Attorney General Directive Establishes New Disclosure Mandates for Law Enforcement Internal Affairs Investigations

The New Jersey Attorney General recently issued Directive No. 2022-14, which sets forth significant revisions to the AG’s Internal Affairs Policies & Procedures (“IAPP”). The new Directive essentially requires a range of Internal Affairs (“IA”) reports to be publicly accessible under the common law right of access in order to provide more transparency of IA investigations. This Directive requires law enforcement agencies to update their current policies and practices in regard to the handling of requests for materials under the common law. Each law enforcement agency is expected to execute these changes by January 1, 2023. Note that this Directive confirms that requests for materials are exempt from disclosure under OPRA in accordance with a 2022 New Jersey Supreme Court decision.

IA Reports and Release of Certain Materials Upon Request

First and foremost, Directive No. 2022-14 mandates the completion of two separate and distinct IA reports by police departments: an Investigative Report and a Summary and Conclusions Report.

1. The Investigative Report shall objectively recount all relevant information disclosed by the IA investigation.
2. The Summary and Conclusions Report must include a summary of the allegations, factual findings and conclusions as to each allegation, and the final discipline imposed. 

Thus, police departments across the State need to begin to implement a practice for the preparation of these two separate reports during investigations.

The Directive establishes that, when a request is made pursuant to the common law right of access, disclosure of the Investigative Report is not required, but the Summary and Conclusions Report may be disclosed depending on the circumstances. When a police department receives a request for an IA report pursuant to the common law right of access, the Directive states that the Summary and Conclusions Report shall only be released if it meets one of the following conditions:

• It resulted in one of the 12 events set forth in IAPP Section 9.11.2;
• The agency otherwise concludes that the Summary and Conclusions Report is subject to release; or
• The County Prosecutor or AG has directed the release.

Section 9.11.2 includes the most critical development of this Directive, as it clearly establishes which reports will always require disclosure. Disclosure of the Summary and Conclusions Report pursuant to a common law right of access request will essentially depend upon:

• The nature and seriousness of the misconduct;
• Whether the IA complaint was substantiated;
• The nature and extent of the discipline imposed;
• The officer’s position; and
• The officer’s record of misconduct.

Annual Synopsis

Furthermore, the Directive mandates that agencies publish an annual synopsis to report whether any of the 12 IA-related events set forth in Section 9.11.2 occurred in the previous year. The synopsis is no longer afforded the brevity that was previously suggested by the AG. Rather, sufficient detail is now required for the annual IA summary to allow an unfamiliar reader to fully understand the factual scenario that resulted in disciplinary action.

Section 9.11.2 refers to various instances of “sustained findings” which require the agency to publish a synopsis of the misconduct. The Directive adds that, if an officer negotiates a plea or agrees to a settlement whereby the charge against him or her is dismissed, the charge will still be considered sustained if there was sufficient credible evidence to prove the allegation of misconduct, and the officer does not obtain a favorable ruling after a challenge. Thus, negotiating a plea or agreeing to a settlement will not necessarily exempt the misconduct from being disclosed in the annual synopsis. The Directive also prohibits non-disclosure agreements which aim to prevent public review of the circumstances of an officer’s separation or termination.

Additionally, where an IA investigation uncovers evidence of misconduct which is not based on the original complaint, that misconduct must be memorialized in both the Investigative Report and the Summary and Conclusions Report. The Directive now makes clear that this secondary misconduct must also be investigated.

Pre-Disclosure Redaction Requirement

The next important change established in the Directive is the redaction requirement. Nine different areas of the Summary and Conclusions Report were identified as those which shall be redacted prior to disclosure, including, but not limited to: names of complainants, witnesses, informants, victims, and cooperators, as well as information which reasonably leads to the discovery of their identities; any non-public personal identifiers (i.e., home addresses, phone numbers, social security numbers, etc.); medical information; any information that would interfere with a pending criminal or disciplinary proceeding; and any other information that would violate a person’s reasonable expectation of privacy. Thus, because redacting can be time-consuming, law enforcement agencies will need to implement practices to enable them to efficiently redact the reports when a common law request is made.

Conclusion

There are a number of steps law enforcement agencies should take in order to swiftly and successfully implement the new Directive. First, agencies must update their IA policies and procedures to comply with the Directive. Starting now, agencies are also encouraged to utilize the sample Summary and Conclusions Reports included in the Appendix of the Directive, and establish their own standard common law right of access form to be utilized in order to effectively include all necessary information. As suggested above, law enforcement agencies should also consider the redaction requirements when writing the Summary and Conclusions Report, such as, if appropriate, an increased use of pronouns (i.e., he, she, they), rather than referring to individuals by their names throughout the report.

Note that the revisions to the IAPP relating to disclosure take effect on January 1, 2023, but the requirement for more detailed synopses of major discipline cases in the annual report applies to all cases included in the 2022 annual report, and each report thereafter. Thus, it would benefit law enforcement agencies to begin effectuating these recommended changes immediately.

The full Directive can be accessed here. If you have questions about the new policies and the effects of these changes, please contact Whitney H. Lazo at wlazo@hoaglandlongo.com and Susan K. O’Connor at soconnor@hoaglandlongo.com or call 732-545-4717 today.