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N.J. Supreme Court Allows Release of Major Police Disciplinary Records, Requires Estoppel Review of Prior Matters


The New Jersey Supreme Court has ruled that Attorney General Gurbir Grewal acted within his authority when he issued two Directives which required police departments, the N.J. State Police, and other law enforcement agencies to release records of major police discipline. The Court’s ruling allows that procedure to go forward for disciplinary matters resolved after the Directives were issued. However, disclosure of prior disciplinary matters will be stayed pending lower-court scrutiny as to whether the Directives violate estoppel principles.

In its decision, In re Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6, the Court held that the A.G. is authorized by statute to “adopt rules and regulations for the efficient conduct of the work and general administration of the [D]epartment, its officers and employees.” N.J.S.A. 52:17B-4(d). Previous A.G.s have exercised that authority by adopting Internal Affairs Policy and Procedures manuals (“IAPPs”), which law enforcement agencies are required to follow by statute, N.J.S.A. 40A:14-181. The IAPPs always provided that case files were confidential but could be released in limited circumstances. Directives 2020-5 and -6 altered that historical practice by requiring that officers subject to major discipline -- termination, demotion, or more than 5 days’ suspension -- be identified publicly.

The Court held that the disciplinary records at issue are not entitled to an exception to the Open Public Records Act (“OPRA”) or the protections of Executive Order 11 generally afforded to personnel records, as both provide for disclosure as required by other law. The Directives are such law, the Court held, citing prior Supreme Court characterizations of IAPPs as well as statutory law.

The Court applied to the Directives the deferential standard of review due to final agency decisions, and held that the appellants’ arguments against the Directives amounted to policy disagreements which did not satisfy the required showing that the Directives were “arbitrary, capricious, or unreasonable.” The Court found that the A.G. exercised the authority given by the Legislature to develop and revise disciplinary policies, and acted to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the internal affairs process, and to prevent officers from evading the consequences of their misconduct. Thus the A.G.’s actions are consistent with his delegated authority and grounded in reason and are not “arbitrary, capricious, or unreasonable.”

The Court rejected appellants’ Ex Post Facto Clause challenges, finding that the Directives do not retroactively change criminal law or any law, as they are based on existing law. To the extent that the Directives alter existing practice, however, the Court found that principles of estoppel apply, thus requiring more careful attention. Appellants pointed out that each IAPP stresses that records of internal affairs investigations are confidential and that files must be “clearly marked as confidential.” In addition, a series of certifications in the record from the Superintendent of the State Police and others assert that for many years, the internal affairs process has been replete with promises of confidentiality and reassurances from state officials to officers who agreed to discipline. Representations made by the Attorney General in a 2018 brief in another matter appear to validate part of the certifications before the Court in this case. Appellants argued that officers subjected to major discipline for the past twenty years were promised that their names would not be released and relied on those promises in resolving disciplinary accusations, and that the State must stand by those promises. To resolve that serious issue, the Court held, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met for disciplinary matters settled before the Directives were announced.

The Court’s opinion details that process for State Troopers, which will begin with a broad-ranging evidentiary hearing before a single Superior Court judge. The hearing will explore the practice of the State Police relating to disciplinary matters, and the question of confidentiality, in particular, before the Directives were issued. If the lower court finds that promises of confidentiality were made and relied on consistent with the appropriate legal standards, it could bar the release of names of law enforcement officers subject to Directive 2020-6 for disciplinary matters settled before June 19, 2020. If the record does not support such a conclusion for the entire group of officers, the court’s more limited findings may be incorporated and made part of the record in the individual challenges that will undoubtedly follow. The Court provides guidance for those challenges, including that officers will have 45 days to file an action upon receiving notice of proposed disclosure by the A.G.

The Court does not address anticipated challenges to local chief law enforcement executives’ decisions to release names of officers involved in historical discipline. Parties seeking to challenge such local orders on estoppel grounds may file an application with the Assignment Judge in their respective vicinages. The Court authorizes Assignment Judges to set up a process similar to that outlined for State Troopers -- a broad-based evidentiary hearing about an agency’s disciplinary practices, followed by individual as-applied challenges, if necessary.

As the foregoing procedures apply only to matters resolved prior to the Directives, the Court held that the identities of officers subject to major discipline after the Directives were issued in June 2020 may be disclosed. Going forward, all future major disciplinary sanctions can be disclosed in the same manner. Indeed, as this article was being written, the A.G. was issuing another Directive and a revised version of the IAPP in light of the Supreme Court’s decision. Follow this space for discussion of those developments.

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