IN THE MATTER OF ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NOS. 2020-5 AND 2020-6 (DEPARTMENT OF LAW AND PUBLIC SAFETY) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3950-19T4
A-3975-19T4
A-3985-19T4
A-3987-19T4
A-4002-19T4
In re ATTORNEY GENERAL APPROVED FOR PUBLICATION
LAW ENFORCEMENT October 16, 2020
DIRECTIVE Nos. 2020-5 and APPELLATE DIVISION
2020-6
Argued September 16, 2020 – Decided October 16, 2020
Before Judges Ostrer, Accurso and Vernoia.
On appeal from Attorney General Law Enforcement
Directive Nos. 2020-5 and 2020-6.
James M. Mets and Robert R. Cannan argued the
cause for appellant in A-3950-19 (Mets Schiro &
McGovern, LLP and Markman & Cannan, LLC,
attorneys; James M. Mets and Robert R. Cannan, of
counsel and on the briefs; Brian J. Manetta, on the
brief).
Carl J. Soranno and Jay Sabin argued the cause for
intervenors-appellants in A-3950-19 and A-3975-19
(Brach Eichler, LLC, attorneys; Anthony M. Rainone
and Carl J. Soranno, of counsel and on the briefs; Jay
Sabin, on the briefs).
D. John McAusland argued the cause for appellants in
A-3975-19 (Attorneys Hartman, Chartered, Law
Offices of Robert A. Ebberup, LLC, Law Office of D.
John McAusland and Loccke, Correia & Bukosky,
attorneys; Mark A. Gulbranson, Jr., Katherine D.
Hartman, Robert A. Ebberup, D. John McAusland and
Michael A. Bukosky, on the briefs).
Frank M. Crivelli argued the cause for appellants in
A-3985-19 (Crivelli & Barbati, LLC, attorneys; Frank
M. Crivelli, on the briefs).
Kevin D. Jarvis argued the cause for appellant in A-
3987-19 (O'Brien, Belland & Bushinsky, LLC,
attorneys; Kevin D. Jarvis and Matthew B. Madsen, on
the briefs).
Paul L. Kleinbaum and Matthew Areman argued the
cause for appellants in A-4002-19 (Zazzali, Fagella,
Nowak, Kleinbaum & Friedman, and Markowitz &
Richman, attorneys; Paul L. Kleinbaum and Matthew
Areman, of counsel and on the briefs; Craig A. Long,
on the briefs).
Jeremy M. Feigenbaum argued the cause for
respondents in all appeals (Jeremy M. Feigenbaum,
State Solicitor, and Jane C. Schuster, Assistant
Attorney General, of counsel and on the brief; Emily
Marie Bisnauth, Christopher Weber, Dominic L.
Giova, Sean P. Havern and Brandon C. Simmons,
Deputy Attorneys General, on the brief).
Vito A. Gagliardi, Jr., argued the cause for amicus
curiae New Jersey State Association of Chiefs of
Police (Porzio, Bromberg & Newman PC, attorneys;
Vito A. Gagliardi, Jr., of counsel; David L. Disler and
Thomas J. Reilly, on the brief).
A-3950-19T4
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Alexander R. Shalom argued the cause for amici
curiae American Civil Liberties Union of New Jersey,
Bayard Rustin Center for Social Justice, Cherry Hill
Women's Center, Ethical Culture Society of Bergen
County, Faith in New Jersey, Latino Action Network,
LatinoJustice PRLDEF, Legal Advocacy Project of
UU FaithAction New Jersey, Libertarians for
Transparent Government, National Association for the
Advancement of Colored People New Jersey State
Conference, NAACP Newark, National Organization
for Women of New Jersey, Newark Communities for
Accountable Policing, New Jersey Alliance for
Immigrant Justice, New Jersey Campaign for
Alternatives to Isolated Confinement, New Jersey
Clergy Coalition for Justice, New Jersey Institute for
Social Justice, Partners for Women and Justice,
People's Organization for Progress, Salvation and
Social Justice, Service Employees International Union
32BJ, SPAN Parent Advocacy Network, Volunteer
Lawyers for Justice, and Women Who Never Give Up
(Jeanne LoCicero, Alexander Shalom, Karen
Thompson and Molly K.C. Linhorst, on the brief).
CJ Griffin argued the cause for amici curiae National
Coalition of Latino Officers and Law Enforcement
Action Partnership (Pashman Stein Walder Hayden,
P.C., attorneys; CJ Griffin, of counsel and on the
brief).
Joseph E. Krakora argued the cause for amici curiae
New Jersey Office of the Public Defender and
Association of Criminal Defense Lawyers of New
Jersey (Joseph E. Krakora, Public Defender, attorney;
and Gibbons P.C., attorneys; Lawrence Lustberg and
Michael R. Noveck, on the brief).
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New Jersey State Office of the Public Defender
(Lawrence Lustberg and Michael R. Noveck, on the
brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Responding to state and national demands for accountability and reform
of law enforcement following the death of George Floyd at the hands of
Minneapolis police, Attorney General Gurbir S. Grewal announced in June that
he would end New Jersey's decades-long practice of shielding the identities of
law enforcement officers receiving major discipline for misconduct.
Determining he could best improve the public's trust in state and local police
by instilling greater accountability in the processes that govern officer
misconduct, the Attorney General issued two directives, Law Enforcement
Directive Numbers 2020-5 and 2020-6, amending the statewide rules for
internal affairs investigations, known as the Internal Affairs Policy and
Procedures (IAPP), applicable to every law enforcement agency in New Jersey
by virtue of N.J.S.A. 40A:14-181, and imposing additional requirements on the
law enforcement agencies housed within the Department of Law and Public
Safety.
A-3950-19T4
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Directive 2020-5 amends the IAPP to require every law enforcement
agency in the State to publish a synopsis of all complaints in which an officer
received final discipline of termination, demotion, or a suspension of more
than five days, including the name of the officer, a summary of the
misconduct, and the sanction imposed. Initial reports, covering all discipline
imposed during this calendar year, are due by December 31, 2020. Subsequent
reports must be published at least annually thereafter. The Directive further
permits, but does not require, county and municipal agencies to release similar
information about earlier incidents of officer misconduct resulting in the same
sanctions.
Directive 2020-6 orders all law enforcement agencies within the
Department of Law and Public Safety, which the Attorney General heads, the
Division of State Police and the Division of Criminal Justice, as well as the
Juvenile Justice Commission, which is in but not of the Department, to publish
no later than July 15, 2020, the same information required by Directive 2020-5
from January 1, 2000 to the present. The Directive orders the three agencies to
provide notice to each officer it intends to identify at least seven days prior to
publication, whenever possible making reasonable efforts. Both Directives
provide they were issued pursuant to the Attorney General's authority to ensure
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the uniform and efficient enforcement of the laws and administration of
criminal justice throughout the State, and specific to 2020-6, his authority to
supervise the operations of the Department of Law and Public Safety, and
create no substantive right of enforcement in any third party.
These five consolidated appeals present a broad-based facial challenge to
the Directives by petitioners State Troopers Fraternal Association of New
Jersey (A-3950-19), and intervenors Association of Former New Jersey State
Troopers, The New Jersey Former Troopers Heritage Foundation, Inc., and
Former Trooper Members and FTA Members No. 1 & 2 (A-3950-19 and A-
3975-19); State Troopers Non-Commissioned Officers Association of New
Jersey, and State Troopers Superior Officers Association of New Jersey, and
their current respective presidents, Pete J. Stilianessis and Richard Roberts (A-
3975-19); Policemen's Benevolent Association Local Number 105, PBA Local
Number 383, PBA Local Number 383A, PBA Local Number 383B, and The
New Jersey Law Enforcement Supervisors Association (A-3985-19); New
Jersey Superior Officers Law Enforcement Association (A-3987-19); and New
Jersey State Policemen's Benevolent Association and New Jersey State Lodge
of the Fraternal Order of Police, and their current respective presidents, Patrick
Colligan and Robert W. Fox (A-4002-19).
A-3950-19T4
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Petitioners and intervenors, representing a broad swath of the State's
36,000 active law enforcement officers as well as some retired officers,
contend the Attorney General lacks the authority to issue the Directives
because they conflict with a provision of the Open Public Records Act,
N.J.S.A. 47:1A-10 (section 10), a regulation promulgated by the Department
of Law and Public Safety, N.J.A.C. 13:1E-3.2(a)(4), and various Executive
Orders, most notably Executive Order 11 (Byrne), all of which protect the
confidentiality of personnel records of public employees. Petitioners also
maintain the Attorney General promulgated the Directives in violation of the
Administrative Procedures Act and acted outside his authority by giving them
retroactive application; that the Directives violate the equal protection rights of
affected officers; violate the due process rights of affected officers; violate
officers' constitutional rights to collective negotiations and against the
impairment of contracts; violate the doctrines of promissory and equitable
estoppel; and, finally, that the Directives are arbitrary, capricious and
unreasonable and against public policy.
We granted several petitioners leave to file emergent applications to stay
implementation of the Directives pending their appeal. We subsequently
entered a stay, over objection by the Attorney General, in order to preserve
A-3950-19T4
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petitioners' challenge pending our disposition and accelerated the appeals in
light of the pressing public interest. We thereafter consolidated the appeals on
the Attorney General's motion.
