SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2573-19T3

RICHARD RIVERA,

Plaintiff-Respondent,

v.

UNION COUNTY 

PROSECUTOR'S OFFICE,

and JOHN ESMERADO in his

official capacity as Records

Custodian for the Union County 

Prosecutor's Office,

Defendants-Appellants,

and

CITY OF ELIZABETH,

Intervenor-Appellant.

__________________________

Argued telephonically May 18, 2020 –

Decided June 19, 2020

Before Judges Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-2954-19.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-2573-19T3

April C. Bauknight, Assistant County Counsel, argued 

the cause for appellants Union County Prosecutor's

Office and John Esmerado (Robert E. Barry, Union 

County Counsel, attorney; April C. Bauknight, on the 

briefs).

CJ Griffin argued the cause for respondent (Pashman, 

Stein, Walder & Hayden, PC, attorneys; CJ Griffin, on 

the brief).

Robert F. Varady argued the cause for intervenorappellant City of Elizabeth (LaCorte, Bundy, Varady & 

Kinsella, attorneys; Robert F. Varady, of counsel; 

Christina M. DiPalo, on the brief).

PER CURIAM

The Union County Prosecutor's Office (UCPO) conducted an internal 

affairs (IA) investigation of former Elizabeth Police Department (EPD) Director 

James Cosgrove's alleged workplace misconduct directed at members of the 

EPD. Plaintiff Richard Rivera1requested access to the IA investigation report 

pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and 

the common law right of access. The UCPO denied his request. 

 

1

 Plaintiff "is a retired New Jersey municipal police officer, private consultant, 

civil rights advocate, and expert witness in police practices and policies." Since 

2008, he has "volunteer[ed] his time and resources to the Latino Leadership 

Alliance of New Jersey" and co-chairs its Civil Rights Protection Project. 
3

A-2573-19T3

Plaintiff filed this action against defendants UCPO and John Esmerado, 

in his official capacity as Records Custodian for the UCPO, demanding access 

to the IA investigation report. By leave granted, defendants and intervenor City 

of Elizabeth (Elizabeth) (collectively appellants), appeal from a February 6, 

2020 Law Division order requiring the UCPO and Esmerado to produce "the 

complete set of investigation materials that was conducted into the conduct of 

former Elizabeth Police Director James Cosgrove" for in camera review. 

I.

We summarize the pertinent facts. In February 2019, EPD employees

filed an internal complaint alleging Cosgrove used racist and sexist epithets 

when referring to his staff. After conducting a two-month IA investigation of 

Cosgrove's conduct, the UCPO sustained the allegations against Cosgrove, 

finding he violated Elizabeth's anti-discrimination and anti-harassment policies. 

In April 2019, the UCPO wrote to the complainants' attorney notifying 

him that "a thorough investigation" revealed that "Cosgrove used derogatory 

terms in the workplace when speaking about city employees." The attorney 

turned the letter over to the media. On April 26, 2019, Attorney General Gurbir 

S. Grewal issued a press release calling for Cosgrove's immediate resignation. 

Attorney General Grewal noted that the IA investigation "concluded that, over 
4

A-2573-19T3

the course of many years, Director Cosgrove described his staff using derogatory 

terms, including racist and misogynistic slurs." The media gave substantial 

coverage to the story. Cosgrove resigned shortly thereafter. 

In July 2019, plaintiff submitted an OPRA and common law right of 

access request to the UCPO, seeking the following material with appropriate 

redactions: (1) "the report regarding [the EPD's IA] issues and claims of racism 

and misogyny"; and (2) "all [IA] reports regarding" Cosgrove. 

The UCPO issued a July 10, 2019 letter denying plaintiff's request for the 

documents. As to the requested EPD report, the UCPO advised that "in general, 

. . . no such report exists." As to Cosgrove-related IA reports, the UCPO 

explained that such material is a "personnel and/or internal affairs record[]," 

which is "exempt from disclosure under OPRA" and remains confidential 

pursuant to the Internal Affairs Policy & Procedures (IAPP) promulgated by the 

Attorney General,

2

absent "a court order or consent of the Prosecutor or Law 

Enforcement Executive." 

 

2

 The IAPP is issued by the Attorney General through the Division of Criminal 

Justice and has been periodically updated, most recently in December 2019. 

While the 2017 version was in effect when plaintiff filed this action, we cite to 

the December 2019 version because the revisions do not affect our analysis. 
5

A-2573-19T3

The UCPO also denied plaintiff's common law request, asserting that its 

"interest[s] in maintaining confidentiality significantly outweigh [plaintiff's] 

interests in disclosure." The UCPO explained that releasing the IA reports 

would have a chilling effect on individuals reporting wrongdoing. It noted that 

"remedial measures" had been taken, which included Cosgrove's resignation and 

requiring the EPD "to be retrained on issues of implicit bias and workplace 

harassment." 

On August 21, 2019, plaintiff filed this action against the UCPO and 

Esmerado alleging violations of OPRA (count one) and the common law right 

of access (count two). The court issued an order to show cause (OTSC) directing 

defendants to explain why judgment should not be entered granting plaintiff 

access to the records and awarding attorney's fees. Elizabeth moved to 

intervene, which was granted. 

