In New Jersey, the Attorney General’s Office is required to investigate “[w]henever a person’s death occurs during an encounter with a police officer . . . or while the decedent was in custody.” N.J.S.A. 52:17B-107. In light of that requirement, the Attorney General issued Law Enforcement Directive No. 2019-4, which outlines procedures for selecting the appropriate Independent Investigator and conducting a proper investigation for these fatal incidents. The Directive also requires the disclosure of videos of these incidents, but we find that the transparency measures are not closely followed.
According to Directive No. 2019-4, the “Independent Investigator must release the . . . Incident Footage within 20 days of the . . . Incident, unless the Attorney General, or designee, authorizes a delayed release.” This blog previously discussed a prior iteration of this Directive, highlighting how the 20-day disclosure requirement actually slowed down the access provided by the Supreme Court in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that videos should be released “within days of an incident.” Now it appears that even the 20-day disclosure requirement is being consistently ignored.
Based on data collected from the Attorney General’s website, there have been 12 incidents since January 1, 2020 that the Attorney General’s office has investigated. Nine of these incidents were shootings and three were in-custody deaths:
It appears that the fastest time that any videos of these deadly incidents were released was 16 days. Those videos related to Maurice Gordon, who was shot and killed by an officer on the Garden State Parkway on May 23, 2020. Gordon’s death received significant media attention and activists demanded that the videos be released.
As detailed in the chart above, it appears that the Attorney General’s Office has complied with the 20-day disclosure requirement only a single time this year. Sometimes, investigators have taken more than double the time allotted by Directive No. 2019-4, with three incidents taking 44 days, 48 days, and 50 days. In the case of a man who died after a physical altercation with Trenton police, videos were not released for 153 days.
There are three incidents (two of which are in-custody deaths with unidentified decedents) where it does not appear that videos have been officially released. Working alongside our longtime client, Richard Rivera, we filed requests for these videos on September 26, 2020.
On July 15, 2020, the Senate Law and Public Safety Committee held its first public hearing on police reform in New Jersey. The hearing was intended to be a discussion on policing issues in general and no particular legislative bill was before the committee, but police transparency was a frequent topic.
The hearing opened with live testimony from Attorney General Gurbir Grewal, who acknowledged that even after his recent decision to disclose the names of officers who receive major discipline, New Jersey still lags behind the rest of the nation when it comes to providing transparency over the police disciplinary process. Grewal testified:
We are one of a shrinking number of states where police disciplinary records remain shrouded in secrecy, virtually never seeing the light of day. In recent months, I have come to recognize that our policy isn’t just bad for public trust, it’s bad for public safety. And it’s time for our policy to change.
Although he did not embrace any particular bill, such as S-2656, a bill introduced by Senator Loretta Weinberg to make police internal affairs and disciplinary records subject to OPRA, it can be inferred from the Attorney General’s testimony that he may be inclined to support such a bill and believes it that full transparency is the right thing to do. The Attorney General testified:
“[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.”
The only way to be a national leader is to embrace full access to actual internal affairs files–all of them, even those that are not sustained. That is indeed what more than a dozen states do, as the Attorney General testified.
The police unions have have already obtained a stay of the Attorney General’s recent directive requiring disclosure of major discipline. Multiple police unions testified against transparency at the hearing. Therefore, the Attorney General’s testimony addressed the fact that legislative action was needed to make internal affairs records public.
The public was invited to submit written testimony in advance of the meeting. Attorney CJ Griffin submitted personal written testimony explaining why the Attorney General’s recent directive fails to provide real transparency and providing a helpful chart that compares New Jersey to other states on the issue of internal affairs access. Griffin concluded by saying:
“Unfortunately, in New Jersey we are unable to proactively review IA investigation files to root out the complaints that were erroneously dismissed or expose the shoddy IA investigations. Instead, we have to wait until tragic situations occur for IA information to become public. At that point, the damage is already done.
