                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2573-19T3

RICHARD RIVERA,

          Plaintiff-Respondent,

v.

UNION COUNTY
PROSECUTOR'S OFFICE,
and JOHN ESMERADO in his
official capacity as Records
Custodian for the Union County
Prosecutor's Office,

          Defendants-Appellants,

and

CITY OF ELIZABETH,

     Intervenor-Appellant.
__________________________

                   Argued telephonically May 18, 2020 –
                   Decided June 19, 2020

                   Before Judges Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-2954-19.
            April C. Bauknight, Assistant County Counsel, argued
            the cause for appellants Union County Prosecutor's
            Office and John Esmerado (Robert E. Barry, Union
            County Counsel, attorney; April C. Bauknight, on the
            briefs).

            CJ Griffin argued the cause for respondent (Pashman,
            Stein, Walder & Hayden, PC, attorneys; CJ Griffin, on
            the brief).

            Robert F. Varady argued the cause for intervenor-
            appellant City of Elizabeth (LaCorte, Bundy, Varady &
            Kinsella, attorneys; Robert F. Varady, of counsel;
            Christina M. DiPalo, on the brief).

PER CURIAM

      The Union County Prosecutor's Office (UCPO) conducted an internal

affairs (IA) investigation of former Elizabeth Police Department (EPD) Director

James Cosgrove's alleged workplace misconduct directed at members of the

EPD. Plaintiff Richard Rivera 1 requested access to the IA investigation report

pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and

the common law right of access. The UCPO denied his request.




1
  Plaintiff "is a retired New Jersey municipal police officer, private consultant,
civil rights advocate, and expert witness in police practices and policies." Since
2008, he has "volunteer[ed] his time and resources to the Latino Leadership
Alliance of New Jersey" and co-chairs its Civil Rights Protection Project.


                                                                          A-2573-19T3
                                        2
      Plaintiff filed this action against defendants UCPO and John Esmerado,

in his official capacity as Records Custodian for the UCPO, demanding access

to the IA investigation report. By leave granted, defendants and intervenor City

of Elizabeth (Elizabeth) (collectively appellants), appeal from a February 6,

2020 Law Division order requiring the UCPO and Esmerado to produce "the

complete set of investigation materials that was conducted into the conduct of

former Elizabeth Police Director James Cosgrove" for in camera review.

                                       I.

      We summarize the pertinent facts. In February 2019, EPD employees

filed an internal complaint alleging Cosgrove used racist and sexist epithets

when referring to his staff. After conducting a two-month IA investigation of

Cosgrove's conduct, the UCPO sustained the allegations against Cosgrove,

finding he violated Elizabeth's anti-discrimination and anti-harassment policies.

      In April 2019, the UCPO wrote to the complainants' attorney notifying

him that "a thorough investigation" revealed that "Cosgrove used derogatory

terms in the workplace when speaking about city employees." The attorney

turned the letter over to the media. On April 26, 2019, Attorney General Gurbir

S. Grewal issued a press release calling for Cosgrove's immediate resignation.

Attorney General Grewal noted that the IA investigation "concluded that, over


                                                                         A-2573-19T3
                                       3
the course of many years, Director Cosgrove described his staff using derogatory

terms, including racist and misogynistic slurs." The media gave substantial

coverage to the story. Cosgrove resigned shortly thereafter.

      In July 2019, plaintiff submitted an OPRA and common law right of

access request to the UCPO, seeking the following material with appropriate

redactions: (1) "the report regarding [the EPD's IA] issues and claims of racism

and misogyny"; and (2) "all [IA] reports regarding" Cosgrove.

      The UCPO issued a July 10, 2019 letter denying plaintiff's request for the

documents. As to the requested EPD report, the UCPO advised that "in general,

. . . no such report exists." As to Cosgrove-related IA reports, the UCPO

explained that such material is a "personnel and/or internal affairs record[],"

which is "exempt from disclosure under OPRA" and remains confidential

pursuant to the Internal Affairs Policy & Procedures (IAPP) promulgated by the

Attorney General,2 absent "a court order or consent of the Prosecutor or Law

Enforcement Executive."




2
  The IAPP is issued by the Attorney General through the Division of Criminal
Justice and has been periodically updated, most recently in December 2019.
While the 2017 version was in effect when plaintiff filed this action, we cite to
the December 2019 version because the revisions do not affect our analysis.


                                                                         A-2573-19T3
                                       4
      The UCPO also denied plaintiff's common law request, asserting that its

"interest[s] in maintaining confidentiality significantly outweigh [plaintiff's]

interests in disclosure." The UCPO explained that releasing the IA reports

would have a chilling effect on individuals reporting wrongdoing. It noted that

"remedial measures" had been taken, which included Cosgrove's resignation and

requiring the EPD "to be retrained on issues of implicit bias and workplace

harassment."

      On August 21, 2019, plaintiff filed this action against the UCPO and

Esmerado alleging violations of OPRA (count one) and the common law right

of access (count two). The court issued an order to show cause (OTSC) directing

defendants to explain why judgment should not be entered granting plaintiff

access to the records and awarding attorney's fees.          Elizabeth moved to

intervene, which was granted.

