As we recently blogged here and here, there are serious concerns about the recent major discipline disclosures that police departments made pursuant to Attorney General Law Enforcement Directive 2020-5. Here is yet another problematic example:
The Star Ledgerpublished an editorial this week panning the disclosures as “not the kind of transparency that was promised when the database was conceived, in the aftermath of the George Floyd tragedy and the universal demand for more police accountability.”
The first problematic example the newspaper gave was Guttenberg Police Department’s disclosure that an officer was “currently still suspended with pay.” That’s it. No other details about the officer’s conduct, despite the requirement that agencies provide a “brief summary of [each officer’s] transgressions.”
Thankfully, unlike most other agencies in the state, all of police departments in Hudson County complied with the old version of the AG’s internal affairs policy which required them to publish the major discipline report without names. Thus, we are able to view Guttenberg’s anonymous version of its major discipline report, which Hudson County View first published here. (See page 8).
Guttenberg’s initial report (without names) said:
Please be advised that one (1) member of this agency had faced major disciplinary action during 2020. This officer (Sergeant) was suspended without pay since February for violations of this department’s rules and regulations. The officer failed to properly supervise and report an arrest and use of force incident.
Now the disclosure merely tells us the officer is “currently still suspended with pay.” Unless someone knew about the prior report, they would have no idea what this officer actually did and why he was being disciplined.
The failure to supervise and report an arrest and the use of force is a very serious offense. And, the officer has been suspended (with pay) for at least 494 days per the AG’s Major Discipline Database (see p. 38). But, the public was not told about this officer’s conduct and would have no way of knowing what the officer did based on the database. In order to determine whether there is appropriate accountability (i.e. whether the sanction was appropriate), the public needs to know about the officer’s actual transgression.
When Attorney General Grewal issued Directive 2020-5, he promised the public much greater transparency and that it would lead to better accountability. But, as the New Jersey Monitor recently wrote, the Directive turned out to be “a dud.” Many police departments are now far less transparent than they were before the Directive and there seems to be no oversight by the Attorney General’s Office.
It’s Sunshine Week and this year it kicks off in New Jersey with oral arguments before our Supreme Court in an important Open Public Records Act (OPRA) case.
On March 15, 2021, the Supreme Court will hear Bozzi v. City of Jersey City, a case that asks whether a list of names and addresses of dog license holders are accessible under OPRA. The plaintiff seeks the list for commercial purposes–he intends to mail dog owners information about his invisible fences. The case is listed as the second case of the day, which means arguments will begin sometime after 11:00 a.m. You can watch it here.
CJ Griffin of Pashman Stein Walder Hayden will be participating in the case and will be arguing last. Griffin filed an amicus curiae brief on behalf of Libertarians for Transparent Government, arguing that the Legislature has rejected numerous bills that attempted to exempt dog owner lists or that sought to limit the ability of commercial requestors to utilize OPRA. The amicus brief also explains that limiting this commercial requestor’s right of access will cause harm to all the other requestors who might seek lists of dog owners to benefit the public in some way.
Unfortunately, public agencies sometimes use OPRA’s privacy provision not as a shield to protect legitimate privacy rights, but rather as a sword to attack a requestor’s reason for seeking records, something that should be irrelevant. In this case, a commercial requestor’s right to obtain public records is under attack, but in other instances the ones under attack are the so-called “gadflies” or the persistent reporters who are thorns in the sides of politicians. If the Court decides in the City’s favor in this case, the consequences will not be limited only to the addresses of dog license owners or to commercial requestors. Public agencies will undoubtedly think of far-fetched reasons to invoke OPRA’s privacy provision so that the balancing test applies. Requestors will then have to sue and convince courts that that their reasons for wanting the records serve a “legitimate public purpose.” In other words, an interest requirement will be engrafted into OPRA where one does not exist, and as a result, all requestors, whether commercial or not, will have to fight harder to access information that should be statutorily available to them as of right.
. . .
