WEBVTT 2 00:00:07.820 --> 00:00:14.394 C.J. GRIFFIN: CJ GRIFFIN FROM THE LAW FIRM PASHMAN, STEIN, 3 00:00:14.394 --> 00:00:19.396 WALDER AND HAYDEN. ALEXANDER SHALOM: ALLAN SHALOM FROM THE 4 00:00:19.396 --> 00:00:22.738 AMERICAN CIVIL LIBERTIES AS A FRIEND OF THE COURT. MICHAEL R. NOVECK: 5 00:00:22.738 --> 00:00:33.707 MICHAEL NOVECK, ASSISTANT DEPUTY PUBLIC DEFENDER. APRIL C. 6 00:00:33.707 --> 00:00:38.882 BAUKNIGHT: APRIL BAUKNIGHT, ASSISTANT COUNTY COUNSEL ON BEHALF OF THE UNION COUNTY 7 00:00:38.882 --> 00:00:43.377 PROSECUTOR'S OFFICE. ROBERT F. VARADY: ROBERT VARADY FOR 8 00:00:43.377 --> 00:00:49.654 THE DEFENDANTS CITY OF ELIZABETH, AN INTERVENOR IN THIS MATTER. 9 00:00:49.654 --> 00:00:55.086 ALEC SCHIERENBECK: ALEC SCHIERENBECK HERE ON BEHALF OF THE ATTORNEY 10 00:00:55.086 --> 00:00:56.869 GENERAL. CHIEF JUSTICE RABNER: GOOD MORNING, ALL COUNSEL AND 11 00:00:56.869 --> 00:01:01.926 WELCOME. WITH SIX COUNSEL THIS MORNING, I JUST WANT TO ISSUE OUR USUAL REMINDER. 12 00:01:01.926 --> 00:01:07.647 TO THE EXTENT YOU'RE ABLE TO INCORPORATE ARGUMENTS THAT HAVE BEEN MADE BEFORE 13 00:01:07.647 --> 00:01:11.886 YOUR TURN COMES, PLEASE FEEL FREE TO DO SO. CJ GRIFFIN: GOOD MORNING, 14 00:01:11.886 --> 00:01:15.032 YOUR HONOR. MAY I RESERVE A FEW MINUTES FOR REBUTTAL? CHIEF 15 00:01:15.032 --> 00:01:16.798 JUSTICE RABNER: YES. CJ GRIFFIN: THANK YOU. 16 00:01:16.798 --> 00:01:21.576 MAY IT PLEASE THE COURT. WHEN WE FIRST FILED THIS CASE, MY CLIENT WAS A POLICE 17 00:01:21.576 --> 00:01:25.956 PRACTICES EXPERT WITH A LONG HISTORY OF LEADERSHIP IN CIVIL RIGHTS 18 00:01:25.956 --> 00:01:30.437 ORGANIZATIONS. THIS YEAR HE BECAME A PLEAS DIRECTOR OF A MUNICIPAL POLICE 19 00:01:30.437 --> 00:01:36.260 DEPARTMENT AND HIS PERSPECTIVE HAS CHANGED SORT OF. HE NOW BELIEVES THAT TRANSPARENCY 20 00:01:36.260 --> 00:01:44.714 BENEFITS THE PUBLIC BUT ALSO THE POLICE. BECAUSE MY CLIENT LARGELY SEES 21 00:01:44.714 --> 00:01:53.336 EYE TO EYE WITH THE ATTORNEY GENERAL, THAT'S WHERE I'M GOING TO FOCUS BY STATEMENT 22 00:01:53.336 --> 00:01:56.890 ON THE COMMON LAW. WE AGREE WITH THE ATTORNEY GENERAL THAT 23 00:01:56.890 --> 00:02:08.211 THE COURT SHOULD ESTABLISH A FRAMEWORK PUBLIC ACCESS TO I EVEN IN A VERY 24 00:02:08.211 --> 00:02:13.565 HIGH PROFILE CASE LIKE THIS WHERE THERE'S SUSTAINED FINDINGS OF RACIST AND SEXIST 25 00:02:13.565 --> 00:02:18.783 BEHAVIOR BY A POLICE DIRECTOR AND WHERE A PROSECUTOR STILL WON'T TURN OVER 26 00:02:18.783 --> 00:02:25.766 THE FILES. TO RECEIVE THE FULL BENEFITS OF TRANSPARENCY, IT MUST COME SWIFTLY 27 00:02:25.766 --> 00:02:30.219 AND THE COURT'S GUIDANCE IS NEEDED. WE THINK THAT THE ATTORNEY 28 00:02:30.219 --> 00:02:36.509 GENERAL HAS PROVIDED A GOOD FRAMEWORK FOR COMMON LAW ACCESS. THAT'S A GOOD 29 00:02:36.509 --> 00:02:44.346 STARTING POINT AND IT WOULD SUBSTANTIALLY INCREASE TRANSPARENCY IN THE IA PROCESS. 30 00:02:44.346 --> 00:02:56.655 WE DO AGREE THAT MISCONDUCT INVOLVING EXCESSIVE OR DEADLY FORCE THAT THE 31 00:02:56.655 --> 00:03:04.018 BALANCING TEST WAYS IN FAVOR OF ACCESS THERE. I WOULD LOVE TO PROVIDE SOME EXAMPLES 32 00:03:04.018 --> 00:03:08.951 OF HOW THE PUBLIC IMPORTANCE OF THESE CATEGORIES IS SIGNIFICANT AND HOW THE 33 00:03:08.951 --> 00:03:15.274 PARTIAL TRANSPARENCY THAT WE CURRENTLY HAVE WOULD KIND OF HINDERS AND HARMS POLICE 34 00:03:15.274 --> 00:03:18.227 OFFICERS TOO IN ADDITION TO THE PUBLIC INTEREST. WE WOULD, 35 00:03:18.227 --> 00:03:24.261 HOWEVER, EXPAND THE ATTORNEY GENERAL'S CATEGORIES TO INCLUDE DOMESTIC AND SEXUAL 36 00:03:24.261 --> 00:03:30.256 VIENGS, CONCEALMENT OR FABRICATION OF EVIDENCE, FALSIFYING REPORTS, MISUSE 37 00:03:30.256 --> 00:03:36.435 OF FIREARMS IN CONDUCT THAT IS CRIMINAL OR OTHERWISE VIOLATES THE LAW SOMEHOW. 38 00:03:36.435 --> 00:03:44.113 WE ALSO BELIEVE THAT THE PUBLIC SHOULD BE ABLE TO ACCESS IA FILES THAT DIRECTIVE 39 00:03:44.113 --> 00:03:49.542 2025 WHICH THIS COURT RECENTLY UPHELD. IT MAKES NO SENSE TO US THAT THE PUBLIC 40 00:03:49.542 --> 00:03:54.812 CAN LEARN THE NAME OF THE OFFICER WHO RECEIVES DISCIPLINE BUT NOT RECEIVE 41 00:03:54.812 --> 00:04:00.174 THE CORRESPONDING RECORDS. AND I CAN GIVE YOU EXAMPLES THAT HAVE BEEN REPORTED 42 00:04:00.174 --> 00:04:04.580 IN THE PRESS ABOUT HOW AGENCIES THIS PAST YEAR HAVE BEEN I'LL CALL IT LESS 43 00:04:04.580 --> 00:04:09.702 THAN ACCURATE IN THEIR DISCLOSURES JUST BASED ON INFORMATION THAT A PRESS HAS BEEN 44 00:04:09.702 --> 00:04:13.598 ABLE TO GLEAN FROM THE PUBLIC DOMAIN. WE AGREE WITH THE ATTORNEY 45 00:04:13.598 --> 00:04:17.760 GENERAL THAT COSGROVE'S RECORDS SHOULD BE REDACTED AND RELEASE ND THIS CASE. 46 00:04:17.760 --> 00:04:22.247 AND WE DISAGREE WITH THE PROSECUTOR'S ASSERTION THAT THERE IS ALWAYS A STRONG 47 00:04:22.247 --> 00:04:27.265 CONFIDENTIALITY INTEREST IN EVERY CASE THAT MUST BE BALANCED AGAINST TRANSPARENCY. 48 00:04:27.265 --> 00:04:33.760 THE FACT THAT IA RECORDS ARE PUBLIC IN SO MANY OTHER STATES UNDERMINES ARGUMENTS 49 00:04:33.760 --> 00:04:40.560 THAT IF THERE'S TRANSPARENCY. I CITED IN MY BRIEF SHOWS THAT TRANSPARENCY 50 00:04:40.560 --> 00:04:45.692 HAS NOT RESULTED IN HARM THERE. GENERALIZED CLAIMS OF HARM HAVE NEVER BEEN 51 00:04:45.692 --> 00:04:50.964 SUFFICIENT TO WITHHOLD RECORDS FOR OPRA FOR THE COMMON LAW. THERE MUST ALWAYS 52 00:04:50.964 --> 00:04:55.066 BE CASE SPECIFIC REASONS AND THE BURDEN OF PROOF IS ALWAYS ON THE PUBLIC AGENCY. THE 53 00:04:55.066 --> 00:04:59.136 ONLY REASON WE KNOW ABOUT JAMES COSGROVE'S BEHAVIOR THERE IS BECAUSE THE 54 00:04:59.136 --> 00:05:07.929 PLAINTIFFS INVITED PUBLIC CITY BY GOING TO THE PRESS. THAT'S SIGNIFICANTLY UNDERMINES 55 00:05:07.929 --> 00:05:11.961 THE PROSECUTOR'S CLAIMS THAT WITNESSES RECEIVED CONFIDENTIALITY IN THIS CASE 56 00:05:11.961 --> 00:05:17.772 AND THERE'S ALSO A VAUGHN INDEX IN THAT FILE THAT SHOWS AT LEAST ONE COMPLAINT 57 00:05:17.772 --> 00:05:26.876 THAT WAS COPIED IN THE PRESS ON E-MAILS WITH THE IA INVESTIGATORS NO. RECORD 58 00:05:26.876 --> 00:05:30.552 WAS DEVELOPED BY THE TRIAL COURT AND THE DEFENDANTS DID NOT VOLUNTARILY 59 00:05:30.552 --> 00:05:33.604 DISCLOSE THESE FACTS AND THE APPELLATE DIVISION ALSO DID NOT HAVE THE BENEFIT OF 60 00:05:33.604 --> 00:05:37.577 KNOWING THAT THE ATTORNEY GENERAL BELIEVES THESE RECORDS SHOULD BE RELEASE 61 00:05:37.577 --> 00:05:44.037 D. THE REALITY IS IN MANY OF THESE CASES COMPLAINANTS MAY NOT EVEN DESIRE STRICT 62 00:05:44.037 --> 00:05:48.647 CONFIDENTIALITY DESPITE THAT BEING THE REASON THE APPELLATE DIVISION DENIED 63 00:05:48.647 --> 00:05:55.953 ACCESS TO THEM. LAW ENFORCEMENT AGENCY WOULD HOLD RECORDS BASED ON SOME ASSERTION 64 00:05:55.953 --> 00:06:01.350 THAT THE THIRD PARTY WANTED PRIVACY ONLY TO HAVE THAT THIRD PARTY COME OUT 65 00:06:01.350 --> 00:06:06.990 AND SAY THEY WANT DISCLOSURE. NONETHELESS MY CLIENT HAS MADE IT CLEAR THAT HE 66 00:06:06.990 --> 00:06:13.883 CONSENTS TO THE REDACTIONS TO PROTECT. GIVE THE PUBLIC MORE DETAILS ABOUT HIS 67 00:06:13.883 --> 00:06:19.177 BEHAVIOR, HOW LONG IT WENT ON, WHETHER THERE WERE PRIOR COMPLAINTS SWEPT 68 00:06:19.177 --> 00:06:24.145 UNDER THE RUG. WHETHER THE MAYER OR POLICE CHIEF NEW ABOUT THE BEHAVIOR OR 69 00:06:24.145 --> 00:06:29.948 ENABLED IT. I'VE STOOD BEFORE THIS COURT MANY TIMES COMPLAINING THAT THE COMMON 70 00:06:29.948 --> 00:06:34.523 LAW ISN'T A VIABLE PATH FOR A VARIETY OF REASONS. . OF THOSE REASONS REMAIN. 71 00:06:34.523 --> 00:06:41.237 BUT I BELIEVE IT CAN BE A VIABLE PATH THAT THE COURT ISSUES AN OPINION. AND I'LL 72 00:06:41.237 --> 00:06:46.829 SAY THAT BECAUSE OF THIS COURT'S DECISION IN NORTH JERSEY MEDIA GROUP VERSUS 73 00:06:46.829 --> 00:06:52.578 TOWNSHIP OF LYNDHURST, POLICE DASH CALMS ARE ALWAYS RELEASE TO DO THE PUBLIC NOW. 74 00:06:52.578 --> 00:07:06.430 BUT THE DECISION WAS CLEAR AND PROVIDED -- CLEAR AND SCAN ZIVE. TO ACCESS 75 00:07:06.430 --> 00:07:12.409 TO IA FILES TOO WHETHER THROUGH OPRA OR THROUGH THE COMMON LAW. 76 00:07:12.409 --> 00:07:15.693 THANK YOU. THAT CONCLUDES MY OPENING STATEMENT IF THE COURT HAS QUESTIONS. 77 00:07:15.693 --> 00:07:18.297 CHIEF JUSTICE RABNER: COUNSEL, I UNDERSTAND YOUR REASON FOR STARTING 78 00:07:18.297 --> 00:07:24.543 WITH THE COMMON LAW AND YOU MADE THAT QUITE CLEAR PIVOTING OFTEN OF THE ATTORNEY 79 00:07:24.543 --> 00:07:29.120 GENERAL'S BRIEF. ARE YOU STILL ADVANCING A CLAIM UNDER OPRA? 80 00:07:29.120 --> 00:07:32.570 CJ GRIFFIN: YES, I AM. WE LED WITH THE COMMON LAW BECAUSE OF COURSE THE ATTORNEY 81 00:07:32.570 --> 00:07:36.802 GENERAL HAS WEIGHED IN ON THAT. BUT I AM. I RECOGNIZE THAT THE OPRA ARGUMENT 82 00:07:36.802 --> 00:07:45.256 IS HARDER GIVEN SOME OF THE LANGUAGE FROM THE COURT IN THE F O P CASE, THE CC R 83 00:07:45.256 --> 00:07:53.133 P CASE INVOLVING NEWARK WELL AS AS THE DIRECTIVE 2025-CASE. SO I WILL RELY 84 00:07:53.133 --> 00:07:57.257 ON MY BRIEF. BUT I WOULD LIKE TO ADD OR FURTHER EXPLAIN ONE OF MY ARGUMENTS IN 85 00:07:57.257 --> 00:08:01.794 THE BRIEF. WHICH IS ABOUT THE DECISION TO WITHHOLD DOCUMENTS UNDER THE IAPP 86 00:08:01.794 --> 00:08:08.140 BEING SUBJECT TO JUDICIAL REVIEW. WHAT I MEAN BY THAT IS, WE DISAGREE FOR THE REASONS 87 00:08:08.140 --> 00:08:13.315 STATED IN MY BRIEF THAT THE IAPP CAN EXEMPT RECORDS FROM OPRA. AND IN-DEED IT 88 00:08:13.315 --> 00:08:18.046 DOESN'T EVEN MENTION OPRA OR SAY THAT IT DOES. IT TALKS ABOUT CONFIDENTIALITY. 89 00:08:18.046 --> 00:08:23.221 THAT'S BINDING UPON THE LAW ENFORCEMENT AGENCIES. SNOT THE TOWN RECORD CUSTODIAN, 90 00:08:23.221 --> 00:08:30.211 NOT OTHERS. BUT IF THE COURT DOES BELIEVE THAT THE IAPP COULD CREATE AN 91 00:08:30.211 --> 00:08:44.475 EXEMPTION, WE STILL THINK IT DOESN'T CREATE A CATEGORICAL EXEMPTION. AN EXAMPLE 92 00:08:44.475 --> 00:08:52.204 OF THAT IS THE CRIMINAL INVESTIGATORY RECORDS EXEMPTION P EXEMPTION, A 93 00:08:52.204 --> 00:08:58.406 RECORD FALLS WITHIN IT IF IT DID NOT REQUIRE THE MAIN KAND DECIDES THOSE. IF 94 00:08:58.406 --> 00:09:03.266 THOSE TWO PRONGS ARE MET AND THEN IT'S CATEGORICALLY EXEMPT. WHERE THERE'S 95 00:09:03.266 --> 00:09:07.809 JUDICIAL REVIEW, IT'S A QUESTION OF LAW, WHETHER THERE IS A LAW OR WHETHER IT PERTAINS 96 00:09:07.809 --> 00:09:14.258 TO AN INVESTIGATION. BUT THERE'S ANOTHER TYPE OF EXEMPTION AND THAT'S SIMILAR 97 00:09:14.258 --> 00:09:22.491 TO SECTION 3B OF OPRA WHICH WAS AT ISSUE IN THE LYNDHURST ISSUE CASE WELL AND THAT IS 98 00:09:22.491 --> 00:09:26.787 WHERE THERE'S A STANDARD THAT ALLOWS AN AGENCY TO DETERMINE IF SOME SORT 99 00:09:26.787 --> 00:09:32.983 OF HARM WOULD OCCUR IF THERE IS RELEASE. SO IN SECTION 3B, INFORMATION SHOULD BE 100 00:09:32.983 --> 00:09:37.052 DISCLOSED UNLESS THE LAW ENFORCEMENT OFFICIAL DECIDES THAT DISCLOSURE WOULD 101 00:09:37.052 --> 00:09:43.207 UNDERMINE AN INVESTIGATION OR PUT SOMEONE IN JEOPARDY. AND THEN THE COURT REVIEWS 102 00:09:43.207 --> 00:09:48.375 THAT DETERMINATION AND DECIDES WHETHER OR NOT THAT WAS AN ACCURATE USE OF THE 103 00:09:48.375 --> 00:09:55.816 DISCRETION. AND IN LYNDHURST THE COURT REVERSED THAT DECISION. WE THINK THE IAPP 104 00:09:55.816 --> 00:10:02.800 FALLS WITHIN THIS SECOND TYPE OF EXEMPTION. THE REASON IS THAT IT SAYS 105 00:10:02.800 --> 00:10:07.667 THAT RECORDS ARE GENERALLY CONFIDENTIAL BUT THEN PROVIDES SOME PATHS TO DISCLOSURE. 