HOME ABOUT US CONTACT US DENIED OPRA REQUESTS DISCLAIMERS HOW TO FILE AN OPRA REQUEST Another Agency Far Less Transparent After AG Directive 2020-5 Posted on August 19, 2021 | Leave a comment As we recently blogged here and here, there are serious concerns about the recent major discipline disclosures that police departments made pursuant to Attorney General Law Enforcement Directive 2020-5. Here is yet another problematic example: The Star Ledger published an editorial this week panning the disclosures as “not the kind of transparency that was promised when the database was conceived, in the aftermath of the George Floyd tragedy and the universal demand for more police accountability.” The first problematic example the newspaper gave was Guttenberg Police Department’s disclosure that an officer was “currently still suspended with pay.” That’s it. No other details about the officer’s conduct, despite the requirement that agencies provide a “brief summary of [each officer’s] transgressions.” Thankfully, unlike most other agencies in the state, all of police departments in Hudson County complied with the old version of the AG’s internal affairs policy which required them to publish the major discipline report without names. Thus, we are able to view Guttenberg’s anonymous version of its major discipline report, which Hudson County View first published here. (See page 8). Guttenberg’s initial report (without names) said: Please be advised that one (1) member of this agency had faced major disciplinary action during 2020. This officer (Sergeant) was suspended without pay since February for violations of this department’s rules and regulations. The officer failed to properly supervise and report an arrest and use of force incident. Now the disclosure merely tells us the officer is “currently still suspended with pay.” Unless someone knew about the prior report, they would have no idea what this officer actually did and why he was being disciplined. The failure to supervise and report an arrest and the use of force is a very serious offense. And, the officer has been suspended (with pay) for at least 494 days per the AG’s Major Discipline Database (see p. 38). But, the public was not told about this officer’s conduct and would have no way of knowing what the officer did based on the database. In order to determine whether there is appropriate accountability (i.e. whether the sanction was appropriate), the public needs to know about the officer’s actual transgression. When Attorney General Grewal issued Directive 2020-5, he promised the public much greater transparency and that it would lead to better accountability. But, as the New Jersey Monitor recently wrote, the Directive turned out to be “a dud.” Many police departments are now far less transparent than they were before the Directive and there seems to be no oversight by the Attorney General’s Office. For information about this blog or OPRA, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in opra, Police records, Police Transparency, Uncategorized Tagged Major Discipline, opra, police transparency Police Department Falsely States Officer Was “Terminated” In Major Discipline Report Posted on August 11, 2021 | Leave a comment The New Jersey Attorney General has published a database of all of the major discipline reports that police departments have released this week in response to Law Enforcement Directive 2020-5. Although the AG is heralding the disclosures as “an important and necessary step to build greater public trust,” we are already identifying discrepancies. Here is another troublesome one from Lower Alloways Creek Police Department, in Salem County. According to Lower Alloways Creek Police Department’s 2020 Annual Major Discipline Report, officer Jared Adkins “was terminated for incidents of Insubordination and Neglect of Duty.” Because that disclosure does not tell us what the officer actually did, we Googled his name to see if any news stories might reveal the details of the misconduct. What we found instead are the meeting minutes of the Township Council’s November 16, 2020 public meeting. Those minutes state that, “The motion to accept the resignation of Officer Jared Adkins was passed by a vote of the Township Committee[.]” The Township Clerk subsequently confirmed in response to an OPRA request that Adkins “submitted a letter of resignation effective 11/30/2020, accepted at a meeting held 11/16/2020.” Telling the public that an officer was “terminated” makes it sound like definitive action was taken against the officer to hold him accountable for misconduct. In reality, this officer was permitted to resign (possibly “in good standing”). Last year, the Appellate Division criticized an agency that told an OPRA requestor that a corrections officer was “charged with a disciplinary infraction and was terminated” when in reality he was permitted to retire in good standing, despite the fact that he admitted to “engaging in sex with two inmates and bringing them contraband, including bras, underwear, cigarettes and a cellphone.” The court called it “inaccurate spin.” Lower Alloways Creek Police Department’s major discipline report shows that other agencies are similarly involved in such “inaccurate spin” when making their major discipline disclosures. Unfortunately, internal affairs records are shrouded in complete secrecy in New Jersey, so the public has no ability to review the actual internal affairs files to see whether agencies are telling the truth in these disclosure reports. Still, community members and journalists should review these annual discipline reports carefully, along with news articles, meeting minutes, and other publicly available documents to try to fact-check the disclosures. Please let us know if you find discrepancies or need assistance filing an OPRA request. