The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1041-24
NEW JERSEY OFFICE OF
THE PUBLIC DEFENDER,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT
OF LAW AND PUBLIC SAFETY,
DIVISION OF CRIMINAL JUSTICE,
OFFICE OF PUBLIC INTEGRITY
& ACCOUNTABILITY, and
RECORDS & IDENTIFICATION
BUREAU in its official
capacity as Records Custodian,
Defendants-Respondents.
Argued March 16, 2026 – Decided April 15, 2026
Before Judges Sabatino, Natali and Walcott-
Henderson.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0974-24.
Ashley Brooks, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti,
Public Defender, attorney; Ashley Brooks, of counsel
and on the briefs).
Andrew C. Matlack, Deputy Attorney General, argued
the cause for respondents (Jennifer Davenport,
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; Andrew C. Matlack, on
the briefs).
Michael J. Zoller argued the cause for amicus curiae
Libertarians for Transparent Government (Pashman
Stein Walder Hayden, PC, attorneys; CJ Griffin, on the
brief).
PER CURIAM
This litigation concerns a demand under the common law for access to
certain Internal Affairs ("IA") documents relating to law enforcement officers
in Essex County.
Plaintiff, the New Jersey Office of the Public Defender ("OPD"), appeals
from the trial court's dismissal of its complaint against defendants, the New
Jersey Department of Law and Public Safety, Division of Criminal Justice,
Office of Public Integrity and Accountability, and its Records and Identification
Bureau.1 In the complaint, the OPD asserted a common law right of access to
several years of what are known as "Appendix K" reports (and any predecessor
1
For simplicity, we will generally refer in this opinion to defendants and the
various named units within the Office of the Attorney General, as "the AG,"
unless otherwise indicated.
A-1041-24
2
reports) produced by the Essex County Prosecutor's Office ("ECPO") to the
AG's Office. As we will describe in more detail, Appendix K reports are
summary reports of IA activity produced by law enforcement agencies to their
relevant county prosecutors on a quarterly basis, as required by Section 9.10.1
of the AG's current Internal Affairs Policy & Procedures ("IAPP") Manual (rev.
2022).
The OPD presented its access request to the AG after the ECPO had
inadvertently posted, online, an unredacted Appendix K report. That report
contained some identifying information relating to officers and complainants
that is supposed to be kept confidential under the Supreme Court 's opinion in
Rivera v. Union Cnty Prosecutor's Off., 250 N.J. 124 (2022) as well as the IAPP
Manual.
In this case, the OPD has sought the disclosure of additional Essex County
Appendix K reports for several reasons. The reports may contain IA disciplinary
facts that public defenders within the OPD or OPD-designated defense counsel
might be able to use to impeach testifying police officers in trials and hearings,
or to obtain additional discovery. Additionally, the OPD seeks the reports
because they may reveal systemic information about policing that the OPD may
be able to utilize in advocating public policy and informing public discourse.
A-1041-24
3
The trial court rejected the OPD's request for access to the Appendix K
documents. Among other things, the trial court perceived the request was
circumventing case-specific criminal discovery rules and the criteria and
procedures for obtaining IA information that the Supreme Court prescribed in
State v. Higgs, 253 N.J. 333 (2023).
The OPD, joined by amicus curiae Libertarians for Transparent
Government, appeals the trial court's decision.
As explained in this opinion, we vacate the court's decision insofar as it
relied on Higgs as a justification to deny the OPD access to the Appendix K
information. The IA information sought here under the common law could be
less detailed and more cursory compared to the more extensive information that
criminal defense counsel might be able to obtain in individual cases through the
criminal discovery rules under Higgs. The OPD should not have any lesser right
to access IA information than that which members of the general public and
other requestors are entitled to under the common law.
The matter is remanded to the trial court to reconsider the issues without
reliance on Higgs. On remand, the court shall reexamine whether the Appendix
K documents, or portions of them, should be released, with appropriate
redactions. Related to that analysis, on remand the court should clarify and
A-1041-24
4
address various factual issues that have been asserted by the parties on appeal
relating to the types of information that would be available in a disclosed
Appendix K.
I.
A.
Before we describe the facts and procedural history of this case, we
provide some background about the development of the relevant law and the
common law access principles relating to IA documents.
"New Jersey law recognizes two distinct procedures by which individuals
and entities may seek an order compelling the disclosure of public records."
Gannett Satellite Info. Network, LLC v. Twp. of Neptune, 254 N.J. 242, 248
(2023). First, there is the process provided under the Open Public Records Act
("OPRA"), N.J.S.A. 47:1A-1 to – 13. Gannett Satellite Info. Network, 254 N.J.
at 248. Second, another "cause of action available to a requestor seeking access
to public records is a claim pursuant to the common law, in which the requestor
is not limited to the categories of information subject to disclosure under
OPRA." Id. at 249.
The common law right of access is potentially broader than the statutory
right of access under OPRA, as the common law may enable access to any public
A-1041-24
5
record, defined as any written memorial made by a public officer who was
authorized by law to make it. Id. at 256-57. On the other hand, "the right to
access common law records is a qualified one," and "the showing a requestor
must make to gain access is greater than that required under OPRA." N.J. Media
Grp., Inc. v. Bergen Cnty. Prosecutor's Off., 447 N.J. Super. 182, 210 (App. Div.
2016) (internal citations omitted). "In a common law action for disclosure of
public records, a court weighs the requestor's interest in the information against
countervailing concerns such as privacy and public safety, and undertakes a
careful balancing of factors." Gannett Satellite Info. Network, 254 N.J. at 249.
The present case involves a claim for the production of IA reports solely
under the common law right of access. Relevant to that claim, in recent years,
New Jersey has experienced a major shift in the required production of IA
reports, with the AG issuing a revised version of the IAPP Manual every year
between 2019 and 2022, and the Supreme Court having addressed the issue in
several cases. We briefly trace that history.
The 2020 AG Directives
In 2020, the AG issued two law enforcement directives, Off. of the Att'y
Gen., Law Enf't Directive No. 2020-5, Directive Requiring Public Disclosure of
the Identities of Officers Who Commit Serious Disciplinary Violations (June 15,
A-1041-24
6
2020), and Off. of the Att'y Gen., Law Enf't Directive No. 2020-6, Directive
Requiring Public Disclosure of the Identities of Department's Officers Who
Committed Serious Disciplinary Violations Since 2000 (June 15, 2020). These
directives, as well as Section 9.11.2 of the 2020 IAPP Manual, ordered that, on
a prospective basis, all law enforcement agencies had to publish the names of
officers found to have committed disciplinary violations that resulted in the
imposition of what is termed "major discipline" in their annual reports to the
public. Ibid.