We also granted the motion of the New Jersey State Association of
Chiefs of Police to appear as amicus curiae in support of petitioners' arguments
against the Directives. The Association, whose members are responsible for
the day-to-day operations of police departments throughout the State, echo
petitioners' claim that the Directives undermine long-standing public policy,
embodied in section 10 of OPRA and N.J.A.C. 13:1E-3.2(a)(4), regarding the
confidentiality of the internal affairs process and protecting the identity of
officers who are disciplined. The Association further argues the Directives are
arbitrary and capricious because they are not designed to achieve the Attorney
General's stated goals. In particular, the Association claims the Directives do
not limit the discipline requiring the release of names to instances where
officers violated the public trust and unnecessarily extend to former officers,
because officers seeking to transfer between law enforcement agencies are
subjected to thorough background checks — that would reveal any prior
discipline — before being hired.
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We also granted the motions of several other organizations for amicus
status arguing in support of the Directives. Amicus American Civil Liberties
Union of New Jersey argues making police discipline records public, including
historic records, provides citizens with critical information about both officers
and departments, and that transparency promotes confidence in police, which
in turn promotes community trust in law enforcement institutions. ACLU-New
Jersey also notes that complaints made against other regulated professionals
and tradespeople in New Jersey are public, including those against lawyers,
judges, plumbers and manicurists, and that other states have made police
discipline records public without the negative consequences about which
appellants warn.
Amicus ACLU-New Jersey makes those arguments on behalf of itself
and its members, as well as the Bayard Rustin Center for Social Justice, the
Cherry Hill Women's Center, the Ethical Culture Society of Bergen County,
Faith in New Jersey, the Latino Action Network, LatinoJustice PRLDEF, the
Legal Advocacy Project of UU FaithAction New Jersey, Libertarians for
Transparent Government, the National Association for the Advancement of
Colored People, New Jersey State Conference, NAACP Newark, the National
Organization for Women of New Jersey, Newark Communities for
A-3950-19T4
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Accountable Policing, the New Jersey Alliance for Immigrant Justice, the New
Jersey Campaign for Alternatives to Isolated Confinement, New Jersey Clergy
Coalition for Justice, the New Jersey Institute for Social Justice, Partners for
Women and Justice, the People's Organization for Progress, Salvation and
Social Justice, Service Employees International Union 32BJ, SPAN Parent
Advocacy Network, Volunteer Lawyers for Justice, and Women Who Never
Give Up.
Amici Association of Criminal Defense Lawyers of New Jersey and the
New Jersey State Office of the Public Defender argue the Directives promote
enhanced access in criminal cases to the discovery of prior police misconduct.
They contend information about such misconduct is admissible, relevant
evidence relating to an officer's credibility, particularly in light of the recent
amendment to N.J.R.E. 608, and that such discovery is consistent with New
Jersey’s broad, open-file discovery rules and with the State’s constitutional
obligation to produce exculpatory evidence. They maintain the current failure
to name police officers who engage in misconduct inhibits discovery of
relevant police misconduct records and creates substantial risk of erroneous
charges and convictions. These amici argue that by linking officers to their
specific acts of misconduct, the Directives promote discovery of evidence that
A-3950-19T4
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can be used at all stages of the criminal justice process, from charging
decisions to post-conviction relief, thereby improving the administration of
justice. They note that release of historical information of misconduct could
be especially important to those individuals wrongly convicted and pursuing
post-conviction relief.
Finally, amici National Coalition of Latino Officers and the Law
Enforcement Action Partnership argue that when internal affairs and
disciplinary information is kept secret, the community has no way of knowing
whether investigations are thorough and fair and whether officers are properly
held accountable for their actions. When communities are deprived of such
information, it leads them to believe internal affairs complaints are not taken
seriously, and that misconduct is swept under the rug, causing them to distrust
the police. These amici contend that when police departments have not earned
the community’s respect, it makes the jobs of all police officers much more
difficult and dangerous. They also argue that transparency will expose
disparities in discipline and allow the public — and officers — to see whether
discipline is imposed consistently, which will particularly benefit Black and
Latino officers and women who work in law enforcement agencies that are
overwhelmingly white and male. These amici contend the Directives will
A-3950-19T4
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expose suspected disparities, better protect minority officers from
discrimination and retaliation and improve the disciplinary system for all
officers.
Having reviewed the Directives, considered the briefs filed by the parties
and amici, and heard extensive oral argument by very able advocates, we
conclude the Attorney General acted within the authority conferred on him by
the Legislature in the Law and Public Safety Act of 1948, the Criminal Justice
Act of 1970, and N.J.S.A. 40A:14-181 in issuing Directives 2020-5 and
2020-6, and they therefore withstand petitioners' facial challenge. See In re
Stallworth, 208 N.J. 182, 194-95 (2011) (noting review of agency decisions is
limited to determining whether the decision violated express or implied
legislative policies, whether the record contains adequate support for the
findings and whether the agency clearly erred by reaching a conclusion that
could not reasonably have been reached). We do not pass on the wisdom of
the policy embodied in these Directives, which appellants assail as an
imprudent overreaction to recent events that will needlessly shame officers,
put their safety and that of their families at risk, disclose sensitive medical
information and possibly identify the victims of domestic violence.
A-3950-19T4
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The erosion of confidence in our law enforcement agencies is a serious
problem, and it is enough that the Attorney General, New Jersey's chief law
enforcement officer tasked with the general supervision of criminal justice in
our State, has determined that publishing the names of officers incurring major
discipline for misconduct will increase public trust in those agencies and make
them more accountable to the communities they serve. It is not for this court
to assess the Attorney General's policy choice. Our only focus is on his
authority to implement the policy choice he has made.
The Attorney General has candidly acknowledged the sea change these
Directives represent in his Department's approach to publication of the names
of law enforcement officers subject to final discipline for serious misconduct.
As appellants note, the Attorney General was only three months ago in our
Supreme Court arguing against the release of the name of a trooper separated
from the State Police in 2015 for "acting in an unofficial capacity to the
discredit of the Division while off-duty by having questionable associations,
engaging in racially offensive behavior and publicly discussing police patrol
procedures." See Libertarians for Transparent Gov't v. State Police, 239 N.J.
518 (2019) (granting plaintiff's petition for certification as to whether section
10 requires disclosure of the name of a state trooper listed in the Office of
A-3950-19T4
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Professional Standard’s annual report to the Legislature as having been
terminated for misconduct). Following the filing of these appeals, the
Attorney General released the name of that trooper, which it had successfully
shielded from disclosure in the Law Division and this court, settled that suit,
and the parties dismissed the appeal pending in the Supreme Court.
Libertarians for Transparent Gov't v. State Police, __ N.J. __ (2020).
Although we are convinced of the Attorney General's authority to release
the names of law enforcement officers receiving major discipline, including
those having incurred the discipline in or after 2000 but before issuance of
Directives 2020-5 and 2020-6, and thus uphold the facial validity of the
Directives, appellants have raised issues about the retrospective application of
the Directives to particular individuals that cannot be resolved on these
appeals. The Attorney General conceded at oral argument that individual
officers may have contract rights arising out of prior specific settlements of
internal discipline, and we think it possible some may have other claims and
concerns about how these new directives apply to them. Our conclusion that
the Directives constitute a valid exercise of the Attorney General's authority
does not preclude any officer from bringing an as-applied challenge to
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publication of his or her name pursuant to Directives 2020-5 and 2020-6 for
discipline finalized before release of those Directives.
The Attorney General's Authority over the Department of Law and Public
Safety, Internal Affairs and the IAPP.
The Attorney General is New Jersey's "chief law enforcement officer,"
N.J.S.A. 52:17B-98, and head of the Department of Law and Public Safety,
N.J.S.A. 52:17B-2. Prado v. State, 186 N.J. 413, 422 (2006). "[I]n order to
secure the benefits of a uniform and efficient enforcement of the criminal law
and the administration of criminal justice," the Legislature in the Criminal
Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, "declared [it] to be the public
policy of this State to encourage cooperation among law enforcement officers
and to provide for the general supervision of criminal justice by the Attorney
General." N.J.S.A. 52:17B-98.
As part of his supervisory obligations for the Department of Law and
Public Safety under the Law and Public Safety Act of 1948, the Attorney
General is charged with "formulat[ing] and adopt[ing] rules and regulations for
the efficient conduct of the work and general administration of the department,
its officers and employees," N.J.S.A. 52:17B-4(d). See In re Carberry, 114
N.J. 574, 578 (1989). Attorney General Del Tufo in 1991 exercised that
authority, as well has his authority under the Criminal Justice Act of 1970,
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N.J.S.A. 52:17B-98, in establishing the first IAPP, which set forth standards,
policies and procedures for the internal affairs function for the State's law
enforcement agencies, including the establishment of "a viable process for the
receipt and investigation of citizen complaints concerning police conduct."
See Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, __
N.J. __ (2020) (slip op. at 33).
In 1996, the Legislature required police departments to adopt and
implement guidelines consistent with the IAPP in N.J.S.A. 40A:14-181. As
our Supreme Court recently noted, "[s]ection 181 effectively made the AG's
IAPP required policy for all municipal law enforcement agencies in New
Jersey." Fraternal Order of Police, __ N.J. at __ (slip op. at 34).