      During oral argument before the trial court, plaintiff's counsel

acknowledged the need to redact information identifying the complainants.

Counsel stated that plaintiff "doesn't care about who the complainants are. He

doesn't want identifying information. This is just about the facts as it relates to

former director Cosgrove, not the people who made the allegations."




                                                                           A-2573-19T3
                                        5
      The court issued an oral decision and February 6, 2020 order partially

granting plaintiff's OPRA application, requiring defendants to produce "the

complete set of investigation materials for the investigation that was conducted

into the conduct of . . . Cosgrove to be reviewed in camera and under seal."

      The court acknowledged the competing interests of confidentiality and

transparency. It noted that "[t]here is certainly a justification for a level of

secrecy to protect people who . . . would be putting themselves in jeopardy

depending on how they . . . were to testify. So, that's a justification for normally

keeping these things private." The court recognized that "[IA] investigations of

this type are normally not made public under the theory that investigations

should be free to explore complaints and issues and witnesses" without the

possibility of public disclosure that "could subject them to harm." But the court

also expressed "fear that serious matters are covered up by the secrecy with

which [IA] investigations have been cloaked."

      During oral argument before the trial court, a colloquy ensued regarding

whether any public announcements about the IA investigation were "akin" to a

waiver of the right to confidentiality. The trial court did not find appellants had

waived the right to confidentiality but noted the UCPO and Elizabeth had

"publicly affirmed that [the] allegations were based in fact and one of the


                                                                            A-2573-19T3
                                         6
particular individuals involved in the inappropriate tendencies is no longer with

the [EPD] as a result." The court concluded that the acting prosecutor's report

about the investigation and findings and Elizabeth's "publicly announced

corrective action" rendered "the normal reasons for keeping the [IA] reports

secret . . . not as valid as they would otherwise be in a routine case."

      The court stated it was unaware of any binding precedent prohibiting

release of IA materials and noted the IAPP expressly permits the release of such

material by court order.

      In rejecting appellants' argument that OPRA's personnel record exemption

applies, the court reasoned the matter at issue "is not about someone's pension,

abuse of sick-leave, vacation accumulation and the like" but rather one of

"extraordinary public interest."

      The court recognized the risk that complainants and witnesses could face

retribution or intimidation if their identities were detected.             The Court

acknowledged its "obligation to attempt to protect those individuals who could

unnecessarily be at risk by public disclosure."

      Ultimately, the court required that "all aspects" of the UCPO's

investigation be provided for in camera review under seal.                 To protect

confidentiality, the court stated it would redact "not just the names, but the


                                                                              A-2573-19T3
                                         7
circumstances by which" the complainants and witnesses "could well be

identified."

       The court did not reach plaintiff's common law right of access claim and

reserved judgment on plaintiff's application for an award of counsel fees. The

court subsequently denied defendant's motion to stay the order and plaintiff's

motion for reconsideration as to its common law right of access claim.

       We granted the UCPO leave to appeal, stayed the trial court's order, and

permitted Elizabeth to intervene in the appeal.

       On appeal, the UCPO raises the following points:

               I. THE TRIAL COURT ERRED IN CONCLUDING
               THAT [IA] MATERIAL ARE NOT PERSONNEL
               RECORDS, AND THEREFORE NOT WITHIN AN
               EXEMPTION WITHIN N.J.S.A. 47:1A-10.

               II. THE   ATTORNEY     GENERAL'S  [IAPP]
               REINFORCE     THE       LONG-RECOGNIZED
               CONFIDENTIALITY OF [IA] RECORDS.

               III. THE TRIAL COURT MISCHARACTERIZED
               THE HOLDING OF O'SHEA3 BY INFERRING THAT
               A USE OF FORCE REPORT IS SIMILAR TO AN [IA]
               REPORT.

               IV. THE TRIAL COURT PREMATURELY
               DISCUSSED ATTORNEY'S FEES THEREBY
               SIGNALING A DECISION WAS ALREADY MADE.


3
    O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009).
                                                                          A-2573-19T3
                                       8
            V. THE DISCLOSURE OF [IA] MATERIAL WILL
            ERADICATE THE STATE'S PUBLIC POLICY TO
            MAINTAIN THE CONFIDENTIALITY OF [IA] AND
            SET PRECEDENT WHICH WILL STRONGLY
            DEVIATE FROM LEGISLATIVE INTENT.

In turn, Elizabeth raises the following additional points:

            I. THE TRIAL COURT ERRONEOUSLY GRANTED
            THE PLAINTIFF'S [OTSC] AS THE UNION
            COUNTY      PROSECUTOR'S  [IA]  REPORT
            RELATING TO THE INVESTIGATION OF JAMES
            COSGROVE IS CONFIDENTIAL AND CANNOT BE
            RELEASED UNDER OPRA.

