NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO S

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In r e ATTORNEY GENERAL LAW ENFORCEMEN T D IRECTIVE Nos. 2020

- 5 and 2020

- 6

A r g u e d S e p t e m b e r 1 6 , 2 0 2 0

– D e c i d e d

Before Judges Ostrer, Accurso and Vernoia

. On appeal fr o m Attorney General Law Enforcement Directive Nos. 2020

- 5 and 2020

- 6.
James M. M ets and Robert R. C a nnan argued the cause for appellant in A

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- 19 ( Mets Schiro & Mc Gover n, LLP and Markman & Cannan, LLC, attorneys ; James M. Mets and Robert R. Cannan, of c ounsel and on the brief s; Brian J. Manetta, on the brief ).
Carl J. Soranno and Jay S a b in argued th e cause for intervenors

- appellants in A

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- 3 9 7 5

- 1 9 ( Brach Eichler, LL C, at tor neys; Anthony M. Rainone and Carl J. Soranno, of counsel and on the brief s ; Jay Sabin, on the brief s ). October 1 6 , 2020 APPROVED FOR PUBLICATION

October 16 , 2020 APPELLATE DIVISION2 A

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- 19 ( Attorneys Hart man, Chartered, Law Offices of Robert A. Ebberup, LLC, Law Offic e of D. Jo hn McAusland and Loccke, Correia & Bukosky, attorneys ; Mark A. G ulbr anson, Jr., Katherine D. Hartman, Robert A. Ebberup, D. John McAusland and Micha el A. B u kosky, on t he brief s ). Frank M. Crivelli argued the cause for appellants i n A

- 398 5

- 1 9 ( Crivelli & Barbati, LLC, attorneys ; Frank M. Crivelli , on the brief s ).
Kevi n D. Jarvis argued the cause for appellant in A

3987

- 19 ( O'Brien, Belland & Bushinsk y, LL C, attorneys ; Kevin D. Jarvis and Matthew B. Madsen, on the bri efs ).
Paul L. Kl einba um and Matthew Areman argued the cause for appellants in A

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- 19 ( Zazzali, Fagel la, Nowak, Kleinbaum & Friedman, and Markowitz & Richman, attorneys ; Paul L. Kleinba um an d M atthew Arem an, of counsel and on the briefs; Craig A. Long, on the brief s ).
Jerem y M . Feigenbaum argued the cause for respondents in all app eals (Jeremy M. Feigenb aum , State Solicitor , and Jane C. Schuster, Assistant Attorney General, of counsel a nd on t h e brief ; Em ily Marie Bisnauth, Christopher Weber, Dominic L. Giova, Sean P. Ha vern an d Brandon C. Simmons, Deputy Attorneys General, on the br ief). Vito A. Gagliar di, Jr., argued the cause for amicus curiae New Jersey State Association of Chiefs o f Pol ic e (Porzio, B romberg & Newman PC, attorneys; Vito A. Gagliardi, Jr., of couns e l; Dav id L. Disler and Thomas J. Reilly, on the brief).3 A

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- 19T4 Alexander R. Shalom argued the caus e for amici curiae American Civil Liberties Union of New Jersey , Bayard Rustin C enter f

o r Social Ju stice , Cherry Hill Women's Center , Ethical Culture Society of Be r ge n Co unt y , Faith in New Jersey , Latino Action Network, LatinoJustice PRLDEF, Legal Advo cacy Project of UU FaithAction New Jersey, Libertarians for Transparent Government , Nati ona l Associati on for the A dvancement of Colored People New Jersey State Confer en ce , NA ACP N ewark, National Organization for Women of New Jersey, Newark Communities for Acco untable Policing, New Jersey Alliance for Immigrant Justice, New Jersey Campaign for Al t ernatives to Isolated Confinement, New Jersey Clergy Coalition for Justice , Ne w Je rse y Institute for Social Justice, Partners for Women and Justice, People's Organi zati on for Progress, Salvation and Social Justice, Service Employees International U nion 32 B J, SPAN Pa rent Advocacy Network, Volunteer Lawyers for Justice , and Women Who N eve r G ive Up ( Jeanne LoCicero, Alexander Shalom, Karen Thompson and Molly K.C. Linhor st, on the brief). CJ Griffin argued the cause for amici curiae National Coalition of L ati n o Officers and Law Enforcement Action Partnership ( Pashman Stein Walder Ha yde n, P. C., at torneys; CJ Griffin, of counsel and on the brief). Joseph E. Krakora argued the cause for amici curiae New Jersey Office of the Public Defender and Association of Criminal Defense Lawyers of New Jersey (Joseph E. Krakora, Public Defender, attorney ; and Gibbons P.C., attorneys; Lawrence Lustberg and Michael R. Noveck, on the brief ).4 A

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The opinion of the court was delivered by ACCURSO, J.A.D. Responding to s tate and national demands for accountability and reform
of law enforc ement following the de a th of Geor ge Floyd at the hand s of
Minn eapolis police, Attorney General Gurbir S. Gre wal announced in June that
he would e nd Ne w Jersey's decades

- long practice of shiel din g the identities of
law enforcement officers receiving major d iscipl ine for m iscondu c t. Determining he could best improve the public's trust in state and local police by instil lin g greater acc ou nt ability in the processes that govern officer misconduct, the Attorney General issued two directives , Law Enforcem ent
Dire ctive Numbers 2 020

- 5 a n d 2020

- 6 , amending the statewide rules for internal affairs investigations , known as the Int ern al Affairs Po li cy and
Procedures (IAPP), applicable to every law enforcem ent agency in New Jersey by virtue of N.J.S.A. 40A:14

- 181 , and im posing ad dition al requ i rements on the law enforcement agencies housed within the Department of Law and Pu bli c Safet y. Directive 20 20

- 5 amend s the IAPP to require every law enfo r cement
agen cy in the State to publish a synopsis of all complaints i n which an off ice r

rece ived fi n al discipline of termination, demo tion, or a suspension of more5 A

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than five days , in clu ding th e n ame of the of fi cer, a summary of the
misconduct , and the sanction imposed

. Initial reports, covering all discipline imposed durin g th is c alenda r y ear , a re due b y December 31, 2020

. S u b s e q u e n t

r e p o r t s must be published at least annually there aft er. The Directive furth er permit s , but do es not require , c o u n t y a n d m u n i c i p a l agen cies to release similar
inform ation about ea rlier incidents of of ficer mis conduc t resul t ing in the same
sanctions.
Directive 2020

- 6 order s all law enforcement agencies wit hin the Department of L aw and Public Sa fe ty , w hich the Attorney General heads, the
Division of State Police and t he Division of Criminal Justice , as well as the
Ju venile J ustice Commission, which is in but not of the Department, to p u b l i s h
no later th an Ju ly 15, 2020, t he same information requ ir ed by Directive 2020

- 5
from January 1, 2000 t o t h e p r e s e n t

. The Direc tive order s the three agencies to
prov ide notic e to e ach off i cer it intends to identify at least seven days prior to publication , whe never poss ibl e making reasonable e ffo rts. Both Directives
p r o v i d e they were issued pursuant to th e Attorney Gen eral's authority to e nsure the uniform and effici ent enfor cement of the laws and administration of criminal justice throughout the St ate , and specific to 202 0

- 6, his authority to6 A

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supervise the operat io ns of the Department of Law and Public Sa fety , and

crea te no substantive rig ht of enforcement in any thi rd party.
T hes e five c onsolidated appeals present a broad

- based facial challenge to
the Directives by pe tit ioners State Troop ers Fraternal Associatio n of New Jersey ( A

- 3 9 5 0

- 1 9 ) , and interven ors Associatio n of Former Ne w Jersey State Troope rs, The New Jers ey Former Troop ers Her i tage Foundation, Inc. , and Former Trooper Members and FTA Members No. 1 & 2 (A

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3 9 7 5

- 1 9 ); State Tr oopers No n
- Commiss ioned Officers Associati on of New
Jerse y, and State Troopers Superi or Officers As sociation of New Jers ey , and
the ir cur rent re s pective presidents , Pete J. Stiliane ssis and Richard Roberts (A

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- 19); Policemen's B enevolent Association Lo cal Number 105, PB A Local Number 383, PBA Lo cal Number 38 3A, PBA Local Number 383B , a nd The
New Jer sey Law Enforcement S up ervisors Associ ation ( A

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- 19); New Jersey Superior Offic ers Law Enforcement Association (A

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- 19 ); a n d Ne w Jersey State Police men 's Benevolent Associat ion and New Jersey State L odge
of t he Fraternal Order of Police , and their cu rrent respective pres id ents , Pat rick
C olliga n and Robert W. Fox (A

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- 19)

. Petiti oners a n d i n t e r v e n o r s , representing a broad swa th of the State's 36, 000 active law enforcement officers as we ll as some retired o ffic er s ,7 A

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contend the Attorn ey General lac ks the authority to i ssu e the D ir ective s beca us e they conflict with a provision of the Open Public Rec ords Act,
N.J.S.A. 47:1A

- 10 (se ction 10) , a regulati on promulgated by the Department
of Law a nd Public Safety, N. J.A. C. 13:1E

- 3.2(a)(4), and various Execu tive Orders, most not abl y Executi ve Ord er 11 (B yrne), all of which protect the confidentiality of pers onnel records of public employe es
. P e t i t i o n e r s a l s o

m a i n t a i n the Attorney General pro mulgated the D irectives in violation of the
Adm inistr at ive Pr ocedures Act and acte d outside his autho rity b y givi ng the m retroactive application ; that the Directives violate the equal protect ion rights of affected officers; v iolate the due pro cess rights of affected officers; vio lat e offi ce rs' constitutional right s to collective negotiations and agai nst t h e imp a ir ment of contracts ; violate the doctrin es o f promissory and e quitable estoppel; and , finally, that th e Direc tives are arbitrary, capricious and

unreaso nable and aga i n st publi c policy.
We granted several petitioners leave to file emer gent a pplica ti ons to stay implementation of the Directives pen din g their appeal. We subsequently
entered a stay , over ob

jec tion by the Attorney General, in order to preserve petitioners' c hallenge pending our disposition and accelerated the appeal s in8 A

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lig ht of the pr es sing pu blic interest

. We thereafter consolidate d t he appeals on the Attorney Gen e ral's motion

. We also gra nte d the m otion of the New Jersey State Association o f
Chiefs of P o l ice to a ppear a s ami cus curiae in support of petitioners ' arguments again st the D irectiv es. The Association , whose members are resp onsible for the day

- to

- day operations of police departme nts throug hout the State, echo petiti oners ' c l a i m t hat the D ir ectives un derm ine long

- standing public policy , embodied in section 10 of OPRA a nd N.J .A .C. 13: 1E

- 3.2(a)(4), regarding t h e confide ntiality of the internal affairs process and protect i n g the ide nt ity of
officers who are dis ciplined

. T he Association fur th er argues the Dir ectives are arbitrary and capricious because they are not d esigne d to a ch ieve th e Attorney
General 's stated goals

. I n p a r t i c u l a r , t h e A s s o c i a t i o n c l a i m s t h e D i r e c t i v e s do

not l i m i t t he di scipline requiring the release of na me s to instances where
officers viola ted the public trust and u n n e c e s s a r i l y e x t e n d t o forme r offi cers , be cause o fficers seeking to transfer b e t w e e n law enforcement agenc i e s are subj ecte d to tho rough background c h eck s

— t h a t w o u l d r e v e a l a n y prior discipline

— b e f

o r e b e i n g h i r e d

. We also granted t he motions of several ot her organizations for amic us
sta tus a r gu ing in s upport of the Directives. Amicus American Civil Liberties9 A

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Union of New Jersey ar gue s making pol ice di scipline records public, including historic records, provides citizens wi th critic al information about bot h officers and departments , and tha t t ra nsparen c y promotes confidence in police, which in turn promotes community t rust in law en forc ement insti tut ion s. ACLU