In addition, with respect to historical information about major discipline,
Law Enf't Directive No. 2020-5 permitted local and county law enforcement
agencies to release new incidences of major discipline whereas Law Enf't
Directive No. 2020-6 required that the State Police, Division of Criminal Justice,
and the Juvenile Justice Commission release information related to past major
discipline that had taken place over the past twenty years.
The 2020 Directives "mark[ed] a sharp change in practice," because
"[p]reviously, the Attorney General fought to shield the identities of law
enforcement officers disciplined for serious misconduct." In re Att'y Gen.
Directives, 246 N.J. 462, 472 (2021). In the litigation that followed, the
Supreme Court held that "the Attorney General had the authority to issue the
A-1041-24
7
Directives," and the Directives were not arbitrary, capricious, or unreasonable.
Id. at 472-73, 489-96.
The Court in In re Att'y Gen. Directives perceived no legal impediment to
the prospective release of information, such that "[g]oing forward, officers can
expect that their names will be disclosed if they commit acts that result in major
discipline." Id. at 473, 505. However, with respect to historical information,
the Court ruled that hearings would be necessary, in order to determine whether
the doctrine of promissory estoppel applied to prevent the release of the names
of disciplined officers who had been individually promised that their identities
would not be released. Id. at 473-74, 497-506.
In response to the Supreme Court's decision, the AG issued Off. of the
Att'y Gen., Law Enf't Directive No. 2021-6, Directive Regarding Public
Disclosure of the Identities of Officers Who Commit Serious Disciplinary
Violations (June 9, 2021), and a revised 2021 IAPP Manual.
Rivera
The following year, in 2022, the Court decided Rivera, 250 N.J. at 135, a
case in which the plaintiff requestor asserted both a statutory and a common law
right of access to IA records about a former police director who was found to
have engaged in racist and sexist behavior while in office. The Court held in
A-1041-24
8
Rivera that OPRA does not provide access to internal affairs reports. Id. at 139-
43. However, the Court further held that IA reports constitute public records
under the common law right of access, id. at 143-44, and they are subject to the
common law balancing test for disclosure. Id. at 144. When applying that
balancing test, the core questions presented are whether (a) "the person seeking
access to the record [has] establish[ed] an interest in the subject matter of the
material", and (b) whether that person's interest outweighs "the State's interest
in preventing disclosure." Ibid. (quoting N. Jersey Media Grp., Inc. v. Twp. of
Lyndhurst, 229 N.J. 541, 578 (2017)).
In Rivera, the Court identified six factors for courts to consider in
connection with the State's interest in preventing disclosure, as follows:
(1) the extent to which disclosure will impede agency
functions by discouraging citizens from providing
information to the government;
(2) the effect disclosure may have upon persons who
have given such information, and whether they did so
in reliance that their identities would not be disclosed;
(3) the extent to which agency self-evaluation, program
improvement, or other decisionmaking will be chilled
by disclosure;
(4) the degree to which the information sought includes
factual data as opposed to evaluative reports of
policymakers;
A-1041-24
9
(5) whether any findings of public misconduct have
been insufficiently corrected by remedial measures
instituted by the investigative agency; and
(6) whether any agency disciplinary or investigatory
proceedings have arisen that may circumscribe the
individual's asserted need for the materials.
[Id. at 144 (quoting Loigman v. Kimmelman, 102 N.J.
113 (1986).]
As for IA records specifically, the Court noted in Rivera that
confidentiality can be particularly important in IA investigations "to encourage
witnesses to come forward and cooperate; to protect personal information about
witnesses, victims, the subject matter of an investigation, and others; and to
avoid impairing the internal affairs process, among other reasons." Id. at 147.
On the other hand, "[i]n general, the public has an interest in the disclosure of
internal affairs reports in order to hold officers accountable, to deter misconduct,
to assess whether the internal affairs process is working properly, and to foster
trust in law enforcement." Ibid.
In addition, Rivera recognized that "[t]he public interest in transparency
may be heightened in certain situations depending on a number of
considerations," id. at 147-48, including the following:
(1) the nature and seriousness of the misconduct.
Serious misconduct gives rise to a greater interest in
disclosure. For example, misconduct that involves the
A-1041-24
10
use of excessive or deadly force, discrimination or bias,
domestic or sexual violence, concealment or fabrication
of evidence or reports, criminal behavior, or abuse of
the public trust can all erode confidence in law
enforcement and weigh in favor of public disclosure;
(2) whether the alleged misconduct was substantiated.
Unsubstantiated or frivolous allegations of misconduct
present a less compelling basis for disclosure;
(3) the nature of the discipline imposed. Investigations
that result in more serious discipline, like an officer's
termination, resignation, reduction in rank, or
suspension for a substantial period of time, favor
disclosure. See In re Att'y Gen. Directives, 246 N.J. at
485;
(4) the nature of the official's position. Wrongdoing by
high-level officials can impair the work of the
department as a whole, including the functioning of the
internal affairs process; and
(5) the individual's record of misconduct. The public's
interest in disclosure extends to all officers—regardless
of rank—whose serious or repeated misconduct may
pose a danger to the public.
[Id. at 148 (citation reformatted) (emphasis added).]
As to all five of these above considerations, the Court noted in Rivera that
"transparency can expose problems that need to be addressed or reassure the
public about police conduct." Ibid. However, the Court did "not rely on whether
an allegation has already been the subject of public interest as part of the
balancing process." Ibid. Rather, the Court stated: "Official statements or leaks
A-1041-24
11
that may attract public attention should not drive the disclosure analysis; the
question is whether the misconduct in question is rightly a matter of public
interest, even if the information has not yet been revealed." Ibid.
Given these considerations, the Court held in Rivera that IA records "can
and should be disclosed under the common law right of access when interests
that favor disclosure outweigh concerns for confidentiality. Id. at 135 (emphasis
added). Applying that balancing test, the Court concluded that the factors
weighed in favor of releasing the records at issue there, since they involved
substantiated allegations of serious misconduct over an extended period of time,
by the civilian leader of the police department. Id. at 149-50.
However, the Court also determined in Rivera that the record in that case
was "incomplete" and did "not allow for the fact-specific balancing test required
under the common law." Id. at 146. Accordingly, the Court remanded for the
trial judge in Rivera to review the IA report in camera and complete "a fact-
sensitive balancing test" to assess the state's confidentiality interest, determine
the scope of information to be released, and make the appropriate redactions .
