrimination and anti-harassment policies.
Rivera, director of the Penns Grove Police Department and a longtime police reformer, filed requests with the Union County Prosecutor’s Office in July 2019 for all internal reports on Cosgrove. The prosecutor’s office denied his request, saying they were personnel records that weren’t public under OPRA.
Rivera sued, and a trial court sided with him, saying the matter “is not about someone’s pension, abuse of sick leave, vacation accumulation and the like” but rather one of “extraordinary public interest.” The court ordered the records released with the names of the complainants redacted.
The prosecutor’s office appealed, and an appeals court reversed the trial court’s decision, saying disclosure would discourage witnesses from coming forward and frustrate the internal affairs process.
Monday’s ruling reverses the appellate decision and orders the trial court to release the records once appropriate redactions have been made, including shielding the names of employees who reported Cosgrove.
In this case, the public interest in disclosure is great, Rabner wrote.
“Racist and sexist conduct by the civilian head of a police department violates the public’s trust in law enforcement. It undermines confidence in law enforcement officers generally, including the thousands of professionals who serve the public honorably,” Rabner wrote. “Public access helps deter instances of misconduct and also helps ensure an appropriate response when misconduct occurs. In the long run, access to reports of police misconduct like the one sought here promotes public trust.”
Rivera called the opinion “huge for transparency in New Jersey on the policing front.”
“This opens the door wide on internal affairs, and it’s going to remove the potential for officers covering for each other, using the internal affairs investigative process to hide,” Rivera said.
The ruling may also serve as a shot in the arm for reformers who have been calling for independent oversight of law enforcement through civilian review boards.
“This ruling opens the door for civilian review, because right now, for the first time, the public is going to get to see how officers investigate themselves — and police do a horrible job policing themselves,” Rivera said.
Criminal justice reformers in New Jersey have tried unsuccessfully for years to get legislators to make police internal affairs records public, as they are in more than half of the country. Several Democratic legislators introduced a bill again in January, and it has been referred to committee in both chambers.
The New Jersey Attorney General’s Office began annually reporting major police discipline last year, but the details reported often are so scant critics complain they fall woefully short of transparency goals.
Police unions, including the New Jersey State Policemen’s Benevolence Association, have vigorously fought such measures. A request for comment on Monday’s ruling from the state PBA wasn’t immediately returned.
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