106 00:10:07.667 --> 00:10:12.581 ONE OF WHICH IS IF THE PROSECUTOR, WHO'S THE DEFENDANT IN THIS CASE, OR THE 107 00:10:12.581 --> 00:10:17.993 ATTORNEY GENERAL, WHO HAS WEIGHED IN, DECIDES THAT THEY SHOULD BE RELEASED. WE THINK 108 00:10:17.993 --> 00:10:23.055 THAT IN THIS CASE THAT DECISION SHOULD BE SUBJECT TO JUDICIAL REVIEW TO 109 00:10:23.055 --> 00:10:26.576 DETERMINE IF IT WAS THE ACCURATE DECISION JUST LIKE ANY OTHER RECORDS CUSTODIANS 110 00:10:26.576 --> 00:10:31.400 DECISION WOULD BE SUBJECT TO JUDICIAL REVIEW. AND IN THIS CASE WE THINK THAT THE 111 00:10:31.400 --> 00:10:35.783 PROSECUTOR ERRED AND THE COURT SHOULD REVERSE IT. AND THAT'S ESPECIALLY 112 00:10:35.783 --> 00:10:40.817 TRUE NOW THAT THE ATTORNEY GENERAL, THE AUTHOR OF THE POLICY, SAYS THESE RECORDS 113 00:10:40.817 --> 00:10:44.479 SHOULD BE RELEASED WITH REDACTIONS. SO THAT IS OUR OPRA ARGUMENT. 114 00:10:44.479 --> 00:10:47.648 CHIEF JUSTICE RABNER: I WANT TO GO BACK A STEP TO JUST SOME OF THE BASICS. AND 115 00:10:47.648 --> 00:10:52.052 I APPRECIATE WHERE YOU BEGAN, ACKNOWLEDGING THAT THIS IS A HARDER ARGUMENT 116 00:10:52.052 --> 00:10:56.205 THAN THE COMMON LAW ARGUMENT. I ALSO DON'T WANT TO SPEND TOO MUCH TIME ON 117 00:10:56.205 --> 00:11:00.334 IT. LET ME JUST ASK FROM A HIGHER VIEW. WE'RE LOOKING AT 118 00:11:00.334 --> 00:11:06.667 SECTIONS ONE AND 9A OF OPRA. PURSUANT TO WHICH ITEMS THAT ARE EXEMPT FROM 119 00:11:06.667 --> 00:11:10.892 DISCLOSURE UNDER A REGULATION AUTHORIZED BY STATUTE AREN'T CONSIDERED GOVERNMENT 120 00:11:10.892 --> 00:11:16.173 RECORDS. HERE WE HAVE THE ATTORNEY GENERAL ADOPTING A REGULATION PURSUANT TO 121 00:11:16.173 --> 00:11:21.211 STATUTORY AUTHORITY AND TITLE 52. WHY ISN'T THAT SUFFICIENT TO RESOLVE THE 122 00:11:21.211 --> 00:11:24.982 ISSUE WITH RESPECT TO THE OPRA ARGUMENT? CJ GRIFFIN: WELL, 123 00:11:24.982 --> 00:11:31.166 SO I DO DISCUSS THIS EXTENSIVELY IN THE BRIEF, BUT WHAT I WOULD SAY IS THAT 124 00:11:31.166 --> 00:11:40.915 THE STATUTE -- 18140 A-14181 DOES REQUIRE LAW ENFORCEMENT AGENCIES TO ADOPT THE 125 00:11:40.915 --> 00:11:47.905 IAPP. BUT IT DOESN'T -- THE STATUTE ITSELF DOESN'T MENTION 126 00:11:47.905 --> 00:11:54.258 CONFIDENTIALITY. I CITE LEGISLATIVE HISTORY IN MY BRIEF THAT TALKS ABOUT THE BACKGROUND 127 00:11:54.258 --> 00:11:58.839 OF THAT STATUTE AND WHAT THE FOCUS OF IT WAS AND IT WAS MORE ABOUT THE PROCEDURES 128 00:11:58.839 --> 00:12:04.883 FOR DISCIPLINE AND THE CIVIL SERVICE LAWS AND THOSE SORT OF THINGS. SO 129 00:12:04.883 --> 00:12:11.116 IT'S SORT OF TWICE RE-MOVED TYPE OF EXEMPTION. BUT I CAN NICE THAT THE APPELLATE 130 00:12:11.116 --> 00:12:15.774 DIVISION IN THAT CASE HELD THAT THEY FELT IT GAVE THE IAPP THE FORCE OF LAW. 131 00:12:15.774 --> 00:12:21.643 I THINK IT WOULD BE IMPORTANT FOR THE COURT TO AT LEAST RECOGNIZE THAT THE ATTORNEY 132 00:12:21.643 --> 00:12:26.388 GENERAL CAN'T EXEMPT ANY RECORD THROUGH A MERE POLICY. THAT IT WOULD ONLY 133 00:12:26.388 --> 00:12:32.272 BE THE UNIQUE FACT THAT THERE'S 181 HERE THAT MIGHT GIVE THE IAPP MORE STATUTORY 134 00:12:32.272 --> 00:12:37.382 FORCE THAN JUST THE GENERAL POLICY. WHAT WE WOULD HATE TO HAPPEN IS IF AGENCIES 135 00:12:37.382 --> 00:12:43.300 STARTED -- OR FO THE ATTORNEY GENERAL STARTED EXEMPTING OTHER RECORDS FOR OTHER 136 00:12:43.300 --> 00:12:46.868 TYPES OF POLICIES THAT DON'T HAVE THIS PARTICULAR STATUTE. 137 00:12:46.868 --> 00:12:50.705 CHIEF JUSTICE RABNER: LET ME COME BACK TO THE COMMON LAW. LYNDHURST, FOR EXAMPLE, 138 00:12:50.705 --> 00:12:57.076 ADDRESSED DASH CAM FOOTAGE AND TRIED TO GIVE GUIDANCE WITH RESPECT TO THE CASE 139 00:12:57.076 --> 00:13:01.634 THAT WAS IN FRONT OF THE COURT. IF I UNDERSTAND YOU CORRECTLY, YOU'RE ASKING FOR 140 00:13:01.634 --> 00:13:06.574 -- YOUR WORDS -- A COMPREHENSIVE FRAMEWORK THAT WOULD APPLY TO A VARIETY 141 00:13:06.574 --> 00:13:12.746 OF DIFFERENT KINDS OF MATTERS, NOT LIMITED TO THE CASE AND THE FACTS THAT ARE BEFORE 142 00:13:12.746 --> 00:13:16.925 THE COURT HERE. WHICH IS NOT WHAT COURT'S TYPICALLY DO. IS THAT YOUR POSITION? 143 00:13:16.925 --> 00:13:21.722 CJ GRIFFIN: THAT IS MY POSITION. AND IN LARGE PART IT'S 144 00:13:21.722 --> 00:13:27.601 BECAUSE OF TWO THINGS. OR MAYBE THREE THINGS. FIRST OF ALL, THE LYNDHURST DECISION 145 00:13:27.601 --> 00:13:33.048 DID CHANGE MY MIND ABOUT THE IMPORTANCE OF THE COMMON LAW. I USED TO RARELY 146 00:13:33.048 --> 00:13:37.402 BRIEF THE COMMON LAW BECAUSE I DIDN'T SEE IT AS HAVING MUCH WEIGHT. BUT BECAUSE 147 00:13:37.402 --> 00:13:42.384 OF THE LYNDHURST DECISION, POLICE DEPARTMENTS ALWAYS RELEASE DASH CALMS 148 00:13:42.384 --> 00:13:49.647 NOW. I THINK I'VE HAD TO SUE FOR ONE SINCE 2017. AND THE COURT DID DECIDE ON THE 149 00:13:49.647 --> 00:13:54.274 SPECIFICS OF THAT CASE, BUT THE GUIDANCE WAS BROAD ENOUGH THAT AGENCIES COULD APPLY 150 00:13:54.274 --> 00:14:00.473 IT. HERE, MY HOPE WAS THAT THE BEGAN NET VERSUS NEPTUNE 151 00:14:00.473 --> 00:14:09.584 PUB LICKED APPELLATE DECISION WOULD CAUSE AGENCIES TO RELEASE IA REPORTS IN CASES 152 00:14:09.584 --> 00:14:17.471 THAT INVOLVE IMPORTANT PUBLIC INTEREST ISSUES. BUT AGENCIES STILL AREN'T. 153 00:14:17.471 --> 00:14:26.083 THEY'RE STILL SAYING IAPP IS COMPLETELY CONFIDENTIAL. THE BEGAN NET CASE REFERENCES 154 00:14:26.083 --> 00:14:32.898 THE UNIQUE FACTS. SO I THINK LOWER COURTS NEED GUIDANCE THE ATTORNEY GENERAL 155 00:14:32.898 --> 00:14:38.616 IS ASKING THE COURT TO PROVIDE THAT GUIDANCE. I SAID IT IN MY OPENING. FOR 156 00:14:38.616 --> 00:14:44.542 TRANSPARENCY TO MATTER IT HAS TO BE SWIFT. WE'RE ALREADY THREE YEARS PAST 157 00:14:44.542 --> 00:14:49.823 COSGROVE'S CONDUCT HERE. I STILL THINK THERE WILL BE ROOM FOR MORE ACCOUNTABILITY 158 00:14:49.823 --> 00:14:54.958 BASED ON THESE DISCLOSURES BASED ON WHAT I READ IN THE PUBLICLY FILED LAWSUIT 159 00:14:54.958 --> 00:14:59.447 RELATING TO HIS BEHAVIOR. SO WHAT I WOULDN'T WANT IS FOR -- TO HAVE 160 00:14:59.447 --> 00:15:03.037 TO LITIGATE ALL THE WAY TO THE COURT -- TO THE APPELLATE DIVISION OR THE 161 00:15:03.037 --> 00:15:08.163 SUPREME COURT EVERY TIME THERE'S ANOTHER ONE OF THESE INCIDENTS. AND I THINK THAT 162 00:15:08.163 --> 00:15:13.709 THE ATTORNEY GENERAL'S BRIEF, ONE THING THAT IT MADE ME REALIZE IS THAT 163 00:15:13.709 --> 00:15:19.665 THE LOIGMAN FACTORS ARE REALLY ALL THE FACTORS WHY RECORDS SHOULDN'T BE RELEASE 164 00:15:19.665 --> 00:15:25.195 D. THEY'RE THE FACTORS THAT WAY AGAINST DISCLOSURE. AND SO THE TEST IS ALMOST 165 00:15:25.195 --> 00:15:30.021 RIGGED AGAINST DISCLOSURE WHEN I THINK IT SHOULD BE A FAIRER BALANCING. 166 00:15:30.021 --> 00:15:36.071 SO I THINK IF THIS COURT WERE TO PROVIDE ADDITIONAL COMMON LAW FACTORS TO LOWER 167 00:15:36.071 --> 00:15:42.924 COURTS, IT WOULD HELP THE BALANCING TEST MORE ACCURATELY IMPACT PUBLIC INTEREST 168 00:15:42.924 --> 00:15:46.835 AND I THINK IT WOULD ALSO HELP POLICE OFFICERS FOR MANY OF THE REASONS THE ATTORNEY 169 00:15:46.835 --> 00:15:50.672 GENERAL SAYS. JUSTICE ALBIN: ARE YOU GIVING UP YOUR OPRA 170 00:15:50.672 --> 00:15:54.144 ARGUMENT? CJ GRIFFIN: I'M NOT -- NO. 171 00:15:54.144 --> 00:16:00.055 JUSTICE ALBIN: SO THEN I JUST WANT SOME CLARIFICATION ON THAT. AND I'M LOOKING 172 00:16:00.055 --> 00:16:07.263 AT SECTION NINE NOW. IS IT YOUR POSITION THAT THE IAPP IS NOT A REGULATION? 173 00:16:07.263 --> 00:16:12.483 CJ GRIFFIN: YES, IT IS OUR POSITION IT IS NOT A REGULATION. 174 00:16:12.483 --> 00:16:18.477 IT IS AN UN-PROMULGATED REGULATION. THE COURTS HAVE REPEATEDLY SAID THAT IAPPS 175 00:16:18.477 --> 00:16:22.193 ARE UN-PROMULGATED REGULATIONS. JUSTICE ALBIN: OKAY. HAS 176 00:16:22.193 --> 00:16:26.981 OUR COURT EVER SAID THAT THE IAPP IS REGULATION? CJ GRIFFIN: 177 00:16:26.981 --> 00:16:30.708 I DON'T BELIEVE THAT SPECIFIC LANGUAGE HAS BEEN USED. JUSTICE 178 00:16:30.708 --> 00:16:37.486 ALBIN: OKAY. AND WE KNOW THAT REGULATION IN OUR LAW HAS A SPECIFIC MEANING. 179 00:16:37.486 --> 00:16:39.450 CJ GRIFFIN: YES. JUSTICE ALBIN: IN TERMS OF THE 180 00:16:39.450 --> 00:16:47.916 WAY IT'S APPROVED. SO THAT'S IN A. AND THEN IN B OF NINE, IS IT YOUR POSITION 181 00:16:47.916 --> 00:16:55.575 THAT THE IAPP IS JUST NOT A STATUTE, A COURT RULE OR A JUDICIAL CASE LAW? THIS 182 00:16:55.575 --> 00:16:58.522 DOESN'T FIT WITHIN ANY OF THOSE? CJ GRIFFIN: YES. IT DOES NOT 183 00:16:58.522 --> 00:17:02.293 FIT WITHIN THE PLAIN LANGUAGE OF THE STATUTE. IT DOES NOT FIT WITHIN THE 184 00:17:02.293 --> 00:17:06.339 PLAIN LANGUAGE OF SECTION NINE OR SECTION ONE. IT'S NOT A REGULATION. IT'S NOT 185 00:17:06.339 --> 00:17:08.759 A STATUTE. IT'S NOT ANY OF THOSE THINGS. JUSTICE ALBIN: 186 00:17:08.759 --> 00:17:13.861 OKAY. EVEN IF IT DIDN'T FIT WITHIN ANY OF THOSE UNDER OPRA, IT WOULD STILL BE 187 00:17:13.861 --> 00:17:18.775 SUBJECT TO REVIEW BASED UPON WHETHER OR NOT IT WOULD VIOLATE SOME REASONABLE 188 00:17:18.775 --> 00:17:25.124 EXPECTATION OF PRIVACY. I SUPPOSE THAT WOULD BE INFORMANTS, CLAIMANTS, PEOPLE 189 00:17:25.124 --> 00:17:32.112 WHO WERE TOLD THAT THEIR TESTIMONY OR THEIR STATEMENTS WOULD BE 190 00:17:32.112 --> 00:17:36.279 CONFIDENTIAL. CORRECT? CJ GRIFFIN: CORRECT. IF THE COURT HELD 191 00:17:36.279 --> 00:17:43.568 THAT THE IAPP DOES NOT CREATE AN EXEMPTION UNDER OPRA, IT DOES NOT MEAN 192 00:17:43.568 --> 00:17:49.817 THAT EVERY IA FILE IS AUTOMATICALLY SUBJECT TO ACCESS. STLS STILL SO MANY OTHER 193 00:17:49.817 --> 00:17:53.165 OPRA EXEMPTIONS THAT COULD APPLY. JUSTICE ALBIN: YOU MENTIONED 194 00:17:53.165 --> 00:17:56.490 ANOTHER ONE. THE ONE ABOUT POTENTIAL HARM. CJ GRIFFIN: 195 00:17:56.490 --> 00:18:01.595 CORRECT. AND ALSO THERE COULD BE THE ONGOING INVESTIGATION EXEMPTION. IF AN 196 00:18:01.595 --> 00:18:06.548 AGENCY CAN MEET THAT TEST UNDER THE ONGOING INVESTIGATION EXEMPTION, IT CANNOT 197 00:18:06.548 --> 00:18:11.166 BE RELEASED. STLS PROTECTIONS FOR CONFIDENTIAL EMPLOYMENTS. THERE'S 198 00:18:11.166 --> 00:18:14.370 PROTECTIONS UNDER OPRA FORE SECURITY INFORMATION. THERE'S THE GENERAL 199 00:18:14.370 --> 00:18:24.490 PRIVACY PROVISION WHICH COULD PROTECT COMPLAINT MANTS AND WITNESSES. SO I THINK 200 00:18:24.490 --> 00:18:29.603 IT'S IMPORTANT TO REALIZE THAT EVEN IF THEY'RE SUBJECT TO OPRA, IT DOESN'T RESULT 201 00:18:29.603 --> 00:18:34.659 IN AUTOMATIC EXEMPTION. JUSTICE ALBIN: I ASKED YOU ABOUT 202 00:18:34.659 --> 00:18:38.057 THE REGULATION, BECAUSE WE KNOW THE ATTORNEY GENERAL PROMISE GATES 203 00:18:38.057 --> 00:18:48.701 REGULATIONS AND THE ONLY GENERAL THE IAPP IS A POLICY AND A PROCEDURE. IT DOESN'T 204 00:18:48.701 --> 00:18:53.835 SEEM TO FIT WITHIN THE SCOPE OF WHAT WOULD GENERALLY BE KNOWN AS A REGULATION 205 00:18:53.835 --> 00:18:57.782 SNOOCHLT AND IN MY APPELLATE DIVISION BRIEF I ACTUALLY PROVIDE LEGISLATIVE HISTORY 206 00:18:57.782 --> 00:19:04.713 ABOUT WHEN OPRA WAS FIRST ENACTED, GOVERNOR MCGREEVEY ISSUED EXECUTIVE ORDER 207 00:19:04.713 --> 00:19:17.149 21 WHICH SORT OF CREATED THIS EXPANSIVE TOP FORMALLY PROMULGATE REGULATIONS 208 00:19:17.149 --> 00:19:23.748 RECOGNIZING THAT FORMALLY PROMULGATED REGULATIONS TO BE NEEDED AND THOSE WERE 209 00:19:23.748 --> 00:19:30.635 LATER I THINK NJ 13 C-1 3.2 OR SOMETHING ALONG THOSE LINES. 210 00:19:30.635 --> 00:19:36.053 JUSTICE ALBIN: LET ME ASK YOU THIS LAST QUESTION ON THIS SUBJECT. COULD THIS COURT 211 00:19:36.053 --> 00:19:41.145 PROCEED ALONG THE WAYS THAT YOU ARE PROPOSING UNDER THE COMMON LAW WITH 212 00:19:41.145 --> 00:19:48.208 SOME OF THE ATTORNEY GENERAL'S GUIDELINES WITHIN THE CONTEXT OF OPRA UNDER SOME 213 00:19:48.208 --> 00:19:53.866 OF THE EXEMPTIONS THAT WE WERE TALKING ABOUT? THIS GENERALLY WOULD BE DLOEFD 214 00:19:53.866 --> 00:19:59.989 BUT THERE'S PROTECTION UNDER THE REASONABLE EXPECTATION TO PRIVACY. YOU CAN'T 215 00:19:59.989 --> 00:20:03.821 GET IT IF THERE'S GOING TO BE HARM. CJ GRIFFIN: ABSOLUTELY. 216 00:20:03.821 --> 00:20:08.777 I THINK THAT THE COMMON LAW FRAMEWORK THAT'S PROVIDED BY THE ATTORNEY 217 00:20:08.777 --> 00:20:13.783 GENERAL ON PAGE 26 OF HIS BRIEF IN WHICH I EXPANDED UPON IN MY OPENING STATEMENT 218 00:20:13.783 --> 00:20:18.574 AND I HAVE SOME MORE THOUGHTS ABOUT OTHER PARTS OF HIS TEST, I THINK THAT COULD 219 00:20:18.574 --> 00:20:23.785 APPLY EQUALLY TO OPRA. SO THAT A COURT COULD SAY, YES, THESE ARE SUBJECT 220 00:20:23.785 --> 00:20:28.237 TO OPRA. THEY FALL WITHIN THE GENERAL STATUTORY DEFINITION OF GOVERNMENT RECORD. 