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in opra, Police records, Police Transparency Tagged AG Directive, Major Discipline, opra, Police records, police transparency Major Discipline Disclosures Reveal Serious Flaws in AG Directive Posted on August 10, 2021 | Leave a comment In response to the Supreme Court’s decision upholding Law Enforcement Directive 2020-5, the Attorney General set a deadline of August 9, 2021 for agencies to make major discipline disclosures by posting on their websites “the identity of each officer subject to final discipline, a brief summary of their transgressions, and a statement of the sanction imposed” for all major discipline imposed after 6/15/2020. These disclosures are exposing how police departments will easily evade the very little transparency that AG Directive 2020-5 provides to the public. As NJ Advance Media writes, “The details provided about each incident vary widely, with some departments offering only a single sentence to describe the misconduct.” The New Jersey Monitor adds, “the disclosures contain scant details. And some stragglers haven’t yet gotten their reports online.” Indeed, many agency reports do not tell the public what the officers actually did, instead simply describing the misconduct as an “off-duty incident”, “prohibited activity on duty”, or “failure to conduct one’s self to a high ethical standard on and/or off duty.” We find Jersey City Police Department’s major discipline report to be very troubling and indicative of what is almost certainly a larger problem: police departments being purposely vague and misleading in their disclosures now that they have to include officer names. For background, prior to AG Directive 2020-5, agencies had to disclosure major discipline, but they did so without revealing the name of the officer. The reason JCPD’s new report is alarming is because we have a copy of its old report (p.3), without the names, that we can compare to its new report with the names. The differences in the details provided to the public is startling. AG Directive 2020-5 was supposed to provide more transparency, not less. Below are some examples: EXAMPLE 1: Old Anonymous Report: JCPD disclosed that, “A member of this agency while off duty retrieved a firearm after consuming 6-8 beers. He negligently discharged a round from the firearm during a dispute. The New Jersey State Police responded and their investigation resulted in his arrest and subsequent placement in Pre-Trial Intervention.” This resulted in a suspension of 19 days and 71 lost days. New Report With Name: JCPD describes the misconduct with much less detail, saying that the officer “lost a total of 90 days for violating JCPD Rules and Regulations for: Conduct, Mishandling of a Firearm, Intoxicants Off Duty” and that he “negligently discharged a firearm while off duty on his personal property.” There is no mention of the number of beers the officer consumed, the fact that he fired his weapon during a dispute with someone else, or that he was arrested by the State Police. These are important facts about this officer’s volatility. EXAMPLE 2: Old Anonymous Report: JCPD disclosed that, “A member of this agency purposefully and intentionally failed to report and make proper notifications to dispatch and supervisory personnel following an on-duty officer involved in a motor vehicle accident.” This resulted in a loss of 25 days. New Report With Name: JCPD describes the misconduct as, a loss of “25 days accrued time for violating JCPD Rules and Regulations for: Failure to Perform Duties and Conduct after failing to submit an MVA report as required.” There is no mention of the fact that the officer “purposefully and intentionally” failed to file the report and that the accident involved another on-duty officer. The new report makes it seem as if the officer was careless, not that he intentionally was covering up another officer’s accident. EXAMPLE 3: Old Anonymous Report: JCPD disclosed that, “A member of this agency presented a false, fraudulent and altered doctors’ note to the Police medical Unit.” The report says the officer was “terminated.” New Report With Name: The new report does not list any corresponding officer as having been “terminated” for presenting a fraudulent doctor’s note, but this entry seems to match with the old entry: the officer “lost a total of 122 days for violating JCPD Rules and Regulations for: Conduct, Neglect of Duty, and Truthfulness. FNDA issue date 9/16/2020. Resignation effective 9/17/2020.” Assuming these entries are in fact the same, this entry does not tell the public what the officer actually did (forged doctor’s notes) and it falsely states that he was “terminated,” when he really resigned. These are just some of the flaws in JCPD’s new report, but it is evidence of a larger problem that advocates predicted: agencies will be less than forthcoming in the disclosures they make pursuant to AG Directive 2020-5. Because the public does not have access to the actual internal affairs files, there is no way to fact-check these disclosures. Moreover, AG Directive 2020-5 only requires disclosure of names for major discipline imposed after 6/15/2020, and JCPD’s old report reveals some egregious misconduct occurring before that date, such as an officer using a “derogatory term” and attempting to remove the body cam footage; an officer engaging in a “physical altercation with a juvenile that escalated” into the officer inadvertently firing his weapon; and an officer entering a public restroom and making an “inappropriate and unwelcome advance toward a female JCPD Officer.” We will likely never know the names of these officers and they are still on the police force. We will blog again soon because there are more problematic disclosures that we want to share. In the interim, if you find anything suspicious in your police department’s major discipline report, please send it our way! For more information about this post or about OPRA, contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in opra, Police records, Police Transparency Tagged discipline, law enforcement, new jersey, NJ, open public records act, opra, police, trust Supreme Court Rules That AG Can Publish the Names of Disciplined Police Posted on June 14, 2021 | Leave a comment On June 7, 2021, the New Jersey Supreme Court ruled in favor of the Attorney General by upholding Law Enforcement Directives Nos. 2020-5 and No. 2020-6, which ordered law enforcement agencies throughout the state to annually publish the names of police officers who were either terminated, demoted or suspended for more than 5 days. We previously blogged about the Directives here and here. Chief Justice Stuart Rabner delivered the opinion of a unanimous court finding that Attorney General Gurbir S. Grewal had the authority to issue the Directives, which are, “consistent with legislative policies,” and, “satisfy the deferential standard of review for final agency decisions.” The Court noted that the Directives are “designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another.” However, one critical aspect of the Directives remains open for further evaluation – the demand that the New Jersey State Police reveal the names of approximately 500 Troopers who were seriously disciplined up to 20 years ago. Calling this a “serious issue,” the Court appointed a Superior Court Judge Ernest Caposela, A.J.S.C., to hear testimony and make a ruling regarding access to past discipline. CJ Griffin represented amici curiae National Coalition of Latino Officers and the Law Enforcement Action Partnership in favor of transparency. Although the Directives provide some transparency, both organizations have written in support of Senate Bill No. S2656 and Assembly Bill No. A5301, which make police disciplinary records subject to OPRA. Several newspapers covered the Supreme Court’s decision: To view the NJ.com article, click here. To view the NorthJersey.com article, click here. To view the New Jersey Law Journal article, click here. To view the Hudson County View article, click here. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in OPRA Cases, Police records, Police Transparency Sunshine Week Begins With Supreme Court OPRA Case Posted on March 13, 2021 | Leave a comment It’s Sunshine Week and this year it kicks off in New Jersey with oral arguments before our Supreme Court in an important Open Public Records Act (OPRA) case. On March 15, 2021, the Supreme Court will hear Bozzi v. City of Jersey City, a case that asks whether a list of names and addresses of dog license holders are accessible under OPRA. The plaintiff seeks the list for commercial purposes–he intends to mail dog owners information about his invisible fences. The case is listed as the second case of the day, which means arguments will begin sometime after 11:00 a.m. You can watch it here. CJ Griffin of Pashman Stein Walder Hayden will be participating in the case and will be arguing last. Griffin filed an amicus curiae brief on behalf of Libertarians for Transparent Government, arguing that the Legislature has rejected numerous bills that attempted to exempt dog owner lists or that sought to limit the ability of commercial requestors to utilize OPRA. The amicus brief also explains that limiting this commercial requestor’s right of access will cause harm to all the other requestors who might seek lists of dog owners to benefit the public in some way. Unfortunately, public agencies sometimes use OPRA’s privacy provision not as a shield to protect legitimate privacy rights, but rather as a sword to attack a requestor’s reason for seeking records, something that should be irrelevant. In this case, a commercial requestor’s right to obtain public records is under attack, but in other instances the ones under attack are the so-called “gadflies” or the persistent reporters who are thorns in the sides of politicians. If the Court decides in the City’s favor in this case, the consequences will not be limited only to the addresses of dog license owners or to commercial requestors. Public agencies will undoubtedly think of far-fetched reasons to invoke OPRA’s privacy provision so that the balancing test applies. Requestors will then have to sue and convince courts that that their reasons for wanting the records serve a “legitimate public purpose.” In other words, an interest requirement will be engrafted into OPRA where one does not exist, and as a result, all requestors, whether commercial or not, will have to fight harder to access information that should be statutorily available to them as of right. . . . Even if this Court considered a commercial interest to be insufficient to gain access to the dog license records in this case, there are clearly other reasons for requesting these records that do advance “legitimate public purposes.” For example, someone who encounters a neighbor’s aggressive dog might want to determine if the dog is licensed and vaccinated. . . . Someone who runs a local animal