The Disclosure of Police Misconduct Records (Part 7)

by | Dec 6, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Chief Justice Rabner continued in relevant part: Appellants argue that the Directives violate the doctrine of promissory estoppel; they also rely on the related theory of equitable estoppel. The Court reviews the elements of those claims and notes that appellants submitted multiple certifications to demonstrate that the Office of the Attorney General made clear promises of confidentiality throughout the disciplinary process.

Although the record is incomplete, it raises significant concerns in that it suggests that officers who agreed to major discipline received assurances of confidentiality. Each IAPP stresses that records of internal affairs investigations are confidential and that files must be “clearly marked as confidential.” In addition, a series of certifications in the record from the Superintendent of the State Police and others assert that for many years, the internal affairs process has been replete with promises of confidentiality and reassurances from state officials to officers who agreed to discipline. Representations made by the Attorney General in a 2018 brief in another matter appear to validate part of the certifications before the Court in this case. The disclosure of disciplinary records in criminal cases and in response to civil discovery requests does not undermine appellants’ estoppel argument.

The Court exercises its supervisory authority to establish a process for consideration of the estoppel claims raised by officers who settled their disciplinary actions, which will help ensure that relevant issues are resolved in a uniform and efficient manner. In section VI.B of the opinion, the Court details that process for State Troopers, which will begin with a broad-ranging evidentiary hearing before a single judge. The hearing should explore the practice of the State Police relating to disciplinary matters, and the question of confidentiality, in particular, before the Directives were issued. If the court finds that promises of confidentiality were made and relied on consistent with the appropriate legal standards, it could bar the release of names of law enforcement officers subject to Directive 2020-6 for disciplinary matters settled before June 19, 2020. If the record does not support such a conclusion for the entire group of officers, the court’s more limited findings may be incorporated and made part of the record in individual challenges that will likely follow. The Court provides guidance for those challenges, including that officers will have 45 days to file an action upon receiving notice of proposed disclosure by the Attorney General.

The Court’s appointment of a judge will likely lead to protracted hearings and rounds of appeals. Even if a subsequent Attorney General does not repeal the Directives at issue, many of the offending police officers are likely to retire before their names and the details of their “major discipline” cases are released.