OPRA at the Supreme Court

Relatively speaking, 2021 was a busy year for OPRA in the New Jersey Supreme Court, during which the Court decided two cases, Bozzi v. City of Jersey City, and Simmons v. Mercado. In Bozzi, the Court held that dog owners had no reasonable expectation of privacy in their names and addresses. In Simmons, which broke new ground, the Court held that municipal police departments are required to provide copies of CDR-1 forms (commonly known as complaints) to requestors, even if those documents had to be retrieved from the Judiciary’s database. If municipal law enforcement populated the forms, then the forms are public records, even if they resided within the Judiciary (which is not subject to OPRA).

We expect the Court two issue opinions regarding two additional cases that have been briefed and argued. In Rivera v. Union County Prosecutor’s Office, the Appellate Division held that an internal affairs investigation report was not subject to OPRA.  In our experience, records of internal affairs investigations are not subject to OPRA. This broad exception has been eroded somewhat recently, but only through polices enacted by the New Jersey Attorney General. In In re Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6, the Supreme Court held that the Attorney General had the power to release information regarding discipline of law enforcement officers who received "major discipline." (Major discipline is termination, demotion, or suspension of more than five days).  The three categories of information that the Attorney General released were: (1) the names of the officers; (2) the discipline that was imposed; and (3) a summary of the misconduct. But the Attorney General and courts have not permitted access to internal affairs investigation reports. Rivera presents the issue of whether the underlying reports (as opposed to summaries of the conduct) must be disclosed.

Second, we expect a decision this year in Libertarians for Transparent Government v. Cumberland County. This appeal presents the question of whether a settlement agreement that settled internal disciplinary charges is a public record. The Appellate Division held that such an agreement was not a public record because, in contrast to other cases regarding settlement agreements, the settlement agreement resolved disciplinary charges, not a civil suit.

Regardless of how these two appeals are decided, we expect them to have an impact on the range of records that are accessible under OPRA.