The IAPP, which has been amended several times over its nearly thirty
years' existence, has always stressed the importance of the confidentiality of
internal affairs processes and investigations. In its first iteration in 1991, the
IAPP provided that "[t]he progress of internal affairs investigations and all
supporting materials are considered confidential information." 1991 IAPP at
15. The 2019 revision likewise provides that "[t]he nature and source of
internal allegations, the progress of internal affairs investigations, and the
resulting materials are confidential information." 2019 IAPP at 9.6.1. The
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Attorney General continues to maintain that confidentiality is critical to the
integrity of internal investigations and necessary to protect the privacy of
complainants and witnesses. He also notes, however, that his predecessors
have made clear that this confidentiality has limits.
Specifically, Attorney General Grewal points to the first IAPP issued in
1991, which, while requiring the contents of IA files to be "clearly marked as
confidential" and kept under lock and key in the IA unit, also empowered the
police executive "to release publicly the details of an internal investigation or
disciplinary action." 1991 IAPP at 15. Further, in addition to requiring that
officers subject to an IA investigation be provided with a copy of the decision
and accompanying findings, every iteration of the IAPP has also required
complainants to be notified of the disposition of his or her complaint and
provided an explanation for the outcome. See 1991 IAPP at 15; 1992 IAPP at
15; 2000 IAPP at 11-6; 2011 IAPP at 24-25; 2014 IAPP at 22; 2019 IAPP at
6.3.16-6.3.18.
The 2000 version of the IAPP issued by Attorney General Farmer
reiterated the emphasis on the confidentiality of "the nature and source of
internal allegations" and "the progress of internal affairs investigations,"
requiring that "[t]he contents of the internal investigation case files shall be
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retained in the internal affairs unit and clearly marked as confidential." 2000
IAPP at 11-46. It also made explicit what was previously only implied, that is,
that the "information and records" of internal investigations could be released
at the direction of the Attorney General or responsible county prosecutor.
Ibid. In contrast, the 2000 version also clarified that the ability of the law
enforcement executive to authorize release of confidential internal affairs
information was limited to a particular file or record and subject to a "good
cause" standard. Ibid. Every version of the IAPP since has contained identical
language permitting the Attorney General to release information and records of
internal affairs investigations without qualification.
Public Reporting of Complaints Against Law Enforcement.
Every iteration of the IAPP has required local law enforcement agencies
to make available to the public an annual report, statistical in nature,
summarizing the types of complaints received and the dispositions of those
complaints. In the 2011 version of the IAPP, each agency became additionally
obligated to "periodically release a brief synopsis of all complaints where a
fine or suspension of ten days or more was assessed to a member of the
agency." 2011 IAPP at 50. Until the Attorney General amended the 2019
version of the IAPP by Directive 2020-5, those public reports, now required to
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be published on the agency's website, were not to include "the names of . . .
subject officers." See 2019 IAPP at 9.11.1.
In 2001, the Legislature required the State Police to begin filing annual
reports of complaints of misconduct by troopers made by members of the
public. N.J.S.A. 53:1-10.1 provides "[i]t shall be the duty of the
Superintendent of State Police to compile and submit to the Governor and the
Legislature an annual report with regard to complaints of misconduct made by
members of the public against members of the State Police." The Senate
Judiciary Committee statement to the bill noted the Division of State Police
did not then "disclose any information concerning complaints by members of
the public of misconduct on the part of State Police officers," and that the bill
"mirror[ed] the present reporting requirements applicable to local law
enforcement agencies with regard to civilian complaints." Senate Judiciary
Comm. Statement to S. 650 (Jan. 31, 2000). The statute, like the IAPP it
mirrored prior to its recent amendment by Directive 2020-5, prohibits the
report from disclosing the identity of troopers accused of, or sanctioned for,
misconduct. N.J.S.A. 53:1-10.1 ("The report shall be a statistical compilation
and shall not disclose personal identifiers of either the complainant or the
member of the State Police.").
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Appellant, New Jersey Superior Officers Law Enforcement Association,
has included in its appendix copies of several of the annual reports prepared by
the Division's Office of Professional Standards pursuant to N.J.S.A. 53:1-10.1.
In addition to explaining how the disciplinary system operates, the reports
include statistical summaries of complaints, classified by type, and compared
across years, as well as summary descriptions of completed discipline for
violations resulting in suspensions exceeding five days. Those summary
descriptions are brief statements identifying the violations, synopsizing the
misconduct, and noting the discipline imposed. They do not identify the
trooper disciplined.
A typical example of these summaries, and one the Attorney General has
already litigated in Libertarians for Transparent Government v. State Police, is
from the 2015 report, where it appears among instances of major discipline. It
provides:
Member pled guilty to acting in an unofficial capacity
to the discredit of the Division while off-duty 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.
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As several appellants refer to this particular matter in their briefs and it
provides a convenient example of the disciplinary information the Attorney
General seeks to release to the public by Directives 2020-5 and 2020-6, we
include it here and discuss it further below.
Directives 2020-5 and 2020-6
In Directive 2020-5, "Requiring Public Disclosure of the Identities of
Officers Who Commit Serious Disciplinary Violations," the Attorney General
notes that "[f]or decades, New Jersey has treated a police department's internal
disciplinary files — generally known as 'internal affairs' records — as highly
confidential, in line with the way that personnel records for all public
employees are usually treated." He acknowledged the "good reasons why
internal affairs records are not generally disclosed to the public, including the
need to protect those who report and witness police misconduct," and the
unfairness of "publicly disclos[ing] unproven allegations against officers."
He also notes, however, that "law enforcement officers are entrusted
with extraordinary responsibility," making it "imperative" that they "maintain
the highest standards of good discipline and conduct." The Attorney General
explained that degree of responsibility provides "a stronger rationale for public
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disclosure" when a law enforcement agency makes a final determination an
officer "has violated agency rules in a way that warrants professional
sanctions." And, he concluded, "the more significant the violation, the more
important it is that the public knows about the misconduct."
The Attorney General reviewed the changes he made in the December
2019 revision to the IAPP, which "strengthened oversight of internal affairs"
and allowed internal affairs files to be shared with civilian review boards with
procedural safeguards, which he characterized as "one of the most substantial
revisions to IAPP since its initial publication," and "a significant step forward
in promoting accountability and strengthening public confidence in law
enforcement." Among the changes he highlighted was the requirement in
IAPP 2019 at 9.11.2, that all local law enforcement agencies publish annually
on their websites a synopsis summarizing all disciplinary complaints, whether
by members of the public or internal to the agency, resulting in an officer
receiving a fine or suspension of ten days or more but not requiring the
identity of the officer be disclosed.
Explaining his reasons for concluding, so soon after the 2019 revisions
to the IAPP, that it was now necessary to disclose the identities of law
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enforcement officers who were terminated, reduced in rank or grade or
suspended for misconduct for more than five days, the Attorney General wrote:
After further review, I believe that even this
significant set of changes does not go far enough.
More is required to promote trust, transparency and
accountability, and I have concluded that it is in the
public's interest to reveal the identities of New Jersey
law enforcement officers sanctioned for serious
disciplinary violations. Our state's law enforcement
agencies cannot carry out their important public safety
responsibilities without the confidence of the people
they serve. The public's trust depends on maintaining
confidence that police officers serve their
communities with dignity and respect. In the
uncommon instance when officers fall well short of
those expectations, the public has a right to know that
an infraction occurred, and that the underlying issue
was corrected before that officer potentially returned
to duty.
It is time to end the practice of protecting the
few to the detriment of the many. The vast majority
of law enforcement officers in New Jersey serve with
honor and astonishing courage under extremely
difficult circumstances. Most go through their entire
careers without engaging in conduct that warrants a
major disciplinary action against them. But their good
work is easily undermined — and quickly forgotten —
whenever an officer breaches the public's trust and
dishonors the entire profession. The likelihood of
such misbehavior increases when officers believe they
can act with impunity; it decreases when officers
know that their misconduct will be subject to public
scrutiny and not protected. The deterrent effect of this
scrutiny will, in the end, improve the culture of
accountability among New Jersey law enforcement.
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Invoking the authority vested in him under the State Constitution, the
Criminal Justice Act of 1970, and section 181, the Attorney General in
Directive 2020-5 amended the IAPP to provide for the disclosure of the
identities of officers subject to termination, reduction in rank or grade, or
suspension of over five days:
9.11.1 On an annual basis, every law enforcement
agency shall publish on its public website a report
summarizing the types of complaints received and the
dispositions of those complaints. This report can
should be statistical in nature, and the names of
complainants and subject officers shall not be
published.
9.11.2 On a periodic basis, and at least once a year,
every agency shall submit to the County Prosecutor
and publish on the agency's public website a brief
synopsis of all complaints where a fine or
termination, reduction in rank or grade, and/or
suspension of ten days or more than five days was
assessed to an agency member. This synopsis shall
include the identity of each officer subject to final
discipline, a brief summary of their transgressions,
and a statement of the sanction imposed. This
synopsis shall not contain the identities of the officers
or complainants but should briefly outline the
nature of the transgression and the fine or
suspension imposed. An example of a synopsis is
found in Appendix U.
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As earlier mentioned, the Directive requires each law enforcement
agency to publish its first report in compliance with revised section 9.11.2 by
December 31, 2020, covering all discipline imposed during the calendar year,
and expressly states it shall not "be construed in any way to create any
substantive right that may be enforced by any third party." Directive 2020-5
also notes that nothing therein prevented local "agencies from releasing similar
information regarding historical incidents of officer misconduct," and noted
the law enforcement agencies within the Department of Law & Public Safety
would shortly publish the names of officers receiving major discipline going
back twenty years. Specifically, the Directive informed that "State Police,
which since 2000 has published an annual report summarizing incidents of
major discipline that does not disclose the identities of the State Troopers,
intends to update these annual reports with the Troopers’ names no later than
July 15, 2020."
