The Disclosure of Police Misconduct Records (Part 5)

The Court continued in relevant part: Based on their statutory authority, see N.J.S.A. 52:17B-98 and -4(d), Attorneys General have issued directives that govern the disciplinary process. Attorney General directives relating to the administration of law enforcement have the “force of law.” See N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 565 (2017). The IAPP, in particular, carries the force of law for State and local law enforcement. Fraternal Ord. of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75, 100-01 (2020). Moreover, the Legislature enacted a separate statute that underscores the force of the IAPP. N.J.S.A. 40A:14-181 embraces the Attorney General’s policy on internal affairs matters by directing law enforcement agencies throughout the state to adopt guidelines consistent with the IAPP. And the policy in effect at the time section 181 was enacted — the 1992 IAPP — declared that police executives, like the Attorney General, could release disciplinary records. The Directives therefore do not conflict with OPRA, N.J.A.C. 13:1E-3.2(a), or Executive Order 11.

Courts apply a deferential standard to final agency actions and will not overturn them unless they are arbitrary, capricious, or unreasonable. For actions like the Directives, judicial intervention is limited to those rare circumstances in which it is clear the agency action is inconsistent with its mandate. The Legislature empowered the Attorney General to issue directives. To determine whether a particular directive is arbitrary, capricious, or unreasonable, courts consider whether “there is any fair argument in support of the course taken.” Flanagan v. Dep’t of Civ. Serv., 29 N.J. 1, 12 (1959).

The numerous repetitive, conflicting, supplemental, and obscure laws at issue demonstrate the legal fiction underlying the law that citizens are presumed to have knowledge of penal statutes. There is not a judge, attorney, or any person on the planet who is aware of all of the laws that apply to the numerous situations that occur in our daily lives.