            II. THE TRIAL COURT ERRONEOUSLY GRANTED
            THE PLAINTIFF'S [OTSC] AS THE UNION
            COUNTY       PROSECUTOR'S  [IA]  REPORT
            RELATING TO THE INVESTIGATION OF JAMES
            COSGROVE IS EXEMPT FROM OPRA AS IT
            CONSTITUTES A PERSONNEL RECORD.

            III. THE TRIAL COURT'S DECISION IS NOT
            SUPPORTED BY THE RECORD IN THIS CASE.

                                       II.

      We begin our analysis by briefly reviewing OPRA's purpose,

requirements, and application. The Legislature enacted OPRA "to promote

transparency in the operation of government." Sussex Commons Assocs., LLC

v. Rutgers, 210 N.J. 531, 541 (2012) (citing Burnett v. Cty. of Bergen, 198 N.J.

408, 414 (2009)). "[T]o ensure an informed citizenry and to minimize the evils

inherent in a secluded process," OPRA provides the public with broad access to

                                                                        A-2573-19T3
                                        9
"government records . . . unless an exemption applies." In re N.J. Firemen's

Ass'n Obligation, 230 N.J. 258, 276 (2017) (citations omitted). To fulfill that

purpose, N.J.S.A. 47:1A-1 provides that "government records shall be readily

accessible . . . by the citizens of this State, with certain exceptions, for the

protection of the public interest, and any limitations on the right of access . . .

shall be construed in favor of the public's right of access." See also N. Jersey

Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 555 (2017)

(acknowledging this statutory mandate).

      "Government record" is broadly defined under OPRA to include any

document "made, maintained or kept on file in the course of . . . official business

by any officer, commission, agency or authority of the State or of any political

subdivision   [or]   subordinate    boards   thereof."      N.J.S.A.   47:1A-1.1.

Notwithstanding OPRA's expansive reach, "the right to disclosure is not

unlimited." Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J. 581, 588

(2011).   N.J.S.A. 47:1A-1.1 expressly excludes twenty-one categories of

documents and information from its definition of a government record.

      Relevant here, OPRA's broad right to access is limited by "established

public-policy exceptions," which declare that "government record[s] shall not

include . . . information which is deemed to be confidential." Gilleran v. Twp.


                                                                           A-2573-19T3
                                       10
of Bloomfield, 227 N.J. 159, 170 (2016) (second alteration in original) (quoting

N.J.S.A. 47:1A-1.1). Such confidential information includes personnel records

and grievances. N.J.S.A. 47:1A-1.1, -10.

      "OPRA also contains a privacy clause requiring public agencies 'to

safeguard from public access a citizen's personal information with which it has

been entrusted when disclosure thereof would violate the citizen's reasonable

expectation of privacy[.]'" L.R. v. Camden City Pub. Sch. Dist., 452 N.J. Super.

56, 80 (App. Div. 2017) (alteration in original) (quoting N.J.S.A. 47:1A-1), aff'd

by an equally divided Court, 238 N.J. 547 (2019). Courts consider the following

factors when determining whether a government record must be withheld or

redacted prior to disclosure under OPRA:

            (1) the type of record requested; (2) the information it
            does or might contain; (3) the potential for harm in any
            subsequent nonconsensual disclosure; (4) the injury
            from disclosure to the relationship in which the record
            was generated; (5) the adequacy of safeguards to
            prevent unauthorized disclosure; (6) the degree of need
            for access; and (7) whether there is an express statutory
            mandate, articulated public policy, or other recognized
            public interest militating toward access.

            [Burnett, 198 N.J. at 427 (quoting Doe v. Poritz, 142
            N.J. 1, 88 (1995)).]

      Additional provisions exempt government records from public access.

Pertinent to this appeal, the statute "exempts from disclosure any information

                                                                          A-2573-19T3
                                       11
that is protected by any other state or federal statute, regulation, or executive

order." Brennan v. Bergen Cty. Prosecutor's Office, 233 N.J. 330, 338 (2018)

(citing N.J.S.A. 47:1A-9(a) (stating that OPRA's provisions "shall not abrogate

any exemption of a public record or government record from public access "

under "any other statute" or "regulation promulgated under the authority of any

statute or Executive Order of the Governor")); see also N.J.S.A. 47:1A-1.

      Nevertheless, exemptions from disclosure under OPRA should be

construed "narrowly." Asbury Park Press v. Cty. of Monmouth, 406 N.J. Super.

1, 8 (App. Div. 2009). The reasons for non-disclosure "must be specific" and

courts should not "accept conclusory and generalized allegations of

exemptions." Newark Morning Ledger Co. v. N.J. Sports & Exposition Auth.,

423 N.J. Super. 140, 162 (App. Div. 2011) (quoting Loigman v. Kimmelman,

102 N.J. 98, 110 (1986)). "The public agency [has] the burden of proving that

the denial of access is authorized by law." N.J.S.A. 47:1A-6. "To justify non-

disclosure, the agency must make a 'clear showing' that one of the law's listed

exemptions is applicable." Lyndhurst, 229 N.J. at 555 (quoting Asbury Park

Press v. Ocean Cty. Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div.

2004)).




