RICHARD RIVERA VS. UNION COUNTY PROSECUTOR'S OFFICE (L-2954-19, UNION COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-2573-19T3
    RICHARD RIVERA,
    Plaintiff-Respondent,
    v.
    UNION COUNTY
    PROSECUTOR'S OFFICE,
    and JOHN ESMERADO in his
    official capacity as Records
    Custodian for the Union County
    Prosecutor's Office,
    Defendants-Appellants,
    and
    CITY OF ELIZABETH,
    Intervenor-Appellant.
    __________________________
    Argued telephonically May 18, 2020 –
    Decided June 19, 2020
    Before Judges Geiger and Natali.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Docket No. L-2954-19.
    April C. Bauknight, Assistant County Counsel, argued
    the cause for appellants Union County Prosecutor's
    Office and John Esmerado (Robert E. Barry, Union
    County Counsel, attorney; April C. Bauknight, on the
    briefs).
    CJ Griffin argued the cause for respondent (Pashman,
    Stein, Walder & Hayden, PC, attorneys; CJ Griffin, on
    the brief).
    Robert F. Varady argued the cause for intervenor-
    appellant City of Elizabeth (LaCorte, Bundy, Varady &
    Kinsella, attorneys; Robert F. Varady, of counsel;
    Christina M. DiPalo, on the brief).
    PER CURIAM
    The Union County Prosecutor's Office (UCPO) conducted an internal
    affairs (IA) investigation of former Elizabeth Police Department (EPD) Director
    James Cosgrove's alleged workplace misconduct directed at members of the
    EPD. Plaintiff Richard Rivera 1 requested access to the IA investigation report
    pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and
    the common law right of access. The UCPO denied his request.
    1
    Plaintiff "is a retired New Jersey municipal police officer, private consultant,
    civil rights advocate, and expert witness in police practices and policies." Since
    2008, he has "volunteer[ed] his time and resources to the Latino Leadership
    Alliance of New Jersey" and co-chairs its Civil Rights Protection Project.
    A-2573-19T3
    2
    Plaintiff filed this action against defendants UCPO and John Esmerado,
    in his official capacity as Records Custodian for the UCPO, demanding access
    to the IA investigation report. By leave granted, defendants and intervenor City
    of Elizabeth (Elizabeth) (collectively appellants), appeal from a February 6,
    2020 Law Division order requiring the UCPO and Esmerado to produce "the
    complete set of investigation materials that was conducted into the conduct of
    former Elizabeth Police Director James Cosgrove" for in camera review.
    I.
    We summarize the pertinent facts. In February 2019, EPD employees
    filed an internal complaint alleging Cosgrove used racist and sexist epithets
    when referring to his staff. After conducting a two-month IA investigation of
    Cosgrove's conduct, the UCPO sustained the allegations against Cosgrove,
    finding he violated Elizabeth's anti-discrimination and anti-harassment policies.
    In April 2019, the UCPO wrote to the complainants' attorney notifying
    him that "a thorough investigation" revealed that "Cosgrove used derogatory
    terms in the workplace when speaking about city employees." The attorney
    turned the letter over to the media. On April 26, 2019, Attorney General Gurbir
    S. Grewal issued a press release calling for Cosgrove's immediate resignation.
    Attorney General Grewal noted that the IA investigation "concluded that, over
    A-2573-19T3
    3
    the course of many years, Director Cosgrove described his staff using derogatory
    terms, including racist and misogynistic slurs." The media gave substantial
    coverage to the story. Cosgrove resigned shortly thereafter.
    In July 2019, plaintiff submitted an OPRA and common law right of
    access request to the UCPO, seeking the following material with appropriate
    redactions: (1) "the report regarding [the EPD's IA] issues and claims of racism
    and misogyny"; and (2) "all [IA] reports regarding" Cosgrove.
    The UCPO issued a July 10, 2019 letter denying plaintiff's request for the
    documents. As to the requested EPD report, the UCPO advised that "in general,
    . . . no such report exists." As to Cosgrove-related IA reports, the UCPO
    explained that such material is a "personnel and/or internal affairs record[],"
    which is "exempt from disclosure under OPRA" and remains confidential
    pursuant to the Internal Affairs Policy & Procedures (IAPP) promulgated by the
    Attorney General,2 absent "a court order or consent of the Prosecutor or Law
    Enforcement Executive."
    2
    The IAPP is issued by the Attorney General through the Division of Criminal
    Justice and has been periodically updated, most recently in December 2019.
    While the 2017 version was in effect when plaintiff filed this action, we cite to
    the December 2019 version because the revisions do not affect our analysis.
    A-2573-19T3
    4
    The UCPO also denied plaintiff's common law request, asserting that its
    "interest[s] in maintaining confidentiality significantly outweigh [plaintiff's]
    interests in disclosure." The UCPO explained that releasing the IA reports
    would have a chilling effect on individuals reporting wrongdoing. It noted that
    "remedial measures" had been taken, which included Cosgrove's resignation and
    requiring the EPD "to be retrained on issues of implicit bias and workplace
    harassment."