During oral argument before the trial court, plaintiff's counsel 

acknowledged the need to redact information identifying the complainants. 

Counsel stated that plaintiff "doesn't care about who the complainants are. He 

doesn't want identifying information. This is just about the facts as it relates to 

former director Cosgrove, not the people who made the allegations." 
6

A-2573-19T3

The court issued an oral decision and February 6, 2020 order partially 

granting plaintiff's OPRA application, requiring defendants to produce "the 

complete set of investigation materials for the investigation that was conducted 

into the conduct of . . . Cosgrove to be reviewed in camera and under seal." 

The court acknowledged the competing interests of confidentiality and 

transparency. It noted that "[t]here is certainly a justification for a level of 

secrecy to protect people who . . . would be putting themselves in jeopardy 

depending on how they . . . were to testify. So, that's a justification for normally 

keeping these things private." The court recognized that "[IA] investigations of 

this type are normally not made public under the theory that investigations 

should be free to explore complaints and issues and witnesses" without the 

possibility of public disclosure that "could subject them to harm." But the court 

also expressed "fear that serious matters are covered up by the secrecy with 

which [IA] investigations have been cloaked." 

During oral argument before the trial court, a colloquy ensued regarding 

whether any public announcements about the IA investigation were "akin" to a 

waiver of the right to confidentiality. The trial court did not find appellants had 

waived the right to confidentiality but noted the UCPO and Elizabeth had 

"publicly affirmed that [the] allegations were based in fact and one of the 
7

A-2573-19T3

particular individuals involved in the inappropriate tendencies is no longer with 

the [EPD] as a result." The court concluded that the acting prosecutor's report 

about the investigation and findings and Elizabeth's "publicly announced 

corrective action" rendered "the normal reasons for keeping the [IA] reports 

secret . . . not as valid as they would otherwise be in a routine case." 

The court stated it was unaware of any binding precedent prohibiting 

release of IA materials and noted the IAPP expressly permits the release of such

material by court order. 

In rejecting appellants' argument that OPRA's personnel record exemption 

applies, the court reasoned the matter at issue "is not about someone's pension, 

abuse of sick-leave, vacation accumulation and the like" but rather one of 

"extraordinary public interest." 

The court recognized the risk that complainants and witnesses could face 

retribution or intimidation if their identities were detected. The Court 

acknowledged its "obligation to attempt to protect those individuals who could 

unnecessarily be at risk by public disclosure."

Ultimately, the court required that "all aspects" of the UCPO's

investigation be provided for in camera review under seal. To protect 

confidentiality, the court stated it would redact "not just the names, but the 
8

A-2573-19T3

circumstances by which" the complainants and witnesses "could well be 

identified." 

The court did not reach plaintiff's common law right of access claim and 

reserved judgment on plaintiff's application for an award of counsel fees. The 

court subsequently denied defendant's motion to stay the order and plaintiff's 

motion for reconsideration as to its common law right of access claim. 

We granted the UCPO leave to appeal, stayed the trial court's order, and 

permitted Elizabeth to intervene in the appeal. 

On appeal, the UCPO raises the following points:

I. THE TRIAL COURT ERRED IN CONCLUDING 

THAT [IA] MATERIAL ARE NOT PERSONNEL 

RECORDS, AND THEREFORE NOT WITHIN AN 

EXEMPTION WITHIN N.J.S.A. 47:1A-10.

II. THE ATTORNEY GENERAL'S [IAPP]

REINFORCE THE LONG-RECOGNIZED 

CONFIDENTIALITY OF [IA] RECORDS.

III. THE TRIAL COURT MISCHARACTERIZED 

THE HOLDING OF O'SHEA3 BY INFERRING THAT 

A USE OF FORCE REPORT IS SIMILAR TO AN [IA]

REPORT.

IV. THE TRIAL COURT PREMATURELY 

DISCUSSED ATTORNEY'S FEES THEREBY 

SIGNALING A DECISION WAS ALREADY MADE.

 

3

 O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009). 
9

A-2573-19T3

V. THE DISCLOSURE OF [IA] MATERIAL WILL 

ERADICATE THE STATE'S PUBLIC POLICY TO 

MAINTAIN THE CONFIDENTIALITY OF [IA] AND 

SET PRECEDENT WHICH WILL STRONGLY 

DEVIATE FROM LEGISLATIVE INTENT.

In turn, Elizabeth raises the following additional points:

I. THE TRIAL COURT ERRONEOUSLY GRANTED 

THE PLAINTIFF'S [OTSC] AS THE UNION 

COUNTY PROSECUTOR'S [IA] REPORT 

RELATING TO THE INVESTIGATION OF JAMES 

COSGROVE IS CONFIDENTIAL AND CANNOT BE 

RELEASED UNDER OPRA.