In Directive 2020-6, "Requiring Public Disclosure of the Identities of
Department's Officers Who Committed Serious Disciplinary Violations Since
2000," issued four days later on June 19, 2020, the Attorney General relied on
the reasoning set forth in Directive 2020-5, explaining Directive 2020-6
complemented it "by ordering additional transparency measures for the
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25
agencies that employ law enforcement officers within the Department of Law
and Public Safety." The Attorney General explained that
[s]haring the identities of individuals who received
major discipline [1] will allow for public scrutiny and
improve the culture of accountability among the
Department's law enforcement agencies. That is true
even where an individual no longer works for the
relevant agency, as many of our officers go on to serve
with other law enforcement agencies, and the State at
present lacks a licensing system to track such repeat
disciplinary sanctions across agencies. Moreover, the
1
"Under the Administrative Code, 'major discipline' and 'minor discipline'
have defined meanings based on the quantum of punishment imposed. The
terms do not categorize the seriousness or type of underlying incident, as
opposed to the punishment imposed." Stallworth, 208 N.J. at 198.
"Major discipline" is defined as including removal, disciplinary
demotion, and suspension or fine for more than five working days at any one
time. N.J.S.A. 34:13A-5.3; N.J.A.C. 4A:2-2.2(a). By contrast, "minor
discipline" is defined as a formal written reprimand or a suspension or fine of
five working days or less. N.J.S.A. 34:13A-5.3; N.J.A.C. 4A:2-3.1(a).
Under N.J.A.C. 4A:2-2.3, an employee may be subject to major
discipline for: (1) incompetency, inefficiency or failure to perform duties; (2)
insubordination; (3) inability to perform duties; (4) chronic or excessive
absenteeism or lateness; (5) conviction of a crime; (6) conduct unbecoming a
public employee; (7) neglect of duty; (8) misuse of public property, including
motor vehicles; (9) discrimination that affects equal employment opportunity
(as defined in N.J.A.C. 4A:7-1.1), including sexual harassment; (10) violation
of federal regulations concerning drug and alcohol use by and testing of
employees who perform functions related to the operation of commercial
motor vehicles, and State and local policies issued thereunder; (11) violation
of New Jersey residency requirements as set forth in L. 2011, c. 70; and (12)
other sufficient cause.
A-3950-19T4
26
sharing of identities will enable the public and
policymakers to identify repeat offenders, and to hold
the Department's law enforcement agencies
accountable for their response to patterns of
discipline. And, most importantly, the sharing of
identities will help to build public confidence in the
vast majority of officers in the New Jersey State
Police, the Division of Criminal Justice, and the
Juvenile Justice Commission, who — like the officers
of other law enforcement agencies — serve with honor
and astonishing courage under extremely difficult
circumstances. Releasing the identities of those who
committed major disciplinary infractions will show
that all the remaining officers did not commit such an
infraction — which will help to build significant trust
between these law enforcement officers and the
communities they serve.
Drawing on his authority under the Law and Public Safety Act of 1948,
in addition to the powers vested in him in the State Constitution and the
Criminal Justice Act of 1970, the Attorney General in Directive 2020-6
ordered the Division of State Police, the Division of Criminal Justice and the
Juvenile Justice Commission to "each publish on its public website a brief
synopsis of all complaints where a termination, reduction in rank or grade,
and/or suspension of more than five days was assessed to a law enforcement
officer since January 1, 2000." In accord with Directive 2020-5, the synopses
are to "include the identity of each officer subject to a final disciplinary action,
a summary of their transgressions, and a statement of the sanction imposed."
A-3950-19T4
27
Directive 2020-6 further orders each division "[a]t least seven days prior
to the publication of the synopses" to "provide notice to each officer it intends
to identify, whenever possible." In those "cases where the officer is no longer
employed by the division," it is to "make reasonable efforts to contact the
officer at their last known residential address, email address, or phone
number." As in Directive 2020-5, Directive 2020-6 states it is not to "be
construed in any way to create any substantive right that may be enforced by
any third party."
The Attorney General's Authority to Issue Directives 2020-5 and 2020-6.
Appellants necessarily acknowledge the Attorney General possesses
explicit authority under the Criminal Justice Act of 1970 and section 181 to
amend the IAPP, and under the authority of those statutes and the Law and
Public Safety Act of 1948 to establish disciplinary policy generally for the law
enforcement agencies within the Department of Law and Public Safety. Their
primary argument on these appeals is that he lacks the authority to amend the
IAPP and Departmental internal affairs policy so as to attach an officer's name
to the summary descriptions of completed discipline that local law
enforcement agencies were ordered to publish annually in the 2019 version of
the IAPP and that State Police has been publishing since 2000. Appellants
A-3950-19T4
28
contend adding officers' names conflicts with section 10 of OPRA; a regulation
first adopted by the Department when OPRA was enacted, N.J.A.C.
13:1E13.2(a)(4); and various executive orders, most notably Executive Order
11 (Byrne), all of which protect the confidentiality of personnel records.
The simplest rejoinder to appellants' argument that the Directives violate
section 10 of OPRA and the Department's government records regulation,
suggested by amici National Coalition of Latino Officers and the Law
Enforcement Action Partnership, is that this is not an OPRA case. OPRA is
New Jersey's government records access statute, which provides a
comprehensive framework to enable citizens to swiftly access government
records, and includes a fee-shifting provision that requires an award of a
reasonable attorney's fee to a prevailing requester. See Mason v. City of
Hoboken, 196 N.J. 51, 57 (2008). Petitioners here are not citizens seeking
records in pursuit of the "salutary goal . . . to maximize public knowledge
about public affairs in order to ensure an informed citizenry and to minimize
the evils inherent in a secluded process." Asbury Park Press v. Ocean Cty.
Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004). They are
police unions seeking to block the Attorney General's efforts to make more
transparent the secluded internal affairs process in the State's law enforcement
A-3950-19T4
29
agencies by publishing the names of officers receiving major discipline for
misconduct.
Were this an OPRA case, with third parties seeking the information the
Attorney General has determined to release in Directives 2020-5 and 2020-6,
those third parties would not be entitled to the information under OPRA. As
we recently held in Libertarians for Transparent Gov't v. Cumberland Cty., __
N.J. Super. __, __ (App. Div. 2020) (slip op. at 1, 13), a public employee's
internal disciplinary records, including "a settlement agreement resolving an
internal disciplinary action," are not "government records" under OPRA but
instead are classified as "personnel record[s] exempt from disclosure under
section 10 of the statute." The Attorney General has likewise taken pains to
make clear that Directives 2020-5 and 2020-6 were issued "pursuant to the
Attorney General's authority to ensure the uniform and efficient enforcement
of the laws and administration of criminal justice throughout the State" and are
not to be construed "to create any substantive right that may be enforced by
any third party."
That OPRA requestors would be denied access to the disciplinary
information the Attorney General has ordered published in the challenged
Directives does not, however, answer the question of whether the Attorney
A-3950-19T4
30
General has the authority to direct that information be published. The
Attorney General argues the personnel information he has ordered published in
Directives 2020-5 and 2020-6 is no different from other types of information
deemed confidential in the Department's government records regulation,
N.J.A.C. 13:1E-3.2(a), such as "materials that may reveal: case or matter
specific legal strategy or advice, attorney work product, attorney-client
privileged material, or other privileged material." N.J.A.C. 13:1E-3.2(a)(3).
He contends "the regulation means only that an agency does not have to
release [the records shielded by the regulation] — [the Department] could still
choose to do so."
Specifically, the Attorney General reasons that because "it is well
understood that the Department can disclose attorney work product and
attorney-client privileged material if it believes disclosure is beneficial," the
regulation likewise does not prevent his disclosure of "[r]ecords, specific to an
individual employee or employees . . . 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."
N.J.A.C. 13:1E-3.2(a)(4). We reject that argument for what it posits about
protection of personnel records under OPRA.
A-3950-19T4
31
There is no question but that "an exemption from a right of public access
to a government record can be established . . . by administrative rule."
Slaughter v. Gov't Records Council, 413 N.J. Super. 544, 550 (App. Div.
2010); see also N.J.S.A. 47:1A-9(a) (providing OPRA does not "abrogate any
exemption of a public record or government record from public access
heretofore made pursuant to [the Right to Know Law]; 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"). It is equally clear, of course, that the
Department's government records regulation, N.J.A.C. 13:1E-3.2, cannot
override legislative policy or give OPRA greater effect than permitted by the
statute itself.2 See In re Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 450
(1992); see also O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 385 (App.
2
It is for this reason that we reject appellants' argument that the regulation
provides an independent source for protecting the disciplinary information the
Directives require be released. If OPRA does not prevent the Attorney
General from publicly releasing the disciplinary information called for in the
Directives, N.J.A.C. 13:1E-3.2 certainly will not do so. See Reilly v. AAA
Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 486 (2008) (explaining that an
agency may not alter the terms of a statute or frustrate the legislative policy
embodied therein by adoption of an implementing regulation).
A-3950-19T4
32
Div. 2009) (noting "[a]bsent specific legislative leave, no agency is authorized
to deviate from expressed or implied legislative policies").
The Attorney General's argument posits that OPRA is simply a "floor"
below which the government cannot go in refusing access to public records.