                                                                         A-2573-19T3
                                      12
      We undertake de novo review of "determinations about the applicability

of OPRA and its exemptions." N.J. Firemen's Ass'n Obligation, 230 N.J. at 273-

74 (citations omitted). We also undertake de novo review of trial court decisions

concerning access to government records under the common law right of access.

Drinker Biddle & Reath LLP v. Dep't of Law & Pub. Safety, 421 N.J. Super.

489, 497 (App. Div. 2011).

                                       III.

                                         A.

      The Legislature has declared that personnel records "shall not be

considered a government record and shall not be made available for public

access," N.J.S.A. 47:1A-10, "unless it falls within one of the statutory"

exceptions, Kovalcik, 206 N.J. at 593.

      Defendants contend the IA report is a "personnel record" and thus exempt

from disclosure, noting it "originated from a specific complaint against

[Cosgrove]." The trial court disagreed, concluding the IA reports were unlike

typical personnel records such as an employee's pension or sick leave records.

We concur with that aspect of the trial court's analysis.

      The Attorney General does not consider IA case files and materials to be

personnel records.    On the contrary, "[p]ersonnel records are separate and


                                                                         A-2573-19T3
                                       13
distinct from [IA] investigation records, and [IA] investigative reports shall

never be placed in personnel records, nor shall personnel records be co-mingled

with [IA] files." IAPP § 9.12.1. This prohibition applies even where the

"complaint is sustained, and discipline imposed." Id. at § 9.12.2. Accordingly,

the IA materials are not exempt from disclosure as "personnel records."

                                      B.

      Plaintiff emphasizes OPRA does not contain a specific reference to the

IAPP or enumeration of IA investigation reports as documents that are not

government records. However, a literal review of the statute overlooks the depth

of the recognized exemptions.

      In North Jersey Media Group v. Bergen County Prosecutor's Office, we

explained that the available exemptions to disclosure are not limited to "those

enumerated as protected categories within the four corners of OPRA" because

"N.J.S.A. 47:1A-1 explicitly recognizes that records may be exempt from public

access based upon authorities other than the exemptions enumerated within

OPRA." 447 N.J. Super. 182, 201-02 (App. Div. 2016). We further explained

that "N.J.S.A. 47:1A-9 codifies the Legislature's unambiguous intent that OPRA

not abrogate or erode existing exemptions to public access." Id. at 202. This

includes any "regulation promulgated under the authority of any statute or


                                                                          A-2573-19T3
                                      14
Executive Order of the Governor" and "any executive or legislative privilege or

grant of confidentiality heretofore established or recognized by the Constitution

of this State, statute, court rule or judicial case law." Ibid. (emphasis omitted)

(quoting N.J.S.A. 47:1A-9). We emphasized that "the plain language of the

statute as well as judicial precedent make it clear that an exemption is statutorily

recognized by OPRA if it is established by any of the authorities enumerated in

N.J.S.A. 47:1A-1 or -9." Ibid.

      "The Attorney General is the State's chief law enforcement officer [with]

the authority to adopt guidelines, directives, and policies that bind police

departments throughout the State."        Lyndhurst, 229 N.J. at 565.        These

"guidelines, directives or policies cannot be ignored," O'Shea, 410 N.J. Super.

at 383, and "are binding upon local law enforcement agencies," Fraternal Order

of Police, Newark Lodge No. 12 v. City of Newark, 459 N.J. Super. 458, 500

(App. Div.), certif. granted, 240 N.J. 7 (2019) (emphasis omitted) (citing

O'Shea, 410 N.J. Super. at 383; In re Carroll, 339 N.J. Super. 429, 439, 442-43

(App. Div. 2001)).

      We recognize that the IAPP along with other Attorney General guidelines,

directives, and policies are not adopted in the same way other agencies adopt

administrative rules promulgated under the Administrative Procedure Act


                                                                            A-2573-19T3
                                        15
(APA), N.J.S.A. 52:14B-1 to -15. However, the IAPP does not consist of

"'administrative rules' as defined in N.J.S.A. 52:14B-2(e)," and "do not require

formal promulgation under the [APA]." O'Shea, 410 N.J. Super. at 383; accord

Carroll, 339 N.J. Super. at 442-43 (holding that the IAPP was "not required to

be promulgated pursuant to the APA" because it "fall[s] within the [APA's]

statutory exception for 'statements concerning the internal management or

discipline of any agency'" (quoting N.J.S.A. 52:14B-2(e))).

      IA investigations by law enforcement agencies fall under the supervision

of the Attorney General. N.J.S.A. 52:17B-98. The IAPP was adopted pursuant

to the authority granted to the Attorney General by N.J.S.A. 40A:14-181, which

states: "Every law enforcement agency . . . shall adopt and implement guidelines

which shall be consistent with the guidelines governing the [IAPP] . . . ."