II. THE TRIAL COURT ERRONEOUSLY GRANTED 

THE PLAINTIFF'S [OTSC] AS THE UNION 

COUNTY PROSECUTOR'S [IA] REPORT 

RELATING TO THE INVESTIGATION OF JAMES 

COSGROVE IS EXEMPT FROM OPRA AS IT 

CONSTITUTES A PERSONNEL RECORD.

III. THE TRIAL COURT'S DECISION IS NOT 

SUPPORTED BY THE RECORD IN THIS CASE.

II.

We begin our analysis by briefly reviewing OPRA's purpose, 

requirements, and application. The Legislature enacted OPRA "to promote 

transparency in the operation of government." Sussex Commons Assocs., LLC

v. Rutgers, 210 N.J. 531, 541 (2012) (citing Burnett v. Cty. of Bergen, 198 N.J. 

408, 414 (2009)). "[T]o ensure an informed citizenry and to minimize the evils 

inherent in a secluded process," OPRA provides the public with broad access to 
10 A-2573-19T3

"government records . . . unless an exemption applies." In re N.J. Firemen's

Ass'n Obligation, 230 N.J. 258, 276 (2017) (citations omitted). To fulfill that 

purpose, N.J.S.A. 47:1A-1 provides that "government records shall be readily 

accessible . . . by the citizens of this State, with certain exceptions, for the 

protection of the public interest, and any limitations on the right of access . . . 

shall be construed in favor of the public's right of access." See also N. Jersey 

Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555 (2017)

(acknowledging this statutory mandate). 

"Government record" is broadly defined under OPRA to include any

document "made, maintained or kept on file in the course of . . . official business 

by any officer, commission, agency or authority of the State or of any political 

subdivision [or] subordinate boards thereof." N.J.S.A. 47:1A-1.1. 

Notwithstanding OPRA's expansive reach, "the right to disclosure is not 

unlimited." Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J. 581, 588 

(2011). N.J.S.A. 47:1A-1.1 expressly excludes twenty-one categories of 

documents and information from its definition of a government record. 

Relevant here, OPRA's broad right to access is limited by "established 

public-policy exceptions," which declare that "government record[s] shall not 

include . . . information which is deemed to be confidential." Gilleran v. Twp. 
11 A-2573-19T3

of Bloomfield, 227 N.J. 159, 170 (2016) (second alteration in original) (quoting 

N.J.S.A. 47:1A-1.1). Such confidential information includes personnel records 

and grievances. N.J.S.A. 47:1A-1.1, -10. 

"OPRA also contains a privacy clause requiring public agencies 'to 

safeguard from public access a citizen's personal information with which it has 

been entrusted when disclosure thereof would violate the citizen's reasonable 

expectation of privacy[.]'" L.R. v. Camden City Pub. Sch. Dist., 452 N.J. Super. 

56, 80 (App. Div. 2017) (alteration in original) (quoting N.J.S.A. 47:1A-1), aff'd 

by an equally divided Court, 238 N.J. 547 (2019). Courts consider the following 

factors when determining whether a government record must be withheld or 

redacted prior to disclosure under OPRA:

(1) the type of record requested; (2) the information it 

does or might contain; (3) the potential for harm in any 

subsequent nonconsensual disclosure; (4) the injury 

from disclosure to the relationship in which the record 

was generated; (5) the adequacy of safeguards to 

prevent unauthorized disclosure; (6) the degree of need 

for access; and (7) whether there is an express statutory 

mandate, articulated public policy, or other recognized 

public interest militating toward access.

[Burnett, 198 N.J. at 427 (quoting Doe v. Poritz, 142 

N.J. 1, 88 (1995)).]

Additional provisions exempt government records from public access. 

Pertinent to this appeal, the statute "exempts from disclosure any information 
12 A-2573-19T3

that is protected by any other state or federal statute, regulation, or executive 

order." Brennan v. Bergen Cty. Prosecutor's Office, 233 N.J. 330, 338 (2018)

(citing N.J.S.A. 47:1A-9(a) (stating that OPRA's provisions "shall not abrogate 

any exemption of a public record or government record from public access"

under "any other statute" or "regulation promulgated under the authority of any 

statute or Executive Order of the Governor")); see also N.J.S.A. 47:1A-1. 

Nevertheless, exemptions from disclosure under OPRA should be 

construed "narrowly." Asbury Park Press v. Cty. of Monmouth, 406 N.J. Super. 

1, 8 (App. Div. 2009). The reasons for non-disclosure "must be specific" and

courts should not "accept conclusory and generalized allegations of 

exemptions." Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth., 

423 N.J. Super. 140, 162 (App. Div. 2011) (quoting Loigman v. Kimmelman, 

102 N.J. 98, 110 (1986)). "The public agency [has] the burden of proving that 

the denial of access is authorized by law." N.J.S.A. 47:1A-6. "To justify nondisclosure, the agency must make a 'clear showing' that one of the law's listed 

exemptions is applicable." Lyndhurst, 229 N.J. at 555 (quoting Asbury Park 

Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 

2004)).
13 A-2573-19T3

We undertake de novo review of "determinations about the applicability 

of OPRA and its exemptions." N.J. Firemen's Ass'n Obligation, 230 N.J. at 273-

74 (citations omitted). We also undertake de novo review of trial court decisions 

concerning access to government records under the common law right of access. 