- N e w J e r s e y also notes that complaints made against other regulat ed professionals

a n d t r a d e s p e o p l e in New Jersey are public, inclu ding t ho se a gai nst lawyers, j udges , plumbers and manicurists, and that other st ates have made police discipl ine rec ord s publi c without the negative consequences about which appellants warn.
Amicus ACLU

- N e w J e r s e y mak es thos e arguments o n behalf of itsel f
and it s membe rs, a s w e l l a s the Bayard Rus tin Center for Social Justice , the Cherry Hill Women's Center, the Ethi cal Culture Society of Bergen County, Faith in New Jersey , the Latino Action Network, Lati noJustice PRLDEF, t he Legal Advocacy Project of UU FaithA ct io n New Jersey, Libertarians for
Tr ansparent Gove rnment, the Nat ional Association for the Advancem ent of
Co lor ed People , New Jersey State Conference, NAACP Newark, the National Organi zation for Wom en of New Jersey, N ewark Communities for
Acco untabl e Poli ci ng , the New Jersey Alliance for Imm igrant Justice , the New
Jerse y Campaign for Alternatives to Iso lated Con fin ement, New Jersey Clergy10 A

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Coalition for Justice, the New Jersey Ins titute for Social Jus tice, Partners for Women and Justice, the Peo ple's Organi za ti on fo r Progress, Salvation and
So cial Justice, Service Employe es International Union 32BJ, SPAN Parent
Ad voc acy Network, Volunteer Lawyers for Justice, and Women Who Never
Gi ve Up

. Amici Associa tion of Criminal De fense Lawyers of New Jerse y and the
Ne w Je rsey State Office of the Public D efender argue the Directives promote

e n h a n c e d a c c e s s in criminal cases t o t h e d i s c o v e r y o f p r i o r p o l i c e m i s c o n d u c t

. They contend information about such misconduct is admissible, re leva nt evidence relating t o an o fficer 's credib ility, particula rl y in light of t h e recent

a m e n d m e n t to N.J.R.E. 608 , and that s u c h discovery is con sis tent with New Jersey’s broad, open

- file discovery rules and with the Stat e’s constitutiona l obligation to produce exculpatory eviden ce. T hey m a i n t a i n th e curre nt failure

to na me poli ce officers who engage in misconduct inhibits discovery of
relevant po lic e misconduct records and creates substantial risk of e rroneous charges an d conviction s. These a mici argue that by li nking officers to the ir
spe ci fic act s of mi sconduct, the D i re ctiv es promote disc overy of evidence that can be used at all stages of t he cri minal justice process , from charging decisions to pos t

- conviction relief , thereby im proving the administration of11 A

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just ice . They not e that relea se of his torica l information of m is con duct could
be e specially important to those individuals wrongly convi ct ed and pu r suing post

- conviction relief. Finally, a mici National Coalition o f Latino Of ficers and the Law
Enforcement Act ion Partnershi p argu e that w hen int ernal affairs and discip li nar y information i s kept secret, the community has no way of knowing
whe th er investigations are thorough and fair and whether offi cers are properly
he ld accounta ble for their actions. When commun ities are dep rived of suc h
informa tion, i t leads them to be li eve internal affai rs complaints are not taken seriously , and that miscon d uct is swept under the rug , causing them to distrust
the police. These amic i contend th at w hen police departments have no t earned
the commun ity’s re spect, it make s the jobs of all po lic e officers much more d ifficult and dangerous. They also argue that t r ans parency will expose
dis parities in discipline and allo w the public

— and officers

— t o see whether discipline is impose d consistentl y , whi ch wil l particu larly b enefit Black and
L at ino officers and w omen who work in l a w e n f o r c e m e n t a g e n c i e s that a r e

ove r whe lmingly white and male. These a mici contend the D irec ti ves will
expose s uspected disparities , better protect minority officers from12 A

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discr iminat io n and r etaliat ion and improve th e dis ciplinary syste m for all
officers. Having reviewed the Directives, co n sid ered the briefs filed by the parties
and amici , and he ar d extensive oral argument by very able advocates, we conclude t he Attorney G eneral acted w ithin t he auth ority conferred on h im by the Legislat ure in the Law and Public Safety Act of 1948 , the Crim i nal Justice
Act of 1970 , and N.J.S.A. 40A:14

- 181 in issu in g Directives 2020

- 5 and
2020

- 6, and they therefore withstand p e t i t i o n e r s ' fac ial ch alleng e
. See I n re Stallworth , 208 N.J. 182, 19 4

- 95 (2011) ( noting review of agency decisions is
limited to determ ini ng whet he r the decision violated express or implied legislative policies, whether the record contains adequate su pport for the
findi ngs an d whet he r the a gency clearly erred by reaching a conclusion t hat could not reasonably have been reached )

. We do no t p ass on th e wisdom of
the policy embodied i n these Directives , which appel lants assail as a n imprudent overreac tion to recent events t hat w ill ne ed le ssly shame officers , put the ir safety and that of t heir families at risk , disclose sensitive medical
info rma ti on and possibly identify the victims of domestic violence.
T h e erosio n o f c o n f

i d e n c e in our law enf orcement agencies is a seriou s prob le m , a nd i t is enough that the Attorney General, New Jersey's chief law13 A

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enforcement officer tasked with the genera l su pervision of criminal justice in our State, has determined that p u b l i s h i n g t he names of officers inc urring major discipline for misc ond uc t will i n crease public trust in th o se agencies and make
them more accountable to the communities they serve. It is not for this court
to assess the A ttorney G eneral 's policy choice

. O ur only fo cus is on his authority to implement the policy choice h e h as made.
The Att orney General has candidly acknowledged the sea change these
D irectives represent in his Departm ent' s a pproach to publication of the names
of law enforcement officers su bject t o f inal discipline for seri ous misconduct

. As appellants n ote , t he Att o r ney Gen eral was only three months ago in our Supreme Court arguing ag ainst the release of the name of a tro ope r separated
from the State Police in 2015 for " acting in an unoffi cial ca pac ity to the
discredit of the Division while off

- duty by h avi ng questi o n able as sociations, engaging in racially offensive behavior and public ly discussing police patrol proced ures
. " See Libertarians for Transparent Gov ' t v. State Police , 239 N.J.
518 (20 19) (granting plainti ff's petition for certification as to whethe r sectio n 10 re quires disclosure of the name of a state trooper listed i n the Office of
Professional Stan dard’ s a nnual report to the Legislature as having been
terminated for misc onduct ). Fo llowing the filing of these appeals, the14 A

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Attorney Genera l r elease d the na me of t h at trooper, which it had successfully
shielded from disc losure in the Law Division and th is co urt , settled th at suit , and the parties dismissed the appeal pending in the Su pr e me Court

. Libertaria ns for Transparent Gov't v. State Po l i ce ,
__ N.J.

__ ( 2020)

. Although we are convinced of the Attorney Ge neral 's a uthority to release
the names of law e nfo rcement officers receiving major discipline , including
th ose having incurred t he disciplin e in or after 2000 but before issu an c e of
Direc tives 2 020

- 5 a nd 2020

- 6 , a n d t h u s u p h o l d t h e f a c i a l v a l i d i t y o f t h e
D i r e c t i v e s , appellants have raised issues about the retrospective application of
the Directives to particula r individuals that ca nnot be reso lved on these appeals

. The A tto rney G eneral co nceded at oral argume nt th at individual
of fi cers may have cont ract rights arising out of prior specific settlement s of internal discipline, and we think it possible some may have other claims and

c oncer ns about h o w th ese n ew directives a p p l y to them. Our conclu s i on tha t
the D ire ct ives constitute a valid exercise of the A ttorney G eneral 's authority does not preclude any of ficer from bringing an as

- applied chall enge to publication of his or her name pursuant to Directives 202 0

- 5 a nd 2020

- 6 for discipline fin alized b efore release of t h ose Directives

. The Attorney General 's Authority ove r the Department of Law and Public Sa fety, Internal Affairs and the IAPP
.15 A

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The Attorney General is New Jers ey's " c hief law enforcement offic er,"
N.J.S.A. 52:17B

- 98, and hea d of th e Depar tment o f La w and Public Saf ety , N.J.S.A. 52:17B

- 2. Prado v. State , 18 6 N.J. 413, 422 (2006)

. "[I] n o rde r to
secure the benefits of a uniform a nd efficient enforcement of the c rimina l law
and the administratio n of criminal justice ," t he Legi slature in the Crimin al
J us tice Act of 19 70, N.J.S.A. 52:17B

- 97 to

- 117, " declared [ it] to be the public policy of t his State to encourage cooperation among l aw enforcement officers and to pr ovide f

or t he general supervision of criminal justice by the Atto rney Ge neral ." N.J.S .A. 52 :17B

- 98

. As part of his supervisory obligations for the Department of Law and
Public Sa fet y under the Law and Public Safety Act o f 1948, the Attorney
General is charge d wi th "formulat[ing] and adopt[ing] rules and regulation s f or the effici e nt cond uct of the work and general adminis tration of the department, its officers and employees," N.J. S.A . 52:17B

- 4 ( d )

. See In re Carberry , 114
N.J. 574 , 578 (1989). Attorney Genera l D el Tufo in 1991 exercised that authority , as well has hi s autho rity u n der the Criminal Justice Act of 1970,
N.J. S.A. 52:17B

- 98, in establish in g the first IAPP, which set fo rth standards , policies and procedures for the internal affairs function for the S t ate's law enforcement agencies , including the establishme nt of " a via bl e proce ss for the16 A

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receipt and i nvestigati on of citizen complaints concerning police cond uc t."
See Fra ter nal Order of Police, Newark Lodge No. 12 v. City of Newark , __ N.J. __ ( 2020) ( slip op. at 3 3 ).
In 1996, the Legislature requir e d polic e dep ar tments to adop t and implement guidel ines consistent with the IAPP i n N.J.S.A. 40A:14

- 18 1

. As our Supreme C ou rt recently noted, "[s]ection 181 effectively made the AG's IAPP requi red policy f

or all municipal law enforcement agencies in New Jersey." Frater nal Ord er of P olice , __ N.J. a t

_ _ (sl ip op. at 3 4 ). The IAPP, which has been amended s ev eral times ove r i ts nearly thirty
years ' existence , has always stresse d the importance of the conf i dentiality of internal affairs processes and investiga tion s. In its fir st iter ation in 1991 , the
IA PP provided that "[t]he progress of internal affairs in ve stigations and al l

s upporting materials are consid ered confidential information ." 1991 IAPP at
15

. The 2019 revision likewise provide s that "[t]he natu re a nd sour ce of
i nternal allegations, the p ro gress of internal affairs investigations, and the
resul ti ng materials a re con fidential informati on ." 2019 IAPP a t 9.6.1

. The Attorney General c ontinues t o maintain that confidentiality is critical to the integ rit y of in ternal investi gations and necessar y to protect the privacy of17 A

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complainants and witnesses. He also notes, h ow e ver , that his predecessors
have m ade clear that this confidentiality h as limits. Specifically, Attorney General Grewal points to the fi rst IAPP i ssued i n 1991, which, while requir in g the contents of IA files to be "clearly marked as

con fi dential" and k ep t un der lock and key in the IA uni t, also empowered t he police executiv e " to rele a se publicly the details of an internal investigation or
di sciplin ary act ion. " 1991 IAPP at 15. Fu rt her, i n addition to requiring that
officers subject to an IA investigat io n be provided with a copy of the d ecision and accompanying findings , e v ery iterat i on of the IAPP has also required complainants to be not ifi ed of t he disp osition of his or her compl ai nt and provided an explanation for the outcome. See 19 91 IAPP at 15 ; 1 99 2 IA PP at
1 5 ; 2000 IAPP at 11

- 6; 2 011 IAPP at 24

- 2 5; 2014 IAPP at 22 ; 2 019 IAPP a t
6.3.16

- 6.3.18.
T he 2000 version of the IAPP issued by Attorn ey Gene ral Far mer reiterated the emp hasis on the confidentiality of "the nature and source of
i nternal alle ga t ion s" and "the progress of intern al affairs investigations," requiring that "[t] h e contents of the internal investigation case files sha ll be

reta ined in the in ternal affairs unit an d clearly marked as confidential

. " 2000
IAPP at 11

- 4 6. It also made e xp l ici t what was previously only imp lied, that is ,18 A