Although that may be true in many instances, and certainly appears correct
when applied to the work product and attorney-client privileges the Attorney
General proffers in his example, the analogy breaks down when applied to
personnel records of government employees. As we explained in Libertarians
for Transparent Gov't v. Cumberland Cty., ___ N.J. Super. at ___ (slip op. at
21), "personnel records of government employees have historically been
treated differently from other sorts of public records." Well before OPRA,
Governor Byrne in Executive Order 11 directed that "[e]xcept as otherwise
provided by law . . . an instrumentality of government shall not disclose to
anyone other than a person duly authorized by this State or the United States to
inspect such information in connection with his official duties, personnel or
pension records of an individual," with the now-familiar exception for an
employee's name, title, position, salary, length of service, date of separation
and the reason therefor, as well as the amount and type of pension the
employee is receiving, all of which "shall be public." Id. at 22-24 (quoting
A-3950-19T4
33
Exec. Order No. 11 (Nov. 15, 1974) 1 Laws of New Jersey 1974 765, available
at https://nj.gov/infobank/circular/eob11.shtml).
Michelson v. Wyatt, 379 N.J. Super. 611, 619-20 (App. Div. 2005),
underscores that determining whether a document is subject to disclosure
under OPRA is "a multi-layered process," in which "[c]are must be taken to
determine the nature of the information sought by plaintiff and whether any
regulations, executive orders or federal law operate to render the information
confidential." Because OPRA expressly does not abrogate Executive Orders
of the Governor, Executive Order 11 remains operative. N.J.S.A. 47:1A-9;
Libertarians for Transparent Gov't v. Cumberland Cty., ___ N.J. Super. at ___
(slip op. at 27-28).
Thus, as to personnel and pension records, OPRA is not simply a "floor,"
permitting the Attorney General to release such records if he "choose[s] to do
so." Instead, section 10 represents the State's public policy to protect the
personnel records of public employees from disclosure. Id. at 16. The
Attorney General, like any other "instrumentality of government," may not
disclose an individual's personnel or pension records to anyone not authorized
by the State or federal governments to inspect them in connection with their
A-3950-19T4
34
official duties, "[e]xcept as otherwise provided by law."3 See Exec. Order No.
11 (Nov. 15, 1974); N.J.S.A. 47:1A-9; Libertarians for Transparent Gov't v.
Cumberland Cty., ___ N.J. Super. at ___ (slip op. at 21).
Accordingly, we think the Attorney General on firmer footing when he
argues he is authorized to release the disciplinary information called for in
Directives 2020-5 and 2020-6 because the information is "required to be
disclosed by another law." Executive Order 11, section 10 and the
Department's government records regulation all permit release of an
3
We also reject any notion that the disciplinary information the Attorney
General has ordered released pursuant to Directives 2020-5 and 2020-6 does
not constitute a "personnel record" for the purpose of this analysis. IAPP
9.12.1 provides that "[p]ersonnel records are separate and distinct from
internal affairs investigation records, and internal affairs investigative reports
shall never be placed in personnel records, nor shall personnel records be co-
mingled with internal affairs files." Section 9.12.2 makes plain that even in
the event that "a complaint is sustained and discipline imposed, the only items
to be placed into the employee's personnel file are a copy of the administrative
charging form and a copy of the disposition form." While the Attorney
General has obvious good reason to distinguish between internal affairs
records and personnel records and files in the IAPP, his characterization of the
records is not controlling for purposes of OPRA. See McGee v. Twp. of E.
Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010) (noting section 10's
exemption for personnel records "is not limited to the items included in a
personnel file"); see also Libertarians for Transparent Gov't v. Cumberland
Cty., ___ N.J. Super. at ___ (slip op. at 1) (holding "a settlement agreement
resolving an internal disciplinary action against a public employee is . . . a
personnel record exempt from disclosure under section 10"). The disciplinary
information the Attorney General has ordered made public in the Directives
clearly comes under the heading of personnel records for purposes of OPRA.
A-3950-19T4
35
individual's personnel or pension records "when required to be disclosed" or
when "otherwise provided by" another law. N.J.S.A. 47:1A-10; Exec. Order
No. 11; N.J.A.C. 13:1E-3.2(a)(4) (prohibiting disclosure of records "other than
those . . . enumerated in N.J.S.A. 47:1A-10 as available for public access").
The Legislature has designated the Attorney General as New Jersey's
"chief law enforcement officer," responsible "for the general supervision of
criminal justice" in the State, N.J.S.A. 52:17B-98, and charged him with
"formulat[ing] and adopt[ing] rules and regulations for the efficient conduct of
the work and general administration of the [D]epartment," N.J.S.A. 52:17B-
4(d). Attorney General Del Tufo exercised that responsibility "to issue the
IAPP in 1991," Fraternal Order of Police, __ N.J. at __ (slip op. at 47), and his
successors did so in issuing its subsequent amendments, which "[s]ection 181
effectively made . . . required policy for all municipal law enforcement
agencies in New Jersey," id. at 34. The Legislature's investiture of that
authority in the Attorney General in those several statutes is "another law" that
permits the Attorney General to make the internal affairs process more
accessible to the public by ordering the publication of the names of New
Jersey law enforcement officers sanctioned for serious disciplinary violations.
For that reason, we are satisfied Directives 2020-5 and 2020-6 do not violate
A-3950-19T4
36
Executive Order 11, section 10 or the Department's government records
regulation.
Appellants argue the Attorney General cannot "abrogate" Executive
Order 11 or section 10 of OPRA "through a Directive." Although that
argument appears formidable when first considered, it is less so on reflection,
because it ignores why our courts have determined that Attorney General
directives have "the force of law for police entities." O'Shea, 410 N.J. Super.
at 382. Those directives have the force of law because the Legislature has
expressly provided "the Attorney General[] statutory power to adopt
guidelines, directives, and policies that bind law enforcement throughout our
State." Paff v. Ocean County Prosecutor's Office, 235 N.J. 1, 20-21 (2018);
see also N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 565
(2017) (noting because Use of Force Reports are "required by law to be made"
by the Attorney General's Use of Force Policy, they are not exempt from
disclosure under OPRA's criminal investigatory records exemption).
Said another way, Attorney General directives have the force of law for
police entities in New Jersey because the Legislature has deemed it to be so.
Nowhere is that clearer than in the case of the IAPP, which the Legislature has
expressly required every law enforcement agency in the State follow by
A-3950-19T4
37
"adopt[ing] and implement[ing] guidelines" consistent with it. See N.J.S.A.
40A:14-181; O'Shea, 410 N.J. Super. at 383. In issuing Directives 2020-5 and
2020-6, the Attorney General did not usurp power; he exercised powers the
Governor and the Legislature expressly accorded him. See Commc'ns Workers
of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 257 (App. Div. 2010)
(discussing cooperative allocation of power between executive and legislative
branches of government). Because the Legislature has invested the Attorney
General with authority to direct the entirety of the State's law enforcement
apparatus through "guidelines, directives, and policies that bind law
enforcement throughout our State," Paff, 235 N.J. at 20-21, we are satisfied
Directives 2020-5 and 2020-6 were issued pursuant to "another law" for
purposes of Executive Order 11 and section 10 of OPRA, and that the Attorney
General has not "abrogated" either via directive.
There is another significant flaw in appellants' arguments against the
Attorney General's authority to issue Directives 2020-5 and 2020-6 based on
the confidentiality afforded all public employees in their personnel records by
Executive Order 11 and section 10. Appellants fail to acknowledge that while
OPRA does not differentiate between police officers and other public
employees, section 181 does by granting the Attorney General exclusive
A-3950-19T4
38
authority over internal affairs policy for the State's law enforcement agencies,
and thus over the processes governing officer discipline. See Williams v. Am.
Auto Logistics, 226 N.J. 117, 126 (2016) (relying on "the oft-stated principle
of statutory construction that a specific statutory declaration prevails over a
more general one").
And, significantly, every iteration of the IAPP has either authorized or
mandated the public disclosure of some information that would otherwise be
barred by Executive Order 11 and section 10, most notably by permitting the
public release of the details of any internal investigation or disciplinary action,
and mandating that individual citizens be notified of the disposition of their
complaints of police misconduct and provided an explanation for the outcome. 4
Moreover, since the 2000 version of the IAPP, issued prior to OPRA's passage,
every iteration of the IAPP has expressly provided that the information and
records of an internal investigation could be released at the direction of the
Attorney General, an authority the Legislature has never acted to limit or
4
Disclosure of internal affairs information is also routinely made for other
purposes, including satisfying the State's obligations in criminal cases under
Brady v. Maryland, 373 U.S. 83 (1963), or State v. Harris, 316 N.J. Super. 384(App. Div. 1998), and satisfying discovery obligations in civil matters, see
Bayer v. Twp. of Union, 414 N.J. Super. 238, 273 (App. Div. 2010).
A-3950-19T4
39
curtail.5 See J.H. v. R & M Tagliareni, LLC, 239 N.J. 198, 216 (2019) (noting
an agency's construction of a statute over years without legislative interference
generally evidences its conformity with the legislative intent).