Drinker Biddle & Reath LLP v. Dep't of Law & Pub. Safety, 421 N.J. Super. 

489, 497 (App. Div. 2011). 

III.

A.

The Legislature has declared that personnel records "shall not be 

considered a government record and shall not be made available for public 

access," N.J.S.A. 47:1A-10, "unless it falls within one of the statutory" 

exceptions, Kovalcik, 206 N.J. at 593. 

Defendants contend the IA report is a "personnel record" and thus exempt 

from disclosure, noting it "originated from a specific complaint against 

[Cosgrove]." The trial court disagreed, concluding the IA reports were unlike 

typical personnel records such as an employee's pension or sick leave records. 

We concur with that aspect of the trial court's analysis. 

The Attorney General does not consider IA case files and materials to be 

personnel records. On the contrary, "[p]ersonnel records are separate and 
14 A-2573-19T3

distinct from [IA] investigation records, and [IA] investigative reports shall 

never be placed in personnel records, nor shall personnel records be co-mingled 

with [IA] files." IAPP § 9.12.1. This prohibition applies even where the 

"complaint is sustained, and discipline imposed." Id. at § 9.12.2. Accordingly, 

the IA materials are not exempt from disclosure as "personnel records."

B.

Plaintiff emphasizes OPRA does not contain a specific reference to the 

IAPP or enumeration of IA investigation reports as documents that are not 

government records. However, a literal review of the statute overlooks the depth 

of the recognized exemptions. 

In North Jersey Media Group v. Bergen County Prosecutor's Office, we 

explained that the available exemptions to disclosure are not limited to "those 

enumerated as protected categories within the four corners of OPRA" because 

"N.J.S.A. 47:1A-1 explicitly recognizes that records may be exempt from public 

access based upon authorities other than the exemptions enumerated within 

OPRA." 447 N.J. Super. 182, 201-02 (App. Div. 2016). We further explained 

that "N.J.S.A. 47:1A-9 codifies the Legislature's unambiguous intent that OPRA 

not abrogate or erode existing exemptions to public access." Id. at 202. This 

includes any "regulation promulgated under the authority of any statute or 
15 A-2573-19T3

Executive Order of the Governor" and "any executive or legislative privilege or 

grant of confidentiality heretofore established or recognized by the Constitution 

of this State, statute, court rule or judicial case law." Ibid. (emphasis omitted)

(quoting N.J.S.A. 47:1A-9). We emphasized that "the plain language of the 

statute as well as judicial precedent make it clear that an exemption is statutorily 

recognized by OPRA if it is established by any of the authorities enumerated in 

N.J.S.A. 47:1A-1 or -9." Ibid. 

"The Attorney General is the State's chief law enforcement officer [with] 

the authority to adopt guidelines, directives, and policies that bind police 

departments throughout the State." Lyndhurst, 229 N.J. at 565. These 

"guidelines, directives or policies cannot be ignored," O'Shea, 410 N.J. Super. 

at 383, and "are binding upon local law enforcement agencies," Fraternal Order 

of Police, Newark Lodge No. 12 v. City of Newark, 459 N.J. Super. 458, 500 

(App. Div.), certif. granted, 240 N.J. 7 (2019) (emphasis omitted) (citing 

O'Shea, 410 N.J. Super. at 383; In re Carroll, 339 N.J. Super. 429, 439, 442-43 

(App. Div. 2001)). 

We recognize that the IAPP along with other Attorney General guidelines, 

directives, and policies are not adopted in the same way other agencies adopt 

administrative rules promulgated under the Administrative Procedure Act
16 A-2573-19T3

(APA), N.J.S.A. 52:14B-1 to -15. However, the IAPP does not consist of 

"'administrative rules' as defined in N.J.S.A. 52:14B-2(e)," and "do not require 

formal promulgation under the [APA]." O'Shea, 410 N.J. Super. at 383; accord

Carroll, 339 N.J. Super. at 442-43 (holding that the IAPP was "not required to 

be promulgated pursuant to the APA" because it "fall[s] within the [APA's]

statutory exception for 'statements concerning the internal management or 

discipline of any agency'" (quoting N.J.S.A. 52:14B-2(e))). 

IA investigations by law enforcement agencies fall under the supervision 

of the Attorney General. N.J.S.A. 52:17B-98. The IAPP was adopted pursuant 

to the authority granted to the Attorney General by N.J.S.A. 40A:14-181, which 

states: "Every law enforcement agency . . . shall adopt and implement guidelines 

which shall be consistent with the guidelines governing the [IAPP] . . . ."

