Rivera v. Union Cnty. Prosecutor's Office

• Decision Date: 14 March 2022
• Docket Number: A-58 September Term 2020,084867
• Citation: 250 N.J. 124,270 A.3d 362
• Parties: Richard RIVERA, Plaintiff-Appellant, v. UNION COUNTY PROSECUTOR'S OFFICE, and John Esmerado, in his official capacity as Records Custodian for the Union County Prosecutor's Office, Defendants-Respondents, and City of Elizabeth, Intervenor-Respondent.
• Court: New Jersey Supreme Court

250 N.J. 124

270 A.3d 362

Richard RIVERA, Plaintiff-Appellant,

v.UNION COUNTY PROSECUTOR'S OFFICE, and John Esmerado, in his official capacity as Records Custodian for the Union County Prosecutor's Office, Defendants-Respondents,andCity of Elizabeth, Intervenor-Respondent.

A-58 September Term 2020

084867

Supreme Court of New Jersey.

Argued January 4, 2022

Decided March 14, 2022

CJ Griffin argued the cause for appellant (Pashman Stein Walder Hayden, attorneys; CJ Griffin and Joshua P. Law, on the briefs).

April C. Bauknight, Assistant County Counsel, argued the cause for respondents Union County Prosecutor's Office and John Esmerado (Bruce H. Bergen, Union County Counsel, attorney; April C. Bauknight, on the briefs).

Robert F. Varady, Union, argued the cause for respondent City of Elizabeth (La Corte, Bundy, Varady & Kinsella, attorneys; Robert F. Varady, of counsel, and Christina M. DiPalo, on the briefs).

Alexander Shalom, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).

Michael R. Noveck, Assistant Deputy Public Defender, argued the cause for amici curiae Association of Criminal Defense Lawyers of New Jersey and Public Defender of New Jersey (Joseph E. Krakora, Public Defender, and Gibbons, attorneys; Lawrence S. Lustberg, Newark, and Michael R. Noveck, on the brief).

Alec Schierenbeck, Assistant Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Andrew J. Bruck, Acting Attorney General, attorney; Alec Schierenbeck and Raymond R. Chance, III, Assistant Attorneys General, of counsel, and Suzanne Davies and Valentina M. DiPippo, Deputy Attorneys General, on the brief).

Bruce S. Rosen, Florham Park, submitted a brief on behalf of amici curiae Reporters Committee for Freedom of the Press & 24 Media Organizations (McCusker, Anselmi, Rosen, & Carvelli, attorneys; Bruce S. Rosen, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

This appeal centers around an internal affairs investigation into misconduct by a former police director. The key question is how to balance the need for confidentiality in internal affairs investigations with the public's interest in transparency when a member of the public seeks access to records of an investigation.

The investigation here found that the former director of the Elizabeth Police Department engaged in racist and sexist behavior while in office. Plaintiff sought access to the internal affairs report under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. The Prosecutor's Office denied the request, and the Appellate Division ultimately ruled against plaintiff in a lawsuit he filed.

Although we find that OPRA does not permit access to internal affairs reports, those records can and should be disclosed under the common law right of access when interests that favor disclosure outweigh concerns for confidentiality.

Existing caselaw on the common law offers guidance on how to evaluate the need for confidentiality. See Loigman v. Kimmelman, 102 N.J. 98, 108, 505 A.2d 958 (1986). Today, we outline a number of factors to help courts evaluate the other side of the balancing test -- the need for public disclosure. Those factors include the nature and seriousness of the misconduct, whether it was substantiated, the discipline imposed, the nature of the official's position, and the person's record of misconduct.

In this case, the public interest in disclosure is great. An internal affairs investigation confirmed that the civilian head of a police department engaged in racist and sexist conduct for many years. To date, defendant has raised only generalized concerns about confidentiality, and it does not appear that any court has yet examined the actual internal affairs report. We cannot fully evaluate defendant's claims on the incomplete record before us.

The internal affairs report should be disclosed, as the Attorney General properly concedes, after the trial court reviews it and redacts parts that raise legitimate confidentiality concerns. We therefore remand the matter to the trial court for it to review the report, complete the necessary balancing test, and enter an order of disclosure. We ask the court to proceed expeditiously.

I.

In February 2019, an attorney made a complaint to the Union County Prosecutor's Office on behalf of employees of the Elizabeth Police Department. The complaint alleged that Police Director James Cosgrove, the civilian head of the Department for more than two decades, used racist and sexist language to refer to employees on multiple occasions.