    On August 21, 2019, plaintiff filed this action against the UCPO and
    Esmerado alleging violations of OPRA (count one) and the common law right
    of access (count two). The court issued an order to show cause (OTSC) directing
    defendants to explain why judgment should not be entered granting plaintiff
    access to the records and awarding attorney's fees.          Elizabeth moved to
    intervene, which was granted.
    During oral argument before the trial court, plaintiff's counsel
    acknowledged the need to redact information identifying the complainants.
    Counsel stated that plaintiff "doesn't care about who the complainants are. He
    doesn't want identifying information. This is just about the facts as it relates to
    former director Cosgrove, not the people who made the allegations."
    A-2573-19T3
    5
    The court issued an oral decision and February 6, 2020 order partially
    granting plaintiff's OPRA application, requiring defendants to produce "the
    complete set of investigation materials for the investigation that was conducted
    into the conduct of . . . Cosgrove to be reviewed in camera and under seal."
    The court acknowledged the competing interests of confidentiality and
    transparency. It noted that "[t]here is certainly a justification for a level of
    secrecy to protect people who . . . would be putting themselves in jeopardy
    depending on how they . . . were to testify. So, that's a justification for normally
    keeping these things private." The court recognized that "[IA] investigations of
    this type are normally not made public under the theory that investigations
    should be free to explore complaints and issues and witnesses" without the
    possibility of public disclosure that "could subject them to harm." But the court
    also expressed "fear that serious matters are covered up by the secrecy with
    which [IA] investigations have been cloaked."
    During oral argument before the trial court, a colloquy ensued regarding
    whether any public announcements about the IA investigation were "akin" to a
    waiver of the right to confidentiality. The trial court did not find appellants had
    waived the right to confidentiality but noted the UCPO and Elizabeth had
    "publicly affirmed that [the] allegations were based in fact and one of the
    A-2573-19T3
    6
    particular individuals involved in the inappropriate tendencies is no longer with
    the [EPD] as a result." The court concluded that the acting prosecutor's report
    about the investigation and findings and Elizabeth's "publicly announced
    corrective action" rendered "the normal reasons for keeping the [IA] reports
    secret . . . not as valid as they would otherwise be in a routine case."
    The court stated it was unaware of any binding precedent prohibiting
    release of IA materials and noted the IAPP expressly permits the release of such
    material by court order.
    In rejecting appellants' argument that OPRA's personnel record exemption
    applies, the court reasoned the matter at issue "is not about someone's pension,
    abuse of sick-leave, vacation accumulation and the like" but rather one of
    "extraordinary public interest."
    The court recognized the risk that complainants and witnesses could face
    retribution or intimidation if their identities were detected.             The Court
    acknowledged its "obligation to attempt to protect those individuals who could
    unnecessarily be at risk by public disclosure."
    Ultimately, the court required that "all aspects" of the UCPO's
    investigation be provided for in camera review under seal.                 To protect
    confidentiality, the court stated it would redact "not just the names, but the
    A-2573-19T3
    7
    circumstances by which" the complainants and witnesses "could well be
    identified."
    The court did not reach plaintiff's common law right of access claim and
    reserved judgment on plaintiff's application for an award of counsel fees. The
    court subsequently denied defendant's motion to stay the order and plaintiff's
    motion for reconsideration as to its common law right of access claim.
    We granted the UCPO leave to appeal, stayed the trial court's order, and
    permitted Elizabeth to intervene in the appeal.
    On appeal, the UCPO raises the following points:
    I. THE TRIAL COURT ERRED IN CONCLUDING
    THAT [IA] MATERIAL ARE NOT PERSONNEL
    RECORDS, AND THEREFORE NOT WITHIN AN
    EXEMPTION WITHIN N.J.S.A. 47:1A-10.
    II. THE   ATTORNEY     GENERAL'S  [IAPP]
    REINFORCE     THE       LONG-RECOGNIZED
    CONFIDENTIALITY OF [IA] RECORDS.
    III. THE TRIAL COURT MISCHARACTERIZED
    THE HOLDING OF O'SHEA3 BY INFERRING THAT
    A USE OF FORCE REPORT IS SIMILAR TO AN [IA]
    REPORT.
    IV. THE TRIAL COURT PREMATURELY
    DISCUSSED ATTORNEY'S FEES THEREBY
    SIGNALING A DECISION WAS ALREADY MADE.
    3
    O'Shea v. Twp. of W. Milford, 
    410 N.J. Super. 371
    (App. Div. 2009).
    A-2573-19T3
    8
    V. THE DISCLOSURE OF [IA] MATERIAL WILL
    ERADICATE THE STATE'S PUBLIC POLICY TO
    MAINTAIN THE CONFIDENTIALITY OF [IA] AND
    SET PRECEDENT WHICH WILL STRONGLY
    DEVIATE FROM LEGISLATIVE INTENT.
    In turn, Elizabeth raises the following additional points:
    I. THE TRIAL COURT ERRONEOUSLY GRANTED
    THE PLAINTIFF'S [OTSC] AS THE UNION
    COUNTY      PROSECUTOR'S  [IA]  REPORT
    RELATING TO THE INVESTIGATION OF JAMES
    COSGROVE IS CONFIDENTIAL AND CANNOT BE
    RELEASED UNDER OPRA.
