The Balancing Test for the Common Law Right of Access to Public Records

Rivera v. Union County Prosecutor’s Office, ___ N.J. ___ (2022). Employees of the Elizabeth Police Department complained to the Union County Prosecutor’s Office that the Police Director, James Cosgrove, had repeatedly used racist and sexist language to refer to employees. The Prosecutor investigated, found the complaint valid, issued a public statement that, among other things, called on Cosgrove to resign. Cosgrove did so.

Thereafter, plaintiff filed an open public records request with the Prosecutor’s Office. That request invoked the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (“OPRA”), and the common law right of access to public records. Plaintiff sought access to “all internal affairs reports regarding” Cosgrove. The Prosecutor’s Office responded that internal affairs reports were “exempt from disclosure under OPRA” and that the common law did not require disclosure either.

Plaintiff sued, asserting both theories. The Law Division ruled that the reports were to be produced under OPRA. That court did not reach the question of whether the common law required production. On appeal, the Appellate Division reversed. It held that OPRA barred disclosure of the reports. Neither side briefed the issue of the common law, but the Appellate Division sua sponte exercised original jurisdiction and ruled that the common law did not require disclosure either, as the Prosecutor’s Office’s interest in preventing disclosure outweighed plaintiff’s right to production of the reports.

The Supreme Court granted review. Today, the Court unanimously ruled that the reports were exempt from disclosure under OPRA, but that the common law required their production after review of the reports by the trial court and “redacts parts that raise legitimate confidentiality concerns.” Chief Justice Rabner wrote the Court’s opinion, marking his second unanimous OPRA opinion in the last two weeks.

The Court first addressed the question of whether the internal affairs reports were exempt from disclosure under OPRA. Chief Justice Rabner found that the plain language of section 9)b) of OPRA answered that question. That section stated that OPRA “shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record” (emphases by Chief Justice Rabner).

A different statute gave the Attorney General the authority to adopt rules and regulations to govern the operations of the Department of Law and Public Safety. Pursuant to that authority, Attorney General DelTufo issued a policies and procedures manual that guaranteed that “[t]he progress of internal affairs investigations and all supporting materials are considered confidential information.”

Subsequently, the Legislature adopted N.J.S.A. 40A:14-181, which directed all law enforcement agencies to “adopt and implement guidelines which shall be consistent with” the Department of Law and Public Safety manual. That statute “effectively made the [manual’s] provisions required policy for law enforcement agencies.” As a result of all that, OPRA’s section 9(b) exempted internal affairs reports from disclosure.

But the Court reached the opposite result under the common law, whose definition of a public record is broader than that contained in OPRA. Quoting Nero v. Hyland, 76 N.J. 213, 222 (1978), Chief Justice Rabner noted that a common law public record must be “a written memorial . . . made by a public officer, and .. . the officer [must] be authorized by law to make it.” Under that standard, the internal affairs report were a common law public record.

But the common law balanced that broader definition of a public record with more stringent requirements before disclosure of a public record could be obtained. “In particular, (1) the person seeking access must establish an interest in the subject matter of the material; and (2) the [person’s] right to access must be balanced against the State’s interest in preventing disclosure.”

In Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), the Court identified six factors that were to inform a decision about disclosure under the common law right of access. Those factors all went to the State’s interest in confidentiality, which was only one side of the balance. Today’s decision identified additional considerations on the side of the requestor’s right to disclosure. Those new factors included “the nature and seriousness of the misconduct,” whether the alleged conduct was substantiated and, if so, what discipline was imposed, “the nature of the official’s position,” and “the individual’s record of misconduct.”

Those new factors weighed in favor of disclosure, the public interest in which was “great. Racist and sexist conduct by the civilian head of a police department violates the public’s trust in law enforcement. It undermines confidence in law enforcement officers generally, including the thousands of professionals who serve the public honorably.”

But the Court could not balance that interest against the need for confidentiality because the record was insufficient. That was because the Prosecutor’s position about confidentiality was supported only by “generic arguments,” while the Court’s opinion today called on both sides to offer “more than generalized, conclusory statements.” For that reason, the Court remanded the matter to the Law Division “to review the internal affairs report in camera and complete the necessary balancing test on an expedited basis.” The trial court was then to determine which, if any, portion(s) of those reports needed to be redacted to protect confidentiality and then order production of the rest of the reports.

In the course of his opinion, Chief Justice Rabner addressed the Appellate Division’s invocation of its original jurisdiction in deciding the common law issue when neither side had raised it. That action, the Supreme Court said, was “mistaken.” Rule 2:10-5 provides that appellate courts can “exercise . . . original jurisdiction as is necessary to the complete determination of any matter on review.” But that authority, Chief Justice Rabner said, was to be employed “sparingly.” Original jurisdiction “is generally used when the record is adequately developed and no further fact-finding is needed,” and its exercise can be proper “to eliminate unnecessary further litigation” or when “the public interest favors an expeditious disposition of [a] significant issue[ ].”

Here, as discussed above, the record was insufficient for the Supreme Court to decide the common law issue. That insufficiency of the record made it improper for the Appellate Division to invoke original jurisdiction to address the common law right. Parties who seek the exercise of original jurisdiction in any kind of case need to take heed of that aspect of today’s opinion.