Disclosure of New Jersey Law Enforcement Officer Disciplinary or Medical Records

There are few more contentious areas in New Jersey employment law than when the disciplinary and personnel records of New Jersey law enforcement officers may be disclosed.  These areas of contention include police officer disciplinary records, internal affairs investigation reports, and fitness for duty examinations. 

This is a contentious and evolving area of the law, to say the least.  It is an ever-changing area of the law, and it would be folly to say that what is written about it today will be true tomorrow, but a trio decisions in 2021 and 2022 illustrate the parameters of the issue.  However, it is unlikely that these decisions will be the last word. 

Disciplinary Records: In re Attorney General Law Enforcement Directives Nos. 2020-5 and 2020-6

The New Jersey Attorney General is charged with supervising law enforcement throughout the State of New Jersey.  In 2020, the New Jersey Attorney General issued two directives requiring the release of information about law enforcement officers who received “major discipline,” including their identities, summaries of the underlying complaints, and the resulting discipline.  The directives define “major discipline” as suspensions of more than five days, demotion, or termination. 

Law enforcement organizations challenged the directives in court.  However, in 2021 the New Jersey Supreme Court upheld the Directives in the case of In re Attorney General Law Enforcement Directives No. 2020-5 and 2020-6.  

However, it provided that officers can challenge the release of this information if they settled the disciplinary charges prior to the issuance of the Directives based on the promise that the information would remain confidential.  However, they will need to prove this to a Superior Court judge in a hearing.

Internal Affairs Investigations: Rivera vs. Union County Prosecutor's Office

The issue of the disclosure of internal affairs records was examined by the New Jersey Supreme Court in 2022 in the case of Rivera vs. Union County Prosecutor’s Office. 

In this case, reports from an internal affairs investigation in which the former director of the Elizabeth Police Department was found to have engaged in sexist and racist behavior were sought.  The Court examined an Open Public Records Act (“OPRA”) request for this report.  The Court rejected disclosure under OPRA, but allowed disclosure under New Jersey’s common law right of access to public records.  The Court ruled that disclosure should be allowed when the interests of justice favoring disclosure outweigh the need for confidentiality.  It explained that the following factors should be examined: “(1) the nature and seriousness of the misconduct…; (2) whether the alleged misconduct was substantiated…; (3) the nature of the discipline imposed...; (4) the nature of the official's position…; and (5) the individual's record of misconduct.”

However, sensitive information should be redacted, including information which could lead to the discovery of the identities of witnesses (including complaining witnesses), informants, and cooperators.  Likewise, personal non-public information such as home addresses and phone numbers should be redacted, as should personal information the disclosure of which would violate a person's reasonable expectation of privacy, such as medical information.

Fitness for Duty Examinations: Capps vs. Dixon

The New Jersey Federal District Court examined disclosure of fitness for duty examinations of law enforcement officer in discovery in civil suits in the case of Capps vs Dixon.  The plaintiffs alleged excessive force during an arrest and sought fitness for duty reports of the arresting officers in the course of discovery to determine whether they showed a propensity for violence, an issue which all parties agreed was relevant.  However, the defendants argued that the Court should only allow release of the conclusions, not the arrest report.  The plaintiffs argued that the complete, unredacted reports should be turned over.

The Court rejected the defendants’ arguments.  It ruled that the psychologist-patient and physician-patient privilege still apply in fitness for duty examinations.  However, they apply only if the officer had a “reasonable expectation” that their information would remain confidential.  If the officers were advised that the entire report would be given to their department, then they had no expectation of privacy, the privilege does not apply and the full report should be produced.  If the officers had been told that only the conclusions would be produced, then the confidentiality applies to everything but the conclusions.  In the case before it, the Court explained that the officers had been told the entire report would be produced to their chief, and thus they had no reasonable expectation of confidentiality, and it ordered production of the entire report. 

The Bottom Line

Law enforcement officers can no longer count on personnel records remaining confidential.  There are arguments where some records should not be produced, or should be produced in only redacted form.  However, officers can expect at least some of their records in some form will be disclosed either to the public or litigants in civil or criminal litigation.

The one thing that everyone can count on, however, is that litigation over this issue will continue, and these cases are unlikely to be the last word on the issue.  Stand by….

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