    II. THE TRIAL COURT ERRONEOUSLY GRANTED
    THE PLAINTIFF'S [OTSC] AS THE UNION
    COUNTY       PROSECUTOR'S  [IA]  REPORT
    RELATING TO THE INVESTIGATION OF JAMES
    COSGROVE IS EXEMPT FROM OPRA AS IT
    CONSTITUTES A PERSONNEL RECORD.
    III. THE TRIAL COURT'S DECISION IS NOT
    SUPPORTED BY THE RECORD IN THIS CASE.
    II.
    We begin our analysis by briefly reviewing OPRA's purpose,
    requirements, and application. The Legislature enacted OPRA "to promote
    transparency in the operation of government." Sussex Commons Assocs., LLC
    v. Rutgers, 
    210 N.J. 531
    , 541 (2012) (citing Burnett v. Cty. of Bergen, 
    198 N.J. 408
    , 414 (2009)). "[T]o ensure an informed citizenry and to minimize the evils
    inherent in a secluded process," OPRA provides the public with broad access to
    A-2573-19T3
    9
    "government records . . . unless an exemption applies." In re N.J. Firemen's
    Ass'n Obligation, 
    230 N.J. 258
    , 276 (2017) (citations omitted). To fulfill that
    purpose, N.J.S.A. 47:1A-1 provides that "government records shall be readily
    accessible . . . by the citizens of this State, with certain exceptions, for the
    protection of the public interest, and any limitations on the right of access . . .
    shall be construed in favor of the public's right of access." See also N. Jersey
    Media Grp., Inc. v. Twp. of Lyndhurst, 
    229 N.J. 541
    , 555 (2017)
    (acknowledging this statutory mandate).
    "Government record" is broadly defined under OPRA to include any
    document "made, maintained or kept on file in the course of . . . official business
    by any officer, commission, agency or authority of the State or of any political
    subdivision   [or]   subordinate    boards   thereof."      N.J.S.A.   47:1A-1.1.
    Notwithstanding OPRA's expansive reach, "the right to disclosure is not
    unlimited." Kovalcik v. Somerset Cty. Prosecutor's Office, 
    206 N.J. 581
    , 588
    (2011).   N.J.S.A. 47:1A-1.1 expressly excludes twenty-one categories of
    documents and information from its definition of a government record.
    Relevant here, OPRA's broad right to access is limited by "established
    public-policy exceptions," which declare that "government record[s] shall not
    include . . . information which is deemed to be confidential." Gilleran v. Twp.
    A-2573-19T3
    10
    of Bloomfield, 
    227 N.J. 159
    , 170 (2016) (second alteration in original) (quoting
    N.J.S.A. 47:1A-1.1). Such confidential information includes personnel records
    and grievances. N.J.S.A. 47:1A-1.1, -10.
    "OPRA also contains a privacy clause requiring public agencies 'to
    safeguard from public access a citizen's personal information with which it has
    been entrusted when disclosure thereof would violate the citizen's reasonable
    expectation of privacy[.]'" L.R. v. Camden City Pub. Sch. Dist., 
    452 N.J. Super. 56
    , 80 (App. Div. 2017) (alteration in original) (quoting N.J.S.A. 47:1A-1), aff'd
    by an equally divided Court, 
    238 N.J. 547
    (2019). Courts consider the following
    factors when determining whether a government record must be withheld or
    redacted prior to disclosure under OPRA:
    (1) the type of record requested; (2) the information it
    does or might contain; (3) the potential for harm in any
    subsequent nonconsensual disclosure; (4) the injury
    from disclosure to the relationship in which the record
    was generated; (5) the adequacy of safeguards to
    prevent unauthorized disclosure; (6) the degree of need
    for access; and (7) whether there is an express statutory
    mandate, articulated public policy, or other recognized
    public interest militating toward access.
    
    [Burnett, 198 N.J. at 427
    (quoting Doe v. Poritz, 
    142 N.J. 1
    , 88 (1995)).]
    Additional provisions exempt government records from public access.
    Pertinent to this appeal, the statute "exempts from disclosure any information
    A-2573-19T3
    11
    that is protected by any other state or federal statute, regulation, or executive
    order." Brennan v. Bergen Cty. Prosecutor's Office, 
    233 N.J. 330
    , 338 (2018)
    (citing N.J.S.A. 47:1A-9(a) (stating that OPRA's provisions "shall not abrogate
    any exemption of a public record or government record from public access "
    under "any other statute" or "regulation promulgated under the authority of any
    statute or Executive Order of the Governor")); see also N.J.S.A. 47:1A-1.
    Nevertheless, exemptions from disclosure under OPRA should be
    construed "narrowly." Asbury Park Press v. Cty. of Monmouth, 
    406 N.J. Super. 1
    , 8 (App. Div. 2009). The reasons for non-disclosure "must be specific" and
    courts should not "accept conclusory and generalized allegations of
    exemptions." Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth.,
    
    423 N.J. Super. 140
    , 162 (App. Div. 2011) (quoting Loigman v. Kimmelman,
    
    102 N.J. 98
    , 110 (1986)). "The public agency [has] the burden of proving that
    the denial of access is authorized by law." N.J.S.A. 47:1A-6. "To justify non-
    disclosure, the agency must make a 'clear showing' that one of the law's listed
    exemptions is applicable." 
