LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. NEW JERSEY STATE POLICE (L-0345-17, MERCER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5675-16T2
LIBERTARIANS FOR
TRANSPARENT GOVERNMENT,
A NJ NONPROFIT CORPORATION,
Plaintiff-Appellant,
v.
NEW JERSEY STATE POLICE
and DAVID ROBBINS, in his
official capacity as Records
Custodian for the New Jersey
State Police,
Defendants-Respondents.
_______________________________
Argued January 30, 2019 - Decided May 20, 2019
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0345-17.
Michael J. Zoller argued the cause for appellant
(Pashman Stein, PC, attorneys; CJ Griffin, of counsel
and on the brief; Michael J. Zoller, on the brief).
Suzanne M. Davies, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
General, attorney; Raymond R. Chance, III, Assistant
Attorney General, of counsel; Suzanne M. Davies, on
the brief).
PER CURIAM
Plaintiff Libertarians for Transparent Government appeals from a July 20,
2017 order dismissing its complaint under the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, to compel the Division of State Police to
release the name of a trooper listed in the Office of Professional Standard's 2015
annual report to the Legislature as having been terminated for misconduct. We
affirm, essentially for the reasons expressed by Judge Jacobson in her cogent
and comprehensive opinion from the bench.
The facts are easily summarized. Since 2000, the Office of Professional
Standards within the Division of State Police has produced an annual report to
the Legislature entitled "Internal Investigation and Disciplinary Process,"
providing the public with overviews of the discipline imposed on troopers as a
result of substantiated allegations of misconduct over the course of a prior year.
Included within the 2015 annual report synopsis of major discipline was this
entry:
Member pled guilty to acting in an unofficial
capacity to the discredit of the Division while off-duty
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by having questionable associations, engaging in
racially offensive behavior and publicly discussing
police patrol procedures. The member was required to
forfeit all accrued time and separate from employment
with the Division.
After reviewing the report, plaintiff filed an OPRA request seeking the "name,
title, date of separation and reasons therefor," for the member. The Division
denied the request on the basis it sought personnel records exempt from
disclosure under N.J.S.A. 47:1A-10 (section 10). Specifically, the Division
asserted its "internal affairs records are confidential from public disclosure both
because they consist of long-recognized privileged information, and, to the
extent they describe specific individual employees, are individualized personnel
records."
Plaintiff filed a complaint and request for an order to show cause in the
Law Division seeking to compel the State Police to reveal the identity of the
trooper. Plaintiff noted OPRA's personnel records exemption in section 10
contains an exception for the employee's name, title, date of separation and the
reason therefor. It argued the exception was drawn from Governor Byrne's 1974
Executive Order No. 11, which the Supreme Court interpreted as requiring a
public agency to disclose "the results" of an investigation in providing "the
reasons" for a separation. See S. Jersey Publ'g Co. v. N.J. Expressway Auth.,
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124 N.J. 478, 496 (1991). Plaintiff noted it sought only the limited information
explicitly made available by section 10 and nothing about the investigation or
the specifics of the discipline.
The Division sought dismissal of the complaint, arguing section 10 did
not mandate disclosure of the trooper's name. Instead, it simply declared an
employee's name, title, date of separation and the reason therefor a government
record, subject to disclosure only if not otherwise exempt under N.J.S.A. 47:1A-
11 or N.J.S.A. 47:1A-9.2 The Division argued plaintiff was not "only" seeking
1
N.J.S.A. 47:1A-1 provides in pertinent part:
[A]ll government records shall be subject to
public access unless exempt from such access by:
[OPRA] as amended and supplemented; any other
statute; resolution of either or both houses of the
Legislature; regulation promulgated under the authority
of any statute or Executive Order of the Governor;
Executive Order of the Governor; Rules of Court; any
federal law, federal regulation, or federal order.
