In the wake of nationwide protests stemming from the tragic death of George Floyd and the subsequent calls across the country to both defund police departments and reform their practices, access to real time information regarding police activities has rapidly gained momentum. Such information can be found in public records, including Police Internal Affairs records, which have long been protected from public disclosure. This new wave of interest in police activities creates significant public records questions for custodians.
Access to Internal Affairs records have historically been closely guarded. The NJ Attorney General Guidelines, first issued in 1991, limit their disclosure except in four discrete circumstances, none of which consider the current demands for police reform. For decades, the guidelines have shielded the information contained within those documents. This policy stems from a concern that “good” cops, and citizens, will not come forward with complaints if they know that the information may be released to the public. The current environment raises the question: How does law enforcement balance the need to self-police an organization, against the desire to protect complainants and/or witnesses seeking to come forward?
Certain documents have always been subject to public scrutiny. Use of Force Reports detailing the level of force used to detain a subject have been available to the public and are routinely requested by public interest advocates. The information is released almost redaction free, protecting only those who were detained for non-criminal, medical reasons (medical or mental), and the identity of juveniles. These forms shed light on the incident and the amount of contact a police officer used to detain an arrestee, as well as whether the subject or officer suffered injury during the arrest.
Use of Force Reports, however, only reveal a portion of the process. These reports do not reflect whether police supervisors evaluated or questioned the tactics used, nor do they indicate whether a complaint was initiated against an officer because of underlying events. On rare occasions the public learns of such events through civil lawsuits filed by the arrestee, or the arrestee’s family, claiming injuries due to excessive force. For the vast majority of police contacts with civilians however, the information is never released to the public, thus preventing the citizenry from making an independent and educated evaluation as to whether police officers and their supervisors (both uniformed and civilian) are developing and enforcing appropriate policies to protect the public from an unprincipled law enforcement officer.
This is not to say that police departments are ignoring their responsibilities or refusing to police themselves. That is far from the reality. Many police departments have developed sophisticated early warning systems to track police officer activity in an effort to improve police services, provide individual training to officers, and promote public confidence. Early warning systems can track skill sets from the most basic (report writing and driving skills) to the most serious (excessive force and racial profiling). Most police departments make this information available to the public upon request, although redactions are made to protect the identity of the police officer and witnesses.
Recently, to the consternation of the police unions, the New Jersey Attorney General, rather than amending the standing Attorney General Guidelines on Internal Affairs, announced through a policy directive, that the release of this information is paramount to the public interest and must be released. The police unions challenged the directive in Court, and the Appellate Division recently put a temporary stay on the requirement to release these materials until the merits of the case are argued later this year. Unfortunately, this battle between the unions and the Attorney General places local police departments in limbo, unsure of whether or not they are required to release records under the Open Public Records Act and/or common law right of access.
Not to be outdone, the New Jersey Legislature has now stepped forward in an attempt to amend public records laws to specifically require the release of any police discipline documents, for both minor and major disciplinary matters. If enacted, these materials, including any potential body camera video, would be released to the public with limited redaction (such as certain personal identifiers and medical information). The Legislature’s action would expand the Attorney General’s directive and significantly impact the volume of materials available to the public.
Because these changes are rapidly developing and public pressures are increasing on political figures to allow more exposures of police officer records, it is critical that police departments and records custodians comply with public records laws, rules and regulations when making decisions to release, or not release, materials. As always, “guessing wrong” can result in a costly liability to the government and its taxpayers. It is critical to seek advice from your municipal attorney or, if your municipality has appointed one, special counsel for public record matters. Staying current on these ever-evolving public record issues not only advances the ability to meet the goals of these laws, but helps minimize exposure to litigation as well.