Id. at 147-50.
As for redactions, the Court instructed in Rivera that, "at a minimum"
information redacted from the released reports should include:
A-1041-24
12
the names of complainants, witnesses, informants, and
cooperators, as well as information that could
reasonably lead to the discovery of their names; non-
public, personal identifying information about officers
and others, such as their home addresses and phone
numbers; and personal information that would violate a
person's reasonable expectation of privacy if disclosed,
such as medical information.
[Id. at 150.]
The Court cautioned in Rivera that, more generally, "judges would not be
required to review actual internal affairs reports in every case," and "[a]
preliminary review of the relevant factors may suffice in individual cases." Id.
at 149. The Court further noted that in order to assess the relevant factors, "the
parties should present more than generalized, conclusory statements." Ibid.
"More detailed objections enable judges to conduct the delicate balancing the
common law requires." Ibid.2
2
Cases addressing the public right of access to internal affairs records continue
to arise. For instance, last year the Supreme Court addressed a common law
right of access claim seeking to obtain IA records relating to a police officer
who subsequently obtained a criminal records expungement. The Court held
that "the expungement statute does not categorically bar the release of IA
reports," but it does "bar the release of any information included in an IA report
that would reveal an expunged arrest, conviction, or related proceeding." States
Newsroom Inc. v. City of Jersey City, 261 N.J. 392, 413 (2025). The
expungement issue addressed in States Newsroom is not specifically at issue in
this appeal.
A-1041-24
13
In response to the Supreme Court's decision in Rivera, the AG issued a
directive and a revised version of the IAPP Manual, with significant edits to
Section 9 of the Manual relating to internal affairs reporting and disclosures .
See Off. of the Att'y Gen., Law Enf't Directive No. 2022-14, Transparency in
Internal Affairs Investigations (Nov. 15, 2022); 2022 IAPP Manual. However,
the AG expressly stated that "the additional categories of annual disclosure
contained in Section I of this Directive apply only prospectively and do not
apply to any discipline that has been settled between an officer and law
enforcement agency prior to January 1, 2023." Law Enf't Directive No. 2022-
14, at 2 (emphasis added).
The following year, in 2023, the Court decided Higgs, 253 N.J. at 333,
and addressed the discoverability of IA records under Rule 3:13-3, within the
context of a criminal prosecution. We will discuss Higgs in Part II of this
opinion infra.
B.
The procedural history and disputed subjects within the present litigation
are rather complicated and, as we will discuss, in some respects, confusing.
A-1041-24
14
The Parties
The OPD is a state agency, located within the Executive Branch,
Department of the Treasury, but "independent of any supervision or control by
the department or by any board or officer thereof." N.J.S.A. 2A:158A-3. The
OPD employs criminal defense attorneys who provide representation to indigent
clients charged with criminal offenses.
The New Jersey Department of Law and Public Safety ("L&PS"), Division
of Criminal Justice ("DCJ"), Office of Public Integrity and Accountability
("OPIA"), is a state office, situated within the Executive Branch and headed by
the AG. N.J.S.A. 52:17B-1 and -2. OPIA's Records and Identification Bureau
is its custodian of records.
The AG is the State's chief law enforcement officer, N.J.S.A. 52:17B-98;
In re Att'y Gen. Directives, 246 N.J. at 482-83, and is responsible for
"[f]ormulat[ing] and adopt[ing] rules and regulations for the efficient conduct
of the work and general administration of the department, its officers and
employees." N.J.S.A. 52:17B-4(d).
The IAPP Manuals
Exercising these responsibilities the AG has published, since 1991, an
IAPP Manual in order "to establish standards and policies for the internal affairs
A-1041-24
15
review process of the State's law enforcement agencies." In re Att'y Gen.
Directives, 246 N.J. at 483. Pursuant to N.J.S.A. 40A:14-181, "[e]very law
enforcement agency . . . shall adopt and implement guidelines which shall be
consistent with the guidelines governing the" IAPP Manual promulgated by the
DCJ.
Although N.J.S.A. 40A:14-181 was passed in 1996, the AG first issued an
IAPP Manual five years earlier. Multiple iterations of the IAPP Manual have
been issued between 1991 and the current version, issued in 2022. 3
The 1991 through 2019 versions of the IAPP Manual imposed certain
reporting requirements on law enforcement agencies, with summary reporting
to county prosecutors starting in 2000, twenty-six years ago. Ultimately, law
enforcement agencies were required to produce quarterly summary reports to
the relevant law enforcement executives and county prosecutors, and annual
summary reports to the public. However, until 2019 these agencies were
apparently not required to submit reports to the AG's office. Nor were the
summary reports to the county prosecutors subject to standardized forms.
3
The State provided only the 2017 version of the IAPP Manual in its appendix.
We obtained and take judicial notice of IAPP Manuals from all other years
(1991, 1992, 2000, 2011, 2014, 2019, 2020, 2021, and 2022) from the State
Library and the AG's website. Any AG Directives we have referred to herein
are available on the AG's website.
A-1041-24
16
Instead, county prosecutors could create their own reporting forms, although
sample forms were sometimes provided; and the required annual summary
reports to the public did not include names of the accused officers.
The 2019 Revision of the IAPP Manual
In 2019, the AG revised the IAPP Manual and directed that law
enforcement agencies publish their annual summary reports to the public on
their websites, and "include[d] a number of new policies to ensure that County
Prosecutors exercise appropriate oversight of the Internal Affairs functions of
all law enforcement agencies based in their respective counties." Off. of the
Att'y Gen., Law Enf't Directive No. 2019-5, Directive Strengthening &
Supplementing Internal Affairs Policy & Procedures (Dec. 4, 2019); 2019 IAPP
Manual §§ 9.11 and 10.01 to -.4.
Section 1.0.6 of the revised 2019 IAPP Manual also stated: "References
to County Prosecutors throughout this document should also be understood to
refer to the Office of the Attorney General wherever such an interpretation
would be appropriate." This language was continued in subsequent IAPP
Manuals. However, the 2022 IAPP Manual adds a clause to the end of the
sentence, as an example of when it would be appropriate to interpret a reference
to county prosecutors as a reference to the Office of the AG ("such as when the
A-1041-24
17
Attorney General has superseded the County Prosecutor or the law enforcement
agency").