2
N.J.S.A. 47:1A-9 provides:
a. The provisions of [OPRA], shall not abrogate
any exemption of a public record or government record
from public access heretofore made pursuant to [the
Right-to-Know Law, P.L.1963, c. 73 N.J.S.A. 47:1A-1
to -4]; any other statute; resolution of either or both
Houses of the Legislature; regulation promulgated
under the authority of any statute or Executive Order of
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the limited information permitted in section 10's exception to the personnel
exemption but, armed with the information in the 2015 annual report, was
actually trying to pierce the exemption by linking the trooper to his disciplinary
records, which it contended was not permitted under OPRA.
The Division presented a certification from the major in charge of the
Division's Office of Professional Standards, explaining the purpose of the annual
reports was to explain the disciplinary process in the Division of State Police,
and provide statistical information about complaints and factual summaries of
all completed investigations resulting in discipline to the Governor, the
Legislature and all New Jersey citizens on an annual basis. The major also noted
the Attorney General's Office of Law Enforcement Professional Standards,
created pursuant to the Law Enforcement Professional Standards Act of 2009,
N.J.S.A. 52:17B-222 to -236, and responsible for auditing and monitoring the
the Governor; Executive Order of the Governor; Rules
of Court; any federal law; federal regulation; or federal
order.
b. The provisions of [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, which privilege or grant of
confidentiality may duly be claimed to restrict public
access to a public record or government record.
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Division's internal investigations to ensure compliance with all established
performance standards, also issues periodic reports to the public about trooper
misconduct and the Division's handling of complaints and internal
investigations.
The major explained those reports are designed to further the public
interest in maintaining a level of transparency into the disciplinary process in
order to ensure the integrity of the process and the accountability of law
enforcement while also safeguarding core confidentiality interests essential to
the functioning of the disciplinary system. The major certified that consistent
with the Attorney General's Internal Affairs Policies and Procedures, "[t]he
nature and source of internal allegations, the progress of internal affairs
investigations, and the resulting materials" — beyond that included in the public
reports — is confidential information released only as permitted by the Attorney
General's policies and procedures.
The major averred that "[b]esides being contrary to longstanding practice
and policy, . . . releasing the contents of internal investigative files pursuant to
record requests," could expose a witness, a complainant or member of State
police to public identification. He contended
[m]aintaining integrity and public trust in the [State
Police] requires not only keeping its employees, as well
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as private citizens, confident that they can cooperate
and come forth with information without fear of public
exposure (or worse consequences), but also keeping all
[State Police] members on notice that instances of
actual misconduct will not go unchecked due to such
fears.
The major further expressed the belief that maintaining the integrity of the
Division's internal affairs operations "includes protecting the identities of any
members subject to internal investigations," providing an incentive to some
troopers to cooperate and admit culpability and others to volunteer information
about misconduct. The major expressed the view that public disclosure of "the
limited information protected under longstanding State policy and law
enforcement best practices" of the type sought would quickly erode "the
integrity of the [Division's] internal investigations, and the trust of those who
would volunteer information or who would be subject to investigations."
Plaintiff countered by arguing the threat of public exposure would likely
deter more misconduct and that the public interest is not served by allowing a
trooper to resign in secret following misconduct and go on to employment
elsewhere with no disclosure of his or her misdeeds. Plaintiff also argued t hat
no policy of the Attorney General prohibiting disclosure of the names of troopers
involved in internal affairs investigations can exempt information that section
10 expressly requires to be disclosed.
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Judge Jacobson rejected plaintiff's argument and dismissed its complaint.
After laying out the facts and the parties' competing arguments, the judge turned
to the statute. She began by noting that OPRA was adopted "to provide the
public with insight into the operations of government"; that government records
are to be readily accessible, with certain exceptions, and that the statute is to be
construed in favor of the public's right of access. See N.J.S.A. 47:1A-1; Mason
v. City of Hoboken, 196 N.J. 51, 64 (2008). The judge noted OPRA broadly
defines "government records" but also excludes from that definition twenty-one
different categories of information. N.J.S.A. 47:1A-1.1.
