Chief Justice Rabner continued in relevant part: Directives 2020-5 and 2020-6 altered historical practice by requiring that officers subject to major discipline be identified publicly. Directive 2020-5 applies not only prospectively but also for at least five months before it was issued. In addition, it states that “nothing prevents agencies from releasing similar information regarding historical incidents of officer misconduct.” And Directive 2020-6, beyond its prospective application, requires the agencies to which it applies to “publish the names of any officers who have been subject to serious discipline in the past twenty years.”
Under OPRA, government records are subject to disclosure unless the law exempts them from access. Appellants highlight section 10 of the law, which limits the disclosure of personnel and pension records. See N.J.S.A. 47:1A-10. Section 10, however, contains an important exception: “Personnel or pension records shall be accessible when required to be disclosed by another law.” Ibid. A regulation the Department adopted in 2014 provides that certain records “shall not be considered government records subject to public access” under OPRA, but this regulation does not apply to “records enumerated in N.J.S.A. 47:1A-10 as available for public access.” N.J.A.C. 13:1E-3.2(a)(4). In other words, a record subject to disclosure under section 10 of OPRA is likewise subject to disclosure under the regulation. The same exception is embedded in Executive Order 11, issued by Governor Byrne: “Except as otherwise provided by law an instrumentality of government shall not disclose . . . personnel or pension records of an individual.”
This case is indicative of an enormous waste of judicial and taxpayer resources. Both sides of the litigation are funded by taxpayer dollars. The same is true Special Master assigned to determine the case-by-case disclosure requirements, along with both sides of the litigation that will be before the Special Master. In the end, there is a good chance that all of the time and money will be wasted if a new Governor is elected who appoints a new Attorney General that repeals the current AG Directives.
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