      The IAPP sets forth the policies, procedures, and best practices that all

county and municipal law enforcement agencies are required to follow. IAPP §

1.0.4. See McElwee v. Borough of Fieldsboro, 400 N.J. Super. 388, 395 (App.

Div. 2008) (stating that N.J.S.A. 40A:14-181 "requires every law enforcement

agency to adopt and implement guidelines consistent with the Attorney

General's [IAPP])." A crucial aspect of those policies is the confidentiality of

IA investigation case files. With limited exceptions, IA records are accessible


                                                                          A-2573-19T3
                                      16
only to IA personnel, the law enforcement agency executive, and the county

prosecutor, keeping the number of individuals with access to a minimum.

Section 9.6.1 sets forth the following confidentiality requirements:

            The nature and source of internal allegations, the
            progress of internal affairs investigations, and the
            resulting materials are confidential information. The
            contents of an internal investigation case file, including
            the original complaint, shall be retained in the internal
            affairs function and clearly marked as confidential. The
            information and records of an internal investigation
            shall only be released or shared under the following
            limited circumstances:

                  (a) If administrative charges have been brought
                  against an officer and a hearing will be held, a
                  copy of all discoverable materials shall be
                  provided to the officer and the hearing officer
                  before the hearing;

                  (b) If the subject officer, agency or governing
                  jurisdiction has been named as a defendant in a
                  lawsuit arising out of the specific incident
                  covered by an internal affairs investigation, a
                  copy of the internal investigation reports, may be
                  released to the subject officer, agency or
                  jurisdiction;

                  (c) Upon the request or at the direction of the
                  County Prosecutor or Attorney General; or

                  (d) Upon a court order.

"In addition, the law enforcement [agency's executive officer] may authorize

access to a particular file or record for good cause." Id. at § 9.6.2. Such access

                                                                          A-2573-19T3
                                       17
should be granted "sparingly, given the purpose of the [IA] process and the

nature of many of the allegations against officers." Ibid.

      Even Civilian Review Boards have limited access to IA investigations and

are subject to strict confidentiality requirements. "Internal investigation case

files generally are not releasable to Civilian Review Boards" unless the

investigation is "completed or closed," "good cause" is shown, "and the [Board]

has in place certain minimum procedural safeguards, as described in Section

9.7.2, to preserve the confidentiality of the requested records and the integrity

of the [IA] function, in addition to complying with all other applicable legal

requirements." Id. at § 9.7.1.

      In turn, Section 9.7.2(b)(1) requires that a Civilian Review Board must

meet "in a closed session whenever the content of [IA] records are discussed or

testimony or other evidence regarding a specific incident is presented." The

Civilian Review Board may not disclose any part of an IA file "to any person

who is not a Board member or employee, the law enforcement executive, or a

member of the law enforcement agency's [IA] function, except in a final public

report appropriately redacted in accordance with instructions from the law

enforcement executive." Id. at § 9.7.2(b)(2). Further, "the Civilian Review




                                                                         A-2573-19T3
                                      18
Board's final public report . . . may not disclose the personal identity of subject

officers, complainants, or witnesses." Id. at § 9.7.2(b)(3).

      These comprehensive restrictions are clearly designed to preserve the

integrity and confidentiality of all IA investigations.

      In accordance with N.J.S.A. 40A:14-181, the UCPO adopted and

implemented policies consistent with the IAPP to govern its IA investigations.

      The Use of Force Policy issued by the Attorney General "has 'the force of

law for police entities.'" Lyndhurst, 229 N.J. at 565 (quoting O'Shea, 410 N.J.

Super. at 382). Similar to the Use of Force guidelines examined in Lyndhurst

and O'Shea, we conclude the IAPP was created pursuant to such a statutory

mandate and has "the force of law in respect of the duties of law enforcement

agencies to conform to the requirements" when conducting internal affairs

investigations. O'Shea, 410 N.J. Super. at 384.

      The trial court noted that the IAPP states that an IA investigation case file

may be released by court order. It found that provision "suggest[ed] that in some

circumstances, a court may view that an [IA] investigation should be made

public" under OPRA and the common law right of access. Although we agree

that the court may order the release of an IA investigation case file when




                                                                           A-2573-19T3
                                       19
appropriate to do so, 4 IAPP Section 9.6.1(d) does not create an independent

substantive basis for release.

      Applying these standards, we hold that IA investigation reports and

documents are exempt from disclosure under OPRA and reverse the order

compelling defendants to produce the complete record of the IA investigation

relating to Cosgrove's conduct for in camera review.

      The documents plaintiff requested involved internal complaints filed by

subordinates against Cosgrove. Accordingly, the resulting IA investigation of

Cosgrove's conduct, and potential disciplinary action, "implicate[d] interests

beyond those of the parties themselves." Kovalcik, 206 N.J. at 595. Requiring

disclosure of such records could well result in far reaching negative impact,

impairing the laudable goals of IA investigations.




4
  There may be instances where an IA investigation case file is relevant and
probative in the defense of criminal charges or the prosecution of a civil action
brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -
42; the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2; or Conscientious
Employee Protection Act, N.J.S.A. 34:19-1 to -14. No such circumstances are
present here.