I was not born and raised in New Jersey, so I feel a sense of pride and ownership in having chosen to make this state my home. In that regard, I have bragged to friends and fellow advocates about the areas of law where we lead the nation. But, in this area—police transparency—we are, as the Attorney General recognized, at the “back of the pack.” We must not only catch up to most other states; we must lead.
Griffin also recently submitted an amicuscuriae brief on behalf of two non-profit law enforcement organizations, opposing the police unions’ lawsuits to stop the Attorney General’s directives to disclose the names of officers who receive major discipline. You can read about that brief here. The Appellate Division will hear oral arguments in mid-September.
An archived recording of the hearing can be viewed on the Legislature’s website. Additional police reform hearings will be held.
We recently blogged about Rivera v. Union County Prosecutor’s Office, where the trial court granted access to the internal affairs reports of the former Police Director of the City of Elizabeth Police Department, who was the subject of an internal affairs investigation that concluded that he used “racist and misogynistic slurs” in the workplace. As an update, the Appellate Division reversed that decision and concluded that the records were not subject to OPRA on June 19, 2020.
Unfortunately, the Appellate Division did not simply deny access under OPRA. It also concluded that the internal affairs reports were not accessible under the common law. Plaintiff has filed a motion for reconsideration, arguing that it was palpably incorrect for the Appellate Division to reach the issue of common law access because: 1) the trial court never reached the issue below; 2) the parties never briefed the issue before the Appellate Division; 3) the parties never addressed common law access at oral argument; and 4) no court ever reviewed the actual records in camera.
A copy of the motion for reconsideration brief is here.
In 2017, CJ Griffin of Pashman Stein Walder Hayden filed an OPRA lawsuit against the New Jersey State Police on behalf of Libertarians for Transparent Government, seeking the identity of a state trooper who had been “required to separate from employment” for “engaging in racially offensive behavior.” The trial court dismissed the lawsuit and the Appellate Division affirmed that dismissal, but the New Jersey Supreme Court agreed to hear the case. The appeal is pending.
Additionally, the Attorney General revised the Attorney General Internal Affairs Policy and Procedures so that every police department in the state must start disclosing the names of police officers who commit serious disciplinary violations. Beginning August 31, 2020, police departments must disclose the names of officers who are sanctioned by termination, reduction in rank or grade, and/or a suspension of greater than five days. The State will release the names of officers who received major discipline over the past 20 years.
“This is a victory not only for my client, but also the public,” said CJ Griffin, a partner at Pashman Stein Walder Hayden. “However, we hope this is just the first step and that full transparency will follow soon. The reality is that most internal affairs investigations do not result in major discipline, so New Jersey’s internal affairs functions will still largely remain a complete and total secret. Plus, there are too many loopholes with this policy–agencies can avoid disclosure by simply imposing 4-day suspensions or permitting an officer to resign instead of terminating them.”
“It’s great that we’ll now know the names of police officers who receive major sanctions, but what about all the hundreds of complaints every year that are not sustained? We need full access to actual internal affairs investigation files so that we can ensure that the investigations were conducted correctly and fairly and that bad behavior wasn’t swept under the rug. We shouldn’t have to just put blind faith in our police that internal affairs investigations are thorough and accurate — transparency lets us hold internal affairs units accountable. Transparency builds trust and community trust benefits police departments.”
Today’s policy change by the Attorney General came not long after the Star Ledger published an editorial demanding that internal affairs records be open for public inspection. More than a dozen other states have open internal affairs records, including places such as Florida and Colorado.
Readers may recall from numerousnewsarticles that in April 2019, the Union County Prosecutor’s Office (UCPO) concluded that former City of Elizabeth Police Director James Cosgrove used “racist and misogynistic” language in the workplace. The Attorney General issued a press release confirming the internal affairs investigation’s findings, calling on Cosgrove to resign, and making leadership changes at UCPO.
After UCPO denied an OPRA request for Cosgrove’s internal affairs reports, CJ Griffin filed a lawsuit on behalf of Plaintiff Richard Rivera seeking access to the reports pursuant to OPRA and the common law right of access. See Richard Rivera v. Union County Prosecutor’s Office, Docket No. UNN-L-2954-19. Mr. Rivera is Co-Chair of the Latino Leadership Alliance of New Jersey’s Civil Rights Protection Project, a former municipal police officer, and a well-known civil rights advocate.
