NJ AG's New Disclosure Policy for Police Disciplinary Records Met With Both Hope and Skepticism

This week, the New Jersey Attorney General’s Office announced a new policy on the annual disclosure of serious misconduct by New Jersey police officers that Attorney General Matthew J. Platkin touted as “an unprecedented step in promoting that transparency,” but observers are split on whether it’s actually a step in the right direction.

According to the press release issued by the AG’s Office, the new directive is intended to build upon a 2020 directive issued by then-Attorney General Gurbir Grewal following the death of George Floyd in police custody in Minneapolis and the national outcry in the form of protests calling for police and criminal justice reforms. The 2020 directive required agencies to report synopses of “major discipline” issued including termination, demotion, or a suspension of more than five days.

The new directive includes certain categories of discipline to be added to that annual release, which must be published by Jan. 31. Law enforcement agencies are required to report incidents of misconduct to the AG’s Office and publish on their public website a brief synopsis as well as the officer’s name.

In a March 2022 opinion, the New Jersey Supreme Court held that a range of internal affairs reports may be publicly accessible under the common law right of access upon request. In that case, Rivera v. Union County Prosecutor’s Office, Elizabeth Police Department employees complained to the Union County Prosecutor’s Office about sexist and racist language police director, James Cosgrove, had used on a regular basis during his two decades in office.

The Union County Prosecutor’s Office denied Richard Rivera’s requests for records of Cosgrove’s internal affairs investigation under OPRA and common law. Rivera then filed a suit in Superior Court, and a trial judge granted his request under OPRA. The Appellate Division reversed, finding the requested materials could not be disclosed under OPRA.

The Supreme Court, in a 6-0 ruling, said a confidentiality provision of the attorney general’s internal affairs policy and procedures manual renders the internal affairs records inaccessible under OPRA. But after evaluating the need for confidentiality and the public interest in the information sought, the court said the internal affairs records should be available under common law.

“In other states, you can get access to internal affairs files and learn all about police misconduct, but in New Jersey, they have always been shrouded in secrecy,” said CJ Griffin, a partner at Pashman Stein Walder Hayden and director of the Justice Gary S. Stein Public Interest Center. “That opened up a tiny bit in 2020 after George Floyd was murdered.”

“Rivera essentially gave us access to internal affairs reports for the first time ever,” said Griffin who argued on behalf of Rivera before the New Jersey Supreme Court. “It was a landmark decision.”

However, Griffin continued, Platkin’s new policy “changes that under the guise of transparency.”

“What I find really problematic is instead of having a singular investigative report that includes the summary and conclusion, now the policy says every case must have two reports,” Griffin said.

“One is the investigative report and the other is a summary and conclusions report intended for the public,” said Griffin. “That is highly problematic because the one that’s going to be released is obviously going to be sanitized.”

But others disagreed with Griffin’s take.

“I think that this directive is actually a step forward rather than a step backward,” said Alexander Shalom, senior supervising attorney and director of Supreme Court Advocacy at the ACLU-NJ. “For one thing, it does not overrule Rivera.”

“It says this directive sets a floor, not a ceiling,” said Shalom. “The summaries are not nearly as good as the raw reports, but it did not preclude distribution of the report.”

“The common law says, there are times when the public is entitled to the actual reports and that is still true,” said Shalom. “Courts appropriately apply the common law and that means still giving the public access in appropriate cases to the actual internal affairs file.”

“CJ might be right in the end. The court might drop the ball and stop applying the common law as they’re required to, or the attorney general may totally abdicate the responsibility to enforce it,” said Shalom. “Those things could happen, and if so she’ll be proven right. But we are in total agreement that the legislature should act.”

“I have enough faith in the courts because they have been pretty good on this issue and in the attorney general because I take him at his word,” said Shalom. “Time will tell and enforcement in both the courts and by the attorney general will really be determinative of whether this new directive moves us forward or sets us back.”

In September, the AG’s Office released a newly created dashboard of internal affairs statistics available at njoag.gov/iapp. The information may be searched by law enforcement agency, the alleged infractions involved, and the disciplinary action taken. Users can filter both active and closed investigations by county, agency, complaint source, and the race of officers involved.

A request seeking comment from the New Jersey Attorney General’s Office was not immediately returned.