    Lyndhurst, 229 N.J. at 555
    (quoting Asbury Park
    Press v. Ocean Cty. Prosecutor's Office, 
    374 N.J. Super. 312
    , 329 (Law Div.
    2004)).
    A-2573-19T3
    12
    We undertake de novo review of "determinations about the applicability
    of OPRA and its exemptions." N.J. Firemen's Ass'n 
    Obligation, 230 N.J. at 273
    -
    74 (citations omitted). We also undertake de novo review of trial court decisions
    concerning access to government records under the common law right of access.
    Drinker Biddle & Reath LLP v. Dep't of Law & Pub. Safety, 
    421 N.J. Super. 489
    , 497 (App. Div. 2011).
    III.
    A.
    The Legislature has declared that personnel records "shall not be
    considered a government record and shall not be made available for public
    access," N.J.S.A. 47:1A-10, "unless it falls within one of the statutory"
    exceptions, 
    Kovalcik, 206 N.J. at 593
    .
    Defendants contend the IA report is a "personnel record" and thus exempt
    from disclosure, noting it "originated from a specific complaint against
    [Cosgrove]." The trial court disagreed, concluding the IA reports were unlike
    typical personnel records such as an employee's pension or sick leave records.
    We concur with that aspect of the trial court's analysis.
    The Attorney General does not consider IA case files and materials to be
    personnel records.    On the contrary, "[p]ersonnel records are separate and
    A-2573-19T3
    13
    distinct from [IA] investigation records, and [IA] investigative reports shall
    never be placed in personnel records, nor shall personnel records be co-mingled
    with [IA] files." IAPP § 9.12.1. This prohibition applies even where the
    "complaint is sustained, and discipline imposed."
    Id. at §
    9.12.2. Accordingly,
    the IA materials are not exempt from disclosure as "personnel records."
    B.
    Plaintiff emphasizes OPRA does not contain a specific reference to the
    IAPP or enumeration of IA investigation reports as documents that are not
    government records. However, a literal review of the statute overlooks the depth
    of the recognized exemptions.
    In North Jersey Media Group v. Bergen County Prosecutor's Office, we
    explained that the available exemptions to disclosure are not limited to "those
    enumerated as protected categories within the four corners of OPRA" because
    "N.J.S.A. 47:1A-1 explicitly recognizes that records may be exempt from public
    access based upon authorities other than the exemptions enumerated within
    OPRA." 
    447 N.J. Super. 182
    , 201-02 (App. Div. 2016). We further explained
    that "N.J.S.A. 47:1A-9 codifies the Legislature's unambiguous intent that OPRA
    not abrogate or erode existing exemptions to public access."
    Id. at 202.
    This
    includes any "regulation promulgated under the authority of any statute or
    A-2573-19T3
    14
    Executive Order of the Governor" and "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."
    Ibid. (emphasis omitted) (quoting
    N.J.S.A. 47:1A-9). We emphasized that "the plain language of the
    statute as well as judicial precedent make it clear that an exemption is statutorily
    recognized by OPRA if it is established by any of the authorities enumerated in
    N.J.S.A. 47:1A-1 or -9."
    Ibid. "The Attorney General
    is the State's chief law enforcement officer [with]
    the authority to adopt guidelines, directives, and policies that bind police
    departments throughout the State."        
    Lyndhurst, 229 N.J. at 565
    .        These
    "guidelines, directives or policies cannot be ignored," 
    O'Shea, 410 N.J. Super. at 383
    , and "are binding upon local law enforcement agencies," Fraternal Order
    of Police, Newark Lodge No. 12 v. City of Newark, 
    459 N.J. Super. 458
    , 500
    (App. Div.), certif. granted, 
    240 N.J. 7
    (2019) (emphasis omitted) (citing
    
    O'Shea, 410 N.J. Super. at 383
    ; In re Carroll, 
    339 N.J. Super. 429
    , 439, 442-43
    (App. Div. 2001)).
    We recognize that the IAPP along with other Attorney General guidelines,
    directives, and policies are not adopted in the same way other agencies adopt
    administrative rules promulgated under the Administrative Procedure Act
    A-2573-19T3
    15
    (APA), N.J.S.A. 52:14B-1 to -15. However, the IAPP does not consist of
    "'administrative rules' as defined in N.J.S.A. 52:14B-2(e)," and "do not require
    formal promulgation under the [APA]." 
    O'Shea, 410 N.J. Super. at 383
    ; accord
    
    Carroll, 339 N.J. Super. at 442-43
    (holding that the IAPP was "not required to
    be promulgated pursuant to the APA" because it "fall[s] within the [APA's]
    statutory exception for 'statements concerning the internal management or
    discipline of any agency'" (quoting N.J.S.A. 52:14B-2(e))).
    IA investigations by law enforcement agencies fall under the supervision
    of the Attorney General. N.J.S.A. 52:17B-98. The IAPP was adopted pursuant
    to the authority granted to the Attorney General by N.J.S.A. 40A:14-181, which
    states: "Every law enforcement agency . . . shall adopt and implement guidelines
    which shall be consistent with the guidelines governing the [IAPP] . . . ."