221 00:20:28.237 --> 00:20:33.702 BUT HERE ARE THINGS THAT MIGHT MAKE INTERNAL AFFAIRS RECORDS SUBJECT TO 222 00:20:33.702 --> 00:20:39.322 OPRA's PRIVACY PROVISION OR SECTION 3B AND THAT SORT OF THING. 223 00:20:39.322 --> 00:20:44.706 JUSTICE PATTERSON: IF THE COURT CONCLUDES THAT THE IAPP IS A REGULATION, DO YOU HAVE 224 00:20:44.706 --> 00:20:49.214 AN OPRA ARGUMENT? CJ GRIFFIN: IF THE -- I DON'T THINK THERE 225 00:20:49.214 --> 00:20:53.032 WOULD BE AN OPRA ARGUMENT IF THE COURT CONCLUDES THAT IT'S A REGULATION. 226 00:20:53.032 --> 00:20:56.802 BUT THE COURT -- JUSTICE PATTERSON: I'M SORRY. IS YOUR 227 00:20:56.802 --> 00:21:01.278 ARGUMENT THAT -- PLEASE FINISH YOUR ANSWER. CJ GRIFFIN: IF THE PLAIN 228 00:21:01.278 --> 00:21:05.819 LANGUAGE OF SECTION ONE AND NINE SAYS THAT REGULATIONS CAN EXEMPT RECORDS, 229 00:21:05.819 --> 00:21:09.226 SO I DON'T THINK WE WOULD. JUSTICE PATTERSON: IS YOUR ARGUMENT 230 00:21:09.226 --> 00:21:16.362 BASED ON THE LACK OF APA RULE MAKING OR IS THERE SOMETHING ELSE IN YOUR 231 00:21:16.362 --> 00:21:18.839 ARGUMENT? CJ GRIFFIN: WELL, I THINK IT'S BASED ON THE LACK 232 00:21:18.839 --> 00:21:24.639 OF APA RULE MAKING WHICH THE ATTORNEY GENERAL KNOWS HOW TO DO AND HAS DONE. BUT 233 00:21:24.639 --> 00:21:32.697 ULS ALSO THAT IT IS AN INTERNAL PROCEDURE. IN THE F O P CASE YOU TALK ABOUT HOW 234 00:21:32.697 --> 00:21:38.430 THE IAPP IS ONLY BINDING UPON POLICE STAFF SO IT WOULDN'T BE BINDING UPON IN THAT 235 00:21:38.430 --> 00:21:46.572 CASE THE CC R B BUT IT WOULDN'T BE BINDING UPON THE MUNICIPAL RECORDS CUSTODIAN. 236 00:21:46.572 --> 00:21:48.664 JUSTICE PATTERSON: IS THERE A DEFINITION OF REGULATION THAT 237 00:21:48.664 --> 00:21:54.920 IT HAS TO APPLY TO EVERYONE? CAN AGENCIES REGULATE IN A MANNER THAT ONLY AFFECTS 238 00:21:54.920 --> 00:22:00.894 CERTAIN CATEGORIES OF PEOPLE BASED ON THEIR JOB DESCRIPTIONS, SFOFRM? 239 00:22:00.894 --> 00:22:04.318 CJ GRIFFIN: THERE IS NOT. BUT THE DISCUSSIONS IN THE LYNDHURST 240 00:22:04.318 --> 00:22:10.324 CASE AND SOME OF THE CASES THAT PRE-DATE LYNDHURST ABOUT WHAT THE DEFINITION OF 241 00:22:10.324 --> 00:22:16.530 REQUIRED BY LAW MEANT TALK ABOUT AN INTERNAL POLICY VERSUS SOME SORT OF 242 00:22:16.530 --> 00:22:22.107 REGULATION OF GENERAL, YOU KNOW -- JUSTICE PATTERSON: DOES THE IAPP 243 00:22:22.107 --> 00:22:25.351 HAVE THE FORCE OF LAW? CJ GRIFFIN: I WOULD CONCEDE THAT 244 00:22:25.351 --> 00:22:31.704 IT HAS THE FORCE OF LAW UPON POLICE DEPARTMENTS. THAT'S THE LANGUAGE FROM 245 00:22:31.704 --> 00:22:36.190 LYNDHURST. BUT I DON'T THINK IT'S A REGULATION. SO I DON'T THINK IT FALLS WITHIN 246 00:22:36.190 --> 00:22:39.478 THE SCOPE OF ONE OR NINE. JUSTICE PATTERSON: IF THE COURT 247 00:22:39.478 --> 00:22:46.019 WERE TO DETERMINE THAT -- DECIDE IN THIS CASE THAT APA RULE MAKING IS NOT 248 00:22:46.019 --> 00:22:52.328 A PREREQUISITE FOR SOMETHING BEING CONSIDERED A REGULATION FOR PURPOSES OF 249 00:22:52.328 --> 00:22:54.937 SECTION NINE, IS THAT THE END OF YOUR OPRA ARGUMENT? CJ GRIFFIN: 250 00:22:54.937 --> 00:22:59.402 I THINK IT COULD BE, BUT I THINK THAT WOULD BE A DANGEROUS HOLDING. 251 00:22:59.402 --> 00:23:02.833 JUSTICE PATTERSON: I AM NOT UNDER ANY DELUSION THAT YOU AGREE WITH THAT. 252 00:23:02.833 --> 00:23:10.263 I SAY THAT WITH GREAT RESPECT, AS YOU KNOW. BUT IF THAT WERE THE COURT'S 253 00:23:10.263 --> 00:23:13.557 CONCLUSION, WOULD THAT END THE OPRA ARGUMENT? CJ GRIFFIN: WELL 254 00:23:13.557 --> 00:23:16.269 -- JUSTICE PATTERSON: YOU CAN PUT ALL KINDS OF ADJECTIVES 255 00:23:16.269 --> 00:23:20.240 ON HOW WRONG IT WOULD BE. I'M WITH YOU. CJ GRIFFIN: I SUPPOSE 256 00:23:20.240 --> 00:23:24.428 IT WOULD MAKE IT FALL MORE CLOSELY IN LINE WITH THE PLAIN LANGUAGE OF THE 257 00:23:24.428 --> 00:23:27.912 STATUTE. THE PROBLEM WOULD BE THAT CONCLUDING THAT AN ATTORNEY GENERAL POLICY OR 258 00:23:27.912 --> 00:23:34.560 DIRECTIVE IS A REGULATION COULD BE PROBLEMATIC BECAUSE IT THEN WOULD GIVE -- IT 259 00:23:34.560 --> 00:23:39.278 WOULD GIVE THE ATTORNEY GENERAL THE ABILITY TO PROMULGATE POLICIES AND 260 00:23:39.278 --> 00:23:43.865 EXEMPT RECORDS RIGHT AND LEFT UNDER POLICIES THAT NEVER WENT THROUGH ANY PUBLIC 261 00:23:43.865 --> 00:23:50.766 COMMENT PERIOD. IT WOULD ALLOW OUR PUBLIC ACCESS LAWS TO BE AT THE WHIM 262 00:23:50.766 --> 00:23:54.589 OF ONE PERSON WITH THE STROKE OF A PEN. JUSTICE ALBIN: NOT 263 00:23:54.589 --> 00:23:59.666 JUST THE ATTORNEY GENERAL. IT WOULD MEAN ANY COMMISSIONER, ANY HEAD OF ANY 264 00:23:59.666 --> 00:24:08.433 AGENCY WHO PURSUANT TO STATUTE DOES NOT PROMULGATE A REGULATION ACCORDING TO 265 00:24:08.433 --> 00:24:14.016 LAW BUT DOES A POLICY AND PROCEDURE. THEN WE WOULD HAVE TO DISTINGUISH THAT FROM 266 00:24:14.016 --> 00:24:20.339 THE IAPP, I SUPPOSE. GO AHEAD. CJ GRIFFIN: CORRECT. IT 267 00:24:20.339 --> 00:24:26.613 COULD BE VERY PROBLEMATIC IF WE JUST ALLOW SINGLE POLICYMAKERS TO BEGIN 268 00:24:26.613 --> 00:24:30.655 EXEMPTING RECORDS UNDER OPRA. AND OPRA IS DESIGNED -- CHIEF 269 00:24:30.655 --> 00:24:34.442 JUSTICE RABNER: ALONG THOSE LINES, DO YOU KNOW IF THERE ARE STATUTES -- IF THERE'S 270 00:24:34.442 --> 00:24:40.609 STATUTORY LANGUAGE FOR OTHER XHISHSS SIMILAR TO THE LANGUAGE IN 5217 B FOUR 271 00:24:40.609 --> 00:24:44.696 THAT OUTLINES THE POWERS AND DUTIES OF THE ATTORNEY GENERAL? CJ 272 00:24:44.696 --> 00:24:50.178 GRIFFIN: I DON'T KNOW THE ANSWER TO THAT, IF THERE ARE OTHER TYPES OF COMMISSIONERS. 273 00:24:50.178 --> 00:24:54.819 BUT OTHER DEPARTMENTS I BELIEVE DO HAVE RULES AND REGULATIONS OR POLICIES 274 00:24:54.819 --> 00:25:01.956 FROM WITHIN THEIR DEPARTMENT. BUT EACH DEPARTMENT OF THE EXECUTIVE BRANLTS HAS 275 00:25:01.956 --> 00:25:08.494 PROMULGATED STATUTES THAT DISCUSS RECORDS THAT ARE EXEMPT BEYOND THE ORDINARY 276 00:25:08.494 --> 00:25:20.388 OPRA EXEMPTIONS AND I WOULD LATE TO ALLOW SINGLE POLICYMAKERS TO AVOID THAT. IT 277 00:25:20.388 --> 00:25:23.705 WOULD BE A SIGNIFICANT DEPARTURE -- JUSTICE PATTERSON: WOULD YOU 278 00:25:23.705 --> 00:25:28.897 AGREE -- FOLLOWING UP ON THE CHIEF'S QUESTION, THAT THE ATTORNEY GENERAL 279 00:25:28.897 --> 00:25:34.843 IN NEW JERSEY HAS STATUTORY AUTHORITY THAT IS NOT -- THAT IS IN -- THAT IS GREATER 280 00:25:34.843 --> 00:25:38.814 THAN, FOR EXAMPLE, THE COMMISSIONER OF HEALTH OR THE COMMISSIONER OF 281 00:25:38.814 --> 00:25:44.542 EDUCATION. THAT ABILITY TO SET POLICIES. CJ GRIFFIN: WELL, THEY 282 00:25:44.542 --> 00:25:48.678 SET POLICIES THAT ARE BINDING UPON LOWER LAW ENFORCEMENT AGENCIES, BUT WHEN 283 00:25:48.678 --> 00:25:55.206 THEY WANT TO EXEMPT RECORDS FROM ACCESS, THERE'S ALWAYS BEEN A REGULATION AND THAT 284 00:25:55.206 --> 00:26:00.476 REGULATION IS N.J.A.C. -- JUSTICE PATTERSON: UNDERSTOOD BUT 285 00:26:00.476 --> 00:26:03.931 MY QUESTION IS A LITTLE BIT DIFFERENT. YOU TALKED ABOUT HOW THIS WOULD 286 00:26:03.931 --> 00:26:07.683 AFFECT OTHER AGENCIES. WOULD YOU AGREE THAT THE ATTORNEY GENERAL IN NEW JERSEY 287 00:26:07.683 --> 00:26:12.044 CONSIDERED BY SOME EXPERTS THE MOST POWERFUL ATTORNEY GENERAL IN THE 288 00:26:12.044 --> 00:26:15.685 UNITED STATES IN TERMS OF THE STATUTORY AUTHORITY AND CONSTITUTIONAL AUTHORITY OF 289 00:26:15.685 --> 00:26:22.884 THAT OFFICE HAS AUTHORITY THAT IS NOT SHARED WITH THE REST OF THE CABINET, TO PUT 290 00:26:22.884 --> 00:26:28.776 IT IN A COAL LO LOCURTO KWEEL TERM. CJ GRIFFIN: I DO AGREE 291 00:26:28.776 --> 00:26:32.610 THAT THE ATTORNEY GENERAL IS THE CHIEF LAW ENFORCEMENT OFFICER AND THEREFORE 292 00:26:32.610 --> 00:26:40.455 ALL OF THE LOCAL, COUNTY AND POLICE DEPARTMENTS FALL UNDER HIS JURISDICTION AND 293 00:26:40.455 --> 00:26:44.394 HE CAN USE THAT POWER TO CREATE THESE POLICIES TO ENSURE THAT THEY'RE ALL 294 00:26:44.394 --> 00:26:51.176 COMPLYING. BUT I KNOW THE DEPARTMENT OF HEALTH ALSO ISSUES POLICIES AND REGULATIONS. 295 00:26:51.176 --> 00:26:57.161 SO I SUPPOSE I CAN'T SPEAK ENOUGH TO ALL OF THE DIFFERENT STATE AGENCIES, 296 00:26:57.161 --> 00:27:02.366 BUT I DO KNOW THAT THE LEGISLATIVE HISTORY SHOWS THAT THE ATTORNEY GENERAL COULDN'T 297 00:27:02.366 --> 00:27:07.863 JUST EXEMPT A RECORD THROUGH A POLICY BUT RATHER THAT THERE IS AN EXECUTIVE 298 00:27:07.863 --> 00:27:14.904 ORDER SO THE ATTORNEY GENERAL WOULD HAVE TIME TO CREATE EXEMPTIONS AND THAT THE 299 00:27:14.904 --> 00:27:19.515 ATTORNEY GENERAL POLICY IS ONLY BINDING ON LAW ENFORCEMENT, IT'S NOT BINDING 300 00:27:19.515 --> 00:27:22.112 ON NON-LAW ENFORCEMENT AGENCIES. JUSTICE PATTERSON: THAT'S JUST 301 00:27:22.112 --> 00:27:26.013 LOGIC, ISN'T IT? WE'RE TALKING ABOUT POLICIES THAT DEAL WITH THE CONDUCT OF 302 00:27:26.013 --> 00:27:30.438 LAW ENFORCEMENT. IT DOESN'T MAKE IT SOMEHOW A LIMITED POWER BECAUSE THEY'RE DIRECTING 303 00:27:30.438 --> 00:27:35.843 THE -- THEIR INSTRUCTION TO LAW ENFORCEMENT. THAT'S WHO THEY GOVERN. 304 00:27:35.843 --> 00:27:39.540 CJ GRIFFIN: I THINK THEY HAVE THE FORCE OF LAW UPON POLICE DEPARTMENTS, 305 00:27:39.540 --> 00:27:45.621 BUT THEY'RE SEPARATE AND DISTINCT FROM REGULATIONS. AND I THINK THAT THAT'S BEEN 306 00:27:45.621 --> 00:27:51.085 THIS COURT'S HOLDING IN REPEATED DECISIONS ABOUT THE ATTORNEY GENERAL'S 307 00:27:51.085 --> 00:27:57.449 POLICIES, INCLUDING THE LYNDHURST DECISION, WHERE THE REASON WHY THE ATTORNEY 308 00:27:57.449 --> 00:28:03.854 GENERAL'S USE OF FORCE POLICY IN THAT CASE WAS CONSIDERED A LAW WAS BECAUSE 309 00:28:03.854 --> 00:28:08.539 SECTION -- THE CRIMINAL INVESTIGATORY RECORDS EXEMPTION JUST LIKE OTHER PROVISIONS 310 00:28:08.539 --> 00:28:14.539 OF OPRA USE THIS LOOSE TERM LAW AND THE COURT -- TO MAKE RECORDS PUBLIC 311 00:28:14.539 --> 00:28:20.241 AND THE COURT HELD THAT FELL WITHIN THAT LOOSE TERM OF LAW. BUT IT DIDN'T CONCLUDE 312 00:28:20.241 --> 00:28:23.017 IT WAS A REGULATION AND IT DIDN'T CONCLUDE -- JUSTICE ALBIN: 313 00:28:23.017 --> 00:28:27.240 I DON'T THINK THE ISSUE IS WHETHER OR NOT THE ATTORNEY GENERAL HAS VAST POWERS. 314 00:28:27.240 --> 00:28:32.404 THE ATTORNEY GENERAL DOES HAVE VAST POWERS. MAYBE MORE POWERS THAN MOST 315 00:28:32.404 --> 00:28:40.427 IF NOT ALL OTHER ATTORNEY GENERAL'S IN THE COUNTRY. FOR ME AT LEAST IT'S A QUESTION 316 00:28:40.427 --> 00:28:44.772 OF STATUTORY INTERPRETATION. THEY HAVE THOSE POWERS, BUT OPRA TALKS ABOUT 317 00:28:44.772 --> 00:28:53.104 REGULATIONS PROMULGATED. WHAT DID THE LEGISLATURE MEAN BY REGULATIONS PROMULGATED? 318 00:28:53.104 --> 00:28:58.683 BECAUSE IT ALSO GAVE VAST POWERS TO THE COMMISSIONER OF BANKING AND INSURANCE. 