The Attorney General’s Directives Regarding Release of Police Officer Disciplinary Information Are Upheld by the Appellate Division

In re AG Law Enforcement Directive Nos. 2020-5 & 2020-6, 465 N.J. Super. 111 (App. Div. 2020). Here is how Judge Accurso began her opinion for the Appellate Division in this important case:

“Responding to state and national demands for accountability and reform of law enforcement following the death of George Floyd at the hands of Minneapolis police, Attorney General Gurbir S. Grewal announced in June that he would end New Jersey’s decades-long practice of shielding the identities of law enforcement officers receiving major discipline for misconduct. Determining he could best improve the public’s trust in state and local police by instilling greater accountability in the processes that govern officer misconduct, the Attorney General issued two directives, Law Enforcement Directive Numbers 2020-5 and 2020-6, amending the statewide rules for internal affairs investigations, known as the Internal Affairs Policy and Procedures (IAPP), applicable to every law enforcement agency in New Jersey by virtue of N.J.S.A. 40A:14-181, and imposing additional requirements on the law enforcement agencies housed within the Department of Law and Public Safety.

“Directive 2020-5 amends the IAPP to require every law enforcement agency in the State to publish a synopsis of all complaints in which an officer received final discipline of termination, demotion, or a suspension of more than five days, including the name of the officer, a summary of the misconduct, and the sanction imposed. Initial reports, covering all discipline imposed during this calendar year, are due by December 31, 2020. Subsequent reports must be published at least annually thereafter. The Directive further permits, but does not require, county and municipal agencies to release similar information about earlier incidents of officer misconduct resulting in the same sanctions.

“Directive 2020-6 orders all law enforcement agencies within the Department of Law and Public Safety, which the Attorney General heads, the Division of State Police and the Division of Criminal Justice, as well as the Juvenile Justice Commission, which is in but not of the Department, to publish no later than July 15, 2020, the same information required by Directive 2020-5 from January 1, 2000 to the present. The Directive orders the three agencies to provide notice to each officer it intends to identify at least seven days prior to publication, whenever possible making reasonable efforts. Both Directives provide they were issued pursuant to the Attorney General’s authority to ensure the uniform and efficient enforcement of the laws and administration of criminal justice throughout the State, and specific to 2020-6, his authority to supervise the operations of the Department of Law and Public Safety, and create no substantive right of enforcement in any third party.”

A number of police groups brought a facial challenge to the two new Directives. They contended that “the Attorney General lacks the authority to issue the Directives because they conflict with a provision of the Open Public Records Act [“OPRA”], N.J.S.A. 47:1A-10 (section 10), a regulation promulgated by the Department of Law and Public Safety, N.J.A.C. 13:1E-3.2(a)(4), and various Executive Orders, most notably Executive Order 11 (Byrne), all of which protect the confidentiality of personnel records of public employees. Petitioners also maintain the Attorney General promulgated the Directives in violation of the Administrative Procedures Act and acted outside his authority by giving them retroactive application; that the Directives violate the equal protection rights of affected officers; violate the due process rights of affected officers; violate officers’ constitutional rights to collective negotiations and against the impairment of contracts; violate the doctrines of promissory and equitable estoppel; and, finally, that the Directives are arbitrary, capricious and unreasonable and against public policy.”

In a lengthy and detailed opinion, the Appellate Division rebuffed all those attacks. Though OPRA requestors would not be able to obtain the information at issue, that did not mean that the Attorney General lacked authority to direct release of that information. In other legislation, the Legislature had “designated the Attorney General as New Jersey’s ‘chief law enforcement officer,’ responsible ‘for the general supervision of criminal justice’ in the State, N.J.S.A. 52:17B-98, and charged him with ‘formulat[ing] and adopt[ing] rules and regulations for the efficient conduct of the work and general administration of the [D]epartment,’ N.J.S.A. 52:17B-4(d).” The Attorney General thus had the power to issue the Directives.

Additionally, “the Legislature had long recognized that ‘police officers are different from other public employees,'” so that “the scope of discretion accorded to the public entities that administer police departments is necessarily broad.” Police “carry firearms, drive emergency vehicles, and exercis[e] the most awesome and dangerous power that a democratic state possesses with respect to its residents—the power to use lawful force to arrest and detain them,” so police have a lesser expectation of privacy, including in the privacy of their disciplinary records.

Judge Accurso went on to reject the police groups’ retroactivity, due process, and equal protection arguments. She also noted that the contention that the promulgation of the Directives had violated the Administrative Procedures Act “ignores our long-standing view that the Attorney General’s law enforcement directives and guidelines are not ‘administrative rules’ as defined in [N.J.S.A. 52:14B-2], and, thus, do not require formal promulgation” under that statute. Nor did the Directives interfere with officers’ right to contract or to engage in collective negotiations. Finally, the Directives were not arbitrary, capricious, unreasonable, or violative of public policy.

Judge Accurso was careful to state, however, that individual officers might (or might not) have valid as-applied challenges to the Directives. That might be particularly so if disciplinary charges were settled with agreements of confidentiality. Such issues, however, were for another day.

The Appellate Division had accelerated consideration of this matter given its importance, and had stayed the effectiveness of the Directives pending its decision. The panel “continue[d] our stay of the Directives for five days only, to permit appellants to file an immediate petition for certification and application for any further stay in the Supreme Court.” It would not be surprising if the Court took up the case and had the final word.