The IAPP sets forth the policies, procedures, and best practices that all 

county and municipal law enforcement agencies are required to follow. IAPP § 

1.0.4. See McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 395 (App. 

Div. 2008) (stating that N.J.S.A. 40A:14-181 "requires every law enforcement 

agency to adopt and implement guidelines consistent with the Attorney 

General's [IAPP])." A crucial aspect of those policies is the confidentiality of 

IA investigation case files. With limited exceptions, IA records are accessible 
17 A-2573-19T3

only to IA personnel, the law enforcement agency executive, and the county 

prosecutor, keeping the number of individuals with access to a minimum. 

Section 9.6.1 sets forth the following confidentiality requirements:

The nature and source of internal allegations, the 

progress of internal affairs investigations, and the 

resulting materials are confidential information. The 

contents of an internal investigation case file, including 

the original complaint, shall be retained in the internal 

affairs function and clearly marked as confidential. The 

information and records of an internal investigation 

shall only be released or shared under the following 

limited circumstances:

(a) If administrative charges have been brought 

against an officer and a hearing will be held, a 

copy of all discoverable materials shall be 

provided to the officer and the hearing officer 

before the hearing; 

(b) If the subject officer, agency or governing 

jurisdiction has been named as a defendant in a 

lawsuit arising out of the specific incident 

covered by an internal affairs investigation, a 

copy of the internal investigation reports, may be 

released to the subject officer, agency or 

jurisdiction; 

(c) Upon the request or at the direction of the 

County Prosecutor or Attorney General; or 

(d) Upon a court order.

"In addition, the law enforcement [agency's executive officer] may authorize 

access to a particular file or record for good cause." Id. at § 9.6.2. Such access 
18 A-2573-19T3

should be granted "sparingly, given the purpose of the [IA] process and the 

nature of many of the allegations against officers." Ibid. 

Even Civilian Review Boards have limited access to IA investigations and 

are subject to strict confidentiality requirements. "Internal investigation case 

files generally are not releasable to Civilian Review Boards" unless the 

investigation is "completed or closed," "good cause" is shown, "and the [Board]

has in place certain minimum procedural safeguards, as described in Section 

9.7.2, to preserve the confidentiality of the requested records and the integrity 

of the [IA] function, in addition to complying with all other applicable legal 

requirements." Id. at § 9.7.1. 

In turn, Section 9.7.2(b)(1) requires that a Civilian Review Board must 

meet "in a closed session whenever the content of [IA] records are discussed or 

testimony or other evidence regarding a specific incident is presented." The 

Civilian Review Board may not disclose any part of an IA file "to any person 

who is not a Board member or employee, the law enforcement executive, or a 

member of the law enforcement agency's [IA] function, except in a final public 

report appropriately redacted in accordance with instructions from the law 

enforcement executive." Id. at § 9.7.2(b)(2). Further, "the Civilian Review 
19 A-2573-19T3

Board's final public report . . . may not disclose the personal identity of subject 

officers, complainants, or witnesses." Id. at § 9.7.2(b)(3). 

These comprehensive restrictions are clearly designed to preserve the 

integrity and confidentiality of all IA investigations. 

In accordance with N.J.S.A. 40A:14-181, the UCPO adopted and 

implemented policies consistent with the IAPP to govern its IA investigations. 

The Use of Force Policy issued by the Attorney General "has 'the force of 

law for police entities.'" Lyndhurst, 229 N.J. at 565 (quoting O'Shea, 410 N.J. 

Super. at 382). Similar to the Use of Force guidelines examined in Lyndhurst

and O'Shea, we conclude the IAPP was created pursuant to such a statutory 

mandate and has "the force of law in respect of the duties of law enforcement 

agencies to conform to the requirements" when conducting internal affairs 

investigations. O'Shea, 410 N.J. Super. at 384. 

The trial court noted that the IAPP states that an IA investigation case file

may be released by court order. It found that provision "suggest[ed] that in some 

circumstances, a court may view that an [IA] investigation should be made 

public" under OPRA and the common law right of access. Although we agree 

that the court may order the release of an IA investigation case file when 
20 A-2573-19T3

appropriate to do so,4IAPP Section 9.6.1(d) does not create an independent 

substantive basis for release. 

Applying these standards, we hold that IA investigation reports and 

documents are exempt from disclosure under OPRA and reverse the order 

compelling defendants to produce the complete record of the IA investigation 

relating to Cosgrove's conduct for in camera review. 

The documents plaintiff requested involved internal complaints filed by 

subordinates against Cosgrove. Accordingly, the resulting IA investigation of 

Cosgrove's conduct, and potential disciplinary action, "implicate[d] interests 

beyond those of the parties themselves." Kovalcik, 206 N.J. at 595. Requiring 

disclosure of such records could well result in far reaching negative impact, 

impairing the laudable goals of IA investigations. 

 

4

 There may be instances where an IA investigation case file is relevant and 

probative in the defense of criminal charges or the prosecution of a civil action 

brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -

42; the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2; or Conscientious 

Employee Protection Act, N.J.S.A. 34:19-1 to -14. No such circumstances are 

present here. 
21 A-2573-19T3

There are many reasons for maintaining confidentiality of the 

complainants, witnesses, and officers involved in an IA investigation. As we 

recently explained:

Disclosure of a complainant's identity could 

thwart an IA investigation, criminal investigation, or 

prosecution, or could disclose the name of an 

informant, and could taint an officer who was 

wrongfully accused. It could also discourage 

complainants from coming forward, or encourage 

unwarranted complaints from people seeking 

notoriety.5

[Fraternal Order of Police, 459 N.J. Super. at 507.]