    The IAPP sets forth the policies, procedures, and best practices that all
    county and municipal law enforcement agencies are required to follow. IAPP §
    1.0.4. See McElwee v. Borough of Fieldsboro, 
    400 N.J. Super. 388
    , 395 (App.
    Div. 2008) (stating that N.J.S.A. 40A:14-181 "requires every law enforcement
    agency to adopt and implement guidelines consistent with the Attorney
    General's [IAPP])." A crucial aspect of those policies is the confidentiality of
    IA investigation case files. With limited exceptions, IA records are accessible
    A-2573-19T3
    16
    only to IA personnel, the law enforcement agency executive, and the county
    prosecutor, keeping the number of individuals with access to a minimum.
    Section 9.6.1 sets forth the following confidentiality requirements:
    The nature and source of internal allegations, the
    progress of internal affairs investigations, and the
    resulting materials are confidential information. The
    contents of an internal investigation case file, including
    the original complaint, shall be retained in the internal
    affairs function and clearly marked as confidential. The
    information and records of an internal investigation
    shall only be released or shared under the following
    limited circumstances:
    (a) If administrative charges have been brought
    against an officer and a hearing will be held, a
    copy of all discoverable materials shall be
    provided to the officer and the hearing officer
    before the hearing;
    (b) If the subject officer, agency or governing
    jurisdiction has been named as a defendant in a
    lawsuit arising out of the specific incident
    covered by an internal affairs investigation, a
    copy of the internal investigation reports, may be
    released to the subject officer, agency or
    jurisdiction;
    (c) Upon the request or at the direction of the
    County Prosecutor or Attorney General; or
    (d) Upon a court order.
    "In addition, the law enforcement [agency's executive officer] may authorize
    access to a particular file or record for good cause."
    Id.
    at §
    9.6.2. Such access
    A-2573-19T3
    17
    should be granted "sparingly, given the purpose of the [IA] process and the
    nature of many of the allegations against officers."
    Ibid. Even Civilian Review
    Boards have limited access to IA investigations and
    are subject to strict confidentiality requirements. "Internal investigation case
    files generally are not releasable to Civilian Review Boards" unless the
    investigation is "completed or closed," "good cause" is shown, "and the [Board]
    has in place certain minimum procedural safeguards, as described in Section
    9.7.2, to preserve the confidentiality of the requested records and the integrity
    of the [IA] function, in addition to complying with all other applicable legal
    requirements."
    Id. at §
    9.7.1.
    In turn, Section 9.7.2(b)(1) requires that a Civilian Review Board must
    meet "in a closed session whenever the content of [IA] records are discussed or
    testimony or other evidence regarding a specific incident is presented." The
    Civilian Review Board may not disclose any part of an IA file "to any person
    who is not a Board member or employee, the law enforcement executive, or a
    member of the law enforcement agency's [IA] function, except in a final public
    report appropriately redacted in accordance with instructions from the law
    enforcement executive."
    Id. at §
    9.7.2(b)(2). Further, "the Civilian Review
    A-2573-19T3
    18
    Board's final public report . . . may not disclose the personal identity of subject
    officers, complainants, or witnesses."
    Id. at §
    9.7.2(b)(3).
    These comprehensive restrictions are clearly designed to preserve the
    integrity and confidentiality of all IA investigations.
    In accordance with N.J.S.A. 40A:14-181, the UCPO adopted and
    implemented policies consistent with the IAPP to govern its IA investigations.
    The Use of Force Policy issued by the Attorney General "has 'the force of
    law for police entities.'" 
    Lyndhurst, 229 N.J. at 565
    (quoting O'Shea, 410 N.J.
    Super. at 382). Similar to the Use of Force guidelines examined in Lyndhurst
    and O'Shea, we conclude the IAPP was created pursuant to such a statutory
    mandate and has "the force of law in respect of the duties of law enforcement
    agencies to conform to the requirements" when conducting internal affairs
    investigations. 
    O'Shea, 410 N.J. Super. at 384
    .
    The trial court noted that the IAPP states that an IA investigation case file
    may be released by court order. It found that provision "suggest[ed] that in some
    circumstances, a court may view that an [IA] investigation should be made
    public" under OPRA and the common law right of access. Although we agree
    that the court may order the release of an IA investigation case file when
    A-2573-19T3
    19
    appropriate to do so, 4 IAPP Section 9.6.1(d) does not create an independent
    substantive basis for release.
    Applying these standards, we hold that IA investigation reports and
    documents are exempt from disclosure under OPRA and reverse the order
    compelling defendants to produce the complete record of the IA investigation
    relating to Cosgrove's conduct for in camera review.
    The documents plaintiff requested involved internal complaints filed by
    subordinates against Cosgrove. Accordingly, the resulting IA investigation of
    Cosgrove's conduct, and potential disciplinary action, "implicate[d] interests
    beyond those of the parties themselves." 
    Kovalcik, 206 N.J. at 595
    . Requiring
    disclosure of such records could well result in far reaching negative impact,
    impairing the laudable goals of IA investigations.
    4
    There may be instances where an IA investigation case file is relevant and
    probative in the defense of criminal charges or the prosecution of a civil action
    brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -
    42; the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2; or Conscientious
    Employee Protection Act, N.J.S.A. 34:19-1 to -14. No such circumstances are
    present here.
