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NJ Supreme Court Requires Release of Police Internal Affairs Records in Certain Circumstances

Apr 13, 2022 | Written by: Tara A. St. Angelo, Esq. |

In Rivera v. Union County Prosecutor’s Office (March 14, 2022), the New Jersey Supreme Court held that police internal affairs records may be subject to public access in certain circumstances under the common law (with redactions), despite such records not being subject to disclosure under the Open Public Records Act (“OPRA”).

The plaintiff requested certain internal affairs reports from the Union County Prosecutor’s Office regarding an investigation of complaints that the Police Director of the Elizabeth Police Department had used racist and sexist language to refer to employees on many occasions.  The subject director resigned as a result of the report’s findings.  The Prosecutor’s Office denied the request on the grounds that the requested report was exempt from disclosure under both OPRA and the common law.  The plaintiff filed an action in Superior Court seeking release of the requested report under OPRA and/or the common law.  The Prosecutor’s Office and municipality argued that the identity of witnesses needed to remain confidential in order to protect their privacy and the ability of the police department and Prosecutor’s Office to conduct future investigations.

The trial court held that the report should be released under OPRA and the Appellate Division reversed.

The New Jersey Supreme Court held that internal affairs reports are exempt from disclosure under OPRA.  The Court noted that the Attorney General’s Internal Affairs Policy and Procedures manual (IAPP) requires that police internal affairs reports be kept confidential.  N.J.S.A. 40A:14-181 requires all police departments to adopt guidelines consistent with the IAPP.  Pursuant to Section N.J.S.A. 47:1A-9(b), OPRA “shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law.”

Therefore, the Supreme Court moved on to analyze whether the requested report is subject to disclosure under the common law.  The Court, citing to N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 578 (2017), noted that in order to be entitled to the release of documents pursuant to the common law: (1) the requestor must establish an interest in the subject matter of the material; and (2) the requestor’s right to access must be balanced against the public entity’s interest in maintaining the confidentiality of the records.

The Court has often turned to the guidance set forth in Loigman v. Kimmelman, 102 N.J. 98 (1986), to determine if a record must be kept confidential in response to a common law request for access.  However, the Supreme Court noted in this case that the Loigman analysis focuses on the need for confidentiality and not the need for disclosure in the interest of the public.  Therefore, in Rivera, the Supreme Court focused on the public interest in transparency with regard to internal affairs records.  The Supreme Court identified factors to be considered in analyzing the need for transparency in internal affairs investigations:  (1) the nature and seriousness of the misconduct; (2) whether the alleged misconduct was substantiated; (3) the nature of the discipline imposed; (4) the nature of the official’s position; and (5) the individual’s record of misconduct.

Applying these factors to the circumstances in Rivera, the New Jersey Supreme Court found that the public interest in disclosure is enough to warrant to the disclosure of a redacted report.  In arriving at this decision, the Court noted, “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.”  The Supreme Court remanded the matter to the trial court for a determination regarding redactions to address confidentiality concerns.


Tara St. Angelo, Esq. concentrates her practice primarily in the areas of municipal and land use law.  She was named to the NJ Super Lawyers Rising Stars list for State, Local and Municipal law by Thomson Reuters in 2017, 2018, 2019, 2020, and 2021. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.