A Question Of Balance

The New Jersey Supreme Court has ordered disclosure of an internal affairs investigation after trial court review

This appeal centers around an internal affairs investigation into misconduct by a former police director. The key question is how to balance the need for confidentiality in internal affairs investigations with the public’s interest in transparency when a member of the public seeks access to records of an investigation.

The investigation here found that the former director of the Elizabeth Police Department engaged in racist and sexist behavior while in office. Plaintiff sought access to the internal affairs report under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The Prosecutor’s Office denied the request, and the Appellate Division ultimately ruled against plaintiff in a lawsuit he filed.

Although we find that OPRA does not permit access to internal affairs reports, those records can and should be disclosed under the common law right of access when interests that favor disclosure outweigh concerns for confidentiality.

Existing caselaw on the common law offers guidance on how to evaluate the need for confidentiality. See Loigman v. Kimmelman, 102 N.J. 98, 108 (1986). Today, we outline a number of factors to help courts evaluate the other side of the balancing test — the need for public disclosure. Those factors include the nature and seriousness of the misconduct, whether it was substantiated, the discipline imposed, the nature of the official’s position, and the person’s record of misconduct.

In this case, the public interest in disclosure is great. An internal affairs investigation confirmed that the civilian head of a police department engaged in racist and sexist conduct for many years. To date, defendant has raised only generalized concerns about confidentiality, and it does not appear that any court has yet examined the actual internal affairs report. We cannot fully evaluate defendant’s claims on the incomplete record before us.

The internal affairs report should be disclosed, as the Attorney General properly concedes, after the trial court reviews it and redacts parts that raise legitimate confidentiality concerns. We therefore remand the matter to the trial court for it to review the report, complete the necessary balancing test, and enter an order of disclosure. We ask the court to proceed expeditiously.

(Mike Frisch)