Section 181's distinction of law enforcement officers reflects a decades-
long recognition by both the Legislature and the courts that "police officers are
different from other public employees." City of Jersey City v. Jersey City
Police Officers Benevolent Ass'n, 154 N.J. 555, 572 (1998). It was fifty-five
years ago that we said "[i]t must be recognized that a police officer is a special
5
We do not consider N.J.S.A. 53:1-10.1, the statute requiring State Police to
submit an annual report to the Legislature and the Governor of misconduct
complaints by members of the public, without disclosing personal identifiers,
as contrary, largely because of its limited scope. As already mentioned, the
Senate Judiciary Committee statement to the bill that became N.J.S.A. 53:1-
10.1 noted it "mirror[ed] the present reporting requirements applicable to local
law enforcement agencies with regard to civilian complaints," Senate Judiciary
Comm. Statement to S. 650 (Jan. 31, 2000), undoubtedly referring to the
public reports mandated under the 1992 version of the IAPP, which was in
effect in January 2000, when the bill was introduced. The statute is limited as
it imposes a reporting obligation only on the Superintendent of State Police,
not the Attorney General, and addresses only complaints of misconduct made
by members of the public against members of the State Police. It in no way
limits the Attorney General's broad authority over internal affairs. We note
also from the reports in the appendix that the information provided in those
annual reports substantially exceeds that required by statute, presumably at the
direction of the Attorney General, particularly as it addresses all discipline
imposed, not just those instances resulting from complaints by members of the
public.
A-3950-19T4
40
kind of public employee." Moorestown v. Armstrong, 89 N.J. Super. 560, 566
(App. Div. 1965). Explaining why, we wrote that an officer's
primary duty is to enforce and uphold the law. He
carries a service revolver on his person and is
constantly called upon to exercise tact, restraint and
good judgment in his relationship with the public. He
represents law and order to the citizenry and must
present an image of personal integrity and
dependability in order to have the respect of the
public.
[Ibid.]
Twenty-two years ago, the Court wrote it was because our courts and the
Legislature had long recognized that "police officers are different from other
public employees," that we likewise recognized "the scope of discretion
accorded to the public entities that administer police departments is necessarily
broad." City of Jersey City, 154 N.J. at 572. Police officers are held to higher
standards of conduct than other public employees. In re Disciplinary
Procedures of Phillips, 117 N.J. 567, 577 (1990). And we've held a police
officer will not be heard to "complain that he is being held up as a model of
proper conduct" because it is "one of the obligations [an officer] undertakes
upon voluntary entry into the public service." Appeal of Emmons, 63 N.J.
Super. 136, 141-42 (App. Div. 1960).
A-3950-19T4
41
Because we entrust police officers "to carry firearms, drive emergency
vehicles, and 'exercis[e] the most awesome and dangerous power that a
democratic state possesses with respect to its residents—the power to use
lawful force to arrest and detain them,'" officers can expect a higher degree of
scrutiny of their performance, N.J.S.A. 40A:14-118, and have a lower
expectation of privacy, Rawlings v. Police Dep't of Jersey City, 133 N.J. 182,
189 (1993) (quoting Policemen's Benevolent Ass'n of N.J., Local 318 v. Twp.
of Washington, 850 F.2d 133, 141 (3d Cir. 1988)). Significantly, that includes
a diminished expectation of privacy in their disciplinary records. Hart v. City
of Jersey City, 308 N.J. Super. 487, 493 (App. Div. 1998) (finding no cause of
action for invasion of privacy claims based upon publication of plaintiff's one-
day suspension in an in-house police department bulletin, noting that "police
officers, because they occupy positions of public trust and exercise special
powers, have a diminished expectation of privacy"). And, of course, the
Legislature itself acted last year to require the identities of law enforcement
officers involved in the arrest or investigation of a death of a person in an
encounter with a law enforcement officer acting in the officer's official
capacity or while the decedent was in custody be made available to the public
within twenty-four hours or as soon as practicable. N.J.S.A. 52:17B-107.1.
A-3950-19T4
42
Given this long history of distinguishing law enforcement officers from
other public employees by virtue of the public trust reposed in them to enforce
and uphold the law, and the manifest "need in a democratic society for public
confidence, respect and approbation of the public officials on whom the state
confers" the authority to use lawful force to arrest and detain their fellow
citizens, Policeman's Benevolent Ass'n of N.J., Local 318, 850 F.2d at 141, we
cannot find the Attorney General's decision to exercise the authority he and his
predecessors have long reserved in the IAPP to release confidential internal
affairs records and information violates the rights of the State's law
enforcement officers in the privacy of their personnel records under Executive
Order 11, section 10 of OPRA, or N.J.A.C. 13:1E-3.2.
"Retroactive Application" of the Directives.
Appellants contend that because Directives 2020-5 and 2020-6 direct the
release of internal affairs records of officers receiving major discipline before
the Directives were issued, up to six months before in the case of 2020-5 and
up to twenty years before in the case of 2020-6, the Directives constitute "ex
post facto administrative provisions" that run afoul of the State's retroactivity
cases. We reject the argument and the analysis.
A-3950-19T4
43
First, "the prohibition against ex post facto laws applies only to laws of a
penal and criminal nature," which the Directives assuredly are not. In re
Kaplan, 178 N.J. Super. 487, 495 (App. Div. 1981). Second, a retroactivity
analysis is undertaken only where there has been a change in the law. See In
re D.C., 146 N.J. 31, 50 (1996). Although appellants' retroactivity arguments
assume there's been a change in the law governing release of their disciplinary
records, that is not accurate.
The Attorney General in Directives 2020-5 and 2020-6 has ordered the
release of limited information gleaned from existing internal affairs records,
consistent with his longstanding statutory authority under the Law and Public
Safety Act of 1948, the Criminal Justice Act of 1970, and N.J.S.A. 40A:14-
181, which we hold does not violate Executive Order 11, OPRA, and the
Department's government records regulation. Accordingly, in issuing
Directives 2020-5 and 2020-6, the Attorney General has only exercised
authority he possesses under very old statutes. While it is certainly true the
Attorney General has now exercised his authority to make certain information
public that he had previously exercised his authority to keep confidential, his
statutorily granted discretionary authority has not changed. And, as a decision
to release any public record anticipates the disclosure of an existing record,
A-3950-19T4
44
without regard to its historical nature, that is, when it was created, we are not
convinced a retroactivity analysis is warranted or appropriate.
The purpose of permitting public access to existing public records "is the
bedrock principle that our government works best when its activities are well-
known to the public it serves." Burnett v. Cty. of Bergen, 198 N.J. 408, 414
(2009). That is the Attorney General's professed purpose in ordering
disclosure of historical major disciplinary data; that permitting public scrutiny
of New Jersey's internal affairs processes at all levels of law enforcement will
instill greater accountability in those processes and promote greater trust and
confidence in the State's law enforcement agencies. Because we find OPRA,
Executive Order 11 and the Department's government records regulation
permit the Attorney General's release of that information, the Directives do not
violate the affected officers' rights to nondisclosure, regardless of when the
discipline was imposed. A retroactivity analysis is not necessary.
Even were we to perform a retroactivity analysis, however, we would
not strike down the Directives. A retroactive analysis would focus on two
factors, whether retroactive application was intended and, if so, whether it
would "result in either an unconstitutional interference with 'vested rights' or a
'manifest injustice.'" See In re D.C., 146 N.J. 31, 50 (1996). As there is no
A-3950-19T4
45
doubt the Attorney General intended the Directives to reach prior discipline,
the only question is whether doing so would work an unconstitutional
interference with a vested right of affected officers or constitute a manifest
injustice. See State Troopers Fraternal Ass'n v. State, 149 N.J. 38, 54 (1997).
As already discussed at length, the IAPP for the last twenty years has
advised all law enforcement officers that the Attorney General could direct the
release of their internal affairs records. That fact, coupled with the long-
standing understanding that law enforcement officers are distinct among public
employees, that there is a higher level of scrutiny of their performance, giving
their employers a broader scope of discretion in administering their work and
providing officers a lower expectation of privacy in their disciplinary records,
convince us that they have no constitutionally protected vested right that the
Directives could infringe. See Lehrhaupt v. Flynn, 140 N.J. Super. 250, 261
(App. Div. 1976) (individual's right of privacy "may be limited by virtue of the
legitimate right of the public to acquire knowledge of all facts relevant to the
performance . . . of its public officials"), aff'd, 75 N.J. 459 (1978); see also
Kenny v. Byrne, 144 N.J. Super. 243, 252-57 (App. Div. 1976) (holding
executive order mandating financial disclosures of certain employees did not
violate their right to privacy in light of "[p]aramount right of the people to
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46
honest and impartial performance by their government employees"), aff'd o.b.,
75 N.J. 458 (1978). That the Attorney General has not exercised his authority
to release internal affairs records before does not make his doing so now a
violation of a constitutionally protected vested right. Cf. Phillips v. Curiale,
128 N.J. 608, 620 (1992) (explaining "'[t]here can be no vested right in the
continued existence of a statute or rule of the common law which precludes its
change or repeal'" (quoting Savarese v. N.J. Auto. Full Ins. Underwriting
Ass'n, 235 N.J. Super. 298, 309 (App. Div. 1989))).
Nor can we find that retroactive application of the Directives constitutes
a violation of the manifest injustice doctrine. See State Troopers Fraternal
Ass'n, 149 N.J. at 54 (explaining that "manifest-injustice analysis is a
nonconstitutional, equitable doctrine designed to prevent unfair results that do
not necessarily violate any constitutional provision"). The Court has explained
that "manifest injustice analysis requires 'a weighing of the public interest in
the retroactive application of the statute against the affected party's reliance on
previous law, and the consequences of that reliance.'" Nobrega v. Edison Glen
Assocs., 167 N.J. 520, 547 (2001) (quoting Nelson v. Bd. of Educ., 148 N.J.