The 2020 IAPP Manual Revision
The 2020 IAPP Manual, at 61-66, continued the requirements for
reporting to law enforcement executives, the county prosecutor, and the public,
with public reports for the first time including names of officers, but only for
incidents of "major discipline," "where a termination, reduction in rank or grade,
and/or suspension more than five days was assessed." The 2020 IAPP Manual
also introduced the "Appendix K" reports at issue in the present litigation. The
Manual mandated that every law enforcement agency utilize the Appendix K
form when filing their quarterly reports with their county prosecutors. Id. at 62-
63. However, the county prosecutors were permitted to establish the specific
reporting schedule. Id. at 62.
Of pertinence here, the 2020 IAPP Manual also, for the first time,
mandated that county prosecutors also file reports with the AG's Office.
Specifically, Section 9.11.1 of the 2020 IAPP Manual required county
prosecutors to submit "a summary of the reports from all agencies in its
jurisdiction to the [OPIA]," and specified that "[t]he Annual Internal Affairs
A-1041-24
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Summary attached to Appendix K may be used to satisfy the requirements of
this Section." (Emphasis added).
Ensuing Developments
Litigation delayed implementation of the 2020 changes. Thus, in
presenting the 2021 IAPP Manual, the AG explained that as a result of an
extended stay of "the Major Discipline Directive 4" law enforcement agencies
had been prevented from producing their initial reports of major discipline.
Therefore, the AG extended the time for law enforcement agencies to issue their
first public reports to August 9, 2021, with the reports to address discipline post -
dating the date of the Major Discipline Directive (June 15, 2020), through
December 31, 2020. 5
Section 9.11.1 of the 2021 IAPP Manual continued the requirement that
county prosecutors submit to the OPIA a summary of reports they received from
all law enforcement agencies within their jurisdictions. Section 9.11.2 of the
2021 IAPP Manual added a requirement that law enforcement agencies produce
their annual summary major discipline reports to the AG, as well as to county
4
See Off. of the Att'y Gen., Law Enf't Directive No. 2020-5, Directive
Requiring Public Disclosure of the Identities of Officers Who Commit Serious
Disciplinary Violations (June 15, 2020).
5
See Law Enf't Directive No. 2021-6.
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19
prosecutors and the public, no later than January 31 of the following year, and
required that they use the report form included at Appendix L.
The 2022 (Present) IAPP Manual
In 2022, the AG introduced another revised IAPP Manual, in response to
the Supreme Court's decision in Rivera, 250 N.J. at 124. 6 Among other things,
the current 2022 IAPP Manual includes the following recordkeeping and data
reporting requirements 7:
Recordkeeping & Data Reporting
(k) Pursuant to AG Directive 2018-3, each agency shall
establish an "early warning" protocol for monitoring
and tracking the conduct of all officers.
(l) Each agency must establish and maintain an internal
affairs records system which, at a minimum, will
consist of an internal affairs index system and a filing
system for all documents and records.
(m) On a quarterly basis, each agency shall submit to
the County Prosecutor a report summarizing the
allegations received and the investigations concluded
for that period. The Attorney General shall establish a
schedule for the submission of the reports.
6
See Off. of the Att'y Gen., Law Enf't Directive No. 2022-14, Transparency in
Internal Affairs Investigations (Nov. 15, 2022).
7
We present various portions of the 2022 IAPP Manual for sake of
completeness, mindful that many readers of this opinion will have little interest
to pore through the technical verbiage.
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20
(n) On an annual basis, each agency shall publish on its
public website a report to the public summarizing the
allegations received and the investigations concluded
for that period. These reports shall not contain the
identities of officers or complainants.
(o) On a periodic basis, and at least once a year, each
agency shall submit to the County Prosecutor and
publish on the agency's public website a brief synopsis
of all complaints where a fine or suspension of 10 days
or more was assessed to an agency member. The
synopsis shall not contain the identities of the officers
or complainants.
[2022 IAPP Manual, § 1.0.9 (emphasis added).]
These recordkeeping and data reporting requirements are expounded upon
in Section 9 of the 2022 IAPP Manual. With respect to public disclosure of IA
records, Section 9.6 of the 2022 IAPP Manual provides that IA records are
confidential, but allows for some limited disclosures. At Section 9.6.1, it states:
The nature and source of internal allegations, the
progress of internal affairs investigations, and the
resulting materials are confidential information and
remain exempt from access under [OPRA], N.J.S.A.
47:1A-1.1 to -13. The contents of an internal
investigation case file, including the original
complaint, shall be retained in the internal affairs
function and clearly marked as confidential. The
information and records of an internal investigation
shall only be released or shared under the following
limited circumstances:
(a) If administrative charges have been brought against
an officer and a hearing will be held, a copy of all
A-1041-24
21
discoverable materials shall be provided to the officer
and the hearing officer before the hearing;
(b) If the subject officer, agency or governing
jurisdiction has been named as a defendant in a lawsuit
arising out of the specific incident covered by an
internal investigation, a copy of the internal
investigative reports may be released to the attorney
representing the subject officer, agency or jurisdiction;
(c) Upon the request or at the direction of the County
Prosecutor or Attorney General;
(d) Upon a court order; or
(e) Upon a request from the Division of Pensions,
following an officer's application for a retirement
allowance.
[(Emphasis added).]
In addition, at Section 9.6.2(a), the 2022 IAPP Manual authorizes the
release of "[t]he Summary and Conclusions Report described in Section 9.1.1(b)
. . . in response to a request made under the common law right of access by any
member of the public or press," but only "where it satisfies any of the following
conditions":
(1) The Summary and Conclusions Report led to a
result on or after January 1, 2023, that requires
disclosure pursuant to Section 9.11.2;
(2) The agency otherwise concludes that the Summary
and Conclusions Report is subject to release pursuant
to applicable law or court order; or
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22
(3) Upon the request or at the direction of the County
Prosecutor or Attorney General at any time.
Redactions Under IAPP Section 9.6.2(b)
Section 9.6.2(b) provides for the redaction of information from any report
that is subject to disclosure under subpart (a), as follows:
(b) When an agency concludes that a report is subject
to disclosure under Section 9.6.2(a), it shall redact the
following before disclosure:
(1) The names of complainants, witnesses,
informants, victims and cooperators, in addition to
information that could reasonably lead to discovery of
their identities; []
(2) Non-public, personal identifying information
about any individual named in the report, such as their
home addresses, phone numbers, dates of birth, social
security numbers, familial relationships, etc.;
(3) Medical information or history, including but
not limited to, mental health or substance abuse
services and drug or alcohol evaluation, counseling or
treatment;
(4) Information regarding any criminal
investigation or prosecution that is not already
contained in a public filing, or any information that
would impede or interfere with a pending criminal or
disciplinary proceeding;
(5) Any records or material prohibited from
disclosure by law;
(6) Juvenile records;
A-1041-24
23
(7) Any information which is the subject of a
judicial order compelling confidentiality;
(8) Any other information that would violate a
person's reasonable expectation of privacy; and
(9) Any information regarding law enforcement
personnel, procedures, or resources that could create a
risk to the safety of any person, including but not
limited to law enforcement personnel.