rights group might want to contact other dog owners to rally them to pass better animal welfare laws, to lobby for a local dog park, or to alert them to local dangers to dogs. An animal rescue organization might want to independently verify that the dogs it has adopted out have been properly licensed and vaccinated, or it might want to screen prospective adopters to determine if they have other pets (or had other pets that they surrendered) that they are not disclosing on their adoption applications. A watchdog group like LFTG might want to investigate whether public officials are failing to license their own pets all while hypocritically ticketing members of the public for failing to do so. Or, it might want to verify that the list of licenses is accurate and that all of the money collected from licenses are distributed in the proper accounts and transmitted in full to the proper state agencies. . . . A research organization might seek the names and addresses of dog license owners so that it can map them and determine whether certain neighborhoods have more licensed dogs than others and whether there is any correlation to economic factors, such as income, in the ownership or licensure of dogs. NJ Advance Media previously wrote about the case when it was pending in the trial court. Both the trial court and the Appellate Division ruled that the list must be disclosed. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in opra, OPRA Cases, privacy, Sunshine Week, Uncategorized Tagged commercial, commercial requestors, dog license, foia, Freedom of Information Act, Libertarians, new jersey, NJ, NJ Opra, njopra, open public records act, opra, pet license, privacy, transparency Upcoming Supreme Court Oral Argument in AG Directives Case Posted on February 26, 2021 | Leave a comment On March 2, 2021 at 10:00 a.m., the New Jersey Supreme Court will hear oral argument in the case In re Attorney General Law Enforcement Directive Nos. 2020-05 and 2020-06. The argument will be streamed live on the Judiciary’s website, which you can view live on March 2nd by clicking here. We previously wrote about this case while it was pending in the Appellate Division: In mid-June 2020, the Attorney General of New Jersey issued two important police transparency directives, both of which have been challenged and were before the Appellate Division this week. The first directive, Law Enforcement Directive 2020-5, requires future disclosure of the names of officers who have been subject to “major discipline,” which is described as a sanction of termination, demotion, or five or more days of suspension. The second directive, Law Enforcement Directive 2020-6, orders the State Police and other state law enforcement agencies to make a retroactive disclosure, requiring disclosure of the names of those who have received major discipline for the past twenty years. The Attorney General also gave county and municipal departments the discretion to make retroactive disclosures and some have made the decision to do so. Unfortunately, several police unions very quickly filed emergent appeals to stop the Directives from taking effect. In October 2020, the Appellate Division issued a published opinion upholding the Directives. Now the Supreme Court will review that decision. In the interim, the disclosures have been placed on hold until the Court issues an opinion. Attorney CJ Griffin is arguing on behalf of amicus curiae National Coalition of Latino Officers and the Law Enforcement Action Partnership, in support of the Directives. Griffin will argue last. Some of the briefing can be downloaded here: LEAP & NCLO’s Amici Curiae Brief Attorney General’s Brief State Trooper Fraternal Association’s Brief NJSOA’s Brief *Note: Some parties relied upon Appellate Division briefs, some of which you can find here. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in Uncategorized Supreme Court Takes Jail Settlement Agreement Case Posted on January 15, 2021 | Leave a comment Today the New Jersey Supreme Court agreed to hear the plaintiff’s appeal in Libertarians for Transparent Gov’t v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020), a published decision that shut down public access to non-litigation settlement agreements that resolve a public employee’s internal discipline. CJ Griffin of Pashman Stein Walder Hayden filed the successful petition for certification. We will blog soon with more details about the case and the issues before the Supreme Court. In the meantime, readers can view John Paff’s blog for more details about the matter when it was pending in the trial court. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in opra, OPRA Cases, personnel records Bill Would Exempt Addresses of Legislators, Probation Officers Posted on January 8, 2021 | Leave a comment As our readers may recall, Governor Murphy recently signed “Daniel’s Law” into law, which exempts the home addresses of current and former judges, prosecutors, and law enforcement officers from access under OPRA. A bill pending in the New Jersey Legislature would expand those exemptions to include two additional categories of persons. Among other things, Senate Bill 3209 exempts from OPRA “that portion of any document which discloses the home address, whether a primary or secondary residence, of any active, formerly active, or retired probation officer or member of the Legislature.” The addresses of current and former judges, prosecutors, law enforcement officers, probation officers and members of the Legislature are likely to appear in land deeds, property tax records, financial disclosure