In addition, disclosure of the complainants, witnesses, and subject officers

could: reveal the name and location of inmates and informants, which may 

 

5

 Some of these same concerns mirror the need for confidentiality under the 

Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25. The Legislature found that 

"[f]ear of sanctions induces health care professionals and organizations to be 

silent about adverse events, resulting in serious under-reporting." N.J.S.A. 

26:2H-12.24(e). It "reasoned that health care professionals and other facility 

staff are more likely to effectively assess adverse events in a confidential setting, 

in which an employee need not fear recrimination for disclosing his or her own 

medical error, or that of a colleague." C.A. ex rel. Applegrad v. Bentolila, 219 

N.J. 449, 464 (2014). To achieve that result, the Act provides that "[a]ny 

documents, materials, or information developed by a health care facility as part 

a process of self-critical analysis conducted pursuant to [N.J.S.A. 26:2H12.25(b)] shall not be . . . subject to discovery or admissible as evidence or 

otherwise disclosed in any civil, criminal, or administrative action or 

proceeding." N.J.S.A. 26:2H-12.25(g)(1). 
22 A-2573-19T3

subject them to harm; discourage complainants from coming forward because 

they will not maintain anonymity; and encourage unwarranted complaints to 

seek notoriety or target an officer for reasons other than wrongdoing.

While we recognize that the trial court intended to redact the names and 

identifying circumstances to protect the complainants and witnesses from 

retribution and intimidation, that task would likely prove very difficult, if not 

impossible. See L.R., 452 N.J. Super. at 90 (recognizing that "[u]nder certain 

circumstances, even the redaction of all personally identifiable information 

would not prevent reasonable persons . . . from identifying" an individual); 

Lyndhurst, 441 N.J. Super. at 111 (noting that "[i]n some cases, in camera 

review of a Vaughn index6 may be appropriate, because the release of even a 

'detailed Vaughn index' to a requesting party 'may in some cases enable astute 

parties to divine with great accuracy the names of confidential informers, 

sources, and the like'" (quoting Loigman, 102 N.J. at 111)). Because the 

 

6

 "A Vaughn index is comprised of affidavits containing a 'relatively detailed' 

justification for the claim of privilege being asserted for each document. The 

judge analyzes the index to determine, on a document-by-document basis, 

whether each such claim of privilege should be accepted or rejected." Paff v. 

Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010) (citing Vaughn v. 

Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973). The affidavits "ordinarily" omit 

"excessive reference to the actual language of the document." Vaughn, 484 F.2d 

at 826-27. 
23 A-2573-19T3

complainants and witnesses are members of the EPD, their statements disclosing 

the racist and sexist slurs that Cosgrove uttered, and his other discriminatory 

actions, would likely disclose their identity or narrow the field to only a few 

individuals, even if all personally identifiable information is redacted. Other 

members of the EPD, as well as Cosgrove himself, could probably deduce who 

reported the behavior. 

We question the adequacy of a redaction process that simply deletes 

"names and circumstances" while leaving other information that would need to 

be scrubbed from the records to prevent identification of the complainants and 

witnesses from the redacted document. The identity of those persons can often 

be readily determined from context or information that a judge conducting an in 

camera review may deem innocuous. The ability to identify the complainants 

and witnesses may well impair their safety and otherwise put them at risk of

retribution or intimidation. 

In addition, as we have noted, disclosure of the IA investigation would 

discourage complainants and witnesses from coming forward in the future. 

Particularly in the context of an IA investigation based on employees of a police 

department complaining of discriminatory treatment by fellow employees or 

their superior, the fear that anonymity will not be maintained could lead to 
24 A-2573-19T3

employees remaining silent about misconduct, thereby thwarting IA 

investigations and resulting corrective and disciplinary action.

The trial court alluded to appellants waiving the right to contest disclosure 

of the IA investigation file due to the public statements made following the 

conclusion of the investigation. We find no such waiver. 

"Generally, waiver is defined 'as the voluntary and intentional 

relinquishment of a known and existing right.'" Quigley v. KPMG Peat 

Marwick, LLP, 330 N.J. Super. 252, 267 (App. Div. 2000) (emphasis omitted) 

(quoting Williston on Contracts, § 39:14 (Lord ed. 2000)). "[T]here must be a 

clear act showing the intent to waive the right." Cty. of Morris v. Fauver, 153 

N.J. 80, 104 (1998) (citing W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27 

N.J. 144, 152 (1958)). 

The limited information contained in the statements did not constitute an 

intentional surrender of the right to assert the IA materials were confidential. 