    A-2573-19T3
    20
    There are many reasons for maintaining confidentiality of the
    complainants, witnesses, and officers involved in an IA investigation. As we
    recently explained:
    Disclosure of a complainant's identity could
    thwart an IA investigation, criminal investigation, or
    prosecution, or could disclose the name of an
    informant, and could taint an officer who was
    wrongfully accused.      It could also discourage
    complainants from coming forward, or encourage
    unwarranted complaints from people seeking
    notoriety.5
    [Fraternal Order of 
    Police, 459 N.J. Super. at 507
    .]
    In addition, disclosure of the complainants, witnesses, and subject officers
    could: reveal the name and location of inmates and informants, which may
    5
    Some of these same concerns mirror the need for confidentiality under the
    Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25. The Legislature found that
    "[f]ear of sanctions induces health care professionals and organizations to be
    silent about adverse events, resulting in serious under-reporting." N.J.S.A.
    26:2H-12.24(e). It "reasoned that health care professionals and other facility
    staff are more likely to effectively assess adverse events in a confidential setting,
    in which an employee need not fear recrimination for disclosing his or her own
    medical error, or that of a colleague." C.A. ex rel. Applegrad v. Bentolila, 
    219 N.J. 449
    , 464 (2014). To achieve that result, the Act provides that "[a]ny
    documents, materials, or information developed by a health care facility as part
    a process of self-critical analysis conducted pursuant to [N.J.S.A. 26:2H-
    12.25(b)] shall not be . . . subject to discovery or admissible as evidence or
    otherwise disclosed in any civil, criminal, or administrative action or
    proceeding." N.J.S.A. 26:2H-12.25(g)(1).
    A-2573-19T3
    21
    subject them to harm; discourage complainants from coming forward because
    they will not maintain anonymity; and encourage unwarranted complaints to
    seek notoriety or target an officer for reasons other than wrongdoing.
    While we recognize that the trial court intended to redact the names and
    identifying circumstances to protect the complainants and witnesses from
    retribution and intimidation, that task would likely prove very difficult , if not
    impossible. See 
    L.R., 452 N.J. Super. at 90
    (recognizing that "[u]nder certain
    circumstances, even the redaction of all personally identifiable information
    would not prevent reasonable persons . . . from identifying" an individual);
    
    Lyndhurst, 441 N.J. Super. at 111
    (noting that "[i]n some cases, in camera
    review of a Vaughn index6 may be appropriate, because the release of even a
    'detailed Vaughn index' to a requesting party 'may in some cases enable astute
    parties to divine with great accuracy the names of confidential informers,
    sources, and the like'" (quoting 
    Loigman, 102 N.J. at 111
    )).         Because the
    6
    "A Vaughn index is comprised of affidavits containing a 'relatively detailed'
    justification for the claim of privilege being asserted for each document. The
    judge analyzes the index to determine, on a document-by-document basis,
    whether each such claim of privilege should be accepted or rejected." Paff v.
    Div. of Law, 
    412 N.J. Super. 140
    , 161 n.9 (App. Div. 2010) (citing Vaughn v.
    Rosen, 
    484 F.2d 820
    , 826-27 (D.C. Cir. 1973). The affidavits "ordinarily" omit
    "excessive reference to the actual language of the document." 
    Vaughn, 484 F.2d at 826-27
    .
    A-2573-19T3
    22
    complainants and witnesses are members of the EPD, their statements disclosing
    the racist and sexist slurs that Cosgrove uttered, and his other discriminatory
    actions, would likely disclose their identity or narrow the field to only a few
    individuals, even if all personally identifiable information is redacted. Other
    members of the EPD, as well as Cosgrove himself, could probably deduce who
    reported the behavior.
    We question the adequacy of a redaction process that simply deletes
    "names and circumstances" while leaving other information that would need to
    be scrubbed from the records to prevent identification of the complainants and
    witnesses from the redacted document. The identity of those persons can often
    be readily determined from context or information that a judge conducting an in
    camera review may deem innocuous. The ability to identify the complainants
    and witnesses may well impair their safety and otherwise put them at risk of
    retribution or intimidation.
    In addition, as we have noted, disclosure of the IA investigation would
    discourage complainants and witnesses from coming forward in the future.
    Particularly in the context of an IA investigation based on employees of a police
    department complaining of discriminatory treatment by fellow employees or
    their superior, the fear that anonymity will not be maintained could lead to
    A-2573-19T3
    23
    employees remaining silent about misconduct, thereby thwarting IA
    investigations and resulting corrective and disciplinary action.
    The trial court alluded to appellants waiving the right to contest disclosure
    of the IA investigation file due to the public statements made following the
    conclusion of the investigation. We find no such waiver.
    "Generally, waiver is defined 'as the voluntary and intentional
    relinquishment of a known and existing right.'"         Quigley v. KPMG Peat
    Marwick, LLP, 
    330 N.J. Super. 252
    , 267 (App. Div. 2000) (emphasis omitted)
    (quoting Williston on Contracts, § 39:14 (Lord ed. 2000)). "[T]here must be a
    clear act showing the intent to waive the right." Cty. of Morris v. Fauver, 
    153 N.J. 80
    , 104 (1998) (citing W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 
    27 N.J. 144
    , 152 (1958)).