319 00:28:58.683 --> 00:29:08.334 THAT COMMISSIONER HAS A LOT OF POWER. THEY COULD HAVE SAID POLICIES AND PROCEDURES 320 00:29:08.334 --> 00:29:11.177 AND REGULATIONS AS PROMULGATED. CJ GRIFFIN: I THINK THAT'S 321 00:29:11.177 --> 00:29:16.025 CORRECT. THERE'S SPECIFIC LANGUAGE. REGULATIONS PROMULGATED. THIS WASN'T 322 00:29:16.025 --> 00:29:22.536 PROMULGATED. HE DOES HAVE EXPANSIVE POWERS TO ISSUE THESE POLICIES BUT THAT'S 323 00:29:22.536 --> 00:29:26.126 SEPARATE AND I DON'T THINK -- OUTSIDE THE CONTEXT OF THIS CASE, I DON'T THINK 324 00:29:26.126 --> 00:29:31.567 THE ATTORNEY GENERAL COULD JUST ISSUE A POLICY TOMORROW SAYING 911 CALLS ARE 325 00:29:31.567 --> 00:29:36.500 EXEMPT FROM ACCESS UNDER OPRA. THE COURTS HAVE HELD THAT THEY'RE SUBJECT TO OPRA 326 00:29:36.500 --> 00:29:41.081 AND THEY'VE ALWAYS BEEN RELEASED. I DON'T THINK A SINGLE POLICY MAKER COULD 327 00:29:41.081 --> 00:29:45.405 JUST ISSUE A POLICY TO LAW ENFORCEMENT AGENCY SAYING DON'T RELEASE THEM. 328 00:29:45.405 --> 00:29:52.400 CHIEF JUSTICE RABNER: IS THE IAPP IN THE ANALYSIS HERE COMPLICATED FOR 329 00:29:52.400 --> 00:29:56.270 PURPOSES OF YOUR ARGUMENT BY THE EXISTENCE OF SECTION 181? CJ 330 00:29:56.270 --> 00:30:02.160 GRIFFIN: YES. I THINK THAT IS THE WRINKLE. THAT THE STATE ISSUES OTHER 331 00:30:02.160 --> 00:30:07.201 POLICIES AND WHAT I'M HOPING HERE IS THAT THE COURT WOULD ISSUE A DECISION 332 00:30:07.201 --> 00:30:13.051 THAT'S SO EXPANSIVE THAT ALLOWS ANY ATTORNEY GENERAL POLICY TO CREATE AN EXEMPTION 333 00:30:13.051 --> 00:30:20.074 THAT AT THE WORSE IT WOULD DO WOULD BE TO SAY THIS 181 STATUTE CREATES A WRINKLE 334 00:30:20.074 --> 00:30:25.795 THAT AS THE APPELLATE DIVISION SAID IN THE BEGAN NET CASE THAT IT GIVES 335 00:30:25.795 --> 00:30:31.753 IT THE EQUIVALENT OF A STATUTORY BACKING OR SOMETHING ALONG THOSE LINES. I RECOGNIZE 336 00:30:31.753 --> 00:30:35.496 THAT IS THE WRINKLE HERE. BUT FOR THE REASONS I SAY IN MY BRIEF, I DON'T 337 00:30:35.496 --> 00:30:40.421 THINK THAT STATUTE IS SUFFICIENT ENOUGH TO ALLOW THE IAPP TO CREATE AN EXEMPTION. 338 00:30:40.421 --> 00:30:43.532 IT'S SORT OF TWICE RE-MOVED FROM THE STATUTE. CHIEF JUSTICE 339 00:30:43.532 --> 00:30:47.393 RABNER: COUNSEL, I'M GOING TO COME BACK TO YOU ON REBUTTAL AS A MATTER OF FAIRNESS. 340 00:30:47.393 --> 00:30:54.669 JUSTICE ALBIN HAVE BOTH ASKED YOU ARE YOU STILL PURSUING YOUR OPRA ARGUMENT 341 00:30:54.669 --> 00:31:00.630 AND YOU SAID YES I AM AND IT'S A WEAKER ARGUMENT AND THE COURT COULD DO TERRIBLE 342 00:31:00.630 --> 00:31:08.543 THINGS. SOME SUMMARIZING. TELL US AT THAT POINT ARE YOU STILL ASKING THE 343 00:31:08.543 --> 00:31:13.541 COURT TO RULE IN YOUR FAVOR ON OPRA OR ARE YOU PUTTING YOUR EGGS IN THE BASKET 344 00:31:13.541 --> 00:31:17.815 OF COMMON LAW AT THIS POINT. YOU'LL PROBABLY HAVE MORE THAN AN HOUR TO 345 00:31:17.815 --> 00:31:20.972 THINK THAT THROUGH. CJ GRIFFIN: I WILL COME BACK TO THAT. I 346 00:31:20.972 --> 00:31:25.549 WILL TELL YOU NOW WE DO BELIEVE THESE RECORDS ARE SUBJECT TO OPRA. I PROVIDED A 347 00:31:25.549 --> 00:31:29.016 NUMBER OF ARGUMENTS IN THE BRIEF. TODAY I HIGHLIGHTED THE ONE. 348 00:31:29.016 --> 00:31:31.509 CHIEF JUSTICE RABNER: I HEAR YOU. CJ GRIFFIN: I'LL COME BACK TO 349 00:31:31.509 --> 00:31:33.671 IT IN REBUTTAL. CHIEF JUSTICE RABNER: AND YOUR CONCERN I 350 00:31:33.671 --> 00:31:41.898 GATHER IS THERE COULD BE AN ERRANT POLICY THAT WOULD REQUIRE LEGISLATIVE 351 00:31:41.898 --> 00:31:46.839 CORRECTION IF WE GO THE ROUTE THAT YOU FEAR WE MIGHT. CJ 352 00:31:46.839 --> 00:31:52.883 GRIFFIN: CORRECT. IF THE COURT DID FIND THAT THE IAPP CREATED AN EXEMPTION, I WOULD 353 00:31:52.883 --> 00:31:59.707 WANT IT TO BE LIMITED SOLELY TO THE IAPP AND NOT OTHER A G POLICIES. BUT 354 00:31:59.707 --> 00:32:05.397 I THINK WE HAVE STRONG ARGUMENTS UNDER OPRA. I'VE LIENED INTO THE COMMON LAW 355 00:32:05.397 --> 00:32:09.213 BECAUSE THE ATTORNEY GENERAL BELIEVES THEY SHOULD BE RELEASED PURSUANT TO 356 00:32:09.213 --> 00:32:13.848 THE COMMON LAW. I'VE COME TO BELIEVE THAT THE COMMON LAW CAN BE A POWERFUL FORCE 357 00:32:13.848 --> 00:32:19.175 AS WELL AND BECAUSE I RECOGNIZE THERE'S SOME STATEMENTS IN THE F O P CASE 358 00:32:19.175 --> 00:32:27.637 AND THE ATTORNEY GENERAL 2025-CASE. THAT THINKS THE IAPP COULD EXEMPT RECORDS. 359 00:32:27.637 --> 00:32:36.458 SO IF THERE'S NO OTHER QUESTIONS, I WOULD GO INTO THIS CASE 360 00:32:36.458 --> 00:32:41.591 A LITTLE BIT MORE SPECIFICALLY AND THEN I WOULD LIKE TO ALSO THEN BACK UP INTO 361 00:32:41.591 --> 00:32:47.082 THE GENERAL FRAMEWORK THAT I THINK THAT THE COURT COULD PROVIDE TO AGENCIES. 362 00:32:47.082 --> 00:32:49.915 CHIEF JUSTICE RABNER: PLEASE BE MINDFUL AS YOU'RE ABOUT TO 363 00:32:49.915 --> 00:32:55.389 SEGWAY INTO THE CASE MORE DETAIL, WE'RE BEYOND THE HALF HOUR AT THIS POINT. 364 00:32:55.389 --> 00:32:58.760 CJ GRIFFIN: I'LL KEEP IT BRIEF THEN. I JUST WANT TO QUICKLY TALK ABOUT 365 00:32:58.760 --> 00:33:02.574 THE PROBLEMS WITH THE APPELLATE DIVISION's DECISION AND WHY I THINK THIS COURT 366 00:33:02.574 --> 00:33:07.952 SHOULD RELEASE THE RECORDS WITH REDACTIONS. SO BEFORE 367 00:33:07.952 --> 00:33:12.503 THE APPELLATE DIVISION, WE NEVER BRIEFED OR ARGUED THE COMMON LAW. BUT THE COURT 368 00:33:12.503 --> 00:33:20.113 NONETHELESS ON ITS OWN REACHED THAT ISSUE AND I'LL RELY UPON MY BRIEF HERE 369 00:33:20.113 --> 00:33:26.224 BUT THE COURT DIDN'T APPLY ALL THE FACTORS AND IT PERMITTED GENERALLY ARRIVED CLAIMS 370 00:33:26.224 --> 00:33:32.041 OF HARM. JUST THE NOTION THAT IA RECORDS CAUSE GREAT HARM IF RELEASED. 371 00:33:32.041 --> 00:33:38.174 IT ALLOWED THAT TO BASICALLY BE THE DECISIVE FACTOR. BUT STARTING WITH JUDGE 372 00:33:38.174 --> 00:33:46.218 FUENTES's DECISION (CASE CITED), GENERALIZED CLAIMS OF HARM HAVE NEVER 373 00:33:46.218 --> 00:33:50.014 BEEN SUFFICIENT. AND THE SUPREME COURT's DECISION IN LYNDHURST MADE THAT CLEAR 374 00:33:50.014 --> 00:33:55.764 AS WELL. THE APPELLATE DIVISION WASN'T JUST -- MADE THOSE ASSUMPTIONS THAT 375 00:33:55.764 --> 00:34:02.830 DISCLOSURE ALWAYS CAUSES HARM AND DIDN'T ASK FOR ANY CASE SPECIFIC EXAMPLES HERE 376 00:34:02.830 --> 00:34:07.315 AND IT DIDN'T HAVE THE BENEFIT OF KNOWING THAT THE ATTORNEY GENERAL SUPPORTS 377 00:34:07.315 --> 00:34:12.463 DISCLOSURE AND IT DIDN'T CONSIDER THE FACT THAT THE CONFIDENTIALITY INTERESTS AREN'T 378 00:34:12.463 --> 00:34:18.209 ALWAYS GUARANTEED. FOR EXAMPLE, THE TARGET OF AN IA COMPLAINT IF THEY WANT TO 379 00:34:18.209 --> 00:34:24.043 OBJECT TO THE FINDINGS HAS A RIGHT TO -- AND THE DISCIPLINE, HAS A RIGHT 380 00:34:24.043 --> 00:34:30.819 TO LEARN ALL OF THE DETAILS OF WHO THE COMPLAINANT AND THE WITNESSES ARE FORCE 381 00:34:30.819 --> 00:34:35.215 THOSE INDIVIDUALS TO TESTIFY AGAINST HIM OR HER. SO THERE IS NO ABSOLUTELY 382 00:34:35.215 --> 00:34:39.086 PROMISE OF CONFIDENTIALITY IN THE INTERNAL AFFAIRS PROCESS. AND THE FACT THAT 383 00:34:39.086 --> 00:34:45.469 THE COMPLAINANTS HEREIN VIBRATED PUBLICITY, THE FACT THAT THERE'S OTHER 384 00:34:45.469 --> 00:34:50.285 DOCUMENTS IN THE PUBLIC RECORD SHOWING THAT THEY WERE COPYING THE PRESS ON THEIR 385 00:34:50.285 --> 00:34:54.126 COMMUNICATIONS WITH THE IA UNIT SHOULD HAVE FACTORED INTO THE APPELLATE DIVISION 386 00:34:54.126 --> 00:34:58.056 DECISION OR SHOULD HAVE CAUSED THE APPELLATE DIVISION TO REMAND THIS TO 387 00:34:58.056 --> 00:35:03.005 THE TRIAL COURT WHERE THAT COULD BE FURTHER DEVELOPED. BUT I DO THINK THAT THE 388 00:35:03.005 --> 00:35:06.790 TIME IS RIGHT NOW FOR THIS COURT TO CONCLUDE THAT THE RECORDS COULD BE 389 00:35:06.790 --> 00:35:11.386 RELEASED. AND THE REASONS BEING THAT WE'VE NOW BRIEFED IT AND ARGUED IT THAT THE 390 00:35:11.386 --> 00:35:16.684 ATTORNEY GENERAL, THE VERY AUTHOR OF THE POLICY THAT PURPORTEDLY EXEMPTS THEM 391 00:35:16.684 --> 00:35:20.901 FROM ACCESS UNDER OPRA, HAS SAID THEY SHOULD BE RELEASED AND THIS IS AN 392 00:35:20.901 --> 00:35:24.413 IMPORTANT CASE TO RELEASE IT. THE FACT THAT THERE'S BEEN SIGNIFICANT CASE LAW 393 00:35:24.413 --> 00:35:30.329 DISCUSSING THE IMPORTANCE OF TRANSPARENCY, INCLUDING AN INTERNAL AFFAIRS PROCESS 394 00:35:30.329 --> 00:35:35.901 SINCE THEN SUCH AS THE A G DIRECTIVE 2025-CASE BOTH IN THE APPELLATE DIVISION AND 395 00:35:35.901 --> 00:35:41.148 BY THE SUPREME COURT AS WELL AS THE BEGAN NET V NEPTUNE CASE. SO MY HOPE 396 00:35:41.148 --> 00:35:45.238 IS THAT THE COURT WILL DO WHAT THE ATTORNEY GENERAL HAS SUGGESTED, WHICH IS ORDER 397 00:35:45.238 --> 00:35:49.721 THESE RECORDS TO BE RELEASED WITH A REMAND TO THE TRIAL COURT JUST TO SENSE 398 00:35:49.721 --> 00:35:58.575 PROPER REACTION. BECAUSE -- AND IF THE COURT DOESN'T GO THAT FAR, THEN WHAT I HOPE 399 00:35:58.575 --> 00:36:04.383 THE COURT WOULD DO WOULD BE A REMAND WITH THIS UPDATED GUIDANCE PULLED IN PART 400 00:36:04.383 --> 00:36:09.766 FROM PAGE 26 OF THE ATTORNEY GENERAL'S BRIEF ABOUT WHAT COURTS SHOULD CONSIDER 401 00:36:09.766 --> 00:36:16.661 IN DECIDING WHETHER TO RELEASE THE DOCUMENTS. CHIEF 402 00:36:16.661 --> 00:36:18.917 JUSTICE RABNER: IS THERE ANYTHING YOU'D LIKE TO ADD? CJ 403 00:36:18.917 --> 00:36:24.952 GRIFFIN: I WILL SAVE MORE OF MY TIME FOR REBUTTAL IN LIGHT OF OF YOUR HONOR'S COMMENTS 404 00:36:24.952 --> 00:36:29.422 EARLIER. CHIEF JUSTICE RABNER: OKAY. MR. SHALOM. 405 00:36:29.422 --> 00:36:34.138 ALEXANDER SHALOM: THANK YOU AND MAY IT PLEASE THE COURT. I THINK THERE ARE 406 00:36:34.138 --> 00:36:40.195 TWO TYPES OF FLAWS IN THE APPELLATE DIVISION's LOGIC HERE. THE FIRST IS ON 407 00:36:40.195 --> 00:36:46.590 PROCESS AND THE SECOND IS ON SUBSTANCE. AND THE FIRST -- THE PROCESS PIECE IS 408 00:36:46.590 --> 00:36:50.819 THE EASIEST WAY FOR THE COURT TO RESOLVE THE COMMON LAW QUESTIONS IN THIS CASE, 409 00:36:50.819 --> 00:36:54.933 WHICH IS JUST TO SAY, HOW CAN YOU CONDUCT A BALANCING TEST IF YOU HAVEN'T 410 00:36:54.933 --> 00:36:59.454 HEARD FROM THE PARTIES ABOUT WHAT FALLS ON WHAT SIDE OF THE BALANCE. AND I KNOW 411 00:36:59.454 --> 00:37:03.601 THERE WERE TWO CERTIFICATIONS PUT FORTH BY ELIZABETH AND THE PROSECUTOR'S 412 00:37:03.601 --> 00:37:10.368 OFFICE BUT I THINK THOSE ARE FLAWED IN SOME WAYS AND MORE TO THE POINT IF YOU NEVER 413 00:37:10.368 --> 00:37:14.046 HEAR FROM MR. RIVERA IT'S DIFFICULT TO DO A BALANCING AND IF YOU DON'T KNOW 414 00:37:14.046 --> 00:37:18.862 WHAT'S IN THE FILES IT'S HARD TO SAY REDACTION COULDN'T SOLVE THE PROBLEM BECAUSE 415 00:37:18.862 --> 00:37:23.028 UT CERTAINLY COULD SOLVE THE PROBLEM, MIGHT SOLVE THE PROBLEM. WE SIMPLY 416 00:37:23.028 --> 00:37:29.156 DON'T KNOW. BUT TO COUNSEL FOR MR. RIVERA's POINT I THINK IT WOULD BE A PROBLEM 417 00:37:29.156 --> 00:37:35.329 IF THE COURT SIMPLY SAID THIS WAS A PROCESS FAILURE, HAVE AT IT LOWER 418 00:37:35.329 --> 00:37:39.829 COURTS. I THINK THE LOWER COURTS NEED SOME GUIDANCE ON HOW TO DEAL WITH THESE CASES. 419 00:37:39.829 --> 00:37:47.581 SO LET ME JUST SAY A COUPLE OF THINGS ABOUT THE LOIGMAN FACTORS. THE CITY 420 00:37:47.581 --> 00:37:52.848 OF ELIZABETH HAS CONCEDED THAT THIS IS A COMMON LAW PUBLIC DOCUMENT AND THAT MR. 421 00:37:52.848 --> 00:37:58.019 RIVERA HAS AN INTEREST IN THE SUBJECT MATTER. BUT IT'S NOT ENOUGH TO SAY 422 00:37:58.019 --> 00:38:03.178 SIMPLY THAT HE HAS AN INTEREST. YOU HAVE TO UNDERSTAND WHAT THAT INTEREST IS 423 00:38:03.178 --> 00:38:07.754 BECAUSE THE NEXT PART OF THE TEST IS A BALANCING. SO THE EXISTENCE OF A PUBLIC 424 00:38:07.754 --> 00:38:11.906 INTEREST IS INSUFFICIENT. WE NEED TO KNOW HOW IMPORTANT THAT INTEREST IS. 425 00:38:11.906 --> 00:38:17.494 AND I THINK THE ATTORNEY GENERAL HAS TALKED A LOT ABOUT THE 426 00:38:17.494 --> 00:38:22.890 PUBLIC INTEREST, SO I'LL DEFER TO HIM LARGELY ON THAT. BUT LET ME TALK A LITTLE 427 00:38:22.890 --> 00:38:26.364 BIT ABOUT THE OTHER SIDE OF THE BALANCE, WHICH IS TO SAY, THE GOVERNMENT's 428 00:38:26.364 --> 00:38:31.224 INTEREST IN SECRECY. BECAUSE I THINK THERE IS SOME FLAWS IN THE LOGIC EMPLOYED 429 00:38:31.224 --> 00:38:35.722 BY THE APPELLATE DIVISION THERE. AND I THINK FUNDAMENTALLY PART OF IT COMES 430 00:38:35.722 --> 00:38:43.950 DOWN TO WHAT DOES THE IAPP SAY. BECAUSE THE IAPP DOES NOT PROVIDE A BLANKET GUARANTY 431 00:38:43.950 --> 00:38:51.124 OF SECRECY. IN FACT, THE IAPP LISTS SIX DIFFERENT WAYS IN WHICH THE 432 00:38:51.124 --> 00:38:56.613 INFORMATION MIGHT BECOME PUBLIC. IT TALKS ABOUT IF ADMINISTRATIVE CHARGES HAVE BEEN 433 00:38:56.613 --> 00:39:00.259 BROUGHT. AND I'M GOING TO CIRCLE BACK TO THAT. IT TALKS ABOUT LAWSUITS. THE 434 00:39:00.259 --> 00:39:04.788 REQUEST OF THE COUNTY PROSECUTOR OR THE ATTORNEY GENERAL. A COURT ORDER. 