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that the "information and record s " of internal investigation s could be released
at the d ire ction o f the A ttorney General or responsibl e county prosecutor

. Ibid. I n contrast, t he 2000 ve rsio n also clarifi ed tha t the ability of the law
enfor cement executive to authorize release of confid e ntial i nternal affairs
information was limited to a partic ular fi le or r ecord a nd subject to a "good
cause" standard. Ibid. Every version of the IAP P since has co ntained id e nti cal language permittin g the Attorney General to release inf ormation and recor d s of
internal affairs investigation s w i t h o u t q u a l i f i c a t i o n
. Publ i c Repo rting o f Complaints A gainst Law Enforcement
. Every i t e r a t i o n o f t h e IAPP has req uired local law enfor c eme nt agencies to make available to the public a n a nnual report , statistical in na ture, summarizing the types of comp laints received and th e dispo s itions of tho se complaints. In the 2011 version of the IA PP, each agency became additi onally obligated to " p eri od ically re lease a brief synopsis of all complai nts where a fine or suspensio n of ten days or more was assessed to a member of the
agenc y." 20 1 1 IAPP at 50. U ntil the Attorney General amended the 2 019 version of the IAPP by Direc tive 2020

- 5, those pu b lic r eports, n ow required to be published on the ag ency's website, were not to i nc lude "the names of

. . . subject officers." See 2019 IAP P at 9. 1 1.1.19 A

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In 20 01, the Legislature required th e S tate Police to begin fi ling annual report s o f complaints of m i sco nduct by tro opers m a d e by members of the public

. N.J.S.A. 53:1

- 10.1 provid es " [i]t shall be the duty of the Superintendent of State Pol ice to c ompile and su bmit to the Governor and the Legisl ature a n annual report with regard t o complaints of miscondu c t m ad e by
membe rs of the public against members of the State Police." The Sen at e Judiciary C ommittee statement to the bill not ed the Divis ion of S tate P olice
d id not then " disclose any inf ormati on conc erning complaints by members of the public of miscond u ct on the part of State Police officers ," and that the bill
"mirror [ed] the pr es en t reporting requirements applicable to local law
enforcem ent age n cies w ith reg ard to civilian complaints

. " Senat e Judic iary
Comm

. Statement to S. 65 0 (Jan. 31, 2000 )

. The s tat ut e, like th e IAPP it
mirrored prior to its recent amendment by Directive 2 02 0

- 5, p r o h i b i t s the report from disclo sing the identity of t r o o p e r s a c c u s e d o f , o r s a n c t i o n e d f o r ,

m i s c o n d u c t

. N.J.S.A. 53:1

- 10. 1 (" The repor t shall be a statistical compilati o n

a nd shall not disclo se personal id entifiers of either the complainant or the

m em ber of the State Police."). Appellant , Ne w Jersey Supe r ior Of f icers Law Enf or cement Association , ha s includ ed in its append ix copies of several of the annual reports prep a re d by20 A

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th e Division's O ffice of Professional Standards pursuant to N.J.S.A. 53:1

- 1 0.1

. In addition to explaining how the disc iplinary syst e m oper a tes, t he repo rt s include statistical su mmaries of complaints, classified by type , and compared
across years, as well a s summary desc riptions of completed discipline for
violations resulting i n suspensions exceeding five day s . Those su mmary descrip t ions a r e brie f state me nts identifying the viol ations, synopsizing th e misconduct, and noting the discipline imposed

. T hey do n ot identify the trooper disciplined. A typical example of these summ ar ies, and one the Attorney Genera l has
alread y litigated i n Liber t arians for Tr an sparent Government v. State Police , is
from th e 2015 report , where it appear s among instances of major d is cipline

. It provides : Member ple d guilty to ac ting in an unofficial c apacit y

to the discredit of the Division while off

- duty b y havin g quest ionable associations, en gaging i n racially of fensive behavior and publicly discussing police patrol pr o ced ures. The member was required to forfeit all accrued ti me and separate from e m ployme nt with the Division.
As several appell ants refer to thi s partic ular ma tter in their bri efs and it provides a convenient example of the disciplinary information the A t tor ney21 A

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General seeks to release t o the public by Directives 2020

- 5 and 2020

- 6, w e include it here and discuss it further below.

Directives 2020
- 5 and 20 20
- 6
I n Directive 2020

- 5 , "Requ ir ing Public D isclosure of the Identities of
Officers Who C ommit Serio u s D isciplinary Violations," the A ttorney Gene ral

note s that "[f]or decades, New J e rsey has treated a police department's interna l disciplin ary fil e s

— ge nerally known as 'intern al affai rs ' records

— as highly confidential, in line with the way that person n el records for all public employe es are usual ly treated

. " He acknowledged the " g o od reasons why
internal affairs records are no t generally disclo s ed to the pub lic, including th e need t o protect tho se who report and witness police misconduct , " a nd the
unf a irn ess of "publ icly disclos[ing] unproven all egations again st officers."
He al s o note s , however, that " l aw enforcement officer s are entru sted
wi t h extr aordina ry responsibility ," makin g it " imperat ive " that they " maintain the highest standards of good di s cip line and con duct. " The Attorn ey General

e xplain ed that degree of responsibil i t y provides " a stronger rationale for public
di sclosure " w hen a l a w enfo rc ement agency m a k e s a f i n a l d e t e r m i n a t i o n an offi ce r " has violated agency rules in a way that warrant s pr ofessional22 A

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sanctions

. " And , he concluded, " th e more significant the violatio n, the more important it is that the public knows about the miscon d uct. "
T he Attorne y General reviewed th e changes he ma de in the December
2019 revision to the IAPP , which " str engthen e d oversight of int ernal aff a irs"

an d allow e d internal affairs fil es t o be shared with civilian review boards with procedural saf eguards , whi ch he cha racterized a s "one of the most substantial
revis io ns to IAPP since its initial publication, " an d " a significant step forward in promo t ing a ccountability and strengthening p ubli c confidence in law
enforcement." Among the changes he hig hlighte d was t he requ irement in
I APP 2019 a t 9 .11.2, that all local law en forcement agencies publish annually
on the ir w ebs ites a synopsis summarizi ng all di s cipli nary complaints, whether by membe r s of the public or internal to the agency, resulting in an officer
receiv i ng a f

ine or suspensi on of ten days or more but not requi ri ng the identity of the officer be disclose d.
E xplaining his reasons for concludi n g , so soon after the 2019 revisions

to th e IAPP , that i t w a s n o w n e c e s s a r y t o d i s c l o s e the identit ies of l aw enf orcem en t officers w h o w e r e terminated, reduced in rank or grade or suspend ed for misconduct for more t han fiv e days , the Attorney General wrote:

A fter further review, I believe that ev en this significant set of changes does not go far enough

.23 A

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- 19T4 More is re q uired t o promote trust, transparency and accountability, a nd I have concluded that it is in the pub lic 's i nte rest to rev eal the identities of New J ersey law enforcement officers sanct io ned for serious disciplinary violations. Our state's law e nforc e ment a gencies cannot carry out their important public safety r es ponsibilities without the confidence of t he peop le they serve. The public's trust depend s on maintaining confidence that pol ic e officers serve their communities with dignity and respe c t . In the u n common instance when officers fall well short of those e xp ectations, the public has a right to know th at a n i nfrac tion o ccurred, and that the under lying issue was corrected before tha t officer potentially returned to duty.
It is time to en d the p r actic e of pro tecting the few to the detriment of the many. Th e vast majority of law enforcement officers in New Je rsey serve with honor and astonishing courage under extremely difficult ci rc umstances. Most go through their entire careers without e n gagin g in c o nduct t hat warrants a major disciplinary action against th em. But their good work is easily underm ine d

— and quic kly fo rgotten

— whenever an offic er breaches the public's trust and d is honors the entire profession. The likelihood of such mis b e havio r incr e ases wh en officers believe they can act with impunity; i t decreases when officers know that their m isc ondu ct will be sub ject to public scrutiny and not protected. The deterrent effec t of this scrutiny will, in the end, improve the culture of a ccoun t abili t y among New Jersey law enforcement. Invoking the aut ho rity vested in him under the State Consti tut ion, th e Cri minal Justice Act of 1970, and se ction 181, the Attor ney General in
D ir ective 2020

- 5 amended the IAPP to provide f o r t h e d i s c l o s u r e o f t h e24 A

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i d e n t i t i e s o f o f

f i c e r s s u b j e c t t o t e r m i n a t i o n , r e d u c t i o n i n r a n k o r g r a d e , o r

s u s p e n s i o n o f o v e r f

i v e d a y s : 9 .11 .1 O n an annual basis, every law enfo rcement agency shall publish on its p ub lic w ebsite a report summarizing the types of complai nts r eceiv ed a nd t he disp ositions of those complaints. This report can should be statistical in nature , and the names of c omp laina nts and subject of ficers shall no t be published

.
9.11.2 On a periodi c bas is , and at least once a year, every agency shall s ubm it to t he C ount y Prose cutor and publish on the agency's public website a brief synopsis of all complaints whe re a fi ne o r t ermin ation, reduction i n rank or grade , and/or suspension of ten days or mo re th an five days was assessed to an agency member. Th is sy nopsi s sh all include the identity of each officer subject to final discipline, a brief summary of their tra nsgress ions , a nd a statement of the s anction imposed
. This synopsis shall not contain th e ide nt ities of the officers or complainants but shoul d br i efly o ut l ine t he natu re of the transgression and the fine or suspension imposed

. An example of a synopsis is found in Ap p endi x U.
As earlie r mentioned , th e Directive requires each law enforcem en t
ag ency to publish its first report in compli ance w ith r evised s ection 9.11.2 by December 31, 2020 , covering all discipline imposed during the calendar year,
and e xpressly sta te s it shall not "be cons trued in any wa y to create any substantive right that m ay b e enforced by any third party." Directive 2020

- 525 A

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al s o note s that n othing therein prevented local " agencies from releasing similar information regarding histori cal inci dent s o f of ficer misconduct ," and noted
the law enforcement agencies with in the De pa rt me nt of Law & Public Safety
would shortly publish the n ames o f office rs rece iving major discipline going back twenty years. Specifically, t he D irective informed that " St ate Po l ice,
which since 2000 has published a n annual report summarizing incidents of

m aj or discipline that does not disclose the identit ies o f the St ate Tr oopers, intends to update these annual reports with the Troopers’ names no later than July 15 , 2020. "
In D i rect ive 2020

- 6, "Requi ring Public Dis closure of the Identities of Departmen t' s Of

ficers Who Commit ted Serious Disciplinary Violat ions Since
20 00 ," i ssued f our days later on June 19, 2020, the Attorney General relied on the reasoning set fort h in Dir ecti ve 2020

- 5 , explaining Dir ective 2020

- 6

c omplemented it "by ordering additional t ra ns parency measures for the agencies that employ la w en f orceme nt offic ers wit hin the Department of Law and Public Safety." The Attorney General explained that

[s ] haring the id e ntit ies of individuals who received m ajor discipline [ 1 ] will allow for publ ic s cr utiny and

1 "Under the Administrative Code, 'ma jor d isc ipline' and 'minor d iscip l ine ' have defined meanings based on the quantum of punishm en t imposed. The26 A

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- 19T4 improve the culture of accountability a mon g the D ep artmen t's law enforcement agencies. That is true even where an individual no longer works for the relevant age nc y , as many of our offic ers go on to se rve with other law enforcement agencie s, a nd the State at present lacks a licensing system t o tr a ck suc h repeat discip linary sanctions across agencies. Moreover, the sharing of identities will enable the public and po l icym akers to identify repeat offender s, and to hold the Department's law en fo rc em ent agencies accountable for their response to p a tte r ns of di scipli ne. An d, most importantly, the sharing of identities will help to build public confidence in the vas t ma jo r ity of officers in the New Jersey Sta te
(continu ed ) te rms do not categorize the s eriousness o r type of underlying incident, as o pposed to the punishm ent imp osed ." Stallworth , 208 N.J. at 198. "Maj or di sci pline" is defined as incl u din g removal, disciplinary demoti on, and suspension or fin e for more than five working days at any o ne t i me. N.J.S.A . 34:1 3A