[(Emphasis added).]
At Section 9.10, the 2022 IAPP Manual addresses reports that law
enforcement agencies must make to their county prosecutors, including the
Appendix K records sought by plaintiff. Specifically, Sections 9.10.1 and 9.10.2
provide:
9.10.1 On a quarterly basis, every law enforcement
agency shall report internal affairs activity to the
County Prosecutor on an internal affairs summary
report form attached as Appendix K (The fillable form
may be found on the Attorney General's website). Each
County Prosecutor will provide those law enforcement
agencies—including municipal police departments—in
their jurisdiction with instructions on completing the
forms, and a reporting schedule.
9.10.2 The summary report forms must contain
sufficient information to enable the County Prosecutor
to identify warning signs of potential deficiencies in the
internal affairs process. At a minimum, each report
must include a brief summary of each internal affairs
complaint that was pending before the agency at any
point during the reporting period. The summary shall
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24
at least include the nature of the complaint, the date the
complaint was received, the current status of the
complaint, and, if the case is closed, the final
disposition of the complaint with any discipline
imposed. A sample form is found at Appendix K.
[(Emphasis added).]
In Section 9.10.3, the 2022 IAPP Manual addresses the need for law
enforcement agencies to report to county prosecutors all information relating to
an officer's credibility, and lists specific types of incidents and findings that
must be reported (e.g., "[a] finding that a police officer filed a false report or
submitted a false certification in any criminal, administrative, employment,
financial or insurance matter in their professional or personal life."). However,
at Section 9.10.4, the 2022 IAPP Manual states:
That law enforcement agencies report the above-listed
incidents to the County Prosecutor's Office does not
constitute a mandate or requirement that the
information be disclosed to the court. Prosecutors
should conduct an independent review of the
information provided to determine whether it needs to
be disclosed and whether the officer can participate in
the prosecution of criminal cases.
Section 9.11 of the 2022 IAPP Manual addresses public reports of IA
affairs data, with oversight provided by the AG's office. Section 9.11.1
provides:
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On an annual basis, every law enforcement agency shall
provide to the County Prosecutor and publish on its
public website a report summarizing the types of
complaints received and the dispositions of those
complaints. This report should be statistical in nature.
The County Prosecutor shall submit a summary of the
reports from all agencies in its jurisdiction to the Office
of Public Integrity and Accountability. The Annual
Internal Affairs Summary attached to Appendix K shall
be used to satisfy the requirements of this Section. This
process shall be overseen and directed by the Attorney
General's Office of Public Integrity & Accountability
and the Office of Justice Data.
[(Emphasis added).]
Further, Section 9.11.2 requires the "periodic" production of reports to
both the county prosecutor and the AG, providing:
On a periodic basis, and no later than January 31 of the
following year, every agency shall submit to the County
Prosecutor and the Attorney General, and publish on
the agency's public website, a brief synopsis of all
misconduct where an agency member:
(a) Was terminated;
f
(b) Was reduced in rank or grade;
(c) Was assessed a suspension of more than five
days . . .;
(d) Had a sustained finding of discrimination or bias
against any person because of the individual's actual or
perceived race, creed, color, national origin, ancestry,
age, marital status, civil union status, domestic
partnership status, affectional or sexual orientation,
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26
genetic information, sex, gender identity or expression,
disability, nationality, familial status, or any other
protected characteristic under N.J.S.A. 10:5-1 [to -49],
regardless of the type or severity of discipline imposed;
(e) Had a sustained finding that the officer utilized
excessive force in violation of departmental policy or
the Attorney General's Use of Force Policy, regardless
of the type or severity of discipline imposed;
(f) Had a sustained finding that the officer was
untruthful or has demonstrated a lack of candor,
regardless of the type or severity of discipline imposed;
(g) Had a sustained finding that an officer has filed a
false report or submitted a false certification in any
criminal, administrative, employment, financial, or
insurance matter in their professional or personal life,
regardless of the type or severity of discipline imposed;
(h) Had a sustained finding that an officer intentionally
conducted an improper search, seizure or arrest,
regardless of the type or severity of discipline imposed;
(i) Had a sustained finding that an officer intentionally
mishandled or destroyed evidence, regardless of the
type or severity of discipline imposed;
(j) Had a sustained finding of domestic violence, as
defined in N.J.S.A. 2C:25-19, regardless of the type or
severity of discipline imposed;
(k) Resigned, retired, transferred or separated from the
agency, regardless of the reason, while any internal
affairs investigation or complaint was pending, and the
misconduct ultimately sustained falls within categories
(d) through (j) above or would have resulted in an
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27
action under categories (a) through (c) had the member
not separated from the agency; [] or
(l) Was charged with any indictable crime under New
Jersey or an equivalent offense under federal law or the
law of another jurisdiction related to the complaint.
....
The reporting and public dissemination requirements of
(a) through (j) above become applicable once an
officer's discipline is sustained, as defined above. The
reporting and public dissemination requirements of (k)
and (l) above become applicable at the close of the
reporting period during which they occur.
The synopsis of each case, required by this section,
shall follow the format provided in Appendix L and
shall include the identity of each officer subject to final
discipline, a full explanation of the rule, regulation,
policy, directive, or law violated, a factual summary of
their conduct, and a statement of the sanction imposed.
The synopsis shall provide sufficient detail to enable a
reader who is not familiar with the case to fully
understand the factual scenario that resulted in the
disciplinary action. Examples of acceptable synopses
may be found in Appendix L (updated November
2022). This synopsis shall not contain the identities of
the complainants or any victims. Where discipline
relates to domestic violence, the synopsis shall not
disclose the relationship between a victim and an
officer. In rare circumstances, further redactions may
be necessary to protect the identity of a victim.
Whenever practicable, notice shall be given to victims
of domestic or sexual violence in advance of an
agency's disclosure of discipline related to the incident.
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The required posting to the agency's public website
shall remain in place and publicly accessible.
[(Emphasis added) (footnote omitted).]