In response, the Prosecutor's Office conducted an internal affairs investigation. On April 16, 2019, the Office notified the attorney in writing that "Cosgrove has used derogatory terms in the workplace when speaking about city employees," in violation of Elizabeth's policies against discrimination and harassment. The Prosecutor's Office noted "the complaints are sustained." The attorney disclosed the letter to the media, which reported on it.

On April 26, 2019, Attorney General Gurbir S. Grewal issued a public statement about the Cosgrove matter. In it, he noted the two-month internal affairs investigation had "concluded that, over the course of many years, Director Cosgrove described his staff using derogatory terms, including racist and misogynistic slurs." Statement of Att'y Gen. Gurbir S. Grewal (Apr. 26, 2019), https://www.nj.gov/oag/newsreleases19/pr20190426c.html. The Attorney General called on Cosgrove to resign immediately, appointed the First Assistant Attorney General as Acting Union County Prosecutor, and directed her to conduct an audit of the Police Department's "workplace culture." Ibid. Cosgrove resigned soon after.

On July 1, 2019, plaintiff Richard Rivera filed a request for records with the Prosecutor's Office based on OPRA and the common law. He asked for (1) "the report regarding Elizabeth PD's internal affairs issues and claims of racism and misogyny," and (2) "all internal affairs reports regarding" Cosgrove. Plaintiff acknowledged "that redactions may be required, for example, to protect the identity of a complainant," and asked for redacted reports.

The Prosecutor's Office denied the request. As to the first item, it stated that, "in general ... no such report exists." The Office declined to disclose the internal affairs report on Cosgrove both because it was "exempt from disclosure under OPRA" as a "personnel and/or internal affairs record," and because the "interest[s] in maintaining confidentiality significantly outweigh [plaintiff's] interests in disclosure."

To get access to the internal affairs report about Cosgrove, plaintiff filed a complaint on August 21, 2019 against the Prosecutor's Office and its records custodian, relying on OPRA and the common law. In the alternative, plaintiff asked the trial court to review the records, redact parts that are exempt from public access, and disclose the remainder.

The Prosecutor's Office filed an answer along with a certification from Assistant Prosecutor John G. Esmerado, the Office's Investigations Supervisor. Esmerado stated that

multiple sworn law enforcement and civilian parties, throughout the investigation, ... were extremely reticent to provide sworn statements if their statement was to be shared with any other party. The information gathering process was difficult given the sensitive nature of the inquiry. To release the information would unduly hamper and compromise the ability of the Union County Prosecutor's Office to investigat[e] police chiefs and police directors in the future for alleged misconduct investigations. Investigations of a police director, as the civilian leader of the police department is always difficult given the understandably strong sense of leadership a police director brings to a department. To preserve our ability to gather facts, internal affairs reports must maintain confidentiality.

The trial court granted the City of Elizabeth leave to intervene. In support of its motion, Elizabeth submitted a certification from William Holzapfel, the City Attorney. He expressed similar, generic concerns:

The City requires that confidentiality of the facts discovered during the [internal affairs] investigation be maintained. ... [T]he City has a real concern that even with redactions as to the identities of any complainants or any other persons who serve as ... witnesses, the privacy interests of its employees involved will not be protected if there is a public disclosure of the Prosecutor's report.

Holzapfel added that disclosure "would have a ‘chilling effect’ upon City employees to report any future alleged violation of workplace policies." Holzapfel noted that "[t]he City was advised of the findings of the internal investigation" but did not say whether he reviewed the actual internal affairs report.

At oral argument and in a later written order, the trial court concluded the internal affairs report should be made available under OPRA. The judge directed that "the complete set of investigation materials ... into the conduct of former Elizabeth Police Director James Cosgrove" be provided to the court for in camera review. The court explained its intention was to disclose "the thrust of the investigation" and also "protect those individuals who could unnecessarily be at risk by public disclosure." In light of the court's ruling under OPRA, it did not reach plaintiff's common law claim.

The Appellate Division granted leave to appeal, stayed the trial court's order, and later reversed its judgment. The Appellate Division initially found the requested materials were not exempt as "personnel records" under OPRA. (citing N.J.S.A. 47:1A-10 ). The court, however, held that internal affairs reports could not be disclosed under OPRA on other grounds. It relied on N.J.S.A. 47:1A-1 and -9, which...