- 5.3; N.J.A.C. 4A:2

- 2.2(a). By contrast , "minor discip line " is defined as a formal written repri mand or a suspension or fine of f i ve working days or less. N.J.S.A . 34:13A

- 5.3; N.J.A.C. 4A :2

- 3.1(a).
Under N.J.A.C. 4A:2

- 2.3, an empl o yee m ay be subject to major discipline for: (1 ) incompetenc y , inefficiency or failure to perform duties; (2) insubordinat ion ; (3) inabili ty to per form duties; (4) chronic or ex cessive absenteeism or la te ness; (5) convicti on of a crime; (6) conduct un becom ing a publi c employee; (7) neglect of duty; (8) misuse of pu b lic property, incl uding motor vehicles; (9) discr imination th at affects equal empl oyme nt o pportunity (as defined in N.J.A.C. 4A:7

- 1.1 ), incl ud ing sexual harassm ent; (10) violation of fed eral regu lati ons con cerning drug and alcohol use by and testing of em ployees who per form functions related to the oper ation of comm erc ial motor ve hicle s, an d St ate and local policies iss ued thereunder; (11) vio la tion of New Jersey residency requirements as set fort h in L. 201 1, c. 70; and (12) other sufficient cause.27 A

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- 19T4 Police, the Division of Criminal Ju st ic e, and the Juvenile Justice Commission, who

— like the office rs of ot her law enforcement agencies

— serve with honor and astonishing courage under extremely diffi cult cir cums ta n ces. Releasing the id entities of tho se who committed major disciplinary in fr ac ti ons will show that all the remaining officers di d no t commi t such a n infra ction

— which will help to build significant trust between these law enforcement offic ers and the co m muni ties they serve. Drawing on hi s authority under the Law and Public Safe t y Act of 1948,
in addition to the powers vested in h im in the S t ate Cons titutio n and the
Criminal Justice Act of 1970 , the Attorney General in D irective 2020

- 6

or dered the D ivi s ion of State Police, t he Division of Criminal Justice and the
Juvenile Justice C o mmission to " each publish on its public website a brief
syn op s is of al l compl aints where a termination, reduction in rank or grade, and/or suspension of more th an five day s w a s a s sessed to a law en forcement
offic er since January 1, 2000. " In accord wit h D irective 2020

- 5, the synopses
are to " in clude th e ident ity of each off icer su bject to a final disciplinary action, a summary of their transgressions, and a stat ement of th e s a nct i on imposed

. "
Dir ective 2020

- 6 f

urther order s each d ivision "[a]t least s e v e n days prior to the publication of the s ynopses " t o " pr ovid e n otice to each o fficer it intends to identify, whenever possible. " In those " cases where the offic er is no lo nge r

em p loyed by the divis ion, " it is to " make reasonable efforts to contact the28 A

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o f f i cer at their last known residential addr ess, ema il addr ess, o r phone

n umber

. " As in Directive 2020

- 5, Directive 2020

- 6 states it is not to "be construed in any way to cre ate any substantive right that may be enf orced by

an y third party." The Attorney Ge neral's Authority to Issue Directives 20 20
- 5 and 2 020
- 6
. A ppe llants n ecessar ily acknowledge the Attorney General possesses explicit authority under the Crimina l Justice A ct o f 1 9 70 and section 181 to
amend the I APP , and under the authority of those sta t ut es and the Law and Public Safety Act of 1948 to es tabli sh d isc iplinary policy generally for the law enforcement agencies within the Department of Law and Public Safety

. T hei r
pr i mary argument o n t hese appeals is that he lacks the authority to amend the
IA PP and Departmental internal affairs policy so a s to at tach an officer 's name
to the summary descriptions of completed discipline t h a t local law
enforcement age ncies were ord e r ed to publish annually in the 2019 v ersion of
the IAPP and that State Police has be en publishing sin ce 2000

. A p p e l l a n t s
conten d a d d i n g o f

f i c e r s ' n a m e s confl icts with sectio n 10 of OPRA ; a regulation
first adopted by the Department when OPRA was enact ed, N.J .A.C. 13:1E13.2(a)(4) ; an d various executive orders, most notably Executive Or der 11 (Byrne), al l of which pro te ct th e confidentialit y of pe rsonnel records

.29 A

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The simples t rejoinder to appellants ' argument that the Directives vi olate
section 10 of OPRA an d the Department's govern ment records regulation , sug gested by amici Nation al Coalition of Latino Officers and t he La w Enforcement Ac tion Pa rt nershi p , is t hat this is not an OPRA case. OPRA is New Jersey's government records acc ess s t atute , w hich p rovi d es a comprehensive framewor k to enable citizens to swif tly access government

r ec ords , and includ es a fee

- shiftin g provi si on that requir es an a ward of a

reaso nable attorney's fee to a prevailing requester

. See Mason v. City of
Hobo ken , 196 N.J. 51, 5 7 (20 08)

. Petitioners here are n ot citizens seeking
records in pursuit of the "sal uta ry goal . . . to maximize public k nowle dg e about public affair s in ord er to e nsure an informe d citizenry and to minimize
the evils inherent in a seclud ed process. " Asbur y Par k P ress v. Ocean Cty.
Prosec utor's Office , 374 N.J. Supe r. 312, 329 ( Law Div. 200 4)

. They are police unions seek in g to bl ock the Attorn ey Gene ral's ef forts t o make more
tran sparent the secluded internal affairs process in the State 's law enforce ment

a genc ies by publishing the names of officers receiving major discipline for
miscond uct

. Were this an OPRA case , with t hird pa rties seeking the inf ormation the
At torney General h as determined to release in Directive s 2020

- 5 and 2020

- 6,30 A

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those third pa rties woul d n ot be entitled to the inf ormation under OPRA. As

we recently held in Liber tar ians for Transparent Gov't v. Cu mb erlan d Cty

. ,
__ N.J. Super.

__ ,
_ _ ( App. Di v. 2020) (slip op. at 1 , 13 ) , a public employee's
inte rnal disciplinary r ecords, including " a sett lem ent agreement resolving a n internal disciplinary actio n , " are not " governme nt record s" under OPRA but
instead a re classi fied as " pers onnel r ecord [s] exempt from disclosur e under
section 10 of the statute. " The Attorney Genera l has likewise taken p a ins to
make clear that Directi ves 2020

- 5 and 2020

- 6 were is sued "pursuant to the
A tto rney General's authority to ens ur e t he uni form and effi cient e nforceme nt
of t he laws and adm inistration of criminal justice throughout the State" an d are
not to be constr u ed " to create any substantive right that may be enforced by any third party."
T hat OPRA requestors would be denie d acc ess to the discipli nary in formatio n the A ttorney General has ordered published in the challenged
Directives does not , however, answer t he q ues tion of whether the Att orney General has the authori ty to direct th at infor mat ion be published. The Attorney G ene ral ar gues the pers onnel i n formati on he h as ordered publ ished in
Directives 2020

- 5 and 2020

- 6 is no different fr om other types of info r mati on deemed confidential in the Department's government r ecords regulation,31 A

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N.J. A.C

. 13:1E

- 3.2(a), such as "materi al s t hat ma y re veal: cas e or ma tter
spe cific l egal strategy o r advice, attorney work product, attorney

- client privile ged material, or other priv ile ged material ." N.J.A.C . 13:1E

- 3.2(a)(3).
He conten ds "the regulation mean s o nly that an agency does not hav e to
releas e [t he record s shiel ded by t he regu lation]

— [the Department] could still
choose to do so." Specifically, t he Attorney G eneral r easo ns that because "it is wel l
understood that the Departm ent can disclose attorn ey work product and attorney

- clien t pri vilege d material if it bel ieves di sclosur e is beneficial ," the regulation likewise does not prevent his disclosu re of "[r]ecords, spec i fic to an individual employee or employees

. . . and relati ng to o r which form the ba sis of discipline, discharge, p ro mot ion, t ransfer, empl oyee pe rformanc e, empl oyee evaluation , or other related activities, whether open, closed, or inactive

. "
N.J.A.C. 1 3 :1E

- 3.2 (a)(4). We reject that argument for what it posits about
p rotection of per son nel records under OPRA.
There i s n o ques tion but that "an ex emption from a right of public access to a government record can be established . . . by administrative rule

. "
Sl aug hter v. Gov't Records C ouncil , 413 N.J. Super. 544, 550 (Ap p. Div. 2010); s ee also N.J.S.A. 47:1A

- 9(a) (provi di ng OPRA d oes not "abro gate an y32 A

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exempt ion of a public record or government record from public access
heretofore made pursuant to [ t he Righ t to Kno w Law] ; any other statu te;
resolution of either or b oth Hou ses of the Legis lat ure; regulation promulgated
und er th e auth ority of any statute or Exec utive O rder of the Gov ernor; Executive Order of the Governor; Rules of Court; any federal law; feder a l

re gul ation; or federal order "). It is equally clear , of course, that the Depart men t's government records regulati on , N .J.A.C . 13:1E

- 3.2, can not override legisl ative policy or give OPRA greater effect than permitted by the

statute itself

. 2 See In re A d o p t i o n o f N.J.A.C. 7 : 2 6 B , 128 N .J. 442, 450 (1992) ; see also O'Shea v. T wp. of W. M ilf ord , 410 N.J. Super. 371, 385 (App.
Div. 2 009) (n ot ing "[a] bse nt speci fic leg islative leave, no agency is auth orized to deviate from expressed or im plied legislative poli c ies " )

. T he Attorney General' s argument posits that OPRA is simply a " floor"
belo w w hich the government cannot go in ref using access to pub lic rec ords

.

2 It is for th is reas on that we reject appellants' argument that th e regulation prov ides an i ndependent source for prot ecting the disciplinary in formation the Dire ctives require be released. I f OPR A do es not prevent the Attorney General from pu blicly releas ing the discip l inar y information called for in th e Directives, N. J.A.C. 13:1E

- 3.2 certainly wi ll not do so. See Reilly v. AAA Mid

- Atlantic Ins. Co. of N.J. , 194 N.J. 474, 486 (2008) (explain ing t hat an agen cy may not alter the terms of a stat ute or frustr ate the legisla tive policy e mbodi ed th erein by adoption of an imp lem enting regulation).33 A

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A lthough that may be true in many instanc es, and certainly appears correct
when applied to the wo rk p r oduc t a nd attorney

- client priv ileges the Attorney
General proffers in his exa mple , th e analogy breaks down when applied t o
pers onnel r ec ords of gov ernment employe es. As we explained in Libertari ans for Transparent Gov't v. Cumberlan d Cty. ,
__ _ N.J. Super. at

___ (slip op. at
2 1), "personnel records of government employee s have historic all y been
treated diffe rently from other sorts of public r eco rd s. " Well before OPRA, Governor Byrne in Executive Order 11 directed tha t "[e]xcept as otherwi s e provided by la w
. . . an ins trumentality of government shall not disclose to
anyo ne other than a pe r son duly authorized by th is State or the United States to
i ns pect suc h infor mation in connection with his official dut ies, personne l or pension records o f an individual , " wit h t he now
- familiar exception for an employee's name , title, pos ition, salary , len g th of service, date of se paration
and the reason there for , as well as the am ount and type of pension the employee is r eceiving , all of which " shall be pu b lic ." Id. at 22

- 24 (qu oting
E xec. Order No. 11 (Nov. 15, 1974) 1 Laws of New Jersey 1974 765, ava ila b le

at https://nj.go v/info bank/circular/eob11.shtml ).
Michel son v. W yatt , 3 79 N.J. Super. 611, 619

- 20 (App. Div . 2005) ,

u n d e r s c o r e s t h a t determining whether a docum ent i s su bje ct to disclosure34 A

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under OPRA i s " a multi

- layered process," in which "[c]are mu s t be ta ken to
determine the nature of the information s o ug ht b y plaint iff and whether any regulations, executive orde rs or federal law o perate to render the informati on

co nf id ent ial. " Because OPRA expressly does not abrogate Executive Orders
of the Gov er n o r, Exe cutive Order 11 remains operative. N.J.S.A. 47: 1 A

- 9;
L ibertari ans for Transparent Gov't v. Cumberland Cty

. ,
_ _ _ N .J. Super. a t

_ _ _ (slip op. at 2 7

- 28 )

. Thus , as to p ers onne l and pension records, OPRA is not simply a " floor ," permitt ing th e Att orn ey Gener al to r elease such records if he "choose[s] to do
so." I ns tea d, sect ion 10 represents the State's public policy to pr otect the personnel recor ds of public employe es f rom dis closure

. Id. at 16. The Attorney General, like any other " instru menta lit y of gov ernment , " may not
disclose an individual's pers onnel o r pe ns io n recor ds to anyone not auth orized by the State o r federa l governments to inspect them in connection with th eir

o fficial duties, "[e]xc ept as otherwise provided by law ." 3 See Ex ec. O rde r No.