Even if this Court considered a commercial interest to be insufficient to gain access to the dog license records in this case, there are clearly other reasons for requesting these records that do advance “legitimate public purposes.” For example, someone who encounters a neighbor’s aggressive dog might want to determine if the dog is licensed and vaccinated. . . . Someone who runs a local animal rights group might want to contact other dog owners to rally them to pass better animal welfare laws, to lobby for a local dog park, or to alert them to local dangers to dogs. An animal rescue organization might want to independently verify that the dogs it has adopted out have been properly licensed and vaccinated, or it might want to screen prospective adopters to determine if they have other pets (or had other pets that they surrendered) that they are not disclosing on their adoption applications. A watchdog group like LFTG might want to investigate whether public officials are failing to license their own pets all while hypocritically ticketing members of the public for failing to do so. Or, it might want to verify that the list of licenses is accurate and that all of the money collected from licenses are distributed in the proper accounts and transmitted in full to the proper state agencies. . . . A research organization might seek the names and addresses of dog license owners so that it can map them and determine whether certain neighborhoods have more licensed dogs than others and whether there is any correlation to economic factors, such as income, in the ownership or licensure of dogs.
NJ Advance Media previously wrote about the case when it was pending in the trial court. Both the trial court and the Appellate Division ruled that the list must be disclosed.
In mid-June 2020, the Attorney General of New Jersey issued two important police transparency directives, both of which have been challenged and were before the Appellate Division this week.
The first directive, Law Enforcement Directive 2020-5, requires future disclosure of the names of officers who have been subject to “major discipline,” which is described as a sanction of termination, demotion, or five or more days of suspension.
The second directive, Law Enforcement Directive 2020-6, orders the State Police and other state law enforcement agencies to make a retroactive disclosure, requiring disclosure of the names of those who have received major discipline for the past twenty years. The Attorney General also gave county and municipal departments the discretion to make retroactive disclosures and some have made the decision to do so.
Unfortunately, several police unions very quickly filed emergent appeals to stop the Directives from taking effect.
In October 2020, the Appellate Division issued a published opinion upholding the Directives. Now the Supreme Court will review that decision. In the interim, the disclosures have been placed on hold until the Court issues an opinion.
Attorney CJ Griffin is arguing on behalf of amicus curiae National Coalition of Latino Officers and the Law Enforcement Action Partnership, in support of the Directives. Griffin will argue last.
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.
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.
Update: Governor Murphy signed this bill into law on March 20, 2020. Many public agencies are already conducting electronic meetings.
The New Jersey Legislature is currently considering numerous bills in response to the current COVID-19 pandemic. One bill is A3850, which passed in the Assembly on March 16, 2020, and will likely also pass in the Senate very soon. A3850 amends a public body’s obligations under the Open Public Meetings Act (OPMA) during a state of emergency. Because this is Sunshine Week and transparency is very important during a crisis, we decided to devote a blog to this pending bill.
Public Bodies May Conduct Electronic Meetings
The amended law would provide that during a state of emergency, public health emergency, or state of local disaster emergency, a public body may perform any of the following by “means of communication or other electronic equipment:”
conduct a meeting and public business at that meeting,
cause a meeting to be open to the public,
receive public comment.
Conducting any of those activities electronically during a statement of emergency will not be considered a violation of OPMA.
The bill does not provide a definition for “means of communication or other electronic equipment.” Most public agencies will likely utilize video conferencing programs that permit the public to view a public meeting and participate in the public comment section in real time during the meeting. Those agencies will likely also accept public comments by email or phone for those who do not have such technology.
Public Bodies May Give Electronic Notice of Meetings
The bill also allows for electronic notice of public meetings at least 48 hours in advance of a meeting, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting. The notice must also accurately state whether any formal action may or may not be taken at such a meeting. Importantly, to the extent practicable, a public body providing only electronic notice of a meeting pursuant to the new law shall limit public business discussed or effectuated at the meeting to matters necessary for the continuing operation of government and which relate to the applicable emergency declaration.
We will provide an update when this bill is signed into law.
To contact us about this blog post or discuss an OPRA denial, email email@example.com or visit the “contact us” tab above.