    The limited information contained in the statements did not constitute an
    intentional surrender of the right to assert the IA materials were confidential.
    The statements did not identify the complainants or witnesses or disclose the
    details of the internal complaints, the statements of witnesses, or other
    confidential information. At most, the statements provided confirmation that
    the investigation substantiated the allegations that Cosgrove had uttered
    sexually harassing and racist slurs towards EPD employees, and that Cosgrove
    A-2573-19T3
    24
    should resign.   This limited disclosure did not amount to a voluntary and
    intentional waiver of the confidentiality of the IA investigation.
    Finally, we disagree with the trial court's conclusion that "the normal
    reasons for keeping the [IA] reports secret . . . are not as valid as they would
    otherwise be" because "[t]he acting prosecutor issued a rather lengthy report
    about the prosecutor's investigation and findings" and "Elizabeth publicly
    announced corrective action." The statements made by the UCPO and the
    Attorney General carefully avoided revealing information that would indirectly
    identify the complainants and witnesses. The limited information provided did
    not include the target of the slurs; the specific language used; or the specific
    date, time, or location of the misconduct. Nor did it describe the circumstances
    leading up to or following Cosgrove's actions.
    Because we hold that the IA investigation file and report are exempt from
    disclosure under OPRA, we do not reach the issue of attorney's fees.
    C.
    OPRA contains a separate exemption for grievances. "A government
    record shall not include the following information which is deemed to be
    confidential for the purposes of [OPRA]: . . . information generated by or on
    behalf of public employers or public employees in connection with any sexual
    A-2573-19T3
    25
    harassment complaint filed with a public employer or with any grievance filed
    by or against an individual."     N.J.S.A. 47:1A-1.1.7    Appellants argue that
    disclosure is precluded under this exemption.
    The limited record does not contain the internal complaints filed against
    Cosgrove or any other part of the IA investigation file. Appellants did not move
    to supplement the record to include those documents by way of confidential
    supplemental appendix. We are thus unable to review the format of the internal
    complaints, the relief sought, whether they were filed pursuant to a collective
    bargaining agreement, how they were presented, or the process the EPD initially
    undertook when reviewing them. Consequently, we are effectively prevented
    from determining if the complaints and resulting investigation fall within
    OPRA's grievance exemption.
    7
    We note that the Department of Law and Public Safety adopted a more
    expansive grievance exception, which precludes OPRA access to any records
    "specific to an individual employee . . . 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." N.J.A.C. 13:1E-3.2(a)(4). This definition
    includes an IA investigation file relating to or forming the basis for discipline
    or discharge based on racially or sexually discriminatory misconduct directed at
    subordinate employees. We recognize, however, that this regulation applies to
    the Department of Law and Public Safety, not local law enforcement agencies.
    A-2573-19T3
    26
    Moreover, appellants have not demonstrated, much less made a "clear
    showing," that the grievance exemption applies in this matter.        Appellants
    acknowledge that the UCPO's July 2019 denial letter to plaintiff's counsel did
    not rely upon or even cite OPRA's grievance exemption. See Newark Morning
    Ledger 
    Co., 423 N.J. Super. at 162
    (App. Div. 2011) ("[T]he reasons for
    withholding documents must be specific. Courts will 'simply no longer accept
    conclusory and generalized allegations of exemptions.'" (Quoting 
    Loigman, 102 N.J. at 110
    )). Appellants' briefing to this court likewise fails to adequately
    address the grievance exemption. 8
    The limited record and appellants' inadequate briefing significantly
    impedes meaningful appellate review of this issue, which has not been addressed
    in any published opinion. We therefore decline to address the issue. 9
    8
    Appellants each cite the grievance exemption a single time in their appellate
    briefs: The UPCO asserts "while not explicitly stated in its original denial, " it
    denied "[p]laintiff's records request in accordance with N.J.S.A. 47:1A-1.1[]
    which prohibits the disclosure if records concerning the filing of a grievance
    against an employee"; Elizabeth merely notes that OPRA's exemptions include
    "records concerning the filing of a grievance by or against a public employee."
    9
    Appellate counsel is required to identify and fully brief any issue raised on
    appeal. See Sackman v. N.J. Mfrs. Ins. Co., 
    445 N.J. Super. 278
    , 298 (App. Div.
    2016); State v. Hild, 
    148 N.J. Super. 294
    , 296 (App. Div. 1977). An argument
    based on conclusory statements is insufficient to warrant appellate review.
    Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment , 361
    A-2573-19T3
    27
    IV.
    Plaintiff also sought release of the IA reports under the common law right
    of access. The trial court did not reach this issue.
    The common law right of access reaches a broader class of documents
    than its statutory counterpart. Higg-A-Rella, Inc. v. Cty. of Essex, 
    141 N.J. 35
    ,
    46 (1995) (citing Atl. City Convention Ctr. Auth. v. S. Jersey Publ'g Co., 
    135 N.J. 53
    , 60 (1994)). "To gain access to this broader class of materials, the
    requestor must make a greater showing than OPRA requires . . . ." 