3 We also reject any notion that the disciplinary informatio n t he A ttorney General has ordered relea sed p ursuant to Directives 2020

- 5 and 2020

- 6 does no t constitute a "personnel re cord " for the purp ose o f this analysis. IAPP 9 .12 .1 provides that "[p]erson n el records are separ ate and distinct from internal affairs inv esti gation records, and internal affa irs i nvestigativ e reports shall never be placed in p ersonnel reco rds, nor shall pers onnel rec ords be co

-35 A

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11 (Nov. 15, 1974) ; N.J.S.A. 47:1A

- 9; L ibertarian s for T ranspare nt Gov' t v. Cumberland Cty. , ___ N.J. Super. at __

_ (slip op. at 21).
A c cordingly, w e think the Atto r n ey Ge neral on firmer footing when he
argues he is autho rized to release the disc ipl inary in fo rmation called for in
Directives 2020

- 5 and 2 020

- 6 b ecause t he info rmation is "required to be
disclos ed by ano ther law." Executive O rder 11, section 10 and the
D e pa rtm ent's government records regulation all permit release of an
indi vidual's p ers onnel or pension records " when re quired to be disclosed " or
wh en "othe rwise p rovided by " a no ther la w
. N.J.S.A. 47 :1A

- 10 ; Exec. Order

(continu ed ) mingled with internal a ffa irs files." Section 9.12. 2 makes plain that ev en in the event that "a complaint is su sta ined and discipline imposed, the only item s to be pla ced into the employee's personnel fi le are a copy of the adminis trat ive charg ing f orm a nd a copy of the disposi tio n f orm. " While the Attorn e y General has obviou s good reason to distinguish between in ter nal affairs records and personnel rec ords and files i n the IAPP, his characterization of the records i s not controlli ng f or purpos es of OPRA

. See McGee v. Twp. of E. Amw ell , 416 N.J. Super. 60 2 , 616 (App. Div. 201 0) (noting section 10's exemption for p ers onne l records "is not limited to the items included i n a personnel file"); see also Liber tarians for T ransparent Gov' t v. Cumberla nd Ct y. ,
_ __ N.J. Super. at ___ (s lip op. at 1) (holding " a set tlement ag reement resolving an internal disciplinary action against a pu blic employee is

. . . a per sonne l record exempt from disclosure under section 1 0 "). The dis ciplinary info r mati on th e Attorney General has ordered made pu bli c in the D irectives clearl y comes un der the heading of personnel records for pu rposes of OPRA.36 A

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No. 11 ; N.J.A.C. 1 3:1E

- 3.2(a)(4) ( pro hibi tin g disclosure of records "othe r than
those . . . enumerated in N.J .S.A. 47:1 A

- 1 0 as available for public access" ).
T he Legislature h as desi gnated t he Atto rney Ge neral a s New Jersey's
"chief law enforcement officer," resp onsible " for the general sup ervi sio n of criminal justice " in th e State, N.J.S.A. 52:17B

- 98 , and charged him wi th "formulat[ing] and adopt[ ing] rules and regulations for the ef ficient conduct of

t he work and general administra t ion of the [D] epartment ," N.J

. S.A. 52:17B

4 ( d )

. Attorney Gene ral Del Tufo exercis ed t h a t r e s p o n s i b i l i t y " to issue the
IAPP in 1991 , " Frater nal Order of Police ,
__ N.J. at __ (slip op. at 47), and h is

s u c c e s s o r s d i d s o i n issuing its sub sequent amendments, which "[s]ection 181 effectively mad e
. . . required policy for all mu nicipa l la w enforcement agencies in New Jersey , " id. at 3 4

. Th e Legi sla ture's i nvestiture of that authority i n t he Att orne y Ge neral i n those several statutes is " a n other law" that permits the Attorn ey General to make th e inte rna l affairs pro c ess more

acce ss ible to the publ ic by ordering the publication of the names of New
Jer sey law enforcement officer s sanctio ned f or s erious dis ciplina ry viola tions.
F o r t h a t r e a s o n , we are satisfied Directives 2020

- 5 and 2020

- 6 do not vi olat e
E xecutive Orde r 11, section 10 or the Departme nt's government records regulation.37 A

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Appellants ar g ue the Attorney General cannot "abr ogat e " Ex ecutive
Order 11 or s ection 1 0 of OP RA "through a D irective." Although that argument appears formidable wh en fir st considered , i t is less so on reflection , beca use i t ignores why our courts have determined that Att orne y General
directives have " th e f orce of law for pol ice ent ities ." O'Shea , 410 N.J. Su pe r.
at 382

. Those directives have the force of law becau se the Le gislature has expressly provided "the Attorne y Ge n eral [] statutory power to adopt guidelines, di rec tive s, and policies that bind law en force ment throughou t our
S tate

. " Paff v. Ocean County P rosecutor's Office , 235 N.J. 1, 20

- 21 (2018) ; see also N

. J ers ey Media Grp., I n c. v. T w p. of Lyndhurst , 229 N. J. 54 1, 565 (2017) ( noting because Use of Force Rep ort s ar e " required by law to be made "
b y the Attorney Gene ral's U se of Fo rce Pol icy , they are no t exempt from
disclosure under OPRA's criminal investiga t or y rec ords exemptio n ). Said another way, Attorne y Gener al directives have the force of law for polic e e ntit ies in New Jersey because the L eg isla ture has deeme d it to be so.
No wher e is that clea re r than in the case of the IAPP, which the Legislature ha s

e xp res sly required e very law enforcement agency in t he St ate follow by "adopt [ ing ] and implement[ing] gui deli nes " consistent with it

. See N.J .S.A

. 40A:14

- 181 ; O'Shea , 410 N.J . Super

. at 383

. I n i s s u i n g Directives 2020

- 5 and38 A

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2020

- 6 , t h e A t t o r n e y G e n e r a l d i d n o t usurp power ; h e e x e r c i s e d p o w e r s the
Governor and t he Legislature expressly accorded him

. See Com mc'ns Workers of Am., AFL

- CIO v. Christie , 413 N.J. Sup er. 229 , 257 (A pp. Di v . 2010 ) (discussing cooperative allocation of power b e tween executi ve and le gislative branches of government)

. Because the Legislature has inv ested the Attorney
General with a uth ority to direct the entire ty of the State 's law enforce ment
ap paratus throug h " guid el ines, direc t ives, and policies that bind law

e nforcement th rougho ut our State , " Paff , 235 N.J. at 20

- 21 , we are sa tisfied
Directives 2 020

- 5 and 2020

- 6 were issued pursu ant to "another law" for
pur poses of Executi ve Order 11 an d secti on 10 of OPRA , a n d t h a t t h e A t t o r n e y G e n e r a l h a s n o t " a b r o g a t e d " e i t h e r v i a d i r e c t i v e
. The r e is another significant flaw i n a ppellants' arguments agains t the Attorney General's authority to iss ue Directives 2 020

- 5 and 2020

- 6 bas ed on the confidenti ality a fforded all pub lic employees in t h e ir personnel records by
Executiv e Order 11 and sec tio n 1 0

. Appellants fail to acknowled ge that while
OPRA does not di fferentiate between police officers an d o ther public
emp loyees, section 181 does b y granting the Attorn ey Gener al excl usive authority ov e r internal affairs p olicy for the State's law enfor cem ent ag encies,
and thus over t h e p r o c e s s e s g o v e r n i n g officer discipline. See Williams v. Am.39 A

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Auto Logis tic s , 226 N.J. 117, 126 (2016) (relyin g on " the oft

- stated princi ple
of s tatutor y construction tha t a specific statutory dec laration prevails o ver a

m ore ge neral one ")

. And , signi fi cantl y, ever y iteration o f the IAPP has either authorized o r mandated the pu blic disclosure of some information tha t would otherwis e be
ba rred by Executi ve Order 11 and se c tion 10 , most notably by permitti ng the public rele ase of the details of an y inter na l inv estigation or disciplinary action , and mandating that individual cit ize ns be notified of the disposition o f th ei r complaint s o f polic e miscon duct an d provided an expl a nation for the outcome. 4
Moreove r, s i nce the 2000 ver sio n of the IAPP, issued pri or to O PRA 's passage , every iteration of the I A P P has expre ssly provided th at the information and
records of an int erna l investigatio n could be rele ased at the direct i on of the Attorney General , an au thority th e Legisl ature has n ev er a c t e d t o l i m i t o r

c u r t a i l

. 5 S ee J .H. v. R & M Tagliareni, LLC , 239 N.J. 198, 216 (2019) (n oting

4 Disclosure of internal affa irs i nformation is also r outinely made for other pu r poses, includ ing satisfying the State 's obligations in criminal cas es under Br ady v. Maryland , 373 U.S. 83 (196 3 ), or State v. Harris , 316 N.J. Super. 384 (A pp. Div. 1998), an d satisfying discovery obliga tions in civil matters, s ee Bayer v. Twp. of Union , 414 N.J. Supe r. 238, 273 (A p p. D iv. 2 010)

.
5 We do n ot consider N.J.S.A. 53 :1

- 10.1 , the statute requi ring St a te Police to submit an annual report to the L egislature and t he Governor of misconduct40 A

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an agency's con struction of a statute over y ears w ithout l egislat ive inte rf e renc e generally evidence s its con formity with the l egisl ative intent ).
Sect ion 181's di stinction of law enforce me nt officers reflects a decades

long recognition by both the Legis lat ure and the courts that " police officers are di fferent from ot her publ ic empl oyees ." City of Jersey C ity v. Jersey City
Pol ice O fficers Benevolent As s'n , 154 N.J . 555, 572 (1998)

. It w as fifty

- five years ago that we said "[i]t must be recognized that a p olice office r is a special kind of public emplo yee. " M ooresto wn v. Ar ms t rong , 89 N.J. Super. 560, 566 (Ap p. Div. 1965)

. Ex plain ing why , w e wrote tha t a n officer 's

(continu ed ) compl aints by members of the p ublic , without disclosing p ersonal ident ifiers, as con t rary , lar gely because of it s limited sc ope. As al ready mentioned, t he Senat e Judic i ar y Committee statement to the bill that beca me N.J.S.A. 53:1

- 10.1 noted it "mirror[ed] the prese nt reporting require ments applicable to local l aw enforcemen t agencies wit h reg ard t o civilian complai nts , " Senate Judicia ry Comm. Statement to S. 650 (Jan. 3 1 , 2000) , undoubtedly referring to the public reports mandated under the 1992 version of the IAPP, which was in effect in January 2000, when the bill was intr oduced . The s t atut e is limited as it impo ses a report ing obli gat ion only on the Su perinten dent of St ate Police, not the Attorney General , and a ddresses only co mplaints of misconduct made by membe rs of the public aga inst members of the State P olice. It in no way limits the Attor ney General's broa d authority over int ern al affairs. We no te also from th e r eports in the appendix that the information provided in tho se annual reports substantially exce eds that required by statute, presumably at th e direction of the Attorney G ener al, p articularly as it addresses al l discip lin e imposed, not jus t those instanc e s resulting from complaints by members of the public.41 A