                                                                         A-2573-19T3
                                      20
      There are many reasons for maintaining confidentiality of the

complainants, witnesses, and officers involved in an IA investigation. As we

recently explained:

                   Disclosure of a complainant's identity could
             thwart an IA investigation, criminal investigation, or
             prosecution, or could disclose the name of an
             informant, and could taint an officer who was
             wrongfully accused.      It could also discourage
             complainants from coming forward, or encourage
             unwarranted complaints from people seeking
             notoriety.5

             [Fraternal Order of Police, 459 N.J. Super. at 507.]

      In addition, disclosure of the complainants, witnesses, and subject officers

could: reveal the name and location of inmates and informants, which may



5
   Some of these same concerns mirror the need for confidentiality under the
Patient Safety Act, N.J.S.A. 26:2H-12.23 to -12.25. The Legislature found that
"[f]ear of sanctions induces health care professionals and organizations to be
silent about adverse events, resulting in serious under-reporting." N.J.S.A.
26:2H-12.24(e). It "reasoned that health care professionals and other facility
staff are more likely to effectively assess adverse events in a confidential setting,
in which an employee need not fear recrimination for disclosing his or her own
medical error, or that of a colleague." C.A. ex rel. Applegrad v. Bentolila, 219
N.J. 449, 464 (2014). To achieve that result, the Act provides that "[a]ny
documents, materials, or information developed by a health care facility as part
a process of self-critical analysis conducted pursuant to [N.J.S.A. 26:2H-
12.25(b)] shall not be . . . subject to discovery or admissible as evidence or
otherwise disclosed in any civil, criminal, or administrative action or
proceeding." N.J.S.A. 26:2H-12.25(g)(1).


                                                                             A-2573-19T3
                                        21
subject them to harm; discourage complainants from coming forward because

they will not maintain anonymity; and encourage unwarranted complaints to

seek notoriety or target an officer for reasons other than wrongdoing.

      While we recognize that the trial court intended to redact the names and

identifying circumstances to protect the complainants and witnesses from

retribution and intimidation, that task would likely prove very difficult , if not

impossible. See L.R., 452 N.J. Super. at 90 (recognizing that "[u]nder certain

circumstances, even the redaction of all personally identifiable information

would not prevent reasonable persons . . . from identifying" an individual);

Lyndhurst, 441 N.J. Super. at 111 (noting that "[i]n some cases, in camera

review of a Vaughn index6 may be appropriate, because the release of even a

'detailed Vaughn index' to a requesting party 'may in some cases enable astute

parties to divine with great accuracy the names of confidential informers,

sources, and the like'" (quoting Loigman, 102 N.J. at 111)).         Because the



6
   "A Vaughn index is comprised of affidavits containing a 'relatively detailed'
justification for the claim of privilege being asserted for each document. The
judge analyzes the index to determine, on a document-by-document basis,
whether each such claim of privilege should be accepted or rejected." Paff v.
Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010) (citing Vaughn v.
Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973). The affidavits "ordinarily" omit
"excessive reference to the actual language of the document." Vaughn, 484 F.2d
at 826-27.
                                                                          A-2573-19T3
                                       22
complainants and witnesses are members of the EPD, their statements disclosing

the racist and sexist slurs that Cosgrove uttered, and his other discriminatory

actions, would likely disclose their identity or narrow the field to only a few

individuals, even if all personally identifiable information is redacted. Other

members of the EPD, as well as Cosgrove himself, could probably deduce who

reported the behavior.

      We question the adequacy of a redaction process that simply deletes

"names and circumstances" while leaving other information that would need to

be scrubbed from the records to prevent identification of the complainants and

witnesses from the redacted document. The identity of those persons can often

be readily determined from context or information that a judge conducting an in

camera review may deem innocuous. The ability to identify the complainants

and witnesses may well impair their safety and otherwise put them at risk of

retribution or intimidation.

      In addition, as we have noted, disclosure of the IA investigation would

discourage complainants and witnesses from coming forward in the future.

Particularly in the context of an IA investigation based on employees of a police

department complaining of discriminatory treatment by fellow employees or

their superior, the fear that anonymity will not be maintained could lead to


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                                      23
employees remaining silent about misconduct, thereby thwarting IA

investigations and resulting corrective and disciplinary action.

      The trial court alluded to appellants waiving the right to contest disclosure

of the IA investigation file due to the public statements made following the

conclusion of the investigation. We find no such waiver.

      "Generally, waiver is defined 'as the voluntary and intentional

relinquishment of a known and existing right.'"         Quigley v. KPMG Peat

Marwick, LLP, 330 N.J. Super. 252, 267 (App. Div. 2000) (emphasis omitted)

(quoting Williston on Contracts, § 39:14 (Lord ed. 2000)). "[T]here must be a

clear act showing the intent to waive the right." Cty. of Morris v. Fauver, 153

N.J. 80, 104 (1998) (citing W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27

N.J. 144, 152 (1958)).

      The limited information contained in the statements did not constitute an

intentional surrender of the right to assert the IA materials were confidential.

The statements did not identify the complainants or witnesses or disclose the

details of the internal complaints, the statements of witnesses, or other

confidential information. At most, the statements provided confirmation that

the investigation substantiated the allegations that Cosgrove had uttered

sexually harassing and racist slurs towards EPD employees, and that Cosgrove


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                                       24
should resign.   This limited disclosure did not amount to a voluntary and

intentional waiver of the confidentiality of the IA investigation.