statements, and a variety of other quintessential public records that are available online in a variety of databases. It is difficult to understand how public agencies would comply with this proposed law. There is no comprehensive list of every current and former probation officer or legislator that has ever worked or held office in this state so that a clerk would know which records to redact. NJ Advance Media has already written about how some agencies are struggling to comply with Daniel’s Law because there is similarly no master list of every current or former judge, prosecutor, or law enforcement officer that has ever worked in this state. Collectively, Daniel’s Law and S.3209 likely exempt tens of thousands of addresses. S.3209 will be heard on January 14, 2021 at 10:15 a.m. in the Senate State Government, Wagering, Tourism & Historic Preservation Committee. For questions about this blog or OPRA, please contact CJ Griffin at cgriffin@pashmanstein.com. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in Articles, opra, OPRA Legislation Tagged Addresses, Daniel's Law, foia, open public records act, opra, Secrecy, transparency 2020 Transparency Year in Review Posted on January 1, 2021 | Leave a comment Happy New Year! The year 2020 was a year unlike any other. As we look back at transparency issues that arose over the past year, we hope that this blog finds our readers healthy and well. Pandemic Creates Transparency Hurdles Transparency was front and center in New Jersey in 2020, although sometimes it was the lack of transparency that was the focus. On March 9, 2020, Governor Murphy issued Executive Order No. 103 to declare a Public Health Emergency in New Jersey. Days later, the Legislature rushed to amend the Open Public Meetings Act (OPRA) so that public agencies would not have to comply with the statute’s seven-day deadline during the pandemic. As a result, many requestors have found their OPRA requests stalled for weeks or months with no response. Given that Governor Murphy will likely continue to extend the Public Health Emergency declarations for quite some time, requestors can expect access to be slow for many more months. Another major transparency hurdle in 2020 was the Emergency Health Powers Act. The 2005 law is designed to give the Governor vast powers during a public health crisis, but it also contains an expansive exemption that sates: “Any correspondence, records, reports and medical information made, maintained, received or filed pursuant to this act shall not be considered a public or government record under [OPRA].” N.J.S.A. 26:13-26. Several media outlets reported that the State was using the exemption to keep important information from the public, such as records about which medical facilities lacked protective gear or information about hospital capacity and supplies at nursing homes. Police Use of Force Records Access to police use of force records continues to be a challenge, despite the Supreme Court’s landmark 2017 decision in North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that such records should be accessible to the public. In January, the Appellate Division granted our client’s appeal in Rivera v. Township of Bloomfield and held that police body-worn camera videos are subject to OPRA. The video at issue recorded police shooting and killing a man in Bloomfield in August 2017. In February, the Appellate Division granted our client’s appeal in Digital First Media v. Ewing Township, 462 N.J. Super. 389 (App. Div. 2020). In that case, The Trentonian newspaper sought a copy of a Use of Force Report (UFR) that related to force that Ewing police officers used against a teenager. Although the trial court held that the UFR could not be released due to a statute that exempts records relating to juveniles charged as delinquent, the Appellate Division granted our appeal and ruled that the UFR must be released with the juvenile’s name redacted. Ewing Township was also required to pay the newspaper’s legal fees. In October, we published a blog detailing how the State rarely complies with Attorney General Law Enforcement Directive 2019-4, which requires disclosure of videos of police deadly force incidents within 20 days. Per our count, only one video had been released within the 20-day deadline all year. Transparency in Police Discipline In 2020, there were some positive advances in transparency regarding police discipline on a policy level, but also a mixed bag when it came to judicial opinions on this issue. In Libertarians for Transparent Government v. New Jersey State Police, the requestor sought the name of a state trooper who was “required to separate from employment” for “engaging in racially offensive behavior.” Although both lower courts denied access to the name, the Supreme Court granted certification and was set to review the case. In mid-June, the Attorney General’s office reversed course, granted access to the name, paid the requestor’s legal fees, and issued Law Enforcement Directives 2020-5 and 2020-6. The Directives require disclosure of the names of officers who receive “major discipline,” information that had never been disclosed before. Shortly after the Directives were issued, several police unions filed challenges and argued that the Attorney General lacked the authority to compel such disclosures. In October 2020, the Appellate Division upheld the Directives. Shortly thereafter, the Supreme Court granted certification and oral argument is set for March 2021. In the interim, the Directives are stayed and no disclosures have been made. In mid-June, the Appellate Division reversed