By Kevin Shea
nj.com
TRENTON, N.J. — The New Jersey Supreme Court on Monday ruled that the internal affairs report that led to the resignation of Elizabeth’s police director three years ago should be released publicly and gave guidance on how courts should handle future requests for documents that have long been cloaked in confidentiality.
The high court, in a 6-0 decision, actually ruled that such reports are not disclosable under the state’s Open Public Records Act (OPRA) but they “can and should” be disclosed under common law when public interest outweighs confidentiality concerns.
CJ Griffin, an attorney who argued the case, said it’s a landmark decision, and while New Jersey as a whole still lags behind others in public disclosure, “This is a tremendous advance in transparency.”
The case concerned James Cosgrove, the ex-Elizabeth police director who resigned in May 2019, shortly after an internal affairs investigation found he used racial and sexist slurs against staffers for years, and called Black and female employees the n-word and c-word.
He’d been the civilian director for just over 20 years following a 31-career as a Newark police officer.
Former New Jersey police officer and open public records advocate Richard Rivera requested the Cosgrove report – investigated and produced by the Union County Prosecutor’s Office – via OPRA and common law requests.
The prosecutor’s office denied the requests, citing confidentiality of witnesses’ expectation of privacy and their ability to conduct future, similar investigations.
Rivera sued with Griffin as his lawyer, and the City of Elizabeth eventually joined the legal action as the case was heard at the trial and appellate levels – which examined both OPRA and common law arguments.
A trial court first ruled the report should be made available under OPRA. An appellate court reversed that decision and found the report non-disclosable for other OPRA grounds, and rejected Rivera’s common law claims.
The Supreme Court sided with common law disclosure, but the decision is not a blanket for any such report to sail out of a New Jersey police department.
The court laid out several benchmarks for trial courts to consider when confronted with such a request to balance public disclosure against confidentially. They include, the nature and seriousness of the misconduct, whether it was substantiated, the discipline imposed, the officer or official’s position and their prior record of misconduct, the high court wrote.
And, if the report is made public, appropriate redactions should be made, like names of complainants, witnesses, informants and cooperators, and personal identifying information about officers and others, such as their home addresses and phone numbers.
“In this case, the public interest in disclosure is great,” the decision written by Chief Justice Stuart Rabner says.
“As someone at the highest echelon of the department, [Cosgrove’s] behavior had the capacity to influence others and set the tone for the department. His position could also cast doubt on the department’s internal affairs process and its ability to monitor itself, and raise questions about whether others knew what was happening.”
And it went on, “Racist and sexist conduct by the civilian head of a police department violates the public’s trust in law enforcement. It undermines confidence in law enforcement officers generally, including the thousands of professionals who serve the public honorably.”
The Union prosecutor’s office and City of Elizabeth did not immediately respond to requests for comment.
The decision is key because, “common law can be very powerful law,” Griffin said.
Griffin likened it to the Supreme Court’s Lyndhurst decision, in 2017, which uncloaked police dash camera footage using common law, and now such footage is regularly released to the public upon request.
With this, the Cosgrove decision, Griffin does not see it being used for minor internal affairs matters, as the high court signaled.
However, “I hope [law enforcement] agencies will take it seriously. If not, we’ll sue them in trial court,” Griffin said bluntly.
The Cosgrove decision comes after another public records win, last week, that Griffin also argued, in which the Supreme Court ruled that Cumberland County must disclose its settlement agreement with a corrections officer who was charged administratively with wrongdoing, but later retired in good standing after cooperating with investigators.
Griffin represented Libertarians for Transparent Government in that case.
“Looking at them together, this is a significant expansion of [public transparency in New Jersey],” Griffin said.
“It’s a sea change from a week and a day ago.”
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