358, 371 (1997)).
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Appellants obviously cannot prevail on an argument that before officers
decided to engage in the misconduct that would result in major discipline, they
counted on their discipline remaining confidential. While we have no doubt
that some officers in the last twenty years agreed to settle internal disciplinary
actions, at least in part, to avoid their misconduct being made public,
Libertarians for Transparent Gov't v. Cumberland Cty., __ N.J. Super. at __
(slip op. at 21), appellants cannot demonstrate that was universally true, and
even if it were, we cannot find it outweighs the Attorney General's paramount
interest in taking action to improve the public's trust in state and local police
by making more transparent the processes that govern officer misconduct.
Even were the public interest less weighty than it obviously is, the regular
release of such records in criminal and civil actions and the Attorney General's
clear statement for the last twenty years that any internal affairs record would
be released at his direction are fatal to appellants' claim that the very limited
release of final discipline the Attorney General has ordered in Directives 2020-
5 and 2020-6 would constitute a manifest injustice to them.
Having said that, we are mindful of the sea change the Directives
represent in the Department's policy regarding the confidentiality of officer
disciplinary records and the deep feelings of unfairness the retroactive
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48
application of these Directives have engendered among law enforcement
officers, whether or not they will be personally affected by the disclosures to
be made. As already noted, the Attorney General was only recently in our
Supreme Court advocating for the necessity of not linking a trooper's name to
the disciplinary summary we earlier referenced, released in the Division's 2015
report of trooper misconduct. Those are the same summaries he now intends
to revise and release, identifying the trooper in each case of demotion,
reduction in rank or grade or suspension longer than five days.
The Attorney General acknowledges his former position, arguing
persuasively that the fraying of public trust in law enforcement in many of the
State's communities has caused him to balance the costs of shielding the
identities of officers found to have committed offenses warranting major
discipline differently. He is allowed. As the Supreme Court has noted in the
context of a regulatory agency's interpretation of a statute, time and experience
matter. Glukowsky v. Equity One, Inc., 180 N.J. 49, 67 (2004). Agency law
"is not static. It has elasticity that permits it to adapt to changing
circumstances and conditions." Ibid. As the Attorney General argued in
opposition to appellants' request to enjoin operation of the Directives pending
A-3950-19T4
49
appeal, "sometimes the status quo is unacceptable and should not be
preserved."
Leaving aside their disagreements over the Attorney General's policy
choice, which are not for us to mediate, appellants and intervenors all contend
officers were promised confidentiality when they settled internal disciplinary
charges. Although the appendices in these appeals number many hundreds of
pages, we noted only one general disciplinary negotiated resolution that stated
it was a "mutually binding confidential resolution" of disciplinary charges.
Much more common were certifications to the effect that officers settling
disciplinary charges either "understood" such settlements would be
confidential or were "assured" of such by either command personnel or deputy
attorneys general acting on behalf of the Department.
While initially arguing the State's use of "confidential" in such
agreements and assurances was only ever in the limited sense intended in
OPRA and the IAPP, and thus that the State "never promised to keep such
discipline secret for any reason and in perpetuity," the Attorney General
conceded at oral argument that some officers might have contract claims to the
confidentiality of internal settlement agreements entered into with the State.
Although a representation or promise of confidentiality may not always shield
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50
internal agreements resolving disciplinary charges from disclosure under the
common law, see Libertarians for Transparent Gov't v. Cumberland Cty., __
N.J. Super. at __ (slip op. at 29-31), we are not prepared on this record to say
they would not bind the Attorney General in an individual case in the absence
of a common law request and ensuing court order directing publication. See
W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 560-63 (1989)
(discussing the obligation of the government to "turn square corners" in its
dealings).
Appellants raise other claims, such as promissory and equitable estoppel,
which likewise cannot be resolved on this record. Appellants have brought
only a facial challenge to the Directives. Although we are confident that facial
challenge must fail, the record is inadequate to address the claims individual
officers might have against release of their names regarding discipline they
received before the Attorney General issued the Directives.
To the extent affected officers wish to pursue as-applied challenges, we
note the Attorney General in Directive 2020-6 has provided that officers whose
names will be published receive notice at least seven days prior to publication.
We assume he has done so to permit the officer to take what steps he or she
deems necessary, whether that be to contact the Attorney General about the
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51
accuracy of the information or specific privacy concerns — for instance, that
publication in the form proposed could reveal the victim of domestic violence6
— or to file an as-applied challenge to the Directives. Seven days provides
very little time for an officer, particularly one who may have long since
retired, to take action in response to the notice. We find a fourteen-day notice,
including the name and contact information for the person in the Attorney
6
The Attorney General has dismissed appellants' concerns that attaching an
officer's name to a previously released summary of misconduct will, in some
instances, reveal the identity of a victim of domestic violence, insisting "the
synopses will . . . not identify domestic violence victims by name or by
relationship to the disciplined officer in accordance with the Prevention of
Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and Rule 1:38-3(b)(12)."
The Attorney General writes in his brief, however, that "[w]hile the reports
will of course mention whether an officer received major discipline for having
engaged in domestic violence — an important sign of an officer's tendency to
intolerable violence — that does not itself reveal the identity of a victim
because the scope of possible domestic violence victims is much broader than
appellants continue to suggest," citing N.J.S.A. 2C:25-19(d) (referring to "a
spouse, former spouse, or any other person who is a present household member
or was at any time a household member"). That a domestic violence victim
could be someone other than the perpetrator's spouse, former spouse or
significant other would not appear adequate protection for victims who do
stand in such relation to an officer who received major discipline for having
engaged in domestic violence. We expect the Attorney General will have to do
more to protect the identities of domestic violence victims than simply rely on
the definition of "victim of domestic violence" in the statute — whether that
might include giving notice to those victims before publication to permit them
to object, precluding identification of the officer in instances where the
victim's privacy cannot reasonably be protected, or other steps to ensure victim
anonymity is not before us.
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52
General's office who the officer may contact about the disclosure, would better
allow the officer to take such steps. We likewise expect the Attorney General
to require local departments making historical discipline information available
to provide equivalent contact information and the same notice period.
To be clear, we are not suggesting that affected officers have viable as-
applied challenges to Directives 2020-5 and 2020-6. If anything, our review of
this record suggests many officers would likely have difficulty establishing an
enforceable promise of confidentiality. Nevertheless, affected officers must be
provided the opportunity to bring such claims, or to bring to the attention of
the Attorney General or law enforcement executive other concerns about the
information being released, which a fourteen-day notice adequately provides.
Appellants' Remaining Arguments.
None of appellants' remaining arguments requires extended discussion
here. Although petitioners contend the Directives violate their rights to
substantive and procedural due process and equal protection, their arguments
are not weighty. Substantive due process doctrine does not protect an
individual from all government action that might infringe her liberty in
violation of a law. Instead, it "is reserved for the most egregious governmental
abuses against liberty or property rights, abuses that 'shock the conscience or
A-3950-19T4
53
otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to
human dignity.'" Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366
(1996) (quoting Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)).
As our Supreme Court has observed, "[w]ith the exception of certain
intrusions on an individual's privacy and bodily integrity, the collective
conscience of the United States Supreme Court is not easily shocked." Ibid.(citing Irvine v. California, 347 U.S. 128, 133 (1954) (finding no Fourteenth
Amendment violation when state police officers broke into defendant's home
and secretly placed a microphone in defendant's bedroom, as the trespass
involved no coercion, violence or brutality to the defendant)). We are thus
confident the Attorney General's release of a summary of the findings that led
to a law enforcement officer's termination, demotion, or suspension for more
than five days does not rise to the level of a substantive due process violation
implicating petitioners' reputation or privacy rights. See ibid. (recalling that
Justice Frankfurter in Rochin v. California, 342 U.S. 165, 172 (1951), equated
substantive due process violations with abuses by government that "are . . . too
close to the rack and the screw to permit of constitutional differentiation").
Appellants' claims that the Directives violate their substantive due
process right to privacy under our State Constitution fare no better. Simply
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54
stated, appellants cannot show they have a constitutionally protected
reasonable expectation of privacy in their disciplinary records that is not
outweighed by the government's interest in public disclosure, in light of prior
case law establishing their diminished expectation of privacy in those records,
and the clear statement in every IAPP issued since 2000 that the Attorney
General could order the release of the records. See Doe v. Poritz, 142 N.J. 1,
88-91 (1995) (upholding Megan's Law disclosure mandate against
constitutional privacy challenge, finding that state interest in public disclosure
substantially outweighed plaintiff's diminished privacy interest).
As to appellants' procedural due process argument, while we are mindful
that our State Constitution extends due process protection to personal
reputation, see Doe, 142 N.J. at 104, we have held "this does not mean that a
liberty interest is implicated anytime a governmental agency transmits
information that may impugn a person's reputation." In re L.R., 321 N.J.
Super. 444, 460 (App. Div. 1999). We find no general right to a hearing here,
especially as all affected officers have already received all the process they
were due for their disciplinary charges, including representation by their
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55
union.7 See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). As already
discussed, we do not find any need for notice beyond that necessary to permit
affected officers time to bring an as-applied challenge before the initial release
of the names of officers who incurred discipline in or after 2000 but before
issuance of the Directives.
We likewise find no merit in appellants' equal protection claims.