a trial court decision that had compelled access to internal affairs reports relating to the former Police Director of the City of Elizabeth Police Department who had resigned after it came to light that he used “racist and misogynistic slurs.” The Appellate Division concluded that internal affairs reports are confidential pursuant to the Attorney General’s Internal Affairs Policy and cannot be released even pursuant to the common law right of access. A petition for certification is pending. In late June, a bill was introduced in the Senate to make all police disciplinary records subject to OPRA, including police internal affairs files. Although Senate Bill No. 2656 has not yet been heard in a committee, more than 100 organizations have endorsed it. New Jersey is one of only 21 states that treat all internal affairs records confidential. During a July 15th public hearing before the Senate Law and Public Safety Committee, Attorney General Gurbir S. Grewal seemed to embrace greater transparency in internal affairs investigations, stating: “[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.” In early December, the Attorney General released the internal affairs files of Philip Seidle, a former Neptune police officer who shot and killed his wife in 2015. The Asbury Park Press had been fighting in court to gain access to the files for several years. Its case remains pending as to whether the newspaper is entitled to legal fees and whether such files are subject to access under OPRA. Other Significant Transparency Decisions There were a few OPRA decisions by the Appellate Division this year, at least two of which will be reviewed by the Supreme Court next year. In February, the Appellate Division ruled in Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), that there was no privacy interest that precluded a commercial requestor from obtaining a list of dog license holders so that he could send them solicitations for his electric fence installation service. The Supreme Court granted certification in a separate case that reached the same conclusion, Bozzi v. City of Jersey City, and the case is pending. In June, the Appellate Division held in Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020), that complaints and summonses are not “government records” that are subject to OPRA because the judiciary (which is not subject to OPRA) is the custodian of records and not the police departments who enter them into the judiciary’s computer system. The Supreme Court granted certification and the case is pending. In September, the Appellate Division issued a disappointing opinion in Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020). In that case, our client learned that a county corrections officer had faced disciplinary charges for “engaging in sex” with two inmates and bringing them contraband, but that because the officer agreed to cooperate with an investigation he was allowed to retire in good standing with a pension pursuant to a separation agreement. In response to an OPRA request our client filed, Cumberland County stated that the officer was “terminated” and it denied access to the agreement. The trial court ruled that the County violated OPRA by falsely stating the officer was terminated when he was really permitted to retire in good standing and it compelled access to the agreement. Unfortunately, the Appellate Division reversed. Although it agreed that the County had not been truthful about the officer’s reason for separation, it found that the agreement was exempt under OPRA’s personnel record exemption. It remanded the case back to the trial court to determine whether access should be granted under the common law, but the case is currently stayed while a petition for certification is pending in the Supreme Court. In December 2020, John Paff reported that Cumberland County settled a lawsuit relating to the same officer for $150,000, in which a woman inmate had alleged that he and other corrections officers had sexually abused her. The danger of the Libertarians decision is that it will permit public agencies to enter into agreements with employees and keep the details of those agreements a secret. This deprives the public of the ability to determine whether the agreement was reasonable and advanced the public’s interests. It will also likely allow the exchange of money without any public oversight whatsoever, something that is highly problematic. In November, Governor Murphy signed A-1649 into law. Commonly known as “Daniel’s Law,” it exempts the addresses of current and former judges, prosecutors, and law enforcement officers from OPRA. It is unclear how public agencies will be able to comply with this law since there is no central list of such addresses to cross reference. For more information about this blog or questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in Articles, opra, OPRA Cases, OPRA Legislation, personnel records, Police records, privacy Tagged Government Transparency, new jersey, NJ, open public records act, opra, OPRA Denials, police, police and Opra, S2656, transparency New Use of Force Policy Makes Positive Changes, But Also Raises Questions Posted on December 29, 2020 | Leave a comment On December 21, 2020, New Jersey Attorney General Gurbir S. Grewal announced changes to the statewide “Use of Force Policy,” the first revision to the policy in two decades. Among other things, the new policy prohibits the use of deadly force against citizens “except as an absolute last resort.” Because the Attorney General is New Jersey’s “chief law enforcement officer,” this policy is binding upon