Appendix K
Appendix K—the critical document sought by the OPD in this case--"is
an Internal Affairs reporting document used by local law enforcement to report
compliance to county prosecutor's offices." The form document contains
multiple tabs, only one of which, titled "'Annual Summary' . . . is intended for
public disclosure," as discussed in Section 9.11.1 of the 2022 IAPP Manual. The
remaining tabs, including the "Cases Pending" and "Cases Opened" tabs, "are
intended for internal use only and contain confidential information including the
nature and source of internal allegations, the progress and status of internal
affairs investigations, the names of all agency members involved, and the
outcomes of such allegations for the respective reporting period."
The Cases Pending and Cases Opened tabs in Appendix K "disclose the
nature and source of internal allegations, the progress of internal affairs
investigations, the resulting information, and the names of all officers involved ."
They also "identify pending and unsubstantiated complaints, including those
that the target officer may be unaware of," such that, according to the AG,
"[d]isclosure of these records creates a significant risk of compromising internal
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29
affairs or related criminal investigations," and "identifying officers and
providing information that could reveal complainants will likely chill the
internal affairs process."
The ECPO's Inadvertent Posting in November 2022
In November 2022, the OPD discovered that the ECPO had published a
complete Appendix K document on its website. The document "listed complete
index information regarding Internal Affairs cases resolved or pending during
2021." The posted document included: the police department where the officer
at issue worked; the IA case number; the date the complaint was received; the
officer's name; the officer's race; the source of the complaint (civilian or
agency); the complainant's race; the complaint allegation (e.g., crime, excessive
force, improper arrest, demeanor, etc.); the date the case was suspended; the
reason for suspension; the date the case was resumed from suspension; the date
the case was closed; the length of the case; the status of the case (pend ing,
closed, etc.); whether there was a criminal disposition; the internal disposition
(sustained, not sustained, exonerated, etc.); and any discipline imposed.8 "The
8
The 2022 IAPP Manual requires law enforcement agencies to identify "general
categories of misconduct or inappropriate behavior that are subject to
disciplinary action," such as "crime," "excessive force," as well as "uniform
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information contained within this Appendix K was not publicly available
elsewhere and had not been disclosed in the regular course of discovery to the
OPD attorneys at any point."
The ECPO explained that during a transition to a new website, it had
inadvertently published the entire 2021 Appendix K document, including the
Cases Pending and Cases Opened tabs, rather than just the Annual Summary tab.
However, the ECPO removed the confidential records from its website upon
becoming aware of the inadvertent public posting, and it also requested removal
of the 2021 Appendix K from "the Wayback Machine, an internet-based website
archive database." The ECPO9 asserted "[t]he posting of Appendix K was
neither intentional nor a policy decision," and "[a]ll public postings of Appendix
K have been removed from ECPO's website."
The OPD's Access Requests
On December 9, 2023, plaintiff filed an OPRA request with defendant,
seeking production of "all reports entitled 'Internal Affairs Case Reporting:
County Summary' submitted by the [ECPO] to the [AG's] Office or to the
classification of the resolution of complaints," such as "sustained," "unfounded,"
"exonerated," etc. See 2022 IAPP Manual §§ 2.2.2 to .3.
9
The ECPO is not a party to this case.
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[OPIA] between January 1, 2013, and the present" (i.e., the Appendix K
documents that county prosecutors are required to file on an annual basis under
Section 9.11 of the 2022 IAPP Manual).
The OPD asserts that information contained in Appendix K submissions
implicates its obligation to provide effective assistance of counsel to indigent
clients at every stage of criminal proceedings, including discovery, defense
investigation, plea negotiations, motion practice, and trial. The OPD also
provides specific examples of how it used Appendix K information obtained
from the ECPO's website. Those uses include situations in which the officers
involved in an arrest were the subject of pending IA cases, or previously had
sustained IA charges, and the State had not provided that information in
discovery pursuant to its obligations under Brady v. Maryland, 373 U.S. 83
(1963) and Giglio v. United States, 405 U.S. 150 (1972).
Defendants did not produce the documents the OPD requested. Instead,
on February 9, 2024, they responded to the OPD's OPRA request by producing
"publicly available statistical information of Internal Affairs cases." That is, the
AG "produced all annual summaries submitted by the ECPO from 2013 to
present." (Emphasis added).
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The OPD acknowledged receipt of these records, but maintained that they
were not fully responsive to its request. After communicating with the OPIA,
the OPD reiterated its request for complete Appendix K documentation,
including information provided under the Cases Pending and Cases Opened tabs,
such as officer names, internal affairs case numbers, and case dispositions.
However, the OPD narrowed the timeframe of the request from 2021 to the
present date "based on the representation that such county summaries were not
collected by the Attorney General prior to 2021." The OPD asserts that "such
information is necessary [for] identifying officers with histories of misconduct
that are relevant to pending criminal cases against the OPD's clients."
On April 3, 2024, defendants denied the request, stating:
The [OPIA] is denying your narrowed request for "the
County Summary from 2021 through the present for
those reports submitted by [ECPO]." Please be advised
that all records provided to you on February 9, 2024
(and attached again for reference) remain those that are
responsive to your request.
Please be advised that, to the extent your request seeks
specific internal affairs matters, including the names of
officers involved, N.J.S.A. 47:1A-9(b) exempts from
access any records recognized to be confidential by
statute. Because N.J.S.A. 40A:14-181 directs all law
enforcement agencies to "adopt and implement
guidelines which shall be consistent" with the Attorney
General's [IAPP], and "[t]he nature and source of
internal allegations, the progress of internal affairs
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investigations, and the resulting materials are
confidential information and remain exempt from
access under [OPRA], see IAPP § 9.6.1 (Nov. 2022),
any such records may not be disclosed under OPRA.
See also Rivera v. Union Cnty. Pros. Office, 250 N.J.
124, 142-43 (2022) (recognizing the confidentiality of
internal affairs records under the IAPP and N.J.S.A.
47:1A-9).
Furthermore, to the extent that you are seeking
information that has since been removed from other
agencies' websites, please be advised that this
information is not subject to release under OPRA.
Pursuant to the IAPP, the report you are seeking is
"considered a confidential, internal work product."
IAPP 9.9.3. Only the summary report (as contained
within Appendix K), which does not contain officer
names and is "statistical in nature" and "summarizes the
types of complaints received and the disposition of
complaints" may be released publicly. IAPP 9.11.1.
The Office reserves the right to claim additional
grounds for denial not raised in this response. This
request is considered closed at this time.
The OPD acknowledged defendants' response and expressed its
understanding that its request had been denied on both OPRA and common law
grounds.