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- 19T4 primary duty is to en fo rce and uphold the law. He carries a service revolver on h is per son and is cons tantly called upon to exercis e tact , restra int and good ju dg m ent in his relationship with the public. He repres ents law and order to the cit izenry an d must present an image of personal integrity and dependability in order to have the respec t o f the public

. [ Ibid. ] Twenty

- two years ago, the Cour t wrote it was be c ause our courts and the Legislatu re had long recogn ized that " police officers ar e differe nt from other public emp lo yees, " that we likewise recognized " the scope of discretion

accor ded to the publ ic entities that administer p olice departme nts is necessar il y bro ad. " City of Jersey City , 15 4 N.J. at 572

. Po lice officers are held to hig her
stand ards of conduct than oth er public employees

. In re Disciplinary Procedures of Phillip s , 11 7 N .J. 567, 57 7 (1990)

. And w e've held a po lice
of ficer w ill not be hear d to " c omplain that he is being hel d up as a model of
proper conduct" because it is "one of the obligations [an offic er ] undertakes upon voluntary entry into the public service. " App eal of Emmons , 63 N.J. Super. 136, 141

- 42 (A pp. Div . 1960)

. Beca use we e n t rust police officers "to carry fi rearms, drive emer gency

v ehicles, and ' exerci s[e ] the mo st awesome and dangerous p ow er that a democratic state possesses with respect to its re siden ts

— the power t o use42 A

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lawful force to arrest a nd deta in them ,' " off icers ca n expec t a higher degree of
scrutin y of their perform ance, N .J.S.A. 40A:14

- 118, and have a lower expectation of priva c y , Rawlings v. Police Dep't of Jersey City , 133 N.J. 182,
1 89 (19 93) (quoting Policemen's Benevolent Ass'n of N.J. , L o c a l 3 1 8 v. T w p
. of W ashingt on , 850 F.2d 133, 141 (3d Cir. 1988) )

. Significantly, th at includes
a di m in ished expectation of privacy in their di sc iplinary records. Hart v. City of Jersey City , 308 N.J. S u pe r . 487, 493 (App. Div. 1998) (finding no cause of
acti o n for i nva sion of priv acy claims based u pon publication of plaintiff's one

day su spension in an in

- house police department bulletin, notin g that "police officers, because they occupy positions of pu b li c trust and exercise special powers, have a diminished expect a tio n of privacy "). And, of cours e, the Legislature itself acted last year to require th e i dentities of law enforcement
officers in vo lved in the arrest or investigation of a death of a person in an encounter with a law enforcement offi cer acting in the of f ice r's o fficial capacity or while the decedent was in custody be made avai lable to the p u bl ic within twenty

- four hours or as soon a s practicable. N.J.S.A. 52 :17B

- 107.1.
Given this long hi s to r y of distinguishing law enforcement offi cers from
oth e r publ i c e mploy ees by virtue of the publ ic trust reposed i n them to enforce
and u phold the law , an d the manifest " need in a democratic soc ie ty for public43 A

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confidence, respect and approbation of the p u bl i c officials on whom the state
confers" t he authority t o use l awful fo rce to arrest and detain their fellow
citiz ens, Policeman's Benevo lent A s s ' n o f N

. J

. , Local 318 , 850 F.2d at 141, we cannot find th e Attorney Gene ral's decision to exercise the autho r ity he an d his predecessors have long reserv ed in the IAPP t o rel ease con fidenti al internal

a ffairs records and information violate s the rights of t he S tat e's law
enforcement officers in the privacy of t he ir personnel records under Executive Order 11, se c tio n 10 o f OPRA , o r N.J.A.C. 13:1E

- 3. 2

.

" Re tro act ive Appl ic ation " of the Direct ives. Appellants contend that because D irective s 2020

- 5 and 2020

- 6 direc t t he
release of interna l affairs records of office rs receiving major discipline befo re the Directives were iss u ed, up to six months before i n th e case of 2020

- 5 a nd up t o twen ty year s before in the ca se of 2020

- 6 , the Directives constitute "ex post facto adm inistrative prov is ions" that run afoul of t he State's retroactivity
cases. W e reject the argument a nd t he analysis. First, "the p rohi bition against ex pos t facto l aws ap plies o nly to laws o f a penal and criminal nature," which the Directives assured ly are not. In re
Ka plan , 178 N.J. Super. 487 , 495 (App. Div. 1981)

. Second, a retroactivity analysis is undertaken o n l y where there has b een a c hange in th e l aw
. See In44 A

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re D.C. , 1 46 N.J. 31, 5 0 (1996)

. A l t h o u g h appellants' retroact ivity arguments

assu me there ' s been a change in the law g o v e r n i n g r e l e a s e o f t h e i r d i s c i p l i n a r y

r e c o r d s , that is not a c c u r a t e
. T he Attorney General in Di rectives 2020

- 5 and 2020

- 6 has ord er ed the
releas e of limited information gleaned from existing internal affairs records ,

con sistent with h i s lo ngstanding statutory a uthority under the Law and Public
S afety Act of 1948, the C rimi nal J ustice Act of 1970 , a n d N.J.S.A. 40 A:14

- 181, w h i c h w e h o l d d o e s n o t v i o l a t e Executive Order 1 1 , OPRA , a n d the Department's government records re gul ation

. A c c o r d i n g l y , i n i s s u i n g
D i r e c t i v e s 2 0 2 0

- 5 a n d 2 0 2 0

- 6 , t h e A t t o r n e y G e n e r a l h a s o n l y e x e r c i s e d

a u t h o r i t y h e p o s s e s s e s u n d e r v e r y o l d s t a t u t e s
. W h i l e i t i s c e r t a i n l y t r u e th e Attorney Genera l has n o w exercised his a u t h o r i t y to make certain inform ati on public t h a t h e h a d previously exercised his a u t h o r i t y to k e e p confiden t ial , h i s

s t a t u t o r i l y g r a n t e d d i s c r e t i o n a ry a u t h o r i t y h a s n o t c h a n g e d

. A n d , a s a deci sion

to release any pu blic record anticipates t he disclosure of an existing record, without reg ard to its historical nature , t h a t i s , w h e n i t w a s c r e a t e d , we a re not
convinced a retr o activity analys is i s warranted or a ppropriate. The pu rp os e of permittin g public access to ex i sting public records "is the bedrock principle that our government works bes t when its activities are we ll

-45 A

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known to the public it serves. " Burnett v. Cty. of B e rgen , 198 N.J. 408, 414 (2009). Th at is the Attorney G en er al's professed purpose in ord ering
d isclosure of histori cal major disciplinary data ; t hat p ermitt ing public s cru tiny of New Jersey's interna l affairs processes at all levels of law enforcement wi l l instill greate r ac countability in th os e processes and p ro mote greater tr ust and
confide nce i n the State's law enf orcement agencies. Because we find OPRA , Executive O rde r 11 and the Department's go vernment records regulation permit the Attorney Gen e ral's release of that inf ormation , the D irectives do no t violate the affected o fficers' rights to non disclosure , regardless of when the discipline was imposed. A retroactiv ity analysis is not necess ary
. Even were we to perform a r etroactivity analysis, h owever, we would

not stri ke d o w n the D ir ectives. A retroactive analysis would foc us on two
fa ctors, whether retroactive application was i ntended and, if so, whether it
woul d " result in e ither an unconstitutional interfe rence with 'vest e d rights' or a 'manifest injustice.'" S ee I n re D.C. , 14 6 N.J . 31, 50 (1996)

. As there is no
dou bt the A ttorney Genera l intended the D irectives to reach pr ior discipline, the only question i s w hether doin g so would work an unconstitution al
interference w ith a vested right of affected officer s or c onstitute a m anife st injustice. See St ate Troopers Fr ate rnal Ass'n v . State , 149 N.J. 38, 54 (1997)

.46 A

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As already discussed at length, the IAPP for t he last twenty years has
advised all law enforc ement officers t h at the Attorney General could direct t he

r el ease of t h e i r internal a ffairs records. That fact, co upled wi t h the long

st anding understanding that law enforcement o fficers are distinct among pu bli c employees, that there is a higher level of scrut iny of the i r performance, giving their employers a broa de r scope of discretion in administerin g their work an d provid i ng off

icers a lower expectation of privacy in their disc iplinary records , convince us th at they have no c onstitutionally protected vested right that the Directives could infringe. See Lehr haup t v. Flynn , 1 40 N.J. Super. 250, 261 (A pp. Div. 1976) ( i n d i v i d u a l ' s r ight of privacy " may be limited by virtue of the legitimate right of the public to acquire knowledge of all facts relevant to the performance

. . . of its public officials " ) , aff'd , 7 5 N. J. 459 (1978) ; see also Kenny v. Byrne , 144 N.J. Super . 243, 2 52

- 57 ( App. Di v. 1976) (holding

e x e c u t i v e o r d e r mandat i n g financial disclosures of cer tai n employees did not violate their right to privacy in light o f "[p]aramount right of the people to
ho nest and impartia l performance by their gov ernme nt employe es"), af f'd o.b

. , 75 N .J. 458 (1978). That t he Attor ne y General has not ex ercised his authori ty
to release intern al affairs records before does not make his doing so now a viola tion of a constituti onal ly protected vest ed right

. Cf. Phillip s v. Curial e ,47 A

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1 28 N.J

. 608, 62 0 (1992 ) ( explaining " ' [t]h ere can be n o vested right in the
continued existence of a statute or rul e of the common law which precludes its
chan ge or repeal ' " (quoti ng Savarese v. N

. J

. Aut o . Full Ins. Underwriting
Ass'n , 235 N .J. Sup er. 298, 309 (Ap p. Div. 1989) ) )

. Nor can we find that retr o active application of the Directives consti tut es a violati on of the manifest injustice doctrine

. See State Troope rs Fraterna l
Ass'n , 149 N.J. at 5 4 (e x plaining th at "manifest

- injustice anal ysis i s a

nonco nstitut ional, e quitabl e doctrine designed to preve n t unfair results th at do not necessarily vi ola te any const itutional provision"). The Court has explained
that " ma nifest inju stice analysis requir es ' a weighing of the public interest in
the retro act ive ap plicati on of th e stat ute against the affected part y 's reliance on
prev ious law, and the conseq uen ces of that reliance.'" Nobrega v. Edison Glen
A ssocs. , 167 N.J. 52 0, 547 (200 1) (quoting Nelson v. B d

. of Educ. , 148 N.J.
35 8 , 371 (1997) ).
A ppellants obvio usly c a nnot pre vail o n an a r gument that b e f o r e officer s d e c i d e d t o e n g a g e i n t h e m i s c o n d u c t t h a t w o u l d r e s u l t i n m a j o r d i s c i p l i n e , t h e y

c o u n t e d on their disciplin e remaining confidential

. W hi le we hav e no doubt
that some officer s in the las t twe nty y e ars agreed to settl e inte rnal disciplinary
action s , at lea st in part, to avoid t h e i r m i s c o n d u c t be ing made public,48 A

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Libertarian s for Transparent Gov't v. Cumberland Cty. ,
_ _ N.J. Super

. a t

_ _ ( slip op. at 2 1) , appell ants cannot demo nstrate that w as universally true , a nd

even i f it were, w e canno t find it outweighs the Attorn ey Genera l's paramount
intere st in taking action to improve the p ublic's trust in state and local police by makin g more transparent the p rocesses that g overn officer misconduct