every law enforcement agency in the state. The new policy has been widely applauded by both the law enforcement community and the civil rights community. In terms of transparency, we find that it contains positive changes but also raises some questions. Changes to Use of Force Reporting Readers may recall that there has been significant litigation regarding public access to Use of Force Reports (UFRs), which are reports that law enforcement officers are required to complete, per the policy, any time force is used against another person. In 2017, the New Jersey Supreme Court ruled that UFRs are subject to OPRA in North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017). In 2020, the Appellate Division rejected an agency’s attempt to withhold UFRs that relate to juveniles, ruling in Digital First Media v. Ewing Township, 462 N.J. Super. 389 (App. Div. 2020), that the agency must instead redact the juveniles name from the UFR and release them. Both cases were litigated by Pashman Stein Walder Hayden. The new Use of Force Policy maintains the requirement that officers complete UFRs after each and every use of force, but it modifies the requirement in some positive ways. First, the old policy did not specify a deadline for completing a UFR and many officers would wait weeks or months to fill them out. This kept the public from learning important details about the incident. The updated policy now requires UFRs to be completed within 24 hours. This will ensure prompt public access. Second, under both the old policy and the new policy, pointing a firearm at someone is considered “constructive authority” and not a “use of force.” Under the old policy, only uses of force had to be reported on a UFR and therefore there was no requirement that police officers complete a report when they pointed a firearm at anyone. Under Section 3.4 of the new policy, officers are required to report anytime they point a firearm at a person. Section 3.7.5 also requires officers to report Conductive Energy Device (tasers) spark displays as well. Third, under the old policy, force was reported on a one-page hard copy UFR. Under the new policy, force is reported through an online “Use of Force Portal.” Thus, UFRs now exist in electronic form and they will also capture much more information than ever before, making it much easier to analyze trends in how force is used and which officers are using force more than others. Questions About Public Access Despite the positive changes, we do have some questions and concerns regarding transparency under the new Use of Force Policy. First, the Attorney General announced that “a version of the portal will be accessible for public review in the first quarter of 2021.” It is unclear what that public version will look like and whether it will contain as much information as the internal version of the portal. It is also important that the public have access to raw data rather than mere summaries of information and it would be a shame if people still had to file OPRA requests to obtain individual UFRs. We are hopeful that the public portal will be expansive and allow people to download UFRs and analytical reports and that the data is available in real time as UFRs are completed, not on a delay. Second, we have concerns regarding reporting on deadly force incidents. The old policy required the completion of a UFR for all uses of force, including deadly force. Section 7.3 of the new policy suggests that the new portal will be used to report only non-deadly force because it states: “When an officer uses force as defined in Section 3 of this Policy and the result is not fatal, the officer shall complete a report in the Use of Force Portal[.]” Section 7.1 then dictates a separate procedure for reporting deadly force: “Notification of fatal and serious bodily injury law enforcement incidents shall be made in accordance with AG Directive 2019-4.” It is unclear how that deadly force notification actually occurs because Directive 2019-4 simply states: “As soon as any local, county, or state law enforcement agency learns of a Law Enforcement Incident, the agency should immediately notify the County Prosecutor’s Office of the county in which the incident occurred, who shall in turn immediately notify the OPIA Director or their designee.” If those fatal force notifications are made verbally, then there would be no documentation for the public to access. In prior years, agencies would complete a “Police Use of Deadly Force–Attorney General Deadly Notification Report,” but those do not seem to be completed as often now. If UFRs are no longer required under the new Use of Force Policy for fatal uses of force, that would be a significant departure from the old policy and would shield important details from the public about deadly force incidents. If the Use of Force Portal does not include data about deadly force incidents, that is alarming and would skew the data in the public portal. The use of deadly force is obviously of significant interest to the public. For questions about this blog or about OPRA, please contact CJ Griffin at cgriffin@pashmanstein.com. SHARE THIS: TwitterFacebook LIKE THIS: Loading... Leave a comment Posted in opra, Police records, Police Transparency Tagged data, deadly force, grewal, new jersey, NJ police, open public records act, opra, police, police use of force, UFRs, use of force, use of force policy, use of force reports SUBSCRIBE TO BLOG VIA EMAIL Enter your email address to subscribe to this blog and receive notifications of new posts by email. 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