The statements did not identify the complainants or witnesses or disclose the 

details of the internal complaints, the statements of witnesses, or other 

confidential information. At most, the statements provided confirmation that 

the investigation substantiated the allegations that Cosgrove had uttered 

sexually harassing and racist slurs towards EPD employees, and that Cosgrove 
25 A-2573-19T3

should resign. This limited disclosure did not amount to a voluntary and 

intentional waiver of the confidentiality of the IA investigation.

Finally, we disagree with the trial court's conclusion that "the normal 

reasons for keeping the [IA] reports secret . . . are not as valid as they would 

otherwise be" because "[t]he acting prosecutor issued a rather lengthy report 

about the prosecutor's investigation and findings" and "Elizabeth publicly 

announced corrective action." The statements made by the UCPO and the 

Attorney General carefully avoided revealing information that would indirectly 

identify the complainants and witnesses. The limited information provided did 

not include the target of the slurs; the specific language used; or the specific 

date, time, or location of the misconduct. Nor did it describe the circumstances 

leading up to or following Cosgrove's actions. 

Because we hold that the IA investigation file and report are exempt from 

disclosure under OPRA, we do not reach the issue of attorney's fees.

C.

OPRA contains a separate exemption for grievances. "A government 

record shall not include the following information which is deemed to be 

confidential for the purposes of [OPRA]: . . . information generated by or on 

behalf of public employers or public employees in connection with any sexual 
26 A-2573-19T3

harassment complaint filed with a public employer or with any grievance filed 

by or against an individual." N.J.S.A. 47:1A-1.1.7 Appellants argue that 

disclosure is precluded under this exemption. 

The limited record does not contain the internal complaints filed against 

Cosgrove or any other part of the IA investigation file. Appellants did not move 

to supplement the record to include those documents by way of confidential 

supplemental appendix. We are thus unable to review the format of the internal 

complaints, the relief sought, whether they were filed pursuant to a collective 

bargaining agreement, how they were presented, or the process the EPD initially 

undertook when reviewing them. Consequently, we are effectively prevented 

from determining if the complaints and resulting investigation fall within 

OPRA's grievance exemption. 

 

7

 We note that the Department of Law and Public Safety adopted a more 

expansive grievance exception, which precludes OPRA access to any records 

"specific to an individual employee . . . and relating to or which form the basis 

of discipline, discharge, promotion, transfer, employee performance, employee 

evaluation, or other related activities, whether open, closed, or inactive, except 

for the final agency determination." N.J.A.C. 13:1E-3.2(a)(4). This definition 

includes an IA investigation file relating to or forming the basis for discipline 

or discharge based on racially or sexually discriminatory misconduct directed at 

subordinate employees. We recognize, however, that this regulation applies to 

the Department of Law and Public Safety, not local law enforcement agencies.
27 A-2573-19T3

Moreover, appellants have not demonstrated, much less made a "clear 

showing," that the grievance exemption applies in this matter. Appellants 

acknowledge that the UCPO's July 2019 denial letter to plaintiff's counsel did 

not rely upon or even cite OPRA's grievance exemption. See Newark Morning 

Ledger Co., 423 N.J. Super. at 162 (App. Div. 2011) ("[T]he reasons for 

withholding documents must be specific. Courts will 'simply no longer accept 

conclusory and generalized allegations of exemptions.'" (Quoting Loigman, 102 

N.J. at 110)). Appellants' briefing to this court likewise fails to adequately

address the grievance exemption.8 

The limited record and appellants' inadequate briefing significantly

impedes meaningful appellate review of this issue, which has not been addressed 

in any published opinion. We therefore decline to address the issue.9 

 

8

 Appellants each cite the grievance exemption a single time in their appellate 

briefs: The UPCO asserts "while not explicitly stated in its original denial, " it 

denied "[p]laintiff's records request in accordance with N.J.S.A. 47:1A-1.1[] 

which prohibits the disclosure if records concerning the filing of a grievance 

against an employee"; Elizabeth merely notes that OPRA's exemptions include 

"records concerning the filing of a grievance by or against a public employee."

9

 Appellate counsel is required to identify and fully brief any issue raised on 

appeal. See Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 298 (App. Div. 

2016); State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). An argument 

based on conclusory statements is insufficient to warrant appellate review. 

Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 
28 A-2573-19T3

IV.

Plaintiff also sought release of the IA reports under the common law right 

of access. The trial court did not reach this issue.

The common law right of access reaches a broader class of documents 

than its statutory counterpart. Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35, 

46 (1995) (citing Atl. City Convention Ctr. Auth. v. S. Jersey Publ'g Co., 135 

N.J. 53, 60 (1994)). "To gain access to this broader class of materials, the 

requestor must make a greater showing than OPRA requires . . . ." Lyndhurst, 

229 N.J. at 578. The common law right to access public records hinges on three 

requirements: "(1) the records must be common-law public documents; (2) the 

person seeking access must establish an interest in the subject matter of the 

material; and (3) the citizen's right to access must be balanced against the State's 

interest in preventing disclosure." Keddie v. Rutgers, 148 N.J. 36, 50 (1997) 

(citations and internal quotation marks omitted). Furthermore, because the 

common law right of access to documents is qualified, "one seeking access to 

such records must 'establish that the balance of its interest in disclosure against 

 

N.J. Super. 22, 45 (App. Div. 2003) (citing Miller v. Reis, 189 N.J. Super. 437, 

441 (App. Div. 1983)). "[A]ny privacy concerns about a disclosure sought 

pursuant to OPRA or the common law should be explained in detail." Paff 

v.Ocean Cty. Prosecutor's Office, 235 N.J. 1, 28 (2018). 
29 A-2573-19T3

the public interest in maintaining confidentiality weighs in favor of disclosure.'"