The City of Elizabeth intervened in the suit and vigorously defended UCPO’s denial of access alongside UCPO.
In February 2020, the Hon. James Hely, J.S.C. of the Superior Court, Union County, held that Cosgrove’s internal affairs reports were subject to access under OPRA. Judge Hely issued an order compelling the UCPO to produce the reports for in camera review so that the identities of witnesses and complainants could be protected by redaction.
Elizabeth and UCPO moved for reconsideration and a stay of the order. In an opinion denying those motions, Judge Hely wrote in part:
At the dawn of the 20th century, WEB Dubois declared “the problem of the 20th century is the problem of the color line.” The Souls of Black Folks (1903).
We are now 20 years into the 21st century and racial hostility, animus, and discrimination remain a reality in these United States. Indeed, it is often an undercurrent [in] political rhetoric at the national and local level to this very day.
. . .
It seems to be the defense position that since action was taken as a result of their investigation, the public should not see the truth. Many political leaders and members of the public contend that racism and sexism are relics of the past. It is obvious from what [is] already known about the internal investigation that such denials are fantasy.
. . .
. . . I do not find that greater harm will result if I do not grant the stay. Quite the opposite. The public deserves to know the level of overt racism and/or sexism that was uncovered about the highest official or officials of the Elizabeth Police Department. To allow this matter to be further swept under the rug of public scrutiny would be to foster the illusion that racism and sexism are behind us.
UCPO and the City of Elizabeth have appealed the order, arguing that the public should not have access to the reports. The Appellate Division agreed to hear the appeal on an interlocutory basis and the case is currently pending. Oral argument was in May.
Transparency plays a critical role in building trust between the police and the community. When members of the public trust the police, they are more likely to follow their commands, cooperate with criminal investigations, and even advocate for more funding for police. When police resist transparency, community trust is seriously undermined. Secrecy also makes it harder to hold police departments accountable and assure that they are complying with the law and meeting the high standards that we set for them. This is why we have been involved in dozens of cases involving police records, including landmark decisions such as North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017).
Although so many law enforcement records are sadly exempt from access under OPRA, something we hope the Legislature will fix, there are several records that are publicly accessible and that shed a light on policing and have the potential to expose misconduct or wrongdoing when it occurs.
We invite you to read our prior three-part blog series titled, “How to Monitor Police Agencies.” The series covers the following topics:
As we have recently written, agencies currently do not have to comply with OPRA’s 7-day deadline due to COVID-19. There is no such deadline relaxation for requestors to file OPRA lawsuits, however. Although there were prior orders by the Supreme Court that tolled such deadlines in March and April, those orders have now expired. Therefore, a person who receives a denial from a public agency must act very quickly. An OPRA suit must be filed within 45 calendar days from the date of the denial.
What should you do if an agency denies your request or otherwise violates OPRA?
The best course of action is to immediately speak to an OPRA attorney, who can review your denial and file a lawsuit on your behalf in Superior Court. Importantly, OPRA contains a fee-shifting provision that requires a public agency to pay a requestor’s legal fees when they prevail in court. This allows attorneys to represent you on a contingency basis, meaning there is no charge to you. The overwhelming majority of OPRA cases are handled with this fee-arrangement.
Typically, most OPRA lawsuits are resolved in Superior Court within 4-10 weeks either through settlement or a court order. This process is much faster than filing a complaint in the Government Records Council (GRC). Although the GRC is a free process, decisions are often not issued for two to three years. Therefore, we always recommend a Superior Court lawsuit.
Again, a requestor only has 45 calendar days to file an OPRA lawsuit. Given that it takes an attorney time to draft the lawsuit, it is best to act immediately after receiving a denial.
For more information about this blog post and challenging a denial of access, please contact CJ Griffin at firstname.lastname@example.org or 201-488-8200.