435 00:39:04.788 --> 00:39:09.216 GOOD CAUSE FOUND BY THE CHIEF LAW ENFORCEMENT OFFICER OR AS PART OF A JUDICIAL 436 00:39:09.216 --> 00:39:14.960 LY SANCTIONED SUBPOENA. SO THERE WERE NOT ABSOLUTE PROMISES 437 00:39:14.960 --> 00:39:18.263 OF CONFIDENTIALITY MADE IN THIS CASE. THERE COULDN'T HAVE BEEN BECAUSE 438 00:39:18.263 --> 00:39:22.329 THE IAPP DOESN'T AUTHORIZE THEM. THERE ARE LIMITED PROMISES OF CONFIDENTIALITY 439 00:39:22.329 --> 00:39:27.139 THAT MAY BE MADE. AND SO JUST TO GET TO THE POINT ABOUT ADMINISTRATIVE CHARGES 440 00:39:27.139 --> 00:39:35.030 BEING BROUGHT, I THINK WHAT'S IMPORTANT IS, WHENEVER A COMPLAINANT GOES TO IA, 441 00:39:35.030 --> 00:39:43.580 THEY MUST KNOW, UNLESS THEY PROCEED ANIMUSLY, THE ONE PERSON WHO ALMOST 442 00:39:43.580 --> 00:39:47.466 CERTAINLY WILL LEARN THEIR IDENTITY IS THE PERSON ABOUT WHOM THEY FILED THE COMPLAINT. 443 00:39:47.466 --> 00:39:52.204 SO THINK ABOUT WHAT THAT MEANS. WHEN WE'RE TRYING TO WEIGH WOULD THE PUBLIC 444 00:39:52.204 --> 00:39:57.887 INTEREST BE ADVANCED -- SORRY. WOULD THE GOVERNMENT INTEREST IN SECRECY BE 445 00:39:57.887 --> 00:40:02.668 ADVANCED BY PREVENTING THIS BY BEING MADE PUBLIC, IT'S BEING MADE MORE PUBLIC. SO 446 00:40:02.668 --> 00:40:11.959 THIS IS A CASE OF A RACIST AND SEXIST POLICE DIRECTOR. TODAY A GARDEN 447 00:40:11.959 --> 00:40:18.749 VARIETY CASE. LET'S SAY OFFICER AL BEATS ME UP AND MY PARENT DECIDES TO FILE A 448 00:40:18.749 --> 00:40:24.569 COMPLAINT AGAINST OFFICER AL. NOW, THEY'RE WORRIED ABOUT OFFICER AL 449 00:40:24.569 --> 00:40:29.041 RETALIATING AGAINST ME. THEY'RE NOT WORRIED ABOUT MR. NOVECK KNOWING WHO FILED 450 00:40:29.041 --> 00:40:33.220 THE COMPLAINT. THEY'RE WORRYING ABOUT THE SOURCE OF THE COMPLAINT. AND SO TOO 451 00:40:33.220 --> 00:40:37.042 HERE. WE KNOW THAT MR. COSGROVE, DIRECTOR COSGROVE WAS ABLE TO KNOW THE 452 00:40:37.042 --> 00:40:41.698 SOURCE OF THE COMPLAINT. SO THE QUESTION IS, DOES THE ADDITIONAL DISCLOSURE OF 453 00:40:41.698 --> 00:40:46.365 MAKING IT AVAILABLE TO MR. RIVERA AND THE BROADER PUBLIC, DOES THAT HARM 454 00:40:46.365 --> 00:40:52.193 THE INTEREST BEHIND THE IAPP. AND THE INTEREST BEHIND THE IAPP IS VERY CLEAR. 455 00:40:52.193 --> 00:40:56.951 WE WANT TO ENCOURAGE PEOPLE TO COME FORWARD. BUT BECAUSE MR. RIVERA 456 00:40:56.951 --> 00:41:00.868 CONCEDED THAT THE NAMES COULD BE REDACTED, THE IDENTITIES COULD BE REDACTED, IT'S 457 00:41:00.868 --> 00:41:05.731 NOT AT ALL CLEAR THAT THOSE WOULD BE COMPROMISED. AND MS. AGGRESSIVE IN 458 00:41:05.731 --> 00:41:11.565 HER PRESENTATION MADE CLEAR SOME OTHER THINGS, FOR EXAMPLE, JUST THE NUMBER OF TIMES 459 00:41:11.565 --> 00:41:18.467 THAT MR. COSGROVE USED THE C WORD OR THE N WORD. THAT DOESN'T RE-VEAL THE SOURCE 460 00:41:18.467 --> 00:41:23.835 OF THE MATERIAL. BUT THAT'S A PIECE OF INFORMATION THAT IS NOT FULLY IN THE PUBLIC 461 00:41:23.835 --> 00:41:30.444 DOMAIN AT THIS POINT. JUDGE FUENTES, I SEE YOU'VE COME OFF 462 00:41:30.444 --> 00:41:36.264 MUTE. I WANT TO MAKE SURE I'M NOT SPEAKING OVER -- ONE 463 00:41:36.264 --> 00:41:41.121 POINT ON THE LOIGMAN FACTORS, ON LOIGMAN FACTOR FIVE, WHETHER THE FINDINGS OF PUBLIC 464 00:41:41.121 --> 00:41:47.553 MISCONDUCT COULD BE INSUFFICIENTLY CORRECTED BY REMEDIAL MEASURES. THE 465 00:41:47.553 --> 00:41:53.034 CITY OF ELIZABETH SAYS THESE HAVE BEEN CORRECTED BECAUSE DIRECTOR COSGROVE PROMPTLY 466 00:41:53.034 --> 00:42:00.563 RESIGNED. AND THIS GETS TO THE PROCESS FAILURE WE HAVE. HE DIDN'T PROMPTLY 467 00:42:00.563 --> 00:42:05.624 RESIGN. HE EVENTUALLY RESIGNED AFTER THE ATTORNEY GENERAL CALLED ON HIM TO RESIGN. 468 00:42:05.624 --> 00:42:11.113 HAD THERE BEEN A HEARING WHERE MR. RIVERA WAS ABLE TO PUT FORTH HIS INTEREST, 469 00:42:11.113 --> 00:42:15.997 THAT THERE ARE OTHER GOVERNMENT ARC TORS WHO HAVE ROLES IN THIS PROCESS THAT CERTAINLY 470 00:42:15.997 --> 00:42:20.756 HAVEN'T BEEN REMEDIED. SO, FOR EXAMPLE, THE MAYER OF ELIZABETH, THE FOURTH 471 00:42:20.756 --> 00:42:31.338 LARGEST CITY IN OUR STATE, AFTER LOOKING AT THIS INVESTIGATION. 472 00:42:31.338 --> 00:42:38.222 (INTERRUPTION.) SO IN LIGHT OF THE FACT THAT THEREAFTER THE DIRECTOR RESIGNED AND 473 00:42:38.222 --> 00:42:43.141 THE PUBLIC CERTAINLY HAS AN INTEREST IN LEARNING WHY THERE HAS BEEN AN 474 00:42:43.141 --> 00:42:47.123 ALLEGATION THAT THIS IS FAKE NEWS. AND SO I DON'T THINK IT'S A FAIR ASSESSMENT 475 00:42:47.123 --> 00:42:53.295 TO SAY ALL HAS BEEN REMEDIED AND THE PUBLIC NO LONGER HAS AN INTEREST. 476 00:42:53.295 --> 00:42:57.868 KNOWING THAT OTHER OTHER AMICI TO COME AFTER ME AND REBUTTAL YET TO COME, 477 00:42:57.868 --> 00:43:02.055 UNLESS THERE ARE QUESTIONS, I'LL SUBMIT. JUSTICE ALBIN: 478 00:43:02.055 --> 00:43:10.748 I HAVE ONE. HAS THERE EVER BEEN ANY OFFICIAL FINDING AGAINST THE CHIEF? OTHER 479 00:43:10.748 --> 00:43:14.748 THAN THE FACT THAT HE RE-TIRED. HAS THERE BEEN ANY HEARING, ANY ADMISSION, 480 00:43:14.748 --> 00:43:20.689 ANY FINDING BY ANYONE? ALEXANDER SHALOM: NOT TO MY KNOWLEDGE, 481 00:43:20.689 --> 00:43:23.647 JUSTICE ALBIN. ASSUMING YOU'RE TALKING ABOUT THE DIRECTOR. 482 00:43:23.647 --> 00:43:25.659 JUSTICE ALBIN: YES, I AM. ALEXANDER SHALOM: CORRECT. THERE HAS NOT 483 00:43:25.659 --> 00:43:28.839 BEEN, AS FAR AS I KNOW. CHIEF JUSTICE RABNER: THANK YOU, 484 00:43:28.839 --> 00:43:45.861 MR. SHALOM. MICHAEL R. NOVECK: IMMINENT GOING TO FWOEK 485 00:43:45.861 --> 00:43:49.799 US ON THE COMMON LAW AS WEALTH. AND JUST DO EXPLAIN WHAT OUR INTEREST 486 00:43:49.799 --> 00:43:55.797 IS IN IN CASE, IS THAT PUBLIC RECORDS REQUESTS CAN OFTEN REVEELT THE TYPE 487 00:43:55.797 --> 00:44:01.309 MUCH MISS CONDUCT THAT IS CRUCIAL TO TRUTH FINDING IN THE CRIMINAL JUSTICE PROCESS. 488 00:44:01.309 --> 00:44:05.472 AND WE CITED XAMENT PELS IN OUR BRIEF AND I THINK ACTUALLY YOU WILL SEE 489 00:44:05.472 --> 00:44:10.061 EXAMPLES AS WELL IN THE RORTD ERS XHITD TEASE BRIEF OF CASE IS WHERE A PUBLIC RECORDS 490 00:44:10.061 --> 00:44:14.775 REQUEST LED TO PUBLICATION OF INFORMATION THAT WASN'T KNOWN TO A PROSECUTOR 491 00:44:14.775 --> 00:44:20.415 OR TO A DEFENSE ATTORNEY AND LED TO SMILS OF CRIMINAL CASES. JUSTICE 492 00:44:20.415 --> 00:44:28.512 ALBIN: EXCUSE ME MAY HAVE WE LOST JUSTICE SOLOMON? CHIEF JUSTICE 493 00:44:28.512 --> 00:44:31.064 RABNER: JUSTICE. JUSTICE SOLOMON: I AM HERE I WAS JUST HIDE 494 00:44:31.064 --> 00:44:35.094 GOES I APOLOGIZE. CHIEF JUSTICE RABNER: I HONE I DIDN'T CAUSE 495 00:44:35.094 --> 00:44:40.205 YOU TO HIDE FOR SOME REASON. MICHAEL R. NOVECK: SO IF I COULD 496 00:44:40.205 --> 00:44:43.416 CONTINUE. WE PROVIDED COMBANLTS PELS IN OUR BRIEF ANTSD REPORTERS COMMITTEE PROVIDED 497 00:44:43.416 --> 00:44:47.979 EXAMPLES IN THEIR BRIEF AS WELL OF CASES OF CIRCUMSTANCES WHERE A PUBLIC 498 00:44:47.979 --> 00:44:51.943 RECORDS REQUEST REVEALED POLICE MISS CONDUCT THAT WASN'T KNOWN TO PROSECUTORS THAT 499 00:44:51.943 --> 00:44:55.996 WASN'T KNOWN TO DEFENSE ATTORNEYS THAT WAS SERIOUS MISS CONDUCT THAT INCLUDED 500 00:44:55.996 --> 00:45:02.561 LYING ON MRORTS, AND FABRICATING EVIDENCE AND THE LIKE. SO THAT IS OH THE ROLE 501 00:45:02.561 --> 00:45:07.409 THAT WE THINK THAT PUBLIC RECORDS REQUESTS HAS TO PLAY IN THE CRIMINAL IN THE 502 00:45:07.409 --> 00:45:11.881 CRIMINAL PROCESS. AND THAT GOES TOWARDS THE ISSUE OF BALANCING 503 00:45:11.881 --> 00:45:17.440 THAT'S BEEN EMPHASIZED A LOT TODAY. AND I AM GOING TO TRY TO NOT SAY TOO MUCH 504 00:45:17.440 --> 00:45:22.740 ABOUT THIS BECAUSE I THINK MR. SHALOM COVERED IT BUT THE IDEA THAT IS REALLY 505 00:45:22.740 --> 00:45:28.610 KONLS OUT IN THE DEFENDANT'S BRIEFS IS THEY DO A CLEVER THING WHERE TLE ADDS MIT 506 00:45:28.610 --> 00:45:31.673 THERE IS AN INTEREST IN THE RECORDS AND THEN THEY MOVE TO THE LOIGMAN FACTORS AND 507 00:45:31.673 --> 00:45:36.638 ALL THE REASONS FOR KVGS ALT. AND THAT'S NOT BALANCING. WHAT THIS COURT 508 00:45:36.638 --> 00:45:41.575 SAID IN LYNDHURST IS THAT EACH CASE REQUIRES A CAREFUL CASE BY CASE BALANCING. 509 00:45:41.575 --> 00:45:46.001 AND BALANCING WORKS BOETD WAYS. THERE IS A BALANCE IN FAVOR OF CONFIDENTIALITY 510 00:45:46.001 --> 00:45:52.325 IN CERTAIN CASES BUT THERE IS ALSO A BALANCE IN FAVOR OF DISCLOSURE. SO WHAT A 511 00:45:52.325 --> 00:45:55.459 COURT NEEDS TO DO IN THE COMMON LAW PROCESS AND WHAT WE ARE ASKING THE 512 00:45:55.459 --> 00:45:59.909 COURT TO GIVE GUIDANCE TO TRIAL COURTS IN THIS CASE IS TO EXPLAIN THAT THERE ARE 513 00:45:59.909 --> 00:46:03.607 TWO SIDES TO THE BALANCE THAT THE INTEREST IN THE RECORDS IS NOT JUST A CHECK 514 00:46:03.607 --> 00:46:07.493 MARK THAT YOU GO PAVT AND THEN MOVE ON TO THE LOIGMAN FACTORS OR OTHER FACTORS 515 00:46:07.493 --> 00:46:11.568 IN FAVOR OF CONFIDENTIALITY THAT AT THE END OF THE DAY YOU REALLY DO NEED 516 00:46:11.568 --> 00:46:17.227 TO WEIGH AND BALANCE THE FACTORS. AND JUST TO SPEAK SO THAT'S COMMUNITY 517 00:46:17.227 --> 00:46:20.788 SUPERVISION FOR LIFE ON THE INTEREST IN RELEASING RECORDS SIDE. I THINK 518 00:46:20.788 --> 00:46:25.978 THERE IS A PUBLIC INTEREST AS IN THIS CASE ESPECIALLY WHERE IT WAS A POLICE DIRECTOR 519 00:46:25.978 --> 00:46:30.391 YOU CAN ALSO HAVE REQUESTS WITH SPECIFIC INTERESTS SOMETHING THIS COURT 520 00:46:30.391 --> 00:46:35.053 RECOGNIZED IN GILER VAN V BLOOM FIELD IS THERE AN IN SPECIFIC CASES YOU COULD HAVE 521 00:46:35.053 --> 00:46:38.537 SPECIFIC FACTS THAT LEADS A REQUEST OR DO HAVE A SPEFSHG IN IN RECORDS. 522 00:46:38.537 --> 00:46:41.647 THIS OFFICE LIE IS OF INTERESTS TO US REPRESENTING CRIMINAL DEFENDANTS WHO MAY HAVE 523 00:46:41.647 --> 00:46:46.871 INTEREST IN PARTICULAR RECORDS. AND SO IT'S NOT ALWAYS JUST A PUBLIC INTEREST 524 00:46:46.871 --> 00:46:51.346 ALTHOUGH THE PUBLIC INTEREST IS OBVIOUSLY IMPORTANT, BUT THERE CAN BE PRIVATE INTERESTS 525 00:46:51.346 --> 00:46:56.817 AS WELL ON BEHALF OF SPECIFIC KWORS. SO THOSE ALL GO IN TO THE 526 00:46:56.817 --> 00:47:00.788 BALANCE ON ONE SIDE OF THE SCALE. ON THE CONFIDENTIALITY SIDE 527 00:47:00.788 --> 00:47:04.063 OF THE SCALE I THINK MR. SHALOM COVERED MOST OF WHAT I WAS GOING TO SAY 528 00:47:04.063 --> 00:47:10.612 THE COURT HAS REJECTED GENERIC CONCERNS OF CONFIDENTIALITY IN CASES LIKE LYNDHURST 529 00:47:10.612 --> 00:47:15.355 THE GANETT APPELLATE DIVISION DECISION RECOGNIZED GENERAL CONCERNS OF 530 00:47:15.355 --> 00:47:19.242 CONFIDENTIALITY IN IA RECORDS BUT SAID THOSE GENERAL CONCERNS DON'T NEED TO APPLY 531 00:47:19.242 --> 00:47:24.736 IN EVERY SINGLE CASE. AND THERE REALLY DOES NEED TO BE SCRUTINY OF THE RECORDS. 532 00:47:24.736 --> 00:47:29.314 I WANT TO TALK BRIEFLY ABOUT THE ISSUE OF REDACTION. ONE OF THE THINGS 533 00:47:29.314 --> 00:47:34.004 THAT THE APPELLATE DIVISION SAID WAS WE UNDERSTAND THE TRIAL COURT WAS GOING TO 534 00:47:34.004 --> 00:47:37.617 REDACT TS RECORDS BUT WE THINK IT WOULD LIKELY BE IMPOSSIBLE TO REDACT THE 535 00:47:37.617 --> 00:47:40.973 RECORDS AND THERE COULD BE THINGS THAT THE TRIAL COURT MIGHT NOT REALIZE WOULD 536 00:47:40.973 --> 00:47:45.458 REVEAL THE COMPLAINTS AND IT'S IDENTITY. AND ON THAT SCORE I THINK THE 537 00:47:45.458 --> 00:47:53.290 BURDEN IS OJ THE AGENCY TO EXPLAIN IN THE CONTEXT OF PARTICULAR RECORDS WHY A REDACTION 538 00:47:53.290 --> 00:47:57.630 WOULD NOT SUFFICIENTLY PROTECTS THE CONFIDENTIALITY OF THE COMPLAINANT. 