. Even were th e pub l i c intere st les s we ighty than it obviously is, t h e regular
release of such records in cr imi nal and civil actions a nd the Attorney General's
clear statement for the last tw enty years that any int er nal affairs re cord w ould
be released a t his direction are fa t al to a ppe ll ants' c laim that the very limited
rel ease of f

inal discipline the Attorney Ge neral has ordered in Dire ctives 2020

- 5 and 2020

- 6 would constitute a manif est inj ustice to them

. Ha ving sai d that, we ar e mindful of the sea cha nge the Directi ves
rep r esent i n t he Depart ment's policy regarding the confidentia lity of officer disciplinary re cords and the deep feelin gs of unfairness the retroactive application of t hese Di rectives have enge nder ed a mong law enfo rcement
officers , whethe r or not they w ill be p ersonal ly a f fected by the disclosures to
be made. As alre ady noted, the Attorney Gene ral was only recently in our Supreme Court advocating for the necessity of no t linki ng a trooper's nam e to
the disciplinary summar y we earl ier refe renced, release d in th e Divisi on' s 201549 A

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re port of trooper misconduct . Those are the same summaries he now in ten ds to revise and release, identifying the trooper in each case of demotion , reduc tion in rank or gr ade or s uspension lon ger than five da ys. The Attorney Genera l ack no w ledges his f ormer p osition, arguing persuasively that the fraying of public trust in l aw enforcement in many of th e State's communities has caused him to balance t he cost s of shielding the
ide nti t i es of office rs found to have committ ed offenses warranting major discipline di f

ferentl y. H e is al lowed. As the Supreme Court has noted in the context of a regulato ry agency 's interpretation o f a statute , t ime and experience

matter

. Glukow sky v. Equity One, Inc. , 1 80 N .J. 49, 67 (2004 ). Agency law

" i s not st ati c. It has e lastic i ty that pe rmi ts it to adapt to changing
circumstances and conditions." Ibid. As the A tto rney General argued in

o pposition to appellants' request to enjoin operat ion of the Directives pend ing
app eal, " sometim es t he status quo is unac cep table and sh ould n o t be
pre se rve d. "
Le aving aside their disagreements over th e Attorney General's policy

c hoi ce, which are not for us to mediate, appellants and intervenors all conte nd
offi cers were promised conf ide ntiality when the y settled internal di sci plinary
char ges. A lthough th e a ppendi ces in these appeals number many hundre d s of50 A

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pages, we noted only on e g eneral disciplinary nego tiated resolution that stated it was a "mutually binding confidential resol utio n" of disciplina ry c harges.
Much more co mmo n were certi ficati o ns to th e eff ect th at officers settling disciplinary charg es either "understood" such s ett lements would be
confide ntial or were " assured " of such by either command person nel or deputy

attor neys ge neral acting on b ehalf of the Departme nt.
While initia l ly argui ng th e Stat e 's use of "confidential" in such
agree ments and assurances was only ev er in the limited sense intended in
OPRA and the IAPP , and th us that the State " never promised to k eep suc h discipline secret for any reason and in pe rpetuity , " the A ttorney Ge ner al

con ceded at oral argument that some office rs might have contract claims to the
confidential ity of internal settlement agreements entered int o with the State. Although a rep re se ntation o r promise of confidentiality may not a lways sh i eld
intern al ag reem e nts resolving disciplinary charges fro m disclosure under the common law, s ee Libertarians for Transparent Gov't v. Cumberland Cty. ,
_ _ N .J. Super. a t

_ _ (slip op. at 29

- 31), w e are no t prepared on this record to say they would not b ind the At t orney Ge neral i n a n i n d i v i d u a l c a s e in the absenc e of a com mon law request and ensuing court order direct ing publication

. See W.V. Pangborn e & Co. v. N

. J

. De p ' t of Tr ansp. , 116 N.J

. 543, 56 0

- 63 (1989)51 A

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( discussing the obligation of t he go ve r nment to " turn squ are corners " in its dealings ). Appell ants raise ot her claims, such as promissory and equitabl e estoppel , which likewi se cannot be reso lved on this record

. Ap pellants have brought only a faci al cha llenge to the D irectives. Alt hough w e ar e confident that fac ial challenge must fail, t he record is i n adequat e t o address the cla ims individual
offic ers might have agai nst releas e of their names regarding discip li ne t hey
received before the A t t o r n e y G e n e r a l i s s u e d t h e Di rectives

. T o t h e e x t e n t a f

f e c t e d o f f i c e r s w i s h t o p u r s u e a s
- a p p l i e d c h a l l e n g e s , w e

n o t e t he Att orney General in Directive 2020

- 6 has prov ided th at officer s whose names will be p ublished receive no tice at least seven days prior to public a ti on. We assume he has done so to perm it the officer t o t ake what steps h e or she deems necessary, whether tha t b e to contact the Attorney General about th e

accur acy of the information or specifi c privacy concerns

— fo r instance , that publication in the fo r m proposed coul d re veal the vi ctim of d omestic viole nce 6

6 The Attorney General has dismissed appe llants' concerns that attaching a n officer's na m e to a previ ously released summ ary o f misconduct will, in some ins tances, rev eal the identity of a vict im of domestic viol ence , insisting " the synopses will

. . . not identify domestic violence victims b y nam e or by relationship to the disciplined officer in accordanc e with the Prev enti on of Domestic Violence Act, N.J.S. A. 2C:25

- 17 to

- 35, and Rule 1:38

- 3(b )(12)

. "52 A

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— o r to file an as

- applied challenge t o the Directi ves
. Se ven days provides very little time for an officer , particularly one who may have l ong since
retir ed, to take action in response to the notic e
. We f i n d a f ourte en
- day not ice,
in cl uding th e name and contact information for the person in the Att orney Ge neral's office w h o the officer may con tact ab out the disclosure , would better

a llow the officer to tak e su ch steps. We likewise expect th e Attor ney General

t o require local d epartme nt s making h ist orical discipline i nformation available

to provide e q u i v a l e n t c o n t a c t i n f o r m a t i o n a n d t h e s a m e notice period

.

(continu ed ) The Attorney Ge neral writes in his brief , however, that "[w] hile the reports will of course ment ion whether an officer received major disciplin e for having engaged in dome stic vio lence

— an important sign of a n officer ' s tendency to intolerable vi olence

— that does not itself reveal the identity of a victim because the scope of possible domestic viol ence victims is much broader than appe llants co ntinue to sug gest ," citing N .J.S .A. 2C:25

- 19(d) (referring to " a s pouse, fo rme r spouse, or any other per son who is a present household member or was at any time a household member " )

. That a domestic viol ence victim c ould be someone other than the perpetra tor's spouse , former spouse or s igni ficant other woul d not appear adequate pro tection f o r victims w ho do stand i n such relation to an officer who received major discipline for having engaged i n domestic v iol en ce. We ex pect the Attorney General will have t o do more to p rotect the ide n ti t i es o f domestic viol ence victims th an simply re ly on the def inition of " v ictim of domestic violenc e " in the statute

— whether that might include giving notice to those vict ims b efore publication to permit them to object , pre cluding ident ification of th e of ficer in instances wher e the vict im' s pri vacy cannot reasonably be prote c ted , or o ther steps to ensure victim anonymity is not before us.53 A

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To be clear, we are not suggesting that affecte d off icers have viable as

applied c h a l l e n g e s to Dir ectives 2 0 20

- 5 and 2020

- 6. I f a nything, ou r review of
th is record s uggests many officers would li ke ly have difficulty estab lishing an enforceable promise of confidentiality . Nevertheless, affected officer s mu st be provided the opportunity t o bring such c laims , o r t o b r i n g t o t h e a t t e n t i o n o f

t h e A t t o r n e y G e n e r a l o r l a w e n f o r c e m e n t e x e c u t i v e o t h e r c o n c e r n s a b o u t t h e i n f o r m a t i o n b e i n g r e l e a s e d , wh i ch a fourteen

- day n otice adequately provides. Appellants' Re maini ng Arguments. None of appellant s' rema ining argu ments require s exten ded dis cus sion
h ere. Alth ough petitioners contend the Dire ctives violate the ir rights to
substantive and pr ocedural d u e process and equal protection, their arguments

are not we ighty. Sub stantive du e process doctri ne does not protec t an
ind ividual from al l gover nme nt act ion that m ight infringe her liberty in
viol ation of a law. I nst ead, it "is reserved for the most egre g ious governme ntal

a buses against liberty or property right s, abu ses t hat 'shock the conscience o r otherwise offend . . . j udicial notions of fai rne ss . . . [and th at are] offensive to human dignit y.'" Rivkin v. Do ver Twp. Rent Leveling Bd. , 143 N.J. 352, 366 (1996) (q uoting Weimer v. Amen , 870 F.2d 1400, 1405 (8 th Cir

. 198 9)).54 A

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As ou r Supreme Court has observ ed, "[w ]ith the exception of c ertain
int rusion s on an in dividual's privacy and bodily int egrity, the collec tiv e conscience of the United S tates Supr em e Court is n ot eas ily shocked." Ibid. (citing Irvine v. Califo rnia , 347 U.S. 12 8, 133 (1954) ( finding no Fourtee nth
Amen dment violation when s tat e poli ce officer s broke into defendant's home
and secretly placed a mi crophone in defendant's bedr oom, as th e trespass inv olved no coercion, violence or brutality to t he def endan t)). We are thus
confident the Attorn ey Gene ral's re lease of a summ ary of the findi ngs that l ed
to a law enforcement officer's termination, demo tio n , or suspension for more
th an five day s does not ri se to t he level of a substantive due process v iolat ion
i mplicating pe titioners' rep utation or privacy rights. See i bid. (re calling th at
Ju stice Frankf

urter in Rochin v. California , 34 2 U.S. 165, 172 ( 195 1), equated
substantive due process vio la tions with abuses by government that "are . . . too
close to t he ra ck and the sc rew to permit of constitu tional d ifferen tiation"). Appe llants' cl aims that the Dir ectives violate their s u b s t a n t i v e d u e
p r o c e s s righ t t o pr ivacy under our State C onstitution fa re no bet ter. Simply

st ated, appellants c annot show they ha ve a co nstitutionally protected
reasonable ex pectation of pr ivacy in their di scipl ina ry r ecords that is not outweighed by the government's interest in p ubl ic d isclosure , in light of prior55 A

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case law establis hing their dim in ished expectation of privacy in those reco rds , and the cle ar statem ent in every IAPP issued sin ce 2000 that th e At tor ney Gen eral could order the release o f t h e r e c o r d s
. See Do e v
. P o r i t z , 1 42 N.J. 1 , 88

- 91 ( 1 9 9 5 ) (upholding M egan's Law disclosure ma ndate against constitutional privac y challe nge, finding that state interest in publ ic disclosu re subs tantially outwe ighed p la i ntiff's diminished priva cy interest).
A s t o a p p e l l a n t s ' p r o c e d u r a l d u e p r o c e s s a r g u m e n t , w hile we are mi ndful
that our State Con stitution extends due process protection to perso nal reputation, see Doe , 142 N.J. a t 1 04 , we have hel d " this does no t mean tha t a liberty interest is implicated anytime a governmental agency tr ans mit s informatio n that may impugn a pers on's reputation

. " In re L.R. , 321 N.J. Super. 444, 460 (App. Di v. 19 99). We find no general r i g h t t o a hear ing here,

es pe cially as all a ffecte d o fficers have already received all the process they
were due for t h e i r di sci plina ry charges, includi ng representation by their
union. 7 See N.L.R.B. v. J

. Weingarten, Inc. , 4 20 U. S. 2 51 (1975). A s a l r e a d y

7 Petitioners certai nly h ad no c onstitutional procedural due process rig ht to be hear d before the At torney General a dopted the policy anno unced in the Directives. See Minn. St a te Bd. for Cmty . C olls. v. Knight , 465 U.S. 271, 283

- 86 (198 4) (noting "[t]he Constitution does not gran t to members of the public generally a right to be heard by public bodies m aking d ecisions of policy"); see also United States v. Fla. E. C. R. Co. , 41 0 U.S. 224, 245

