Rivera v. Union County Prosecutor’s Office

Court: New Jersey Supreme Court

Date Filed: July 28, 2021

Update: On March 14, 2022, the New Jersey Supreme Court ruled that Open Public Records Act does not permit access to the internal affairs records, but the records should be disclosed under the common law, subject to appropriate redactions. The court remanded the case to the trial court to conduct the balancing test prescribed by the common law, specifically to include factors such as whether the alleged misconduct was substantiated; the nature of the discipline imposed; the nature of the official’s position; and the nature and seriousness of the misconduct — and then enter an order of disclosure. (The court referenced the Reporters Committee’s amicus brief in its opinion.)

Background: In July 2019, Richard Rivera, a retired New Jersey municipal police officer, submitted a New Jersey Open Public Records Act request seeking access to police internal affairs records related to the Union County Prosecutor’s Office’s investigation into the workplace misconduct of the former director of the Elizabeth, New Jersey, police department. The director had reportedly harassed members of his department by using racist and sexist slurs.

The prosecutor’s office denied the request, prompting Rivera to sue for access to the internal affairs records under both OPRA and the common law. A trial court held that the requested records were available under OPRA. However, an appeals court reversed, ruling that internal affairs records, generally speaking, are unavailable under either OPRA or New Jersey’s common law.

Rivera then appealed to the New Jersey Supreme Court.

Our Position: The New Jersey Supreme Court should reverse the appellate court’s decision and hold that the requested records are available under the common law.

• A growing number of states recognize there is no government interest in “preventing disclosure” of records of law enforcement misconduct.
• The news media relies on, and has a powerful interest in, accessing records of internal investigations into law enforcement misconduct.
• The appellate court improperly ruled that internal affairs reports are categorically exempt under the common law.

Quote: “Access to the [internal affairs] records at issue will enable journalists to report important information about behavior of government officials and the processes employed to investigate patterns of misconduct that threaten to erode public trust in government institutions. Such reporting fosters accountability of public servants by deterring instances of misconduct and, when misconduct does occur, by ensuring that it is adequately responded to by agencies.”

Related: In June 2021, the New Jersey Supreme Court unanimously affirmed a lower court decision holding that the New Jersey attorney general was acting within his authority when he issued two directives in 2020 in response to the murder of George Floyd and nationwide Black Lives Matter protests calling for more police accountability and transparency. As a result of the ruling, New Jersey law enforcement agencies must publish annual reports identifying officers who faced major disciplinary action and describing the nature of their misconduct.

The Reporters Committee had filed a friend-of-the-court brief with the state Supreme Court urging it to affirm the lower court’s decision concerning the directives. The brief argued that releasing the names of law enforcement officers sanctioned for serious disciplinary violations allows the news media to inform the public about the performance of public employees. It also argued that New Jersey’s Open Public Records Act does not prohibit the attorney general from issuing the directives.