The Disclosure of Police Misconduct Records (Part 2)

Chief Justice Rabner continued in relevant part: The court concluded that the Attorney General had the authority to issue the Directives and found that the Directives did not conflict with the Open Public Records Act (OPRA) or other authorities relating to the confidentiality of personnel records. Id. at 140-48. The court also found the retroactive nature of the Directives did not run counter to ex post facto principles. Id. at 149. In light of the limited record before it and the fact that appellants brought only a facial challenge to the Directives, the Appellate Division declined to address any contract claims or related arguments based on promissory and equitable estoppel, id. at 153-54, leaving open the possibility of individual as-applied challenges, id. at 154-55.

The Appellate Division found that the Directives did not violate constitutional guarantees of due process, id. at 156-57, or equal protection, id. at 157-59. The court also rejected claims that the Directives violate the Administrative Procedure Act (APA), id. at 159-60, and that they impair appellants’ right to contract and violate their constitutional right to collective negotiations, id. at 160-61. Finally, the appellate court concluded the Directives are not arbitrary, capricious, unreasonable, or against public policy. Id. at 161. The Court granted appellants’ petitions for certification. 244 N.J. 447 (2020).

The Attorney General had the authority to issue the Directives, which satisfy the deferential standard of review for final agency decisions. The Directives are designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another. In short, the Directives are consistent with legislative policies and rest on a reasonable basis.

New Jersey has historically provided police with more confidentiality protections than most states. This decision will be a step towards requiring greater transparency.