    Lyndhurst, 229 N.J. at 578
    . The common law right to access public records hinges on three
    requirements: "(1) the records must be common-law public documents; (2) the
    person seeking access must establish an interest in the subject matter of the
    material; and (3) the citizen's right to access must be balanced against the State's
    interest in preventing disclosure." Keddie v. Rutgers, 
    148 N.J. 36
    , 50 (1997)
    (citations and internal quotation marks omitted).       Furthermore, because the
    common law right of access to documents is qualified, "one seeking access to
    such records must 'establish that the balance of its interest in disclosure against
    N.J. Super. 22, 45 (App. Div. 2003) (citing Miller v. Reis, 
    189 N.J. Super. 437
    ,
    441 (App. Div. 1983)). "[A]ny privacy concerns about a disclosure sought
    pursuant to OPRA or the common law should be explained in detail." Paff
    v.Ocean Cty. Prosecutor's Office, 
    235 N.J. 1
    , 28 (2018).
    A-2573-19T3
    28
    the public interest in maintaining confidentiality weighs in favor of disclosure. '"
    Ibid. (quoting Home News
    v. Dep't of Health, 
    144 N.J. 446
    , 454 (1996)).
    Here, there is no dispute that the IA documents are common law public
    records. The items sought are "written memorial[s] . . . made by a public officer,
    and . . . the officer [is] authorized by law to make it." Nero v. Hyland, 
    76 N.J. 213
    , 222 (1978) (quoting Josefowicz v. Porter, 
    32 N.J. Super. 585
    , 591 (App.
    Div. 1954)). Plaintiff has the requisite interest in the subject matter of the
    documents "to further a public good." 
    Loigman, 102 N.J. at 104
    . Accordingly,
    the critical factor is whether plaintiff's right to the documents outweighs
    defendants' interest in preventing disclosure. The balancing of the competing
    interests in disclosure and confidentiality often involves an "exquisite weighing
    process."
    Id. at 108
    (citation omitted).
    Our Supreme Court provided the following non-exhaustive list of factors
    to consider in balancing the requester's needs against the public agency's interest
    in 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 decisionmaking will be chilled by disclosure;
    A-2573-19T3
    29
    (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 the individual's asserted need for the
    materials.
    
    [Loigman, 102 N.J. at 113
    .]
    "To conduct the careful balancing that each case" requires, courts should
    "look in particular at the level of detail contained in the materials requested. "
    
    Lyndhurst, 229 N.J. at 580
    .       "More detailed disclosures" present greater
    concerns.
    Ibid. To that end,
    "courts may perform an in camera inspection of
    the requested records as they balance the relevant factors," 
    L.R., 452 N.J. Super. at 89
    (citing 
    Keddie, 148 N.J. at 53-54
    ), and "are authorized to require the
    redaction of records to maintain confidentiality,"
    Id. at 90
    (citing S. Jersey
    Publ'g Co. v. N.J. Expressway Auth., 
    124 N.J. 478
    , 499 (1991)).
    When weighing these competing interests, "administrative regulations
    bestowing confidentiality upon an otherwise public document, although not
    dispositive of whether there is a common law right to inspect a public record,
    should, nevertheless, weigh 'very heavily' in the balancing process, as a
    determination by the Executive Branch of the importance of confidential ity."
    A-2573-19T3
    30
    Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 
    370 N.J. Super. 504
    , 521 (App. Div. 2004) (quoting Home 
    News, 144 N.J. at 455
    ). While not
    an "administrative rule" subject to the APA, the IAPP has the force of law and
    is binding on local law enforcement agencies, including the UCPO and EPD. It
    requires local law enforcement agencies to maintain the confidentiality of IA
    investigation files. 10
    We acknowledge that the common law right of access remains an
    independent means to obtain government records,
    id. at 516,
    and that "[n]othing
    contained in [OPRA] shall be construed as limiting the common law right of
    access to a government record, including criminal investigation records of a law
    enforcement agency," N.J.S.A. 47:1A-8. Nevertheless, a court may consider
    OPRA's exemptions "as expressions of legislative policy on the subject of
    confidentiality," provided they do not "heavily influence the outcome of the
    analysis" under the common law. Bergen Cty. Improvement Auth., 370 N.J.
    Super. at 520-21. Thus, a court may consider that IA records are exempt under
    OPRA when considering the common law right of access to such records.
    10
    By analogy, pursuant to N.J.A.C. 13:1E-3.2(a)(4), Department of Law and
    Public Safety records relating to the discipline or discharge of a specific
    employee are excluded from the definition of government records subject to
    access under OPRA.
    A-2573-19T3
    31
    Applying these standards, we hold that the need for nondisclosure
    substantially outweighs plaintiff's need for disclosure of the IA records.
    Loigman factors one, two, and three militate strongly against disclosure of IA
    records. In that regard, the same concerns we have previously discussed apply
    with equal force to the common law right of access. Likewise, the questionable
    adequacy of protecting anonymity through simple redaction apply equally to the
    common law right of access.
    In addition, pursuant to N.J.S.A. 40A:14-181, the UCPO adopted and
    implemented guidelines consistent with the IAPP that compel the UCPO to
    maintain the confidentiality of the IA investigation and report.
    Reversed and remanded for the entry of an order consistent with this
    opinion.
    A-2573-19T3
    32