Appellants' argument is that the Directives unconstitutionally differentiate
between members of the State Police and law enforcement officers in the
Division of Criminal Justice and the Juvenile Justice Commission on the one
hand and the rest of the State's law enforcement officers on the other, and
between all of those law enforcement officers and other public employees.
Equal protection, of course, does not forbid all classification; it "requires only
7
Petitioners certainly had no constitutional procedural due process right to be
heard before the Attorney General adopted the policy announced in the
Directives. See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271,
283-86 (1984) (noting "[t]he Constitution does not grant to members of the
public generally a right to be heard by public bodies making decisions of
policy"); see also United States v. Fla. E. C. R. Co., 410 U.S. 224, 245-46
(1973) (recognizing distinction in administrative law between proceedings for
promulgating policy-type rules applicable across the board from proceedings
designed to adjudicate disputed facts in particular cases). We also reject
appellants' argument that the Directives were adopted in violation of their
rights to notice and opportunity to be heard under the Administrative
Procedures Act. See infra p. 60.
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56
that those classifications not be arbitrary." Doe, 142 N.J. at 91. "The
constitutional requirement of equal protection is met by legislation which
treats in a like or similar manner all persons within a class reasonably
selected." Mason v. Civil Serv. Comm'n, 51 N.J. 115, 128 (1968).
Because appellants are not members of a suspect class and no
fundamental constitutional right is impinged by publication of their
disciplinary records, an equal protection claim will only succeed if "the
relationship between the permissible goal and classification is so attenuated as
to be arbitrary or irrational." In re Wheeler, 433 N.J. Super. 560, 619 (App.
Div. 2013). As already discussed, the Legislature and our courts have long
distinguished law enforcement officers from other public employees based on
the responsibilities and privileges of law enforcement officers. See City of
Jersey City, 154 N.J. at 572. Disclosing the names of law enforcement officers
who have received major discipline is obviously rationally related to the
Attorney General's goal of increasing transparency of internal affairs and
officer discipline in the State's law enforcement agencies, thereby making
them more accountable to the communities they serve.
As for the Directives distinguishing between those law enforcement
officers within the Department of Law and Public Safety and those in local law
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57
enforcement agencies, the Attorney General offers two reasons for doing so.
First, he asserts the officers within his Department must lead by example. He
reasons that by releasing the names of Department officers receiving major
discipline since 2000, he will inspire local agencies to do the same.
He also maintains that by leaving the decision to "release information
regarding historical incidents of officer misconduct" to local control, he has
ensured the law enforcement executive closest to the community will weigh
the costs and benefits of historical disclosure in light of local conditions.8
Although the State Police has for the past twenty years included summaries of
major discipline in its annual reports to the Legislature, it is only since 2011
that the IAPP has required local agencies to release a synopsis of all
8
We have been provided with examples of two policy statements by county
prosecutors in the wake of Directives 2020-5 and 2020-6. Both acknowledge
the Directives will require a more consistent approach to the investigation of
internal affairs matters and imposition of police discipline in their counties
going forward. While also acknowledging the importance of retrospective
disclosure to building greater trust with the diverse communities they serve,
they take somewhat different approaches to the release of historic disciplinary
sanctions as permitted by Directive 2020-5, acknowledging they lack the State
Police's twenty year archive, as well as noting the variation in the quality of
internal affairs functions across municipal departments, the reliability of
available records and the disparities in discipline for similar offenses across
departments and over time.
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complaints where a fine or suspension of ten days or more was assessed to a
member of the agency. 2011 IAPP at 50.
The Attorney General's proffered reasons for distinguishing among law
enforcement agencies constitute rational bases for the classifications appellants
challenge. See Drew Assocs. of N.J., L.P. v. Travisano, 122 N.J. 249, 264
(1991); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health
Servs., 107 N.J. 355, 367-77 (1987); N.J. Restaurants Ass'n v. Holderman, 24
N.J. 295, 300 (1957); Wheeler, 433 N.J. Super. at 619-20. The outcome would
not be different were we to undertake an equal protection analysis under our
State Constitution balancing test. See Doe, 142 N.J. at 94. Considering the
affected officers' right in the confidentiality of their disciplinary records, the
extent to which the Directives impinge that right, and balancing those interests
against the public need for disclosure, we are satisfied the public need for
more transparency in the internal affairs processes of the State's law
enforcement agencies in this period of fraying public trust in law enforcement
outweighs the officers' limited privacy right in their disciplinary records and
the intrusion of that right to the extent of revealing incidents in which major
discipline has been sustained. See Greenberg v. Kimmelman, 99 N.J. 552, 577
(1985) (explaining the balancing test).
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Appellants' contention that the Attorney General promulgated Directives
2020-5 and 2020-6 in violation of the Administrative Procedures Act ignores
our long-standing view that the Attorney General's law enforcement directives
and guidelines "are not 'administrative rules' as defined in [N.J.S.A. 52:14B-2],
and, thus, do not require formal promulgation under the [APA]." O'Shea, 410
N.J. Super. at 383. They fall within a statutory exception to the APA's
definition of an administrative rule, because they constitute "statements
concerning the internal management or discipline of an agency." N.J.S.A.
52:14B-2; O'Shea, 410 N.J. Super. at 383. Moreover, we have explicitly
concluded that the Attorney General's issuance of the IAPP is not subject to
administrative rulemaking under the APA. In re Carroll, 339 N.J. Super. 429,
442-43 (App. Div. 2011).
Several plaintiffs contend the Directives unconstitutionally impair their
right to contract and violate their constitutional right to collective negotiations.
None of the collective negotiations agreements in the record, however,
addresses the confidentiality of personnel records, disciplinary records, or
internal affairs records, other than to require compliance with the IAPP, which,
of course, is issued pursuant to the Attorney General's authority under N.J.S.A.
40A:14-181, and is subject to amendment outside the collective negotiations
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process, making a contract impairment analysis unnecessary. See Berg v.
Christie, 225 N.J. 245, 259 (2016) (explaining contract impairment claims
"entail an analysis that first examines whether a change in state law results in
the substantial impairment of a contractual relationship"). To the extent those
petitioners argue that confidentiality assurances are mandatorily negotiable,
any scope of negotiations claim must be brought before the Public Employee
Relations Commission.9 See Barila v. Bd. of Educ. of Cliffside Park, 241 N.J.
595, 614 (2020) (noting the Legislature has assigned to PERC in the first
instance "the task of differentiating between negotiable subjects and non-
negotiable policy considerations").
Finally, to the extent we have not already addressed them, we reject
appellants' arguments that the Directives are arbitrary, capricious and
unreasonable, and violate public policy. The Attorney General, as New
Jersey's chief law enforcement officer, has broad supervisory authority over
9
We are not aware of any pending scope of negotiations petition. Appellants
in A-4002-19 have advised us of an unfair practice charge filed with PERC in
June against the City of Paterson by Paterson Police PBA Local 1 and Paterson
Police PBA Local 1 Superior Officers Association with interim restraints
against publication of the names of current or former officers "who in the past
twenty (20) years have been fired, demoted, or suspended for more than five
days due to a disciplinary violation, whether with, or without a summary of the
violation."
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the enforcement and prosecution of the State's criminal laws at every level of
government. With that authority comes enormous responsibility for ensuring
public confidence that the State's law enforcement officers are honest,
unbiased and themselves law abiding and thus possessed of legitimate
authority to "'exercis[e] the most awesome and dangerous power that a
democratic state possesses with respect to its residents—the power to use
lawful force to arrest and detain them.'" Rawlings, 133 N.J. at 189 (quoting
Policemen's Benevolent Ass'n of N.J., Local 318, 850 F.2d at 141).
Like petitioners, the Attorney General is well aware that trust in the
police is essential for them to safely and effectively perform their jobs of
protecting the communities they have sworn to faithfully serve. Concerned
that community trust in our police has become seriously frayed in cities and
towns across our State, he determined he could best improve that trust by
instilling greater accountability in the internal affairs processes that govern
officer misconduct by ending the long practice of shielding the identities of
officers receiving major discipline.10
10
We note the information the Attorney General has ordered released in
Directives 2020-5 and 2020-6 is quite limited, and far less than what some of
our neighboring states have done in response to similar concerns. See, e.g.,
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That step follows several other recent events that have likewise
increased transparency and accountability of law enforcement agencies in this
State, including making public use of force reports, see Lyndhurst, 229 N.J. at
577-78, the creation of civilian oversight boards, see Fraternal Order of Police,
__ N.J. __ (slip op. at 3-4), and the passage of a statute requiring release of the
identities of officers involved in the arrest or investigation of a death of a
person in an encounter with a law enforcement officer acting in the officer's
official capacity or while the decedent was in custody, N.J.S.A. 52:17B-107.1.
The Attorney General's mandate to publish the names of those officers having
been terminated, demoted or suspended for more than five days, appears to us
neither arbitrary nor capricious and, instead, consistent with existing law and
evolving public policy. See Lavezzi v. State, 219 N.J. 163, 171 (2014).
For the reasons expressed here, we reject petitioners' facial challenge to
Attorney General Directives 2020-5 and 2020-6. We, nevertheless, continue
our stay of the Directives for five days only, to permit appellants to file an
immediate petition for certification and application for any further stay in the
Supreme Court.
(continued)
2020 N.Y. Laws 96 (repealing N.Y. Civil Rights Law 50-a, and allowing for
the public release of law enforcement disciplinary records).
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Affirmed.
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