539 00:47:57.630 --> 00:48:02.411 ACKNOWLEDGE TLAJ WE SEE THIS HAPPEN IN SOMEWHAT ANALOGOUSLY IN THE CRIMINAL CONTEXT 540 00:48:02.411 --> 00:48:07.612 IN BRUT ON CONFESSION CASES WHERE A CONFESSION BY A CODEFENDANT NEEDS TO 541 00:48:07.612 --> 00:48:13.116 BE SANITIZED SO AS NOT TO IMPLICATE THE DEFENDANT WHO CAN'T KRON EXAMINE AN NONE 542 00:48:13.116 --> 00:48:17.065 TESTIFYING CODEFENDANT AND IN THE CASE WHERE VD MARYLAND THE UNITED STATES 543 00:48:17.065 --> 00:48:22.284 SUPREME COURT COURT RECOGNIZED THAT YOU DO NEED TO INSURE THAT THAT TYPE OF REDACTION 544 00:48:22.284 --> 00:48:26.953 DOESN'T MAKE IT SO OBVIOUS THAT THE OTHER PERSON MENTIONED IN THE CONFESSION 545 00:48:26.953 --> 00:48:30.934 IS THE DEFENDANT WHO CAN'T CONDUCT A CROSS-EXAMINATION AND THEREFORE DOESN'T HAVE 546 00:48:30.934 --> 00:48:33.513 THE CONFRONTATION RIGHT. SO THIS IS SOMETHING THAT COURTS ARE FAMILIAR 547 00:48:33.513 --> 00:48:37.665 WITH AND ARE ABLE TO DO IN PARTICULAR CASES. AND THAT SAME CASE BY CASE APPROACH 548 00:48:37.665 --> 00:48:42.005 SHOULD APPLY IN THIS CASE AS OPPOSED TO THE BLANKET IT WOULD LIKELY BE 549 00:48:42.005 --> 00:48:47.447 IMPOSSIBLE AND NEVER SUBMIT THE RECORDS FOR IN KRAM CONTRACT REVIEW. 550 00:48:47.447 --> 00:48:53.224 AND THE LAST POINTS I WANT TO MAKE IS THE PLAIN I AM SORRY JUSTICE ALBIN DID YOU HAVE 551 00:48:53.224 --> 00:48:59.340 A QUESTION? YOU WERE ON MUTE BUT I THINK YOU TOLD KNEE TO CONTINUE. THE 552 00:48:59.340 --> 00:49:04.841 LAST POINTS I WANTED TO NAK WAS ABOUT THE APPELLATE DIVISION THERE KONLS OUT 553 00:49:04.841 --> 00:49:10.070 MOSTLY IN THE ORDER ON RECONSIDERATION DENY RECONSIDERATION MENTIONS THE BLUE WITH 554 00:49:10.070 --> 00:49:14.523 ALL OF SILENCE. AND THIS IS SOMETHING THAT COMES UP A LOT IN THE CONTEXT OF INTERNAL 555 00:49:14.523 --> 00:49:20.642 AFFAIRS INVESTIGATIONS THE CLAIM THAT CONFIDENTIALITY WILL ACTUALLY PROMOTE 556 00:49:20.642 --> 00:49:24.630 THE TRUTH BECAUSE THEN POLICE OFFICERS WILL COME FORWARD AND TELL THE TRUTH ABOUT 557 00:49:24.630 --> 00:49:28.989 MISS CONDUCT OF OTHER POLICE OFFICERS. AND I WANT TO CHALLENGE THAT ASSERTION 558 00:49:28.989 --> 00:49:35.458 BECAUSE THERE ARE EXAMPLES OF SITUATIONS WHERE INTERNAL AFFAIRS INVESTIGATIONS 559 00:49:35.458 --> 00:49:42.611 ARE CONFIDENTIAL BUT IN FACT POLICE OFFICERS USE THAT CONFIDENTIALITY TO 560 00:49:42.611 --> 00:49:47.144 FURTHER THE BLUE WALL OF SILENCE AND COVER UP MISS CONDUCT. WE CITED THE EXAMPLE 561 00:49:47.144 --> 00:49:54.153 OF THE CAMDEN FOURTS MRA TUNE IN THE LATE 2000S A CASE ARES VERY NEAR "A TLIRD 562 00:49:54.153 --> 00:49:58.088 CIRCUMSTANCE CASE DUST IS THIS THERE IS A GROUN OF POLICE OFFICERS WHO ENGAGED 563 00:49:58.088 --> 00:50:03.045 IN REPEATED ACTS OF MISS CONDUCT IN PLANTING DRUGS ON DEFENDANTS AND THEN RAEFRG 564 00:50:03.045 --> 00:50:07.274 THEM AND CHARGING THEM AND IN NL CASES KWIKTSING THEM. AND THERE WERE THAN 565 00:50:07.274 --> 00:50:12.996 TERRIBLE AFFAIRS INVESTIGATIONS COMPLAINTS MADE BY DEFENDANTS SAYING THESE COPS 566 00:50:12.996 --> 00:50:18.840 PLANTSED CRUCIAL ON ME THE SAME COPS BEING COMPLANDZ AGAINST OVER AND OVER 567 00:50:18.840 --> 00:50:23.658 AGAIN. AND THE INTERNAL AFFAIRS INVESTIGATIONS SIMPLY RELIED ON THE OFFICERS 568 00:50:23.658 --> 00:50:28.137 WHO SAID NO, WE DIDN'T DO THAT AND THEY INCLUDEDED TOGETHER AND IN THIS KIEFR 569 00:50:28.137 --> 00:50:32.772 BLUE WALL COMMUNITY SUPERVISION FOR LIFE SILENCE SCHEME. AND THAT'S A CASE WHERE 570 00:50:32.772 --> 00:50:38.706 IT WAS ONE WHEN ALL THIS BECAME PUBLIC ALL OF A SUDZ EVEN THE HOUSE OF CARDS 571 00:50:38.706 --> 00:50:42.410 COMPLAENSED AND CONVICTIONS WERE VACATIONED AND CASES WERE DISMISSED. THE 572 00:50:42.410 --> 00:50:48.421 BLUE WALL OF SILENCE IS NOT UNION COUNTY THE CONFIDENTIALITY IS NOT A KIEFR 573 00:50:48.421 --> 00:50:52.176 KUR ALL FOR THE BLUE WALL OF SILENCE AND I WOULD SUBMIT ACTUALLY THAT TRANSPARENCY 574 00:50:52.176 --> 00:50:59.007 IS MORE OF A CURE ALL BY AN AUFRGS UFR WHO KNOWS THAT WHAT THEY SAY TO IA 575 00:50:59.007 --> 00:51:03.559 COULD EVENTUALLY MAKE IT OUT INTO THE PUBLIC RECORD GREEDZ NEEDS TO KNOW THAT THERG 576 00:51:03.559 --> 00:51:07.934 NEEDS TO TELL THE TWRUTS OR THEIR LIES WOULD BE UNCOVERED. WHAT THE COURT 577 00:51:07.934 --> 00:51:12.607 HAS SAID MANY TIMES I ANY MOST REENTSLY IN TS AING DIRECT TIFRS CASE AS A MATTER OF 578 00:51:12.607 --> 00:51:17.286 PUBLIC RECORDS LAWS SERVE TO PROMOTE TRANSPARENCY AND PREVENT THE EEFRLS 579 00:51:17.286 --> 00:51:21.975 IN HERNIATE IN SECLUDED PROSZ EAST. AND I DOEFRN THINK THERE IS AN IA EXCEPTION 580 00:51:21.975 --> 00:51:27.125 TO THE IDEA THAT A SKEE INCLUDEDED PROCESSES ARE USED TO COVER UP MISS 581 00:51:27.125 --> 00:51:30.348 CONDUCT. SO WITH THAT IF THERE ARE NO KWURT X FURTHER QUESTIONS 582 00:51:30.348 --> 00:51:33.393 I WILL." JUSTICE ALBIN: I HAVE ONE QUESTION MR. NOVECK I JUST 583 00:51:33.393 --> 00:51:37.327 WANT TO BE CLEAR ABOUT ONE THING BECAUSE YOU ARE REPRESENTING THE ASSOCIATION OF 584 00:51:37.327 --> 00:51:42.127 CRIMINAL DEFENSE LAWYERS. YOU'RE NOT SUGGESTING THAT CRIMINAL DEF LAWYERS 585 00:51:42.127 --> 00:51:50.576 WHO HAVE THE RIGHT TO DISCOVERY UNDER 3: 13- 3 ARE BOUND BY OPRA? YOU ARE JUST 586 00:51:50.576 --> 00:51:59.055 -- OR ARE YOU? I MEAN OR ARE YOU JUST INTERPRETING OPRA NOW? YOU ARE NOT 587 00:51:59.055 --> 00:52:04.091 I AM TRYING TO TOTALLY UNDERSTAND YOUR POSITION. MICHAEL R. NOVECK: 588 00:52:04.091 --> 00:52:08.514 RIGHT. SO THERE'S TWO DIFFERENT AVENUES TO GET THERE IS COMMUNITY SUPERVISION 589 00:52:08.514 --> 00:52:12.641 FOR LIFE SEPARATE AFTER FLUS TO GET INTERNAL AFFAIRS RECORDS. ONE IS 590 00:52:12.641 --> 00:52:17.279 OBVIOUSLY THROUGH DISCOVERY AND THERE ARE DISCOVERY RULES A CASE STATE VSZ LARS 591 00:52:17.279 --> 00:52:20.719 IN THE APPELLATE DIVISION, THIS COURT RECENTLY GRANTED CERTIFICATION IN A 592 00:52:20.719 --> 00:52:24.851 CASE STATE VERSUS HAGS THAT IMPLICATES THIS ISSUE AS WELL. SO THOSE ARE COMMUNITY 593 00:52:24.851 --> 00:52:27.849 SUPERVISION FOR LIFE SEPARATE ARGUMENTS. THE POINT THE REASON WE DECIDED 594 00:52:27.849 --> 00:52:33.973 TO IN IN CASE WAS TO EXPLAIN THAT PUBLIC RECORDS REQUESTS ALSO INVOLVE AN AVENUE 595 00:52:33.973 --> 00:52:39.458 THAT LEADS TO THE DISCOVERY OF MISS CONDUCT THAT IS IN FURTHERANCE OF 596 00:52:39.458 --> 00:52:46.688 TRUTH FINDING AND FAIRNESS AND ACCURACY IN THE CRIMINAL JUSTICE PROCESS. 597 00:52:46.688 --> 00:52:49.773 CHIEF JUSTICE RABNER: THANK YOU MR. KNOW OF EKS NOEFR NOEFR THANK YOU. 598 00:52:49.773 --> 00:52:51.915 CHIEF JUSTICE RABNER: MISS BAUKNIGHT. APRIL C. BAUKNIGHT: 599 00:52:51.915 --> 00:52:57.377 GNL CHEEFR JUSTICE RABNER YOUR HONORS THU FOR THE OPPORTUNITY TO SPEAK ON BEHALF 600 00:52:57.377 --> 00:53:01.391 OF THE UNSGLUNLTS UNION COUNTY PROSECUTOR'S OFFICE THIS MORNING. 601 00:53:01.391 --> 00:53:06.896 ECHL GOING TO BRIEFLY DISCUSS THE OPRA ARGUMENT, THE COMMON LAW RIGHT OF ACCESS 602 00:53:06.896 --> 00:53:11.222 AND WHY THE BALANCING TEST THAT WHEREAS KUKD BY THE APPELLATE DIVISION WAS 603 00:53:11.222 --> 00:53:18.123 DONE WITH THE INFORMATION THAT WAS PROVIDED ON THE RECORD. 604 00:53:18.123 --> 00:53:22.881 THE PROSECUTOR'S OFFICE OBVIOUSLY GREED THAT OPRA THE STATUTE IS TO MERCADO PROMOTE 605 00:53:22.881 --> 00:53:26.463 TRANSPARENCY IN GOVERNMENT BUT THERE ARE LIMITATIONS TO THIS PROMOTION OF 606 00:53:26.463 --> 00:53:31.545 TRANSPARENCY IN GOVERNMENT AND THOSE LIMITATIONS AS BRIEFED AND OUTLINED BY ALL 607 00:53:31.545 --> 00:53:36.632 THE PARTIES IN REITERATED EARLIER THIS MORNING BY ATTORNEY GRIFFIN I WON'T 608 00:53:36.632 --> 00:53:41.386 GOET GO INTO THEM AT LENGTHS BUT THERE ARE XENL SHUNS TO THESE TO WHAT'S BEING 609 00:53:41.386 --> 00:53:47.809 RELEASED UNDER OPRA AND ONE OF THESE EXEMPTIONS IS INVESTIGATION INTERNAL 610 00:53:47.809 --> 00:53:51.950 AFFAIRS REPORTS AND IT IS INVESTIGATIONS BEHIND THEM. IT HAS BEEN LONG STANG THAT 611 00:53:51.950 --> 00:53:57.739 THOSE HAVE BEEN TREATED CONFIDENTIALLY AND THEN IN THE PROCESS OF DENYING THE 612 00:53:57.739 --> 00:54:02.133 OWN PUBLIC RECORD ACT REQUEST OF THE CURRENTS PLAINTIFF IN THIS MATTER THE 613 00:54:02.133 --> 00:54:06.364 UNION COUNTY PROSECUTOR'S OFFICE WAS AKING IN THEIR REGULAR COURSE OF BUSINESS 614 00:54:06.364 --> 00:54:12.209 IN TERMS OF WHAT THEY DO. THERE WAS NO REASON OTHER THAN THE IS AN ESTABLISH 615 00:54:12.209 --> 00:54:16.213 US NECESSARY OF THE TOPIC TO TREAT THIS MATTER ANY DIFFERENTLY THAN WHAT WE DO IN 616 00:54:16.213 --> 00:54:20.110 OI OTHER OPRA MATTER. YOU WILL RECALL THAT OPEN PRACTICE KWORS CAN REQUEST 617 00:54:20.110 --> 00:54:24.635 A NONS NEWSLY YOU MAY ALSO ALWAYS KNOW WHY REQUEST ORS ARE REQUESTING INFORMATION 618 00:54:24.635 --> 00:54:28.180 AND WE ARE FLOTS ALLOWED TO ASK WE JUST HAVE TO TREAT EVERYTHING IN THE 619 00:54:28.180 --> 00:54:31.506 STERILE EVEN VIERNL AND APPLY ALL THE FACTORS THE NAME SO MATTER WHO IS REQUESTING 620 00:54:31.506 --> 00:54:36.573 THE INFORMATION OR WHY AND THAT'S HOW THE OPRA PORTION OF THIS WAS HANDLED. 621 00:54:36.573 --> 00:54:44.356 AND WE BELIEVE THAT THE RECENT CASE LAW THAT HAS BEEN REITERATED IN LIB 622 00:54:44.356 --> 00:54:50.440 TARNS IN THE FOP CASE IN IN RAY AING DIRECT TIFRS AND IN THE BEGAN NET CASE 623 00:54:50.440 --> 00:54:56.107 THAT THAT SUPPORTS KEEPING THE PROSECUTORS DECISION TO DENY RELEASING THE RECORDS 624 00:54:56.107 --> 00:55:02.085 PURNTS TO OPRA. AS IT RELATES TO THE COMMON LAW, WHAT'S VERY 625 00:55:02.085 --> 00:55:09.668 IMPORTANT IS THE WEIGHING OF THE L LOIGMAN FACTORS IN THIS LETTER. MATTER. THIS 626 00:55:09.668 --> 00:55:16.080 THERE IS A VERY, VERY IMPORTANT CERTIFICATION THAT IS GIVEN BY THEN AKING 627 00:55:16.080 --> 00:55:20.372 ASSISTANT PROSECUTOR JOHN ESMERADO HE IS AN ATTORNEY. HE SIGNED A CERTIFICATION 628 00:55:20.372 --> 00:55:26.411 IN HISZ CERTIFICATION HE OUTLINES THAT HE PERSONALLY PROMISED AND MINUTE TEE TO 629 00:55:26.411 --> 00:55:30.360 THOSE WHO TESTIFIED. IT IS HIM PUTTING HIS WORDS ON THE LINE TO THESE 630 00:55:30.360 --> 00:55:35.487 INDIVIDUALS WHO CAME FORTH. WE HAVE TO UNDERSTAND THAT THIS IS A DIRECTOR OF A 631 00:55:35.487 --> 00:55:40.290 POLICE DEPARTMENT. HE'S VERY WELL CONNECTED POLITICALLY. WIFE PEOPLE 632 00:55:40.290 --> 00:55:43.815 WHO UNDER ORDINARY CIRCUMSTANCES PROBABLY WOULD NEVER SAY ANYTHING AND PROBABLY 633 00:55:43.815 --> 00:55:49.798 ANY OF THIS CONDUCT KWO HAVE NEVER COME TO LIGHT. AND IT'S BUT FOR MR. 634 00:55:49.798 --> 00:55:55.294 ESMERADO'S DILIGENCE IN SEEKING TO GET TO THE HEART OF THIS MATTER THAT WE EVEN 635 00:55:55.294 --> 00:56:01.959 HAVE ENOUGH EF AGAINST THE POLICE CHIEF TO BE ABLE TO FORCE HIM TO RESIGN IN THIS 636 00:56:01.959 --> 00:56:07.506 INSTANCE. AND I THINK THAT THAT INFORMATION WAS VERY, VERY MUCH AWARE 637 00:56:07.506 --> 00:56:12.102 AND ON THE MINDS OF THOSE MAKING THE A PELTH DECISION AND THAT IS BEING LOST ON 638 00:56:12.102 --> 00:56:16.075 A LOT OF PEOPLE IN THIS ROOM TODAY. AND I DON'T WANT IT TO BE 639 00:56:16.075 --> 00:56:20.468 LOST ON THE JUSTICES AND I DON'T THINK THAT IT WILL BE. 640 00:56:20.468 --> 00:56:24.475 ACCORDING TO THE LOIGMAN FACTORS, THERE ARE SEVERAL THINGS. ONE OF THEM THAT IS 641 00:56:24.475 --> 00:56:28.345 VERY POSH IS THAT THERE IS IF THERE IS A HISTORY OF THIS INFORMATION NOT BEING 642 00:56:28.345 --> 00:56:33.917 RELEASED, THAT IS A HEAVY HEAVILY WEIGHTED FACTOR. IN THE INSTANT MATTER THIS 643 00:56:33.917 --> 00:56:38.067 IS THERE IS A HISTORY THAT THESE TYPES OF REPORTS ARE NOT RELEASED. WE 644 00:56:38.067 --> 00:56:42.508 CAN WE WANT TO DISCUSS WHETHER THEY SHRUBBERY LEASED OSH NOT BE RELEASED GOING 645 00:56:42.508 --> 00:56:44.951 FORWARD THAT IS A DECISION FOR THE LEG YOU ARE TO MAKE THAT IS NOT A DECISION 646 00:56:44.951 --> 00:56:49.396 FOR ANYBODY IN THIS COURTROOM TODAY TO MAKE THAT DECISION. THAT GOES' FOR THE 647 00:56:49.396 --> 00:56:53.541 LEGISLATURE. THEY NEED TO DECIDE THAT THEY WANT THESE INTERNAL AFFAIRS 648 00:56:53.541 --> 00:56:57.617 REPORTS TO BE RELEASED AND IF THEY WILL ISSUE A STATUTE SAYING SO THEN WE