      Finally, we disagree with the trial court's conclusion that "the normal

reasons for keeping the [IA] reports secret . . . are not as valid as they would

otherwise be" because "[t]he acting prosecutor issued a rather lengthy report

about the prosecutor's investigation and findings" and "Elizabeth publicly

announced corrective action." The statements made by the UCPO and the

Attorney General carefully avoided revealing information that would indirectly

identify the complainants and witnesses. The limited information provided did

not include the target of the slurs; the specific language used; or the specific

date, time, or location of the misconduct. Nor did it describe the circumstances

leading up to or following Cosgrove's actions.

      Because we hold that the IA investigation file and report are exempt from

disclosure under OPRA, we do not reach the issue of attorney's fees.

                                        C.

      OPRA contains a separate exemption for grievances. "A government

record shall not include the following information which is deemed to be

confidential for the purposes of [OPRA]: . . . information generated by or on

behalf of public employers or public employees in connection with any sexual


                                                                        A-2573-19T3
                                       25
harassment complaint filed with a public employer or with any grievance filed

by or against an individual."     N.J.S.A. 47:1A-1.1.7    Appellants argue that

disclosure is precluded under this exemption.

      The limited record does not contain the internal complaints filed against

Cosgrove or any other part of the IA investigation file. Appellants did not move

to supplement the record to include those documents by way of confidential

supplemental appendix. We are thus unable to review the format of the internal

complaints, the relief sought, whether they were filed pursuant to a collective

bargaining agreement, how they were presented, or the process the EPD initially

undertook when reviewing them. Consequently, we are effectively prevented

from determining if the complaints and resulting investigation fall within

OPRA's grievance exemption.




7
   We note that the Department of Law and Public Safety adopted a more
expansive grievance exception, which precludes OPRA access to any records
"specific to an individual employee . . . and relating to or which form the basis
of discipline, discharge, promotion, transfer, employee performance, employee
evaluation, or other related activities, whether open, closed, or inactive, except
for the final agency determination." N.J.A.C. 13:1E-3.2(a)(4). This definition
includes an IA investigation file relating to or forming the basis for discipline
or discharge based on racially or sexually discriminatory misconduct directed at
subordinate employees. We recognize, however, that this regulation applies to
the Department of Law and Public Safety, not local law enforcement agencies.


                                                                          A-2573-19T3
                                       26
      Moreover, appellants have not demonstrated, much less made a "clear

showing," that the grievance exemption applies in this matter.        Appellants

acknowledge that the UCPO's July 2019 denial letter to plaintiff's counsel did

not rely upon or even cite OPRA's grievance exemption. See Newark Morning

Ledger Co., 423 N.J. Super. at 162 (App. Div. 2011) ("[T]he reasons for

withholding documents must be specific. Courts will 'simply no longer accept

conclusory and generalized allegations of exemptions.'" (Quoting Loigman, 102

N.J. at 110)). Appellants' briefing to this court likewise fails to adequately

address the grievance exemption. 8

      The limited record and appellants' inadequate briefing significantly

impedes meaningful appellate review of this issue, which has not been addressed

in any published opinion. We therefore decline to address the issue. 9


8
  Appellants each cite the grievance exemption a single time in their appellate
briefs: The UPCO asserts "while not explicitly stated in its original denial, " it
denied "[p]laintiff's records request in accordance with N.J.S.A. 47:1A-1.1[]
which prohibits the disclosure if records concerning the filing of a grievance
against an employee"; Elizabeth merely notes that OPRA's exemptions include
"records concerning the filing of a grievance by or against a public employee."
9
  Appellate counsel is required to identify and fully brief any issue raised on
appeal. See Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 298 (App. Div.
2016); State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). An argument
based on conclusory statements is insufficient to warrant appellate review.
Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment , 361


                                                                          A-2573-19T3
                                       27
                                        IV.

      Plaintiff also sought release of the IA reports under the common law right

of access. The trial court did not reach this issue.

      The common law right of access reaches a broader class of documents

than its statutory counterpart. Higg-A-Rella, Inc. v. Cty. of Essex, 141 N.J. 35,

46 (1995) (citing Atl. City Convention Ctr. Auth. v. S. Jersey Publ'g Co., 135

N.J. 53, 60 (1994)). "To gain access to this broader class of materials, the

requestor must make a greater showing than OPRA requires . . . ." Lyndhurst,

229 N.J. at 578. The common law right to access public records hinges on three

requirements: "(1) the records must be common-law public documents; (2) the

person seeking access must establish an interest in the subject matter of the

material; and (3) the citizen's right to access must be balanced against the State's

interest in preventing disclosure." Keddie v. Rutgers, 148 N.J. 36, 50 (1997)

(citations and internal quotation marks omitted).       Furthermore, because the

common law right of access to documents is qualified, "one seeking access to

such records must 'establish that the balance of its interest in disclosure against



N.J. Super. 22, 45 (App. Div. 2003) (citing Miller v. Reis, 189 N.J. Super. 437,
441 (App. Div. 1983)). "[A]ny privacy concerns about a disclosure sought
pursuant to OPRA or the common law should be explained in detail." Paff
v.Ocean Cty. Prosecutor's Office, 235 N.J. 1, 28 (2018).


