Op-Ed: The secrecy must end. Give public access to NJ law enforcement disciplinary records

Josh Fine | February 19, 2021 | Opinion, Social
Providing transparency would breed trust, support effective policing and help protect our civil rights. State lawmakers can make that happen
Josh Fine

New Jerseyans need to demand legislative changes to address systemic issues that continue to exist in law enforcement throughout New Jersey. When it comes to transparency in the police internal affairs process, and access to police disciplinary records, state Attorney General Gurbir Grewal has publicly acknowledged that “New Jersey’s extremely strict confidentiality is not an example of standard practice” throughout the United States.

Sen. Loretta Weinberg’s bill (S-2656), and its identical companion bill in the Assembly (A-5301), which is sponsored by Assemblywoman Verlina Reynolds-Jackson, would make law enforcement disciplinary records accessible as government records under the New Jersey Open Public Records Act. Adopting S-2656/A-5301 as law will provide transparency, which will breed trust, support effective policing and help protect our civil rights.

Addressing privacy concerns

Now some assert that keeping law enforcement disciplinary records inaccessible to the public is necessary to protect police officers from harm, due to a notion that disclosure of such records may lead to police officers having their privacy rights invaded, and their lives and livelihoods put in jeopardy.

Regarding privacy concerns, S-2656/A-5301 will provide transparency while ensuring that certain information pertaining to the law enforcement officer, or the officer’s family, the complainant, or the complainant’s family, and a witness, or the witness’ family, will be redacted to protect those individuals.

Further, in 2019, a study of 344 law enforcement administrators in 12 states that allow some or total access to law enforcement disciplinary records was conducted. Only one of the 344 respondents, “identified any physical harm to an officer in their department,” and the harm was described “as ‘[p]hysical and verbal harassment,’ with no additional information provided.” While 13% of administrators believed officers had suffered reputational harm due to disciplinary records being accessible to the public, almost five times as many, 60% of them, believed their department or community had benefited from disclosure of such records. These administrators argue that accessible records improve public trust, foster transparency, and show that misconduct is being taken seriously by law enforcement.

Evidence of benefits to police

Additional evidence of the benefits of public access to law enforcement disciplinary records is seen in a 2020 study from the Kelley School of Business at Indiana University. Data sets collected from police departments of three large cities (Chicago, Los Angeles, and Philadelphia) showed that despite essentially the same number of misconduct allegations, Black police officers were more likely to be disciplined for misconduct than white police officers. Clearly, making law enforcement disciplinary records public would allow police officers of all dimensions of diversity to see whether disciplinary action is fairly administered throughout their departments.

Those opposed to S-2656/A-5301 argue that these bills should not be passed because the public would then have access to information currently protected by prior nondisclosure agreements made between police departments and officers regarding misconduct. They also assert that it would be unfair to pass a law changing New Jersey’s unjust strict confidentiality in regard to law enforcement disciplinary records as police departments have previously negotiated the terms providing such strict confidentiality under their collective bargaining agreement. While the Legislature may be able to void prior nondisclosure agreements because they run counter to public policy, and passing S-2656/A-5301 as law may override the terms of the collective bargaining agreement, these issues would probably be litigated, if S-2656/A-5301 becomes law.

So why should a state senator or Assembly member vote in favor of the  measure if law enforcement advocates oppose it and will likely file litigation if it is passed? The answer is simple. It is the moral and just thing to do. Just because there will likely be litigation by law enforcement advocates, that should not absolve our lawmakers from their responsibility to vote to make law enforcement disciplinary records accessible to the public, which will be a step toward making a more just society in our state.

In the name of equity and justice, it is time for New Jersey to catch up with other states that have made strides to provide transparency in the police internal affairs process and access to police disciplinary records. The secrecy must end. New Jerseyans can make this happen if our lawmakers hear from us directly. We need to contact our state legislators and urge them to pass S-2656/A-5301 in 2021.