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Media v. Police - Part Deux (Internal Affairs)

When police officers are being investigated due to civilian complaints or for misconduct, an Internal Affairs ("IA") investigation is opened. These investigations are handled by trained IA professionals specifically assigned in each department. All of a police officer's significant disciplinary records are likely to be contained in this IA file. The identities of complainants, witnesses, officers who investigated allegations of misconduct, methods of investigation, and their findings are also included. Promotional decisions and whether, and to what extent, an officer may receive discipline throughout his or her career will be determined by referring to documents in the officer's IA file. Up until now, there was little doubt that IA files were strictly confidential, and certainly not something that could be obtained through a public records request.

A group of attorneys who have made a cottage industry from suing municipalities and other public agencies for public records (and legal fees) see the tide turning. I'll call these attorneys and their often-media clients "professional requestors". New Jersey's professional requestors are fresh off of a landmark win in North Jersey Media Group, Inc. v. Township of Lyndhurst (July 11, 2017). They succeeded in obtaining dash cam footage of a police shooting, opening the door to the right to obtain dash cam and body cam footage from future arrests and police incidents. Our men and women in blue are less safe as a result, but the professional requestors that prosecuted the case are likely to receive healthy attorney fee awards that will, of course, be subsidized by the taxpayers.

New Jersey's public agencies should not have expected our state's litigious public records requestors to rest on their laurels. Buoyed from their victory in Lyndhurst, the professional requestors have trained their sights to obtain another class of police records previously denied them; IA files. And the requests and lawsuits have started. If you live in New Jersey, your municipality might be the next target.

Anyone who has been around an IA investigation knows just how carefully and professionally they are handled. Police officers, like all public employees, do not sign away all of their privacy rights when they take the job. But they are held to a higher standard. That is why the New Jersey Attorney General recognized the need to institute policies and procedures to ensure that IA investigations are conducted pursuant to strict guidelines, and guarded with the utmost confidentiality. See Internal Affairs Policies and Procedures ("IAPP") (updated July 2014).

But, the career OPRA litigators will argue that they know better than the New Jersey Attorneys General. Never mind that states like Maryland have recently found that requests for a particular officer's IA files should be lawfully denied by the public employer. Perhaps they hope that the custodian's lawyers and trial courts will overlook the fact that the New Jersey Superior Court Appellate Division, relying on a consistent line of cases from the Government Records Council, has held in a recent unpublished case that the IAPP (including its confidentiality provisions) has the force of law. Public records requests for IA files have therefore been properly denied as confidential records, and should continue to be denied for that reason.

At Plosia Cohen, we believe that the safety and privacy rights of police officers have been eroded enough at the altar of governmental "transparency". That's why we intend to fight for any municipal client or other agency that is being sued by a requestor for refusing to produce internal affairs records.

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