Ibid. (quoting Home News v. Dep't of Health, 144 N.J. 446, 454 (1996)).

Here, there is no dispute that the IA documents are common law public 

records. The items sought are "written memorial[s] . . . made by a public officer, 

and . . . the officer [is] authorized by law to make it." Nero v. Hyland, 76 N.J. 

213, 222 (1978) (quoting Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App. 

Div. 1954)). Plaintiff has the requisite interest in the subject matter of the 

documents "to further a public good." Loigman, 102 N.J. at 104. Accordingly, 

the critical factor is whether plaintiff's right to the documents outweighs 

defendants' interest in preventing disclosure. The balancing of the competing 

interests in disclosure and confidentiality often involves an "exquisite weighing 

process." Id. at 108 (citation omitted). 

Our Supreme Court provided the following non-exhaustive list of factors 

to consider in balancing the requester's needs against the public agency's interest 

in confidentiality:

(1) the extent to which disclosure will impede agency 

functions by discouraging citizens from providing 

information to the government; (2) the effect disclosure 

may have upon persons who have given such 

information, and whether they did so in reliance that 

their identities would not be disclosed; (3) the extent to 

which agency self-evaluation, program improvement, 

or other decisionmaking will be chilled by disclosure; 
30 A-2573-19T3

(4) the degree to which the information sought includes 

factual data as opposed to evaluative reports of 

policymakers; (5) whether any findings of public 

misconduct have been insufficiently corrected by 

remedial measures instituted by the investigative 

agency; and (6) whether any agency disciplinary or 

investigatory proceedings have arisen that may 

circumscribe the individual's asserted need for the 

materials.

[Loigman, 102 N.J. at 113.]

"To conduct the careful balancing that each case" requires, courts should 

"look in particular at the level of detail contained in the materials requested. " 

Lyndhurst, 229 N.J. at 580. "More detailed disclosures" present greater 

concerns. Ibid. To that end, "courts may perform an in camera inspection of 

the requested records as they balance the relevant factors," L.R., 452 N.J. Super. 

at 89 (citing Keddie, 148 N.J. at 53-54), and "are authorized to require the 

redaction of records to maintain confidentiality," Id. at 90 (citing S. Jersey 

Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478, 499 (1991)). 

When weighing these competing interests, "administrative regulations 

bestowing confidentiality upon an otherwise public document, although not 

dispositive of whether there is a common law right to inspect a public record, 

should, nevertheless, weigh 'very heavily' in the balancing process, as a 

determination by the Executive Branch of the importance of confidentiality." 
31 A-2573-19T3

Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 

504, 521 (App. Div. 2004) (quoting Home News, 144 N.J. at 455). While not 

an "administrative rule" subject to the APA, the IAPP has the force of law and 

is binding on local law enforcement agencies, including the UCPO and EPD. It 

requires local law enforcement agencies to maintain the confidentiality of IA 

investigation files.10 

We acknowledge that the common law right of access remains an 

independent means to obtain government records, id. at 516, and that "[n]othing 

contained in [OPRA] shall be construed as limiting the common law right of 

access to a government record, including criminal investigation records of a law 

enforcement agency," N.J.S.A. 47:1A-8. Nevertheless, a court may consider 

OPRA's exemptions "as expressions of legislative policy on the subject of 

confidentiality," provided they do not "heavily influence the outcome of the 

analysis" under the common law. Bergen Cty. Improvement Auth., 370 N.J. 

Super. at 520-21. Thus, a court may consider that IA records are exempt under 

OPRA when considering the common law right of access to such records. 

 

10

 By analogy, pursuant to N.J.A.C. 13:1E-3.2(a)(4), Department of Law and 

Public Safety records relating to the discipline or discharge of a specific 

employee are excluded from the definition of government records subject to 

access under OPRA. 
32 A-2573-19T3

Applying these standards, we hold that the need for nondisclosure 

substantially outweighs plaintiff's need for disclosure of the IA records. 

Loigman factors one, two, and three militate strongly against disclosure of IA 

records. In that regard, the same concerns we have previously discussed apply 

with equal force to the common law right of access. Likewise, the questionable 

adequacy of protecting anonymity through simple redaction apply equally to the 

common law right of access. 

In addition, pursuant to N.J.S.A. 40A:14-181, the UCPO adopted and 

implemented guidelines consistent with the IAPP that compel the UCPO to 

maintain the confidentiality of the IA investigation and report. 

Reversed and remanded for the entry of an order consistent with this 

opinion.