As we previously wrote on this blog, the Legislature amended OPRA in mid-March 2020 in response to the COVID-19 pandemic. Now and in the future, during a public health emergency, state of emergency, or state of local disaster emergency, a public agency no longer needs to respond to an OPRA request within seven business days. Instead, an agency must only make “a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.” N.J.S.A. 47:1A-5(i)(2).
Journalists Expose Transparency Issues
The COVID-19 pandemic has become a roadblock for the news media and those who seek information from the government. Reporters from NorthJersey.com, the Star Ledger, and the Associated Press collaborated and published three news stories today reporting about the serious lack of transparency in New Jersey during COVID-19. The articles discuss not only the State’s over-use of a confidentiality provision in the Emergency Health Powers Act to keep reporters from gaining important information about the State’s response to COVID-19, but also the fact that some counties and municipalities have essentially shut down their OPRA responses altogether. Other agencies are taking lengthy extensions, making it hard for reporters to report about local news. As NorthJersey.com wrote in its article:
Response to New Jersey’s amended law has been mixed, and some places continue to provide records in seven days. Others, like Jersey City, tell people not to expect a response at all.
“Due to the active state of emergency in relation to COVID-19, the City of Jersey City will not be able to respond to OPRA requests within seven (7) business days,” the city’s website says. “The City appreciates your patience during this difficult time.”
. . .
Dozens of government bodies from Hawthorne to Wildwood Crest have sought extensions and referenced or cited the pandemic as a reason, according to data provided by OPRAmachine, a website that helps residents submit record requests and tracks and analyzes the responses from public officials.
Delays range from a few days to weeks, and often cite closed municipal buildings and lack of staff. The website provides just a snapshot of the response, because most records requests across the state aren’t publicly tracked.
“This is very troublesome and a crisis unto itself,” said Pashman Stein Walder Hayden partner CJ Griffin. “We know from experience that secrecy inevitably leads to corruption, misconduct, waste and abuse. OPRA was enacted to permit the public to keep a watchful eye on government, but right now it can’t perform that function in many municipalities across this state.”
Today’s reporting follows an earlier article by New Brunswick Today, which also expressed concern about the State’s rush to amend OPRA and pointed out that public agencies have a long tradition of violating OPRA’s statutory deadlines in the past:
Advocates for transparency found the altered OPRA law confusing, given that records clerks often respond to requests within the seven business days only to make a request of their own: for an extension for more time to put together a substantive response.
Many government agencies have been known to play games with those who request records, asking for extension after extension, only to come back with a final decision that the request was improper or that the records cannot be released. Still others can’t seem to meet their own self-imposed timelines, and need to be reminded repeatedly about outstanding requests.
Guidance from the GRC
Recently, the Government Records Council took the extraordinary step of issuing a “Special Statement” on the amendment to OPRA, providing guidance on how it will determine whether an agency’s response is reasonable when receives denial of access complaints:
Please note that any dispute over extensions will be reviewed on a case-by-case basis because OPRA does not include a limitation on requesting extensions. However, the GRC’s analysis of this issue has included recognition of “extenuating circumstances.” Those circumstances would include, but not be limited to, retrieval of records that are in storage or archived (especially if at a remote storage facility), conversion of records to another medium to accommodate the requestor, emergency closure of the public agency, or the public agency’s need to reallocate resources to a higher priority due to force majeure.
In closing, the GRC stresses that custodians within agencies operating under normal business hours during an emergency, even if closed to the public or working off-site, are obligated to respond to OPRA requests upon receipt in due course to the extent possible. Additionally, custodians should proactively advise the public (by website notification and/or other methods) if the method of transmission for OPRA requests has changed or been limited due to a state of emergency. Similarly, members of the public wishing to submit OPRA requests should contact the applicable public agency for updates on any limitations or disruptions affecting the OPRA process during a state of emergency.
Courts are, of course, free to disregard the GRC’s guidance and they have done so before. Nonetheless, the GRC’s Special Statement makes it clear that agencies that are open for business, even if working remotely, cannot simply ignore OPRA requests and must act reasonably to try to respond to them. It may be reasonable to request a extension for records that exist only in paper copy or that are locked away in storage somewhere, but some agencies are taking lengthy extensions even for electronic records that are easily retrievable.