WILL BE 649 00:56:57.617 --> 00:57:02.024 HAEP TO RAILWAY LEASE THEN BUT THAT'S NOT THE CURRENT LANDSCAPE AT THIS TIME. 650 00:57:02.024 --> 00:57:04.854 JUSTICE FUENTES: EXCUSE ME COUNSEL. ARE YOU ARGUEING THAT 651 00:57:04.854 --> 00:57:10.852 UNDER THE COMMON LAW THE JUDICIARY DOESN'T HAVE A ROLE TO PLAY AT ALL THE LEGISLATURE 652 00:57:10.852 --> 00:57:16.047 CAN MAKE THAT DETERMINATION SFLOO NO THAT'S NOT WHAT INL SAGS AT ALL YOUR 653 00:57:16.047 --> 00:57:20.436 HONOR WHAT I AM SAYING IS I AN RELEASE TO CHANGING HOW WE SEE INTERNAL AFFAIRS REPORTS 654 00:57:20.436 --> 00:57:24.789 AND HOW WE TREAT THEM AND HOW WE USE THEM TO MAKE A BLANKET STATEMENT OF 655 00:57:24.789 --> 00:57:29.641 RELEASE IN ALL IN SUBSTANCES THAT WILL BE A DECISION FOR THE LEGISLATURE TO MAKE 656 00:57:29.641 --> 00:57:32.458 AND NOT FOR ANYONE IN THIS ROOM. JUSTICE FUENTES: IS THERE 657 00:57:32.458 --> 00:57:37.524 ANY OTHER CASE YOU CAN CITE US THAT WOULD FWIF THE APPELLATE DIVISION ORJT 658 00:57:37.524 --> 00:57:42.740 NAL JURISDICTION TO MAKE THESE FINDINGS? ISN'T THAT ORDINARILY DONE BY THE TRIAL 659 00:57:42.740 --> 00:57:48.296 COURT AND VOOUFRD BY THE APPELLATE DIVISION WITHIN ITS ROLE. 660 00:57:48.296 --> 00:57:52.113 APRIL C. BAUKNIGHT: YOU MEAN I AM HAVING A HARD TIME HEARING YOU DO YOU MEAN AS 661 00:57:52.113 --> 00:57:55.928 FAR ASSETING FORTH LIKE SETTING FOERTD THE RECORD IS THAT WHAT YOU MEAN. 662 00:57:55.928 --> 00:57:58.844 JUSTICE FUENTES: YES ACTUALLY ESTABLISHING THE RECORD YES. 663 00:57:58.844 --> 00:58:02.832 APRIL C. BAUKNIGHT: YES. SO NO, ATTORNEY GRIFFIN DID A TEMTH 664 00:58:02.832 --> 00:58:07.945 TO GIVE THE TRIAL COURT JUDGE TO MAKE ACTUALLY FINDING IN THE RULE ON THE COMMON 665 00:58:07.945 --> 00:58:11.598 LAW AND HE REFUSED BECAUSE HE FELTS THAT IT SHRUBBERY LEASE DZ ND OPRA 666 00:58:11.598 --> 00:58:17.273 SO HE OPTED NOT TO DO THAT. HOWEVER, DESPITE THE FACT THAT THE TRIAL COURT DID 667 00:58:17.273 --> 00:58:21.616 NOT MAKE FINDINGS ON P THE RECORD ALL OF THE INFORMATION THAT WOULD HAVE BEEN 668 00:58:21.616 --> 00:58:27.004 PROVIDED SHUDZ HE HAVE DECIDED TO MAKE A DECISION ON P RECORD IS NEVERTHELESS IN 669 00:58:27.004 --> 00:58:32.206 THE RECORD AND IT'S IN THE RECORD PRIMARILY IN THE FORM OF JOHN ESMERADO'S 670 00:58:32.206 --> 00:58:33.396 CERTIFICATION. JUSTICE FUENTES: WOULDN'T THAT WARRANT THEN 671 00:58:33.396 --> 00:58:41.181 BY THE ACHGS TO HAVE REMANDED IT? AND DIRECT THE TRIAL COURT TO CONDUCT A BALANCING 672 00:58:41.181 --> 00:58:46.309 TEST ON THE COMMON LAW RATHER THAN ASSUME ORIGINAL JURISDICTION ON THE MATTER? 673 00:58:46.309 --> 00:58:50.687 APRIL C. BAUKNIGHT: I THINK THAT I THINK THAT CERTAINLY IS 674 00:58:50.687 --> 00:58:55.700 ONE OPTION THAT THE APPELLATE DIVISION COULD HAVE TAKEN. AND I THINK THAT THE 675 00:58:55.700 --> 00:58:59.837 OPTION THAT THEY TOOK WAS EQUALLY SUPPORTED BECAUSE THERE WAS ENOUGH 676 00:58:59.837 --> 00:59:04.380 INFORMATION IN THE RECORD TO PROVIDE THAT THROUGH THE CERTIFICATION. 677 00:59:04.380 --> 00:59:07.039 CHIEF JUSTICE RABNER: AND THE RECORD AGAIN THAT YOU ARE RELYING ON IS THE THREE-PAGE 678 00:59:07.039 --> 00:59:13.042 S OF TEXT 245 APPEAR IN MR. ESMERADO'S CERTIFICATION WHICH RESPECTFULLY IS 679 00:59:13.042 --> 00:59:18.342 LARGELY GENERIC. APRIL C. BAUKNIGHT: SO YES, I HAVE ABOUT FOUR 680 00:59:18.342 --> 00:59:24.487 PAJS IN MINE BUT YES THAT IS THE CERTIFICATION THAT I AM TALKING ABOUT. AND IT 681 00:59:24.487 --> 00:59:30.407 DOES TALK ABOUT HIM STILL GOING THROUGH THE PROCESS, IT TALKS ABOUT HIM TRYING 682 00:59:30.407 --> 00:59:37.951 TO RELEASE THINGS. AND IT ALSO WHILE IT MAY SEEN GENERIC AT FIRST GLANCE, IT IS 683 00:59:37.951 --> 00:59:43.623 INTENTIONAL SO THAT INFORMATION LIKE THE INFORMATION THAT WE ARE TRYING TO MAKE 684 00:59:43.623 --> 00:59:48.961 SURE DOESN'T GET RELEASED SO PEOPLE ARE PEOPLE'S IDENTITIES AREN'T GIVEN A WAY 685 00:59:48.961 --> 00:59:53.289 OR ANY OTHER UNNECESSARY INFORMATION SNTS GIVEN A WAY THAT WAS ALL CONTEMPLATED 686 00:59:53.289 --> 00:59:57.139 IN THE CERTIFICATION AS WELL. CHIEF JUSTICE RABNER: SO DOESN'T 687 00:59:57.139 --> 01:00:01.334 THAT GO TO THE QUESTION THAT JUDGE FUENTES IS POSING KNOW YOU WE HAVE AN 688 01:00:01.334 --> 01:00:05.771 APPELLATE COURT WITHOUT A RECORD OF THE ACTUAL MATERIALS, WITHOUT AN IN CAMERA 689 01:00:05.771 --> 01:00:10.835 REVIEW HAFRLG BEEN CONDUCT, WITH A SPARTAN CERTIFICATION AND EVEN NOT BEING 690 01:00:10.835 --> 01:00:16.111 CITE CALF IT, IT IS WHAT IT IS WITH THE LIMITED TEXT THE THAT IT PROVIDES, CONDUCT 691 01:00:16.111 --> 01:00:21.613 ING A BALANCING THAT IS ESSENTIALLY AN OBJECTIVE ASSESSMENT BASED ON SOME 692 01:00:21.613 --> 01:00:25.222 GENERIC CONCERNS. IS THAT ENOUGH? APRIL C. BAUKNIGHT: I THINK IT'S 693 01:00:25.222 --> 01:00:30.049 NOT JUST THE CERTIFICATION. I THINK IT'S ALWAYS V ALL THE FACTORS THAT 694 01:00:30.049 --> 01:00:35.067 WERE TAKEN INTO CONSIDERATION THAT THE APPELLATE DIVISION DID WEIGH AND OBVIOUSLY 695 01:00:35.067 --> 01:00:40.098 IT IS OUR POSITION THAT THEY WEIGHED THEM FAIRLY AND THEN I CAN ALSO GO 696 01:00:40.098 --> 01:00:45.929 YOU KNOW I WON'T REITERATE AT LENGTH BUT THEN OUR SUPPLEMENTAL BRIEF ALSO GOES 697 01:00:45.929 --> 01:00:51.473 THROUGH IN MORE DEPTH THE COMMON LAW ANALYSIS IN HOW THESE FACTORS WEIGH IN 698 01:00:51.473 --> 01:00:55.693 THE BALANCE AND IT'S THE UNION COUNTY PROSECUTOR'S OFFICE POSITION THAT EVEN IF 699 01:00:55.693 --> 01:00:59.674 WE GO BACK AND REMAND THERE IS STILL ENOUGH INFORMATION THAT ALL THESE 700 01:00:59.674 --> 01:01:02.640 FACTORS WLA IN FAVOR OF NOT DISCLOSING THE RECORD. CHIEF JUSTICE RABNER: 701 01:01:02.640 --> 01:01:06.355 SHOULDN'T THERE BE WOULDN'T IT BE MORE HELPFUL TO HAVE MORE CONTEXT FOR THE 702 01:01:06.355 --> 01:01:10.367 DECISION MAKER CONDUCT CAN THE BALANCE? TAKE THE EXAMPLE FROM PLAINTIFF'S BRIEF 703 01:01:10.367 --> 01:01:17.239 AS ONE, SUPPOSE COMMENTS WERE MADE IN FRONT OF A VERY LARGE GROUP, WHICH WE 704 01:01:17.239 --> 01:01:21.850 DON'T KNOW BASED ON THE INFORMATION HERE, WOULD THAT EFFECT THE BALANCING TEST? 705 01:01:21.850 --> 01:01:25.305 APRIL C. BAUKNIGHT: I THINK CLEARLY IT WOULD EFFECT THE BALANCING 706 01:01:25.305 --> 01:01:29.716 TEST. BUT I THINK THERE IS ENOUGH INFORMATION IN THE CERTIFICATION THAT LETS US 707 01:01:29.716 --> 01:01:33.112 KNOW THAT THAT'S NOT QUITE WHAT HAPPENED, THAT THESE ARE SITUATIONS WHERE 708 01:01:33.112 --> 01:01:39.586 THERE THE EXAMPLE IN THE APPELLATE DIVISION IS THERE'S TWO PEOPLE IN A ROOM, I 709 01:01:39.586 --> 01:01:43.996 MAKE A COMMENT, THAT COMMENT ET CETERA GETS OUT YOU AND I OR THE ARE THE 710 01:01:43.996 --> 01:01:47.752 ONLY TWO IN THE ROOM I KNOW WHO MADE THE COMMENTS IT COULD ONLY BE ME BECAUSE WE 711 01:01:47.752 --> 01:01:51.005 WERE THE ONLY PEOPLE ALT THE #250I78 MAKES THESE STATEMENTS. AND I THINK 712 01:01:51.005 --> 01:01:57.852 THAT THE CERTIFICATION AND THE EXAMPLES PROVIDED BETWEEN MY BRIEF, THE CITY OF 713 01:01:57.852 --> 01:02:02.094 ELIZABETH' GOES PREEF THAT IS THE NATURE OF WHAT WE ARE TALKING ABOUT AND 714 01:02:02.094 --> 01:02:06.120 THAT'S WHY I THINK THE RECORD IS SUFFICIENT TO. JUSTICE ALBIN: COUNSEL, 715 01:02:06.120 --> 01:02:12.664 IF THE REQUEST OR NEW THAT THE COMMON LAW WHEREAS GOING TO BE A DECISIVE ISSUE 716 01:02:12.664 --> 01:02:19.274 BEFORE THE TRIAL COURT, WOULD NOT THE REQUEST OR HAVEED OPPORTUNITY TO PERHAPS 717 01:02:19.274 --> 01:02:24.592 CALL THE ASSISTANT PROSECUTOR AS A WITNESS AND QUESTION HIM? OR CALL OTHER 718 01:02:24.592 --> 01:02:33.485 WITNESSES. EVEN IF THIS HAD TO BE KUKD IN CAMERA. AND I ASK THAT QUESTION BECAUSE 719 01:02:33.485 --> 01:02:39.600 THE CHIEF JUSTICE WAS SAYING THAT THE CERTIFICATION SEEMS TO BE BAYER BONES 720 01:02:39.600 --> 01:02:44.435 AND THERE ARE ISSUES THAT WE JUST DON'T KNOW LIKE HOW MANY PEOPLE WERE PRESENT, 721 01:02:44.435 --> 01:02:49.727 WAS THERE A LOT, WAS IT ONE ON ONE? WE DON'T KNOW ANY OF THOSE THINGS. 722 01:02:49.727 --> 01:02:55.617 AND THE APPELLATE DIVISION OBVIOUSLY COULDN'T KNOW THAT BASED UPON A SINGLE 723 01:02:55.617 --> 01:03:01.164 CERTIFICATION. SO IS IT NOT LIKE A QUESTION OF FAIRNESS TOO, THE RIGHT OF THE 724 01:03:01.164 --> 01:03:06.377 REQUEST OR TO HAVE THE OPPORTUNITY TO BE HEARD AND PERHAPS IF NECESSARY, 725 01:03:06.377 --> 01:03:13.627 CALL WITNESSES OR PREEF COUNTER CERTIFICATIONS ^ ( ^ ) PROVIDE 726 01:03:13.627 --> 01:03:16.301 12346789. APRIL C. BAUKNIGHT: OBVIOUSLY I THINK THAT IT'S 727 01:03:16.301 --> 01:03:21.771 EVERYONE WANTS TO BE HEARD SO I WOULD NEVER COME TO A COURT A SUPREME COURT AND 728 01:03:21.771 --> 01:03:26.953 DENY ANYONE'S RIGHT OR ABILITY TO BE HEARD. BUT I THINK WHAT IS AT ISSUE 729 01:03:26.953 --> 01:03:31.339 HERE IS IF YOU HAD BEEN HEARD, WOULD THAT HAVE CHANGED ANYTHING THAT WAS ULTIMATELY 730 01:03:31.339 --> 01:03:36.157 CONCLUDED. AND I THINK THE APPELLATE DIVISIONS POSITION ON THAT IS NO EVEN IF 731 01:03:36.157 --> 01:03:40.507 WE HAD HEARD ADDITIONAL HOWEVER WHATEVER WE FEEL LIKE THERE IS ENOUGH 732 01:03:40.507 --> 01:03:43.722 INFORMATION IN THE RECORD TO MAKE THE DETERMINATION THAT IT WOULDN'T HAVE CHANGED 733 01:03:43.722 --> 01:03:47.236 OUR OPINION. JUSTICE ALBIN: I DON'T KNOW -- HOW CAN YOU 734 01:03:47.236 --> 01:03:51.892 MAKE I DON'T KNOW HOW THE APPELLATE DIVISION CAN MAKE A DECISION THAT IT WOULD 735 01:03:51.892 --> 01:03:57.117 NOT BE AFFECTED BY INFORMATION THAT ISN'T BROUGHT TO ITS ATTENTION. FOR 736 01:03:57.117 --> 01:04:03.310 INSTANCE, I THINK THIS WAS RAISED EARLIER BY COUNSEL, THERE MAYBE WITNESSES WHO 737 01:04:03.310 --> 01:04:10.430 DON'T WANT TO BE KEPT CONFIDENTIAL, THEY MAYBE HAEP TO HAVE THAT I AM NAMES 738 01:04:10.430 --> 01:04:16.280 MENTIONED. THAT WOULD PROVIDE A DIRN CIRCUMSTANCE. NO? 739 01:04:16.280 --> 01:04:19.848 APRIL C. BAUKNIGHT: YES I THINK I THINK IF THE WITNESS SAID YES, SIGN ME UP, 740 01:04:19.848 --> 01:04:24.571 I'LL SQUEAL, YOU KNOW, THAT YES IT WOULD BE A DIFFERENT CIRCUMSTANCE. BUT 741 01:04:24.571 --> 01:04:30.594 I THINK THAT THE NATURE OF THE INVESTIGATION DOESN'T LEND TO THOSE BEING LIKELY 742 01:04:30.594 --> 01:04:38.142 RESULTSAL ALLEGE SHUDZ WE BE SPECULATING SHUDZ BEEB ENGAGING IN ^ CON ^ 743 01:04:38.142 --> 01:04:39.984 CONNECTICUT JEK SHOULD ANY DECISION BE FAK BASED. APRIL C. 744 01:04:39.984 --> 01:04:43.518 BAUKNIGHT: I FWREE THE DECISION SHOULD BE FACT BASED I DON'T THINK THAT THEY ARE 745 01:04:43.518 --> 01:04:49.167 NOT. I THINK THAT THERE IS IT'S BEEN BRIEFED. WE ADDRESSED THE FACTORS, 746 01:04:49.167 --> 01:04:56.849 THEY WERE IN THE CERTIFICATION THE WITNESSES THAT WERE TESTIFYING SPECIFICALLY 747 01:04:56.849 --> 01:05:03.315 ASKED WERE THEY GOING TO BE TESTIFYING OR GIVING THEIR RECANT OF THE STORY 748 01:05:03.315 --> 01:05:09.575 ANONYMOUSLY. THERE WERE SPECIFIC REASSURED IT WAS GOING TOK A FLON PLUS. I THINK 749 01:05:09.575 --> 01:05:13.125 THAT'S IMPORTANT. JUSTICE ALBIN: YOU HEARD EARLIER BY MR. 750 01:05:13.125 --> 01:05:18.643 SHALOM WHETHER OR NOT THE SIFRT PROSECUTOR EVEN HAD THE AUTHORITY TO MAKE 751 01:05:18.643 --> 01:05:26.631 SOME BLANKET PROMISE OF ANONYMITY. WE KNOW EVEN IN THE CRIMINAL CONTEXT THE IN 752 01:05:26.631 --> 01:05:31.778 FORMANTS PRIVILEGE AND THE JUDGE ULTSLY MAKES THE DECISION WHETHER OR NOT 753 01:05:31.778 --> 01:05:41.900 IDENTITY HAS TO BE DISCLOSED. SO WAS THE ASSISTANT PROSECUTOR GOING GOING BEYOND 754 01:05:41.900 --> 01:05:46.068 HIS AUTHORITY IF AND I DON'T KNOW IF THIS IS THE CASE, IF HE WAS SAYING 755 01:05:46.068 --> 01:05:51.427 UNDER ALL AND ALL UNDER ANY CIRCUMSTANCE YOUR NAME WILL NEVER BE KNOWN. 