A novel pathway in NJ to police misconduct records. Will other states follow?

An Elizabeth Police vehicle is parked near the Oakwood Plaza apartments, in Elizabeth, New Jersey, U.S., September 2, 2021. REUTERS/Brendan McDermid

(Reuters) - The New Jersey Supreme Court decided earlier this month that the public has a broad right to access certain information about serious police misconduct under common law, a landmark ruling that stands to deter police abuse and lays out a novel pathway to improve police accountability in other states.

The court on March 14 held 6-0 that the Union County Prosecutor’s Office must release an internal affairs report that found the director of the Elizabeth Police Department had made racist and misogynistic comments about his staff over the course of many years. James Cosgrove, the former civilian head of the department for more than two decades, resigned in 2019 soon after the investigation was completed.

The probe began after an attorney made a complaint about Cosgrove on behalf of police department employees, including allegations of sexual harassment and that Cosgrove routinely interfered in internal affairs investigations, the New York Times reported in April 2019.

After Cosgrove’s resignation, Richard Rivera, a former cop turned police transparency advocate, filed a request for investigative records with the prosecutor’s office. Rivera’s request was based on the Open Public Record Act, New Jersey’s version of the federal Freedom of Information Act (FOIA), as well as the common law – a body of law and legal principles that pre-date our written constitution.

The prosecutor’s office denied the request, saying witnesses expected that their privacy would be protected and that officers would be less willing to participate in future internal investigations if the information was released. Attorneys for the city added that privacy interests couldn’t be protected even if the report was released with witnesses’ identities redacted.

The Union County Prosecutors Office didn’t respond to requests for comment. City representatives also didn’t respond to a request for comment. Attempts to reach Cosgrove were not successful.

New Jersey's open records act has a provision that specifically exempts law enforcement internal affairs records from public disclosure. But the statute doesn’t limit the access granted under the common law, which requires courts to balance the public’s (or an individual’s) interests in learning about misconduct against officials’ interest in confidentiality, Chief Justice Stuart Rabner wrote.

In this case, the prosecutors’ office had simply made “generalized, conclusory statements” and arguments that can’t truly be evaluated, the court said. On the other hand, the public has undisputed and significant interests in the disclosure of internal affairs reports, including holding officers accountable, deterring misconduct, assessing internal safeguards and fostering community trust in law enforcement.

The court held that those interests may be heightened in some cases based on other considerations – including the officers’ position and past record and whether disciplined was imposed.

The justices ultimately concluded that the public interest outweighed the officials’ in Cosgrove’s case, particularly because of the seriousness of the allegations and his position at the highest echelons of the department.

The ruling provides important guidance for how New Jersey courts should approach the question of disclosing police records in similar cases. It establishes that serious or grave misconduct and a past record of misbehavior are among the factors that weigh heavily in favor of disclosure – especially when prosecutors and police can’t point to specific evidence supporting their assertion that someone will be endangered or otherwise harmed if records are released.

Moreover, the ruling demonstrates a viable path to disclosure of police records under the common law – a potential alternative to filing lawsuits for records under state FOIA statutes. The court’s decision shows that it’s possible for the common law to play a gap-filling role for public access in some states, even when a police department or other agency cites a specific exemption to the FOIA laws.

Courts often accept agencies' proffered explanations for refusing to disclose records with only minimal scrutiny, if any, according to a 2015 law review article, The Common Law Right to Information, by Joe Regalia, now an associate professor of law at the University of Nevada, Las Vegas’ William S. Boyd School of Law.

Rivera’s lawyer, CJ Griffin of Pashman Stein Walder Hayden PC, told me that “it’s a real possibility” for other states to adopt a similar analysis under the common law.

“New Jersey has been viewed as a leader that some other state courts are willing to follow,” Griffin said. “I would love to see courts rely more on the public interest that already exists” in the common law “to grant more access.”

The litigation strategy in Rivera’s case was discussed in Regalia's 2015 article.

Courts often hold that the common law – or judge-made law - is displaced when a legislature enacts a statute to govern a particular activity, like public access to government records.

But New Jersey courts have long held that the common law right of the public to inspect government records coexists with state FOIA rights. (New Jersey’s attorney general agreed in Rivera’s lawsuit that redacted internal affairs reports can sometimes be released under the common law).

Courts in New York, Washington, West Virginia and Wisconsin have all also held that the common law rights weren’t abrogated when their legislatures enacted public access law, Regalia wrote in the 2015 article.

Other states have significant limitations built into their FOIA statutes. Virginia restricts public access to records to its own residents, for example. And a recent South Carolina bill requiring police body cameras also specified that the videos aren't subject to disclosure under the state’s FOIA law, as I reported in a May 2021 column about how police around the country often cite another exemption to FOIA laws - the "ongoing exemption" exemption - without legitimate justification.

The court’s recent ruling suggests that Rivera’s common law arguments may be plausible, even vital, to access certain police misconduct records in those jurisdictions and in other states with similar legal regimes.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com