                                                                            A-2573-19T3
                                        28
the public interest in maintaining confidentiality weighs in favor of disclosure. '"

Ibid. (quoting Home News v. Dep't of Health, 144 N.J. 446, 454 (1996)).

      Here, there is no dispute that the IA documents are common law public

records. The items sought are "written memorial[s] . . . made by a public officer,

and . . . the officer [is] authorized by law to make it." Nero v. Hyland, 76 N.J.

213, 222 (1978) (quoting Josefowicz v. Porter, 32 N.J. Super. 585, 591 (App.

Div. 1954)). Plaintiff has the requisite interest in the subject matter of the

documents "to further a public good." Loigman, 102 N.J. at 104. Accordingly,

the critical factor is whether plaintiff's right to the documents outweighs

defendants' interest in preventing disclosure. The balancing of the competing

interests in disclosure and confidentiality often involves an "exquisite weighing

process." Id. at 108 (citation omitted).

      Our Supreme Court provided the following non-exhaustive list of factors

to consider in balancing the requester's needs against the public agency's interest

in confidentiality:

             (1) the extent to which disclosure will impede agency
             functions by discouraging citizens from providing
             information to the government; (2) the effect disclosure
             may have upon persons who have given such
             information, and whether they did so in reliance that
             their identities would not be disclosed; (3) the extent to
             which agency self-evaluation, program improvement,
             or other decisionmaking will be chilled by disclosure;

                                                                            A-2573-19T3
                                        29
            (4) the degree to which the information sought includes
            factual data as opposed to evaluative reports of
            policymakers; (5) whether any findings of public
            misconduct have been insufficiently corrected by
            remedial measures instituted by the investigative
            agency; and (6) whether any agency disciplinary or
            investigatory proceedings have arisen that may
            circumscribe the individual's asserted need for the
            materials.

            [Loigman, 102 N.J. at 113.]

      "To conduct the careful balancing that each case" requires, courts should

"look in particular at the level of detail contained in the materials requested. "

Lyndhurst, 229 N.J. at 580.       "More detailed disclosures" present greater

concerns. Ibid. To that end, "courts may perform an in camera inspection of

the requested records as they balance the relevant factors," L.R., 452 N.J. Super.

at 89 (citing Keddie, 148 N.J. at 53-54), and "are authorized to require the

redaction of records to maintain confidentiality," Id. at 90 (citing S. Jersey

Publ'g Co. v. N.J. Expressway Auth., 124 N.J. 478, 499 (1991)).

      When weighing these competing interests, "administrative regulations

bestowing confidentiality upon an otherwise public document, although not

dispositive of whether there is a common law right to inspect a public record,

should, nevertheless, weigh 'very heavily' in the balancing process, as a

determination by the Executive Branch of the importance of confidential ity."


                                                                          A-2573-19T3
                                       30
Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super.

504, 521 (App. Div. 2004) (quoting Home News, 144 N.J. at 455). While not

an "administrative rule" subject to the APA, the IAPP has the force of law and

is binding on local law enforcement agencies, including the UCPO and EPD. It

requires local law enforcement agencies to maintain the confidentiality of IA

investigation files. 10

      We acknowledge that the common law right of access remains an

independent means to obtain government records, id. at 516, and that "[n]othing

contained in [OPRA] shall be construed as limiting the common law right of

access to a government record, including criminal investigation records of a law

enforcement agency," N.J.S.A. 47:1A-8. Nevertheless, a court may consider

OPRA's exemptions "as expressions of legislative policy on the subject of

confidentiality," provided they do not "heavily influence the outcome of the

analysis" under the common law. Bergen Cty. Improvement Auth., 370 N.J.

Super. at 520-21. Thus, a court may consider that IA records are exempt under

OPRA when considering the common law right of access to such records.



10
   By analogy, pursuant to N.J.A.C. 13:1E-3.2(a)(4), Department of Law and
Public Safety records relating to the discipline or discharge of a specific
employee are excluded from the definition of government records subject to
access under OPRA.
                                                                        A-2573-19T3
                                      31
      Applying these standards, we hold that the need for nondisclosure

substantially outweighs plaintiff's need for disclosure of the IA records.

Loigman factors one, two, and three militate strongly against disclosure of IA

records. In that regard, the same concerns we have previously discussed apply

with equal force to the common law right of access. Likewise, the questionable

adequacy of protecting anonymity through simple redaction apply equally to the

common law right of access.

      In addition, pursuant to N.J.S.A. 40A:14-181, the UCPO adopted and

implemented guidelines consistent with the IAPP that compel the UCPO to

maintain the confidentiality of the IA investigation and report.

      Reversed and remanded for the entry of an order consistent with this

opinion.




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                                      32
