The Disclosure of Police Misconduct Records (Part 6)

The New Jersey Supreme Court continued in relevant part: The Court reviews the Directives, which detail the Attorney General’s justification for releasing the names of officers subject to major discipline. The Court also reviews appellants’ concerns and arguments about the wisdom and consequences of the Directives. Disagreement over a policy, however, does not make it arbitrary, capricious, or unreasonable. If an administrative action is consistent with legislative policies, rests on a reasonable basis, reflects careful consideration of the issues, and can otherwise satisfy the standard for appellate scrutiny, the policy should be upheld.

Here, the Attorney General exercised authority the Legislature placed in his office to develop and revise disciplinary policies. He acted to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the internal affairs process, and to prevent officers from evading the consequences of their misconduct. The Attorney General’s reasoned bases for acting were fully consistent with the Department’s mandate. The Directives implement a practice that is common in other professions. Once again, thoughtful concerns in opposition to a new policy are not fatal to administrative action. The Attorney General’s decision to release the names of law enforcement officers subject to major discipline is consistent with his delegated authority and grounded in reason. It is not arbitrary, capricious, or unreasonable.

The Ex Post Facto Clause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. The Directives do none of those things. Nor do they reflect a change in the law. The Attorney General’s authority is grounded in statutes enacted decades ago, and the Attorney General has advised officers for more than twenty years that internal affairs records might be released. Insofar as appellants challenge the Attorney General’s exercise of his discretionary authority to change longstanding practice, their claim emphasizes estoppel principles.

The dynamic of the dispute here is unique because it is not a pro-defense party against a pro-prosecution party. It is the chief prosecutor of New Jersey, the Attorney General, being opposed by the various law enforcement agencies and prosecutors that are required to obey the AG’s Directives.