New Jersey employment law in the public sector contains few more contentious areas than the confidentiality of the disciplinary and personnel records of law enforcement officers. A trio of published New Jersey State and Federal court opinions have shed light on this contentious and evolving area of the law.
In re Attorney General Law Enforcement Directives: Disciplinary Records
The Legislature has tasked the New Jersey Attorney General with supervising law enforcement throughout the state. In 2020, in the midst of the George Floyd protests, the New Jersey Attorney General used that authority to issue two directives which would release the names of law enforcement officers who have committed violations resulting in “major discipline,” and to issue summaries of the underlying complaints and discipline imposed. Although the directives apply to all State and local jurisdictions, they define “major discipline” similarly to New Jersey civil service law: suspension of greater than five days, demotion, or termination. The Attorney General’s given reasons for the directives were to “promote trust, transparency and accountability.”
The PBA and other law enforcement employee organizations challenged the Directives in court. The organizations argued that the Attorney General lacked the jurisdiction to issue the directives, that they were arbitrary and capricious, that they violated pre-existing union contracts, that OPRA shielded the records, and that officers who had previously settled disciplinary charges did so in the belief that the discipline would remain confidential. The matter worked its way through the appeals process to the New Jersey Supreme Court which, in the 2021 case of In re Attorney General Law Enforcement Directives No. 2020-5 and 2020-6, rejected these arguments and upheld the directives, which remain in place today.
However, the Supreme Court somewhat limited its decision. It ruled that officers who settled discipline prior to the Directives can challenge the release of that information. They will need to prove in a hearing before a Superior Court judge that they settled the charges because of the promise that the discipline would remain confidential.
Rivera vs. Union County Prosecutor’s Office: Internal Affairs Investigations
In 2022, the New Jersey Supreme Court again revisited the issue of the disclosure of law enforcement personnel records in the case of Rivera vs. Union County Prosecutor’s Office. This case involved an Open Public Records Act (“OPRA”) for internal affairs reports about an investigation which found that the former director of the Elizabeth Police Department engaged in sexist and racist behavior. The Court found that the records were not subject to disclosure under OPRA, but were subject to disclosure under New Jersey’s common law right of access when the interest of justice favor disclosure over the need for confidentiality.
The Supreme Court said that in reviewing such claims, courts should review the following factors:
(1) the nature and seriousness of the misconduct. Serious misconduct gives rise to a greater interest in disclosure. For example, misconduct that involves the use of excessive or deadly force, discrimination or bias, domestic or sexual violence, concealment or fabrication of evidence or reports, criminal behavior, or abuse of the public trust can all erode confidence in law enforcement and weigh in favor of public disclosure;
(2) whether the alleged misconduct was substantiated. Unsubstantiated or frivolous allegations of misconduct present a less compelling basis for disclosure;
(3) the nature of the discipline imposed. Investigations that result in more serious discipline, like an officer’s termination, resignation, reduction in rank, or suspension for a substantial period of time, favor disclosure.
(4) the nature of the official’s position. Wrongdoing by high-level officials can impair the work of the department as a whole, including the functioning of the internal affairs process; and
(5) the individual’s record of misconduct. The public’s interest in disclosure extends to all officers — regardless of rank — whose serious or repeated misconduct may pose a danger to the public.
However, the Supreme Court also ruled that sensitive information should be redacted before release. It explained:
At a minimum, judges should redact the names of complainants, witnesses, informants, and cooperators, as well as information that could reasonably lead to the discovery of their names; non-public, personal identifying information about officers and others, such as their home addresses and phone numbers; and personal information that would violate a person’s reasonable expectation of privacy if disclosed, such as medical information.
Capps vs. Dixon: Fitness for Duty Examinations
Also in 2022, the United States District Court for the District of New Jersey weighed in on the disclosure of law enforcement officer records in the context of discovery in a civil lawsuit in a published opinion in the case of Capps vs Dixon. In this case, the plaintiffs sued officers with the Millville Police Department for the use of excessive force during an arrest under Section 1983 of the Civil Rights Act of 1871, The plaintiffs sought the officers’ fitness for duty reports in the course of discovery. The parties agreed that the reports might be relevant to the case, particularly on whether the examining doctor found a propensity for violence, but the defendants argued that only the conclusions were relevant, and the rest should be redacted and remain confidential. The plaintiffs sought the complete, unredacted reports.
The Court found that the physician-patient or psychologist-patient privilege applies even in the context of fitness for duty examinations, but only to the extent that the examinee had a “reasonable expectation” that their communications with the physician or psychologist would remain confidential. In this case, the officers were expressly advised that the entire report would be provided to their police chief. Therefore, the Court explained, they had no reasonable expectation that the report would remain confidential, and the entire report should be produced to the plaintiffs. The Court noted that the result would have been different, as it had been in other cases, when the officers were advised that only the conclusions would be produced.
The Takeaways
- New Jersey law enforcement officers can no longer count on disciplinary records being confidential. They need to understand this when considering whether or not to settle disciplinary charges.
- While these records, including internal affairs investigations, may be disclosed, information which would disclose the identities of witnesses or complainants should not be released.
- The conclusions of fitness for duty examinations will almost certainly be discoverable in civil litigation. If officers hope to have the underlying reasons for the conclusion and their communications with the examining physician or psychologist remain confidential, they should ensure that they have that assurance in writing.
- This is a contentious and evolving area of the law, and these cases are unlikely to be the last word on the matter. Stand by….
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