This Lawsuit
The present litigation ensued in the Law Division, with the OPD arguing
that it has a common law right of access to the Appendix K documents. The
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34
OPD alleges: "There is a compelling public interest in information summarizing
efforts to hold police officers accountable, deter official misconduct, assess
whether the internal affairs process is working properly, and foster trust in our
system of law enforcement." It further alleges the OPD
has a significant interest in accessing such summary
information contained within Appendix K submissions
from the [ECPO] in order to provide effective
assistance of counsel by accurately assessing the
strength of criminal cases against its clients, evaluating
the credibility of police witnesses against its clients,
and determining the State's compliance with discovery
obligations to its clients.
The AG moved to dismiss the complaint, arguing that no court-ordered
disclosure of Appendix K information was warranted. The OPD opposed the
motion, and the trial court entertained oral argument.
The Trial Court's Rulings
In dismissing the OPD's complaint, the trial court found that the OPD was
not entitled to the Appendix K submissions, either as a matter of criminal
discovery under Higgs, 253 N.J. at 333, or under the common law right of
access, Rivera, 250 N.J. at 124.
First, the court read the complaint as the OPD "seeking Appendix K
materials on behalf of the clients it represents." With this presumption, the court
found that "the instant action is not the proper vehicle for [p]laintiff to seek such
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35
materials," since the Supreme Court addressed the discoverability of internal
affairs materials in Higgs, and the complaint appeared more akin to a "fishing
expedition" than a request for a specific category of information relevant to a
particular case.
Next, the court gave the complaint a more indulgent reading, and
construed the OPD's request as based in "a 'wholesome public interest.'"
However, even under that construction, the court found that "Plaintiff's right to
access the information does not outweigh the State's interest in preventing
disclosures," applying the factors set forth in Rivera, 250 N.J. at 124, and
Loigman, 102 N.J. at 98. In particular, the court noted the breadth of
information contained in the Appendix K reports, which included allegations of
minor forms of misconduct, unsubstantiated allegations of misconduct, and
allegations that were currently under investigation, as well as information about
the source and date of the complaint and the ethnicity of the complainant, which
could lead to an ability to identify the complainant.
The court concluded:
The Loigman and Rivera factors weigh heavily in favor
of non-disclosure of Appendix K under the common
law right of access. The Court is particularly concerned
that disclosure of Appendix K will result in the release
of ongoing internal affairs investigations, have a
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36
chilling effect on witnesses and victims, and impair the
internal affairs process.
Accordingly, the Court denies Plaintiff's application for
an order to show cause and dismisses Plaintiff's
complaint with prejudice.
Reconsideration and Redaction Denied
The OPD moved for reconsideration. In denying the OPD's motion for
reconsideration, the trial court noted that the OPD was now requesting redacted
Appendix K reports, or the use of a protective order or other measures to address
privacy and related concerns. However, the court observed that "the Plaintiff
[initially] did not ask or request that Defendants provide it redacted records."
And "[t]hat the Court did not compel Defendants to do something that Plaintiff
did not request does not seem to be the [appropriate in the context] of a
reconsideration motion."
The court went on to state a key premise – asserted by the AG – about
what information is already "publicly available":
That aside, Plaintiff's redactions would limit Appendix
K to just serious, substantiated misconduct, with
nothing about complainant's identities. Plaintiff asserts
that these redactions would favor disclosure under
Rivera and Loigman. While redactions may affect the
Rivera and Loigman factors, Defendants point out that
Plaintiff[] ha[s] access to the limited information it
seeks. Defendants provide publicly available
information about officers who incurred major
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discipline and general summaries of sustained
misconduct. Plaintiff's revisions then have no real
effect. Thus, the redactions have no real effect. Thus,
the redactions have no significance on the matter.
Because Plaintiff failed to show the Court's
decision was palpably incorrect, or the Court did not
consider, or failed to consider, competent evidence, the
Court declines to reconsider its September 2024 Order.
[(Emphasis added).]
This Appeal
The OPD has appealed, joined by the amicus curiae. Among other things,
the OPD argues the trial court misapplied the common law balance in the State's
favor in denying its access request in full, and at the very least should have
ordered the release of redacted records. The OPD further contends the court
erred in deeming Higgs a barrier to disclosure.
II.
Our main focus in this opinion is to address the impact of Higgs on the
OPD's disclosure request. For the reasons that follow, we respectfully conclude
the trial court erred in treating Higgs as an impediment to the OPD's common
law claim for access.
Higgs concerned the appeal of a murder conviction. The indictment arose
out of an exchange of gunfire between the defendant and a police officer who
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38
had been investigating a front-porch argument between the defendant and a
woman. 253 N.J. at 340. A bullet from the defendant's gun struck and killed
the woman. Id. at 341. Prior to trial, defense counsel sought copies of the
officer's IA records in discovery, particularly looking for the officer's previous
involvement in on-duty shootings. Id. at 346. After conducting an in camera
review of the officer's IA file, the trial court concluded it contained nothing that
should have been turned over to the defendant. Ibid. On appeal, we affirmed
the defendant's conviction without commenting on the discovery denial. Id. at
350.
The Supreme Court in Higgs reversed the defendant's conviction on
several grounds. Of significance here, the Court ruled that the trial court erred
in denying defense counsel access to the portions of the IA file documenting his
involvement in previous on-duty shootings. Id. at 360. In addressing that
discovery issue, the Court provided detailed guidance about the standards and
procedures to be followed in the future for similar criminal discovery requests.
Specifically, the Court in Higgs directed as follows:
Going forward, a defendant who seeks discovery of
information from an internal affairs file must first file a
motion with the trial court requesting an in camera
review of that file. The motion shall identify the
specific category of information the defendant seeks
and the relevance of that information to the defendant's
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39
case. A general allegation that the defendant is in
search of information relevant to a law enforcement
officer's credibility for impeachment purposes would
be insufficient to obtain review of the file. The
procedure should not be a fishing expedition into the
disciplinary records of law enforcement.
An allegation that the information, if present, is
relevant to the case is necessary for a defendant to
obtain the trial court's in camera review of the file. . . .
We anticipate that many defendants will be in a
position to meet the relevancy standard. . . . At a time
when the Attorney General's Directives have signaled a
massive shift in policy regarding the confidentiality of
internal affairs records and this Court has held that the
general public, under certain circumstances, can obtain
internal affairs files through the common law right of
access, there is no logical reason why criminal
defendants, whose life and liberty are at stake, should
have less access to those records than the general
public.
[Id.at 358-59 (emphasis added).]