756 01:05:51.427 --> 01:05:57.335 APRIL C. BAUKNIGHT: I DON'T KNOW OFFICE LIE NEITHER YOU NOR I WERE IN THE 757 01:05:57.335 --> 01:06:02.770 ROOM WHEN ATTORNEY ESMERADO HAD THESE CONVERSATIONS OR MADE THESE PROMISES 758 01:06:02.770 --> 01:06:09.146 OR WHATEVER WAS SAID. SO JUST GENERALLY SPEAKING, I THINK THAT WHEN YOU'RE HAVING 759 01:06:09.146 --> 01:06:14.350 A CONVERSATION AND THEY'RE ASKING CAN YOU PROMISE ME CAN YOU DO THIS ANONYMOUS 760 01:06:14.350 --> 01:06:18.240 LY AND IT IS CLEAR THAT YOU CAN MAKE ANONYMOUS COMPLAINTS AND SO I DON'T KNOW THAT 761 01:06:18.240 --> 01:06:24.913 THEY HAD ANY REASON TO BELIEVE OR TO ASSERT THEIR REQUEST TO REMAIN A NONE 762 01:06:24.913 --> 01:06:28.568 MUSZ OR NOT HAVE THAT I AM NANLS PUT INTO THE RECORD ANY MORE THAN WHAT THEY DID 763 01:06:28.568 --> 01:06:34.177 AT THE TIME. AND I DON'T KNOW THAT ATTORNEY ESMERADO KNEW THAT HE NEEDED TO BE 764 01:06:34.177 --> 01:06:38.537 MORE CAUTIOUS OR DIL GENERAL OR THAT HE EVEN GAVE A BLANKET STATEMENT. 765 01:06:38.537 --> 01:06:44.443 THEY ASKED THEY REQUESTED AN ANONYMITY AND HE SAID OKAY I DON'T WON'T TELL ANYTHING 766 01:06:44.443 --> 01:06:47.880 AND THEN THEY GAVE THEIR TESTIMONY AND FROM THE FROM HIS CERTIFICATION IT 767 01:06:47.880 --> 01:06:51.709 SOUND LIKE HE NEEDED TO BE VERY PERSUASIVE WITH SOME OF THE INDIVIDUALS AND THAT 768 01:06:51.709 --> 01:06:56.116 TESTIMONY IS REALLY WHAT BROUGHT IT OVER THE EDGE. CHIEF JUSTICE 769 01:06:56.116 --> 01:07:01.977 RABNER: SO THERE IS -- I AM HOPING YOU CAN TELL US WHERE IN THE RECORD THE 770 01:07:01.977 --> 01:07:06.760 AFFIRMATIVE PROMISE OF CONFIDENTIALITY CAN BE FOUND. I SEE A SENTENCE IN PARAGRAPH 771 01:07:06.760 --> 01:07:12.515 FIVE OF THE ESMERADO CERTIFICATION THAT SAYS MULTIPLE SWORN LAW ENFORCEMENT 772 01:07:12.515 --> 01:07:16.272 AND CIVILIAN PARTIES THROUGHOUT THE INVESTIGATION WERE EXTREMELY RECEIPT SENT TO 773 01:07:16.272 --> 01:07:19.818 PROVIDE STATEMENTS IF THEIR STATEMENT WAS TO BE SHARED WITH ANY OTHER PARTY. IS 774 01:07:19.818 --> 01:07:24.039 THERE ANYTHING MORE SPECIFIC THAN THAT ON WHICH YOU RELY? 775 01:07:24.039 --> 01:07:31.604 APRIL C. BAUKNIGHT: IF YOU JUST GIVE ME A MOEMTH TO JUST. CHIEF 776 01:07:31.604 --> 01:07:32.895 JUSTICE RABNER: OF COURSE. APRIL C. BAUKNIGHT: I BELIEVE THAT IS 777 01:07:32.895 --> 01:07:49.710 THE PRIMARY SOURCE. YES YES THAT IS THE PRIMARY PARAGRAPH. 778 01:07:49.710 --> 01:07:55.925 AND I'LL ADD SOME THINGS ALSO IN THAT PARAGRAPH. THE INFORMATION GATHERING 779 01:07:55.925 --> 01:08:00.469 PROPERTIES EAST WAS DIFFICULT GIVEN THE SENSITIVE NATURE OF THE INQUIRY. RELEASING 780 01:08:00.469 --> 01:08:05.130 INFORMATION WAS DULGLY HAMPERED OR COMPROMISED. THE ABILITY TO 781 01:08:05.130 --> 01:08:10.626 INVESTIGATE FUTURE ALLEGATIONS OF MISS CONDUCT. IT'S ALWAYS DIFFICULT TO 782 01:08:10.626 --> 01:08:15.057 INVESTIGATE THE CIVILIAN OF A POLICE DEPARTMENT BECAUSE HE HAS A STRONG 783 01:08:15.057 --> 01:08:20.799 SENSE OF LEADER SHIP FRM SO IT GOES ON IN THAT PARTICULAR PARAGRAPH. 784 01:08:20.799 --> 01:08:25.573 CHIEF JUSTICE RABNER: AND THOSE STRIKE THE READER PERHAPS AS GENERIC COMMENTS. 785 01:08:25.573 --> 01:08:29.870 I DON'T SEE AN EXPRESS PROMISE OF CONFIDENTIALITY THERE. AND IT GOES TO 786 01:08:29.870 --> 01:08:33.708 THE STATE OF THE RECORD THAT THE APPELLATE DIVISION HAD IN FRONT OF IT WHEN IT 787 01:08:33.708 --> 01:08:38.530 KUKD THE BAMG. THAT REALLY IS AT THE HEART OF THE ISSUE HERE. YOU'RE ESSENTIALLY 788 01:08:38.530 --> 01:08:44.272 RELYING ON THIS PARAGRAPH. APRIL C. BAUKNIGHT: WELL, I AM 789 01:08:44.272 --> 01:08:49.542 RELYING ON THE ENTIRETY OF THE STATEMENT IN TERMS OF IT BEING DIFFICULT 790 01:08:49.542 --> 01:08:55.934 FOR PEOPLE TO SPEAK UP IN THE LENGTHY PROOS EAST AND THE STEPS THAT WERE TAKEN 791 01:08:55.934 --> 01:09:04.324 TO FOR THEM TO EVEN GET ENOUGH INFORMATION TO HAVE SOMETHING WHERE THE POLICE 792 01:09:04.324 --> 01:09:09.075 DIRECTOR WOULD FEEL COMPELLED TO RESIGN FRM AND I THINK THAT GIVEN THE POLITICAL 793 01:09:09.075 --> 01:09:13.366 CLIMB MATE THAT WAS SOMETHING THAT WAS VERY DIFFICULT TO DO AND I THINK THE 794 01:09:13.366 --> 01:09:24.422 WORDS MR. ESMERADO CHOSE WERE VERY INTENTIONAL. CHIEF JUSTICE RABNER: 795 01:09:24.422 --> 01:09:29.008 YOU PART COMPANY WITH THE ATTORNEY GENERAL'S VIEW ON THE COMMON LAW. CAN 796 01:09:29.008 --> 01:09:34.577 YOU EXPLAIN WAS' WRONG WITH THE ANALYSIS THE ATTORNEY GENERAL HAS SUBMITTED? 797 01:09:34.577 --> 01:09:36.785 APRIL C. BAUKNIGHT: I DON'T KNOW THAT I THINK THERE IS ANYTHING WRONG 798 01:09:36.785 --> 01:09:42.369 WITH THE ANALYSIS THAT WAS SUBMITTED. I THINK IN TERMS OF WEIGHING THE FACTORS 799 01:09:42.369 --> 01:09:48.796 AND HOW THE PROSECUTOR'S OFFICE WILL COME OUT ON THAT BALANCING IS A LITTLE BIT 800 01:09:48.796 --> 01:09:52.744 DIFFERENT. I DON'T KNOW THAT THERE IS AN ISSUE WITH THE FACTORS AND EVERYTHING. 801 01:09:52.744 --> 01:09:58.858 AND I THINK THAT AS WITH ANY BALANCING TEST, IT CAN GO BE SPEAKER SWAS I HAVE IN 802 01:09:58.858 --> 01:10:02.230 ONE WAY AND SPEAKER SWAS I HAVE IN THE OTHER WAY FRM SO FOR EXAMPLE, ONE 803 01:10:02.230 --> 01:10:07.481 OF THE FACTORS IS THE SENIORITY LEVEL OF THE LAW ENFORCEMENT OFFICER INVOLVED. 804 01:10:07.481 --> 01:10:11.603 SO THE PRESUMPTION IS THE MORE SENIOR THE OFFICER IS THE MORE INFORMATION 805 01:10:11.603 --> 01:10:17.589 SHRUBBERY LEASED. AND I WOULD CHARGE THAT SLIGHTLY SAYING YOU KNOW THE MORE SENIOR 806 01:10:17.589 --> 01:10:21.825 THE OFFICER HOW MUCH INFORMATION WERE WE EVEN ABLE TO GET IN ORDER TO KNOW 807 01:10:21.825 --> 01:10:25.135 WHAT WAS GOING ON AND WHAT'S THE NATURE OF THE INFORMATION THAT SHRUBBERY LEASED. 808 01:10:25.135 --> 01:10:29.429 AND SO REMEMBER THERE WAS A STATEMENT THAT WAS ISSUED AND IT WENT THROUGH 809 01:10:29.429 --> 01:10:35.687 LENGTHS TO IDENTIFY KIEFR WHAT WAS THE PROCESS WHAT FOERGSZ WAS DONE BUT WHAT THE 810 01:10:35.687 --> 01:10:40.331 REQUEST IS RLT ASKING IS WHAT IS ALL THE INFORMATION AND RESEARCH YOU DID 811 01:10:40.331 --> 01:10:45.607 TO REACH THESE RESULTS. AND THAT INFORMATION AND RESEARCH TO GET THE RESULTS IS 812 01:10:45.607 --> 01:10:53.168 WHAT THE UNION COUNTY PROSECUTOR'S OFFICE IS RELUCTANT TO TURN OVER. 813 01:10:53.168 --> 01:10:57.167 CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS FOR MISS BAUKNIGHT? 814 01:10:57.167 --> 01:10:59.313 ANYTHING YOU WOULD LIKE TO ADD TO YOUR PRESENTATION? APRIL C. 815 01:10:59.313 --> 01:11:04.814 BAUKNIGHT: I WOULD JUST IN TERMS OF REMAND I WOULD LIKE TO REQUEST THAT IF IT IS 816 01:11:04.814 --> 01:11:09.929 REMANDED THAT IT BE REMANDED TO A DIFFERENT TRIAL COURT JUDGE. 817 01:11:09.929 --> 01:11:11.347 CHIEF JUSTICE RABNER: WHY IS THAT? APRIL C. BAUKNIGHT: 818 01:11:11.347 --> 01:11:15.704 THERE ARE IN SUBSTANCES OF BIAS IN THE TRIAL COURT IN THE TRANSCRIPT THAT 819 01:11:15.704 --> 01:11:23.040 WERE POINTED OUT IN THE BRIEF AND WE JUSZ BELIEVE THAT WHOEVER THE SHOULD IT BE 820 01:11:23.040 --> 01:11:28.309 REMANDED THAT WHOEVER VUFRS IT NEEDS TO HAVE A MORE UNBIASED MIND WHEN LOOKING 821 01:11:28.309 --> 01:11:32.852 AT THE INFORMATION. CHIEF JUSTICE RABNER: THANK YOU COUNSEL. 822 01:11:32.852 --> 01:11:34.869 APRIL C. BAUKNIGHT: TUN. CHIEF JUSTICE RABNER: WE WILL 823 01:11:34.869 --> 01:11:37.163 HEAR NEXT FROM ROBERT VARADY. ROBERT F. VARADY: THANK YOU 824 01:11:37.163 --> 01:11:41.818 JUSTICE RABNER I JUST WRANT TO CLEAR UP TWO THINGS. ONE IN REGARDS TO THE 825 01:11:41.818 --> 01:11:48.723 LAST COMMENT BY MISS BAUKNIGHT, THE TRIAL JUDGE IN THIS MATTER IS NOW RETIRED JAN 826 01:11:48.723 --> 01:11:55.160 TEELLY. HE'S RAULTD IN THE FAMILY DIVISION AND MY UNDERSTANDING IN UNION 827 01:11:55.160 --> 01:12:00.310 COUNTY IS JUDGE LIND MAN IS THE JUDGE WHO HEARS OPRA CASES. THE 828 01:12:00.310 --> 01:12:04.891 SECOND THING HAS TO DO WITH THE QUESTION JUSTICE ALBIN ASKED IN REGARD TO WHETHER OR 829 01:12:04.891 --> 01:12:10.785 NOT THERE WAS A HEARING HE ASKED OF MR. SHALOM. THIS MATTER THE FINDING 830 01:12:10.785 --> 01:12:17.233 WAS THAT THERE V THEY WERE SUSTAINED ALLEGATIONS IT WAS SENTS BACK TO THE CITY 831 01:12:17.233 --> 01:12:23.698 TO DEAL WITH AN ADMINISTRATIVELY IN REGARD TO WHETHER OR NOT THESE ARE VI 832 01:12:23.698 --> 01:12:29.193 OLATIVE OF THE CITY ANTI-HARASSMENT AND DISCRIMINATION POM SEES AND DIRECTOR COSGROVE 833 01:12:29.193 --> 01:12:33.890 RESIGNED BEFORE THAT COULD BE DONE. SO THERE WAS NO HEARING. 834 01:12:33.890 --> 01:12:37.823 JUST TO CLEAR UP THOSE 2 POINTS. I DON'T WANT TO BE VERY LENGTHY IN 835 01:12:37.823 --> 01:12:42.219 REGARD TO THE OPRA ARGUMENT BECAUSE I THINK ALL COUNSEL HAS ADDRESSED IT 836 01:12:42.219 --> 01:12:49.177 BUT JUST BRIEFLY I THINK THIS FALLS OUTSIDE OF OPRA IS EXEMPT FROM OPRA IN REGARD 837 01:12:49.177 --> 01:12:53.860 TO THE OPINIONS OF IN RAY ATTORNEY GENERAL ENFORCEMENT DIRECTIVE NUMBER 838 01:12:53.860 --> 01:13:01.255 2020- 5, FOP 12 VERSUS CITY OF NEWARK AND I BELIEVE AS JUSTICE RABNER HAD MENTIONED 839 01:13:01.255 --> 01:13:07.073 SEVERAL TIMES 40 AFRMENT: 14- 181. THE CONCERN OF THE CITY 840 01:13:07.073 --> 01:13:13.559 OF ELIZABETH REALLY HERE IS THAT WE FEEL NOT WITHSTANDING THE ARGUMENTS RAISED 841 01:13:13.559 --> 01:13:23.678 BY OUR OPPOSITION, THAT THE SYSTEM DID WORK AND THAT WHAT HAPPENED HERE WAS ANTICIPATED 842 01:13:23.678 --> 01:13:28.196 UNDER THE ATTORNEY GENERAL GUIDELINES AND THE CITIES' DISCRIMINATION AND 843 01:13:28.196 --> 01:13:34.585 HARASSMENT POLICY. AND THE REASON I SAY THAT IS LOOKING AT GOING TO THE KED DEE 844 01:13:34.585 --> 01:13:38.735 FACTORS AND NUMBER 3 THE CITIZENS RIGHT OF ACCESS OUTWEIGHS THE STATE'S 845 01:13:38.735 --> 01:13:46.489 INTEREST IN PREVENTING DISCLOSURE. WHAT HASN'T BEEN MENTIONED HERE YET WHAT HAPPENED 846 01:13:46.489 --> 01:13:53.850 SUBSEQUENT TO THIS INVESTIGATION. COST GROEFR RESIGNED. HE RESIGNED 2 847 01:13:53.850 --> 01:14:01.323 WEEKS AFTER THE PROSECUTORS FINDINGS OF SUSTAINED ALGSZS. WHAT HAPPENED NEXT WAS 848 01:14:01.323 --> 01:14:06.186 THAT THE UNION COUNTY PROSECUTOR'S OFFICE DID AN AUDIT OF THE POLICE DEPARTMENT 849 01:14:06.186 --> 01:14:11.613 AND HERE'S WHERE I THINK THE BALANCING TEST IS. WHAT WAS MR. RIVER YAS' CONCERN 850 01:14:11.613 --> 01:14:16.640 AT THE TIME? MISZ GRIFB HAS REPTDED NOW I BELIEVE HE IS THE POLICE CHIEF DOWN 851 01:14:16.640 --> 01:14:23.695 IN THE SOUTH JERSEY VICINAGE, SOUTD JERSEY TOWN. AND THE CONCERN SEEMS TO BE WHETHER OR 852 01:14:23.695 --> 01:14:29.814 NOT THE COMMENTS MADE BY THE CIVILIAN DIRECTOR OF THE POLICE DEPARTMENT, 853 01:14:29.814 --> 01:14:34.120 THAT PERSON WHO SET POLICY BECAUSE IN ELIZABETH YOU HAD A CIVILIAN DIRECTOR APPOINTED 854 01:14:34.120 --> 01:14:38.410 BY THE MARYANN THEN YOU HAD A POLICE CHIEF THAT WENT THROUGH THE CIVIL SERVICE 855 01:14:38.410 --> 01:14:43.194 PROCESS AND THE POLICE CHIEF WAS SMON FOR THE DAY-TO-DAY OPERATIONS OF THE 856 01:14:43.194 --> 01:14:49.355 POLICE DEPARTMENT. DID THE DROERGS' CONDUCT DID THE DIRECTOR'S EXPRESSIONS OF 857 01:14:49.355 --> 01:14:54.998 MISOGYNISTIC COMMENTS, THE RACIAL EP TAT, DID THAT EFFECT THE SYSTEM, DID 858 01:14:54.998 --> 01:15:00.014 THAT EFFECT THE ELIZABETH POLICE DEPARTMENT. AND THIS NAR A PEN IGS I BELIEVE 859 01:15:00.014 --> 01:15:04.471 IT IS A D-2 HUNDRED THERE IS A NOVEMBER 6, 2019, LETTER ADDRESSED TO THE 860 01:15:04.471 --> 01:15:09.731 CHIEF OF POLICE AND TO THE KNEW DIRECTOR ERL GRAFS IN REGARD TO WHAT HAPPENED. 861 01:15:09.731 --> 01:15:14.324 AND WHAT HAPPENED WAS VERY INTERESTING. BECAUSE IT SHOEDZ JUST THE OPPOSITE 862 01:15:14.324 --> 01:15:18.381 OF WHAT PEOPLE THOUGHT MIGHT HAVE BEEN HAPPENING IN THE ELIZABETH POLICE DEPARTMENT. 863 01:15:18.381 --> 01:15:26.832 IN THAT STUDY OR IN THAT AUDIT THE PROSECUTOR'S OFFICE ACTING UNDER 864 01:15:26.832 --> 01:15:31