- 4656 A

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d i s c u s s e d , w e d o n o t f

i n d a n y n e e d f

o r n o t i c e b e y o n d t h a t n e c e s s a r y t o p e r m i t

a f f e c t e d o f f i c e r s t i m e t o b r i n g a n a s
- a p p l i e d c h a l l e n g e b e f o r e t h e i n i t i a l r e l e a s e

o f t h e n a m e s o f o f

f i c e r s w h o i n c u rred discipline in or after 2 000 b ut b efore
issuance of t h e Directives

. W e likewi se fin d no merit i n a ppella nts' equal p rotection claims. Appellants' argum ent is that the Dire ctiv es unconstitutiona lly differentiate
between m embers of the State Police a nd la w enforcement o fficers in the
D ivision of Criminal Justice an d the Juve nile Jus tice C ommission on th e one hand and the rest of the State's law enforcement officers on the oth er , and
between all of those law enforcement offic ers and other public employe es. Equal protecti on, of cour se, d oes not forbid all classifica ti on ; it "r equires o nly

t hat those cla ss ificat ions not be a rbitrary." Doe , 142 N.J. at 91. "The
constitutional re qui rem ent of equal p rotection is met by legislati on which
treats in a like or simi lar manner al l persons wi thin a class reasonably
selected." Mason v. Civil Ser v. Co mm'n , 51 N.J. 1 15, 12 8 (1 968).
(continu ed ) (1973) (recognizing distinction in adminis trative law between proceedings for pro mulga ting policy

- type rules applicable across the bo ard from proc eedings designe d to ad

judicate disputed facts in part icular cases). We also reject appella n ts' argument th at the Directives were adopted in vi olation o f their rights to notice and opportunit y to be heard under the A dministrative P rocedures A c t

. See infra p. 60

.57 A

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B ecause appellants are not members of a suspect class and no fu ndamental cons titutional right is impinged by publication of their
disc iplin ary records, an equal pro tecti on claim will only succeed if "the
rela tionship betwe en the permis si ble go al an d classi fication is so attenuated as
to be arbitrary or irration al. " In re Wheeler , 433 N.J. Super. 560, 619 (Ap p. Div. 2013). As already d iscus sed, the Legi slature and our c ourts have long distinguished l aw enforc ement off icers from other p ub lic em ploye es based on the responsibilities and privi leges of law enforceme nt off icers

. See City of Jersey City , 154 N.J. a t 572. Disclosing the names of l aw enforcemen t officers
wh o hav e received major discipline is obviously rationa lly re lated to the
At torney Gen eral's g oal of increasing transparency of internal affairs and

o ffic er discipline in the State's law enforcement agencies , thereby making
them more accountable to the commu nitie s they serve.
As for the Dire ct ives dist inguishin g bet ween those law enforc emen t
officer s within the Department of Law an d Public Safety and tho se in local law

e nforcement agencies, the Attorne y General offers two reasons for doing so.
F irst, he asse rts t he office rs within his D ep artment must l ead by example . He

reasons t hat by rel easi ng the names of Department offic ers receiving major
disc ipline s inc e 200 0, he will inspire local agencies to do the same.58 A

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He also m ainta ins that by leaving the decisi on to "release information

re ga rding historic al i ncidents o f officer misco nduct" to loca l control, he has
ensured the la w enforcement executive closest to the c ommunity will weigh
the costs and benefits of historical disc losur e in light of local conditions

. 8
A lthough t h e State Police has f or the pas t twenty years included summa ries o f

ma jor disc ipline in its annual reports to the Legislature, it is o nly sin ce 20 11 that the IAPP has required local a gencies to release a synopsi s of all

com plaints where a fin e or suspension o f ten days or mo re was asses sed to a
membe r of the agency

. 201 1 IA PP at 50

. The Attorney General's pro ffered reasons for distingui shin g a mong law enforcement agencies constitute r ational bases for the classi ficat ions ap pellants challenge. See Drew Assocs . of N

. J

. , L

. P

. v. T ra visano , 122 N.J. 2 49 , 264

8 We have bee n prov id ed with examples of two polic y stat ements by count y prosecutor s i n the wake of Di rectives 2020

- 5 and 2020

- 6. Both acknowledge the Directives will r equire a more c o n sist ent approach to the investigation of internal a ffairs matte r s and i mpositio n of pol ic e discipline in their counties going forward. While als o acknow le d ging the impo rta nce of retros pective disclosu re to building greater trust with the dive rse communit ie s t hey serve, they take somewhat different approac hes to the re lea se of hi stor ic disci pl in ary sanctions as permitted by Di rec tive 2020

- 5, acknowledg ing th e y lack the St ate Police's twe nty year archive, as wel l as noting the variation in the quality o f in terna l aff a ir s functions across municipal department s, the reliab ility o f availa ble reco rd s and the disparities in discipline f o r similar offenses across de p artments and ove r ti me.59 A

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(1991); B arone v. D ep't of Huma n Servs., Div. of Med. A ssistance & Health
Servs. , 107 N .J. 355, 367

- 77 (1987); N.J. Restaurants Ass'n v. Holderman , 24 N.J. 295, 300 (195 7); Wheeler , 433 N.J. Super . at 619

- 20. Th e outcome would

no t be d ifferent wer e we to undertake an eq ual p r o t e c t i o n an alysis under our State Constitution balancing test. Se e D oe , 142 N.J. at 94. Considering the
affected o fficers' right i n the con fid entia lity of their discipl inary records, the

ext ent to which the D irect ives impinge t hat right, and balanc ing those interes ts against the public need for disclosure, we are satis f ie d the public need for more transparency in the internal affairs processe s o f the State's law
enforcem ent a gencies in this p eriod of f r a y i n g public trust i n law enfo rcement

out weighs the officers' limite d privacy right in their disciplinary re cords and

t he int rusion of that right to the extent of revealing i ncidents in wh ich major
disc iplin e has been susta ined. See Greenberg v. Kim melman , 99 N.J. 55 2, 577 (1985) (exp laining the balan cing test). Appellant s ' contention that the Attorney General promulgated Di rec tives
2020

- 5 and 2020

- 6 in violation of the Admin istrative Proc edures Act ign ores our long

- standin g vie w that the Attorney Ge neral's law enfo rc ement directiv es

a nd guidelin es "ar e no t 'administrative rules' as defined in [N.J.S.A. 52:14B

- 2 ], and, thu s, do not require formal promulgation under the [APA]." O'Shea , 41060 A

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N.J. Super. at 383. They fall with in a statutory exception to the APA's
defin it ion of an admi nist rative rule , beca use they constitute " s tatements concerning the internal manag ement or di sci pli ne of an agency." N.J.S.A.
52:14B

- 2; O'Shea , 410 N.J. Super. a t 383. Moreov er, w e have explicitl y

con cluded that the A ttorn ey G eneral 's iss ua nce of the IAP P is not subjec t to

a dmin istrative rulemak i ng under the APA. I n r e Carroll , 339 N .J. Super. 4 2 9 , 442

- 43 (App. Div. 2 0 1 1 )

. S everal plaintiffs contend the Dir ectives uncons titutionally impair thei r ri g ht t o contract and violate their constit utional right to collec ti ve n egotia tion s
. N one of th e collective negotiations agr eements in the record , ho wever, address es the confidenti ality of personnel records, disc ipl inary records, or internal affairs rec ords , oth er than to require compliance with t he IAPP, which , of cour se , is issue d pu rsua nt to the A ttorney G eneral 's authority under N.J.S .A.
40A:14

- 181 , and is subject to amendment o utside the collective negotiatio ns
process , makin g a contract impairment anal y sis unnecessary. See Berg v.
Christie , 225 N.J. 245, 259 (2016 ) (exp lainin g c o ntra ct impairm ent claims

" entail an analysi s that firs t examines whe ther a change in state law resu lts in the substantial impairmen t o f a contractua l relationship "). To th e ex t ent those petitioners argue th at confide ntiality assur ances are m anda torily neg otia ble ,61 A

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a n y s c o p e o f n e g o t i a t i o n s claim must be brought before t he Public Employee
Relations Commission

. 9 See Barila v . Bd. of Educ. of Cliffside Park , 241 N.J. 595, 6 1 4 (2020 ) ( noting the Legisl ature has assigned t o PERC in the first
instance " the t ask of di ff erentiating betwee n negotiable subjects and non

negotiabl e po licy considerations " )

. Finally, to the extent we hav e not a lready add ressed t h e m , we reject appellants' argum ents that the Directiv es ar e arbi trary , capricious and unreasonable, and vi olat e pu bli c policy

. The Attor ney General , as N ew Jersey's chief law en forcement officer, has broad supervisory authority ove r the enforcement and prosecution of the State's c rimin al laws at every level of
g overnment. W ith that autho rity comes enor mous r espo nsib ili ty for ensuring publ ic confidence tha t the State's law enf o rc ement officers are honest,
unbiased and themselves law a biding and thus possessed of legitimate
authori t y to "'exercis[e] the most aweso me and danger ous power that a

9 We are not aware of any pending s cope of n e gotiations petition

. A ppella nts i n A

- 40 02

- 19 have advised us of an unfair practi ce cha rge fi l ed with PE RC in June agai ns t the City of Pat erson by Pat erson Polic e PBA Lo cal 1 and Pat e rs o n Police PBA Loc al 1 Superior Officers Association with interim restraints against publication of t he na mes of c urrent o r former officers "who in the p ast twent y (2 0) y e ar s have b een fired, d emoted, or suspended for more than five days du e to a discipli na r y violation, whe ther with, or without a summary of the v iolation."62 A

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democratic s tate p osse sses wi th respect to its re sidents

— the power to use lawful force t o arrest and detain them

. '" Rawlings , 133 N.J. at 189 ( qu oting
Policemen's Benevolent Ass'n of N.J. , L o c a l 3 1 8 , 850 F.2d at 141 )

. Like petitio ners, the Attorney G eneral is well aware that tru st in the polic e is essential for t hem t o safely and effectiv ely perform t heir jobs of protecting the communities they h ave sworn to faith fully serve. C o n c e r n e d
that c ommun ity t rust in our police has become serio usly frayed in cities and

tow n s acr oss our State , he d etermi ned he could be st improve th at trust by
inst illing greater accountability in the int ernal af fairs processes that govern
officer misco nduct by ending th e lon g pra ctice of s h i e l d i n g the identities o f
officers re c eiving major d i s cipli ne. 10
T hat s tep follows several other r ece nt events that have likewi se increased transparency and accountab ility of law enforcement agencies in this State, including making pu blic use o f force reports , s ee Lyndhurst , 229 N.J. at
57 7

- 7 8 , the cre at ion of ci vili an ov ersight board s, s ee Fraternal O rde r of Police , __ N.J. __ (s lip op. at 3

- 4 ) , and t he passage of a statute requir ing release of the

10 We note the information the A ttorn ey Gener al has ordered released in Directives 2 020

- 5 and 202 0

- 6 i s quite li mited, and f ar less than what some of our neighbori ng state s have done in re s po nse to simi lar concerns. Se e, e.g. , 2020 N.Y. Laws 96 (repealing N.Y. Civil Rights Law 50

- a, and allo wing for the public release of law enforcement disc iplin ary reco r ds ).63 A

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identities of officers involved in t he ar r est o r investigation of a death of a
pe rson i n an enc ounter with a l aw enf o rce ment o fficer acting in the officer's
of ficial capacity or while t he decede nt was in cus tody , N.J.S.A. 52:17B

- 107.1. The Attorney General's m a n d a t e t o p u b l i s h t h e n a m e s of those off icers having
bee n terminated, demote d or suspe nded for more than f ive d ays , appears to us
neither arbit rary nor ca pricious and , ins tead, con sistent with e xisting law and
evolvin g public policy. Se e Lavezzi v. State , 219 N.J. 163, 171 (2014)

. For the r ea sons expresse d here , we reject petitio ners ' facial c halle nge to
Att orney Gene ral Directives 2020

- 5 and 202 0

- 6

. W e, nevertheless , cont inue

our stay o f the Directives for f i v e days only , to permit appe ll ants to file a n im mediate petition for certifi catio n and applic ation for any further stay in the Supreme Court.
Affirme d.