Judge Jacobson further noted the exemption for personnel records is not
included with the list of the other twenty-one exemptions but is set forth in its
own separate section of the statute, denoting the Legislature's significant
concern in ensuring the protection of the personnel and pension records of public
employees. See N.J.S.A. 47:1A-10; Kovalcik v. Somerset Cty. Prosecutor's
Office, 206 N.J. 581, 592 (2011). The judge also noted the language of section
10 which states that "records relating to any grievance filed by or against an
individual, shall not be considered a government record," N.J.S.A. 47:1A-10,
and the Department of Law and Public Safety's subsequent adoption of N.J.A.C.
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13:1E-3.2(a)(4), excluding from the definition of government records subject to
access under OPRA,
4. Records, specific to an individual employee or
employees — other than those records enumerated in
N.J.S.A. 47:1A-10 as available for public access — and
relating to or which form the basis of discipline,
discharge, promotion, transfer, employee performance,
employee evaluation, or other related activities,
whether open, closed, or inactive, except for the final
agency determination.
Acknowledging that section 10 provides an exception for an individual's
name, Judge Jacobson noted providing the trooper's name here "would run right
up against the real thrust of the personnel exemption to reveal misconduct and
discipline" and that "to provide the name would provide the discipline."
Observing that plaintiff's policy arguments were focused on the importance of
holding law enforcement accountable, the judge noted the Legislature in drafting
OPRA "did not make any . . . distinction" between law enforcement officials
and other public employees.
The judge further noted the extent of the information provided regularly
by the Office of Professional Standards and the Attorney General's Office of
Law Enforcement Professional Standards of complaints and discipline against
troopers, albeit without identifying them, consistent with the Attorney General's
long-standing policy of the confidentiality of internal affairs records. The judge
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rejected any argument that internal affairs records were not protected under
section 10 because they were not contained in the personnel file of the trooper,
noting the exemption had not been interpreted so narrowly. See McGee v. Twp.
of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010).
The judge declined the State's invitation to apply a "law enforcement" or
"official information" privilege, finding them not "clearly defined." She noted,
however, that State Police and the Attorney General's Office had been providing
reports to the Legislature detailing trooper discipline without identifying the
troopers involved since 2000, "[a]nd there's been no call for trooper names, no
amendment to OPRA, no distinction between troopers and other public
employees."
Judge Jacobson noted our Supreme Court has observed "that the discipline
of State Troopers involves the most profound and fundamental exercise of
managerial prerogative and policy." See State v. State Troopers Fraternal Ass'n,
134 N.J. 393, 417 (1993). Recognizing the role of the Attorney General as "the
State's chief law enforcement officer [with] the authority to adopt guidelines,
directives, and policies that bind police departments throughout the State ," N.
Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 565 (2017), the
judge found the Attorney General's policy that internal affairs records remain
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confidential has "been acknowledged and followed and not interfered with by
the courts" of this State, "underscor[ing] . . . the appropriate interpretation of the
personnel exemption in the context of this case." Given the primacy of that
policy and section 10's exemption of personnel records "including but not
limited to records relating to any grievance filed by or against an individual ,"
N.J.S.A. 47:1A-10, the judge concluded revealing the trooper's name here, in
light of the information State Police has already publicly disclosed about the
substantiated allegations against the trooper and the discipline imposed, would
reveal information expressly protected by section 10, and thus mandated the
trooper's name not be disclosed.
Plaintiff appeals, reprising the arguments it made to the trial court . We
reject those arguments and affirm substantially for the reasons expressed by
Judge Jacobson in her opinion from the bench on July 20, 2017. We agree with
her analysis that, under the unusual circumstances of this case, disclosure of the
trooper's name pursuant to the narrow exception to the personnel records
exemption in section 10, would violate both the letter and the spirit of the
exemption itself, and was thus properly denied.
Affirmed.
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