If a defendant presents a relevant need for the IA records, the Court prescribed
the following procedures in Higgs:
If the trial court determines as a threshold matter that
the requested information, if present in the internal
affairs file, would be relevant to the defendant's case --
for impeachment purposes or to support the defense's
theory, for example -- the trial court shall grant the
defendant's motion and conduct an in camera review of
the internal affairs records outside the presence of the
parties. The in camera review by the trial court would
be solely for the purpose of determining whether the
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40
category of identified information exists in the internal
affairs file.
[Id. at 360 (emphasis added).]
The Court then specified the steps to be taken if relevant information was
identified in the in camera review:
If, upon review, the trial court determines that the
requested information is present in the file, both parties
shall be allowed to review the relevant portion of the
file, subject to any protective orders entered by the trial
court.
Allowing the parties access to the relevant portion of
the internal affairs file is not, however, the end of the
inquiry. Even if the evidence sought is present in the
file and relevant to the case, the court must balance its
relevance against potential undue prejudice, as required
in N.J.R.E. 403, prior to allowing that evidence in at
trial.
[Id. at 359-60 (emphasis added.]
Higgs is not directly applicable to the present litigation, because it
involved a question of discovery in the context of a case-specific criminal
prosecution rather than a request for documents under the common law right of
access. Claims for access under the common law must be considered instead
under the standard set forth in Rivera.
This litigation presents an interplay between Rivera and Higgs. The OPD
is a unique litigant because it serves as counsel to many criminal defendants in
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41
this State. Indeed, as the trial court recognized, the legitimate interests the OPD
expresses in its complaint, in support of its common law right of access to
Appendix K reports, largely relate to its institutional role in representing
criminal defendants.
Beyond that role in representing clients on a case-by-case basis, we
recognize the OPD also has an important institutional role in voicing positions
relating to criminal justice policies. By having access to IA reports, the OPD is
in a more informed position to participate in that public discourse relating to the
training, supervision, and discipline of law enforcement personnel.
It is apparent that the IA information obtainable in criminal discovery is
not identical to the IA information that can be learned from accessing sources
such as Appendix K. Some information could be obtainable through the
criminal discovery process under Higgs that is not reflected in Appendix K
reports. On the other hand, Appendix K reports might reveal certain information
that would not necessarily be disclosed in discovery under the Higgs procedures.
The two methods of information-gathering may function in tandem and be
complementary.
We agree with the OPD that it can have no less rights to Appendix K and
IA information than are enjoyed by the public at large and requestors such as
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42
the amicus organization in this appeal. Indeed, the AG has not identified what
would prevent amicus or other requestors from sharing with the OPD the IA
information they may obtain under the common law. There is no practical
reason to preclude the OPD from having equivalent common law access.
For these reasons, we conclude the trial court erred in relying upon Higgs
as a justification for denying the OPD's access claims. That error manifestly
affected the court's analysis and balancing of interests. Accordingly, the trial
court erred to the extent it denied the OPD access to Appendix K documents
based, even in part, upon Higgs.
We conclude that the court's decision therefore must be vacated, without
prejudice, and remanded for fresh consideration of the Rivera factors without
reliance on Higgs. As part of that remand, the trial court shall conduct an in
camera review of the records in question, and determine what, if any, redactions
may be warranted. See Rivera, 250 N.J. at 150; 2022 IAPP at Section 9.6.2(b).
The court's blanket denial of redaction on the OPD's motion for reconsideration
must be examined anew. We recognize the OPD should have specified the
remedy of partial disclosure, with redactions, sooner. Nonetheless, the interests
of justice warrant the trial court's fulsome consideration of redaction.
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III.
As part of the remand, we further ask the trial court to resolve certain
factual aspects of the parties' dispute that appear confusing and perhaps are the
sources of misunderstanding and miscommunication.
We note that at this point the OPD has limited its request to Appendix K
reports for Essex County from 2021 to the present, redacted to show only
officers with "sustained major discipline," for which there is no appeal pending,
or the time for appeal has expired. 10
However, it is uncertain to us whether the OPD and the AG are using the
same concepts of "major discipline." The OPD appears to be defining "major
discipline" broadly as (1) all of the disciplinary actions which are deemed
subject to disclosure both under the regulatory definition of "major discipline,"
N.J.A.C. 4A:2-2.2(a), utilized in the IAPP Manual since 2020, which is
discipline that resulted in a termination, reduction in rank or grade, and/or
suspension of more than five days; plus (2) the category of "serious misconduct"
that the Supreme Court found subject to common law disclosure in Rivera, 250
at 148 (which may be termed "Rivera-misconduct"), which includes "the use of
10
Therefore, the trial court will not have to consider issues relating to any
reports that were required before the Appendix K reports.
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44
excessive or deadly force, discrimination or bias, domestic or sexual violence,
concealment or fabrication of evidence or reports, criminal behavior, or abuse
of the public trust."
By contrast, the AG appears to be using solely the definition of "major
discipline" in N.J.A.C. 4A:2-2.2(a) and not also the "Rivera-misconduct" items.
However, this is not entirely clear.
During oral argument on the appeal, defendant's counsel referred to an on-
line source described as the "the major discipline portal." It is not clear exactly
what information that portal contains, and to what extent it may omit
information that the OPD regards as within its broader conception of "major
discipline."
As we noted above in Part II, the trial court accepted the AG's contention
that redacted Appendix K reports would be "entirely duplicative" of publicly
available information released by defendant. However, that alleged exact
duplication appears to be disputed.
Given the persisting factual disputes and the unclear terminology, the trial
court should clarify the matter and make findings on remand that include the
following:
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(1) an explanation of "the major discipline portal" delineating what it is,
what is disclosed through the portal and on what reporting schedule, and what
entity manages the portal;
(2) a more complete explanation of the Appendix K reports – what
entity/entities produce them, to whom they produce them and on what schedule,
and what data they contain; and
(3) whether the information released through the "major discipline portal"
is in any way different than the information on "sustained major discipline"
contained in the Appendix K reports;
(4) depending on the court's factual findings, the court must then
reconsider whether the Appendix K reports should be disclosed, subject to
redactions, under the common law balancing test.
Additionally, the trial court is asked to resolve on remand whether the
OPD is entitled to receive only annual Appendix K report information, or
whether quarterly reports are actually in the AG's possession and, if so, the OPD
is also entitled to their disclosure, with redactions. The record in this respect
unfortunately is also unclear.
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IV.
Beyond these points, we decline to address any other issues raised,
pending the remand. The trial court shall conduct a case management
conference within thirty days to plan steps to effectuate the remand.
Vacated in part and remanded. We do not retain jurisdiction.
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