For information about this article or public records issues, contact CJ Griffin at email@example.com or 201-488-8200.
On March 20, 2020, Governor Murphy signed a series of coronavirus-related bills into law. Among them was A3849, which modifies the deadline by which public agencies must respond to an OPRA request during an emergency.
Under normal circumstances, a public agency must respond to an OPRA request as soon as possible and no later than seven business days from the date of the request. The amendment provides that:
During a period declared pursuant to the laws of this State as a state of emergency, public health emergency, or state of local disaster emergency, the deadlines by which to respond to a request for, or grant or deny access to, a government record under paragraph (1) of this subsection or subsection e. of this section shall not apply, provided, however, that the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.
In other words, where there is declared emergency, a public agency need not respond during seven business days. Instead, it must only make a “reasonable effort” to respond within seven business days or as soon as it is able to do so.
Those who frequently file OPRA requests know that agencies already frequently fail to comply with OPRA’s deadlines. We have written about about agencies taking multiple extensions before and and we have even sued and obtained rulings finding that certain agencies have engaged in a “pattern and practice” of violating OPRA’s statutory time frames. Frankly, many wonder why this bill was necessary in light of the fact that agencies already routinely take extensions.
In our minds, though, this new bill evidences a very clear legislative intent that agencies should always comply with OPRA’s statutory seven-day deadline and that any “reasonableness” arguments for a delay should be rejected unless there is a declared emergency. We hope the courts and GRC will agree and put an end to agencies automatically granting themselves endless extensions.
To contact us about this blog post or discuss an OPRA denial, email firstname.lastname@example.org or visit the “contact us” tab above.
OPRA’s personnel records exemption, N.J.S.A. 47:1A-10, renders most personnel records generally exempt from access under OPRA. The exemption contains three exceptions, however.
The first exception provides that:
“an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”
This provision obviously means that requests for an employee’s individual paystub or an agency’s weekly, monthly, or year-end payroll reports are available. Additionally, an agency must disclose each employee’s date of hire, title, position, salary, and date of separation. All of this information is important to know, as payroll is often one of the biggest expenditure in most agency budgets.
Within the next year, we should see resolution on what the phrase “date of separation and the reason therefor” means because the Supreme Court has granted certification in a case that asks the “name” of a state trooper who was “required to separate from employment” due to racially offensive behavior. We believe this provision permits the public to learn about employees who engage in misconduct. For more information about that case and the issue the Supreme Court will be deciding, please read our prior blog.
The second exception provides that:
“personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest.”
This exception has been largely un-litigated and thus the courts have still not defined the scope of this exception. In McGee v. Twp. of E. Amwell, 416 N.J. Super. 602 (App. Div. 2010), the Appellate Division held that emails about an employee were “personnel records” even though they were not filed in a personnel folder and that Exception 2 would permit the employee to request them because she would be an “individual in interest” who could authorize the release. Other courts have ruled similarly—employees can request their own personnel records, which includes emails that discuss their performance.
The third exception provides that:
data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.
In Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581 (2011), the Supreme Court held that this exception does not authorize disclosure of all records that “evidence an employee’s educational background or even that evidence an employee’s participation in educational pursuits generally.” Rather, the Court held that the exception makes available only records “that would demonstrate that a government employee lacked a required credential and therefore failed to meet the minimum qualifications for the position.”
In other words, if there is a certain training certificate, license, or degree that must be obtained in order to hold a government position (or to receive a promotion), then the public is entitled to access documents that prove whether or not the employee meets those requirements. Thus, because all police officers in New Jersey are required to take use of force trainings, the public is entitled to obtain documents proving those courses were taken. But, if an officer takes an optional course those records are not subject to OPRA, even if the agency paid for the training. (You can, of course, request a copy of the invoice or other financial documents that prove how much was spent).
To contact us about this blog post or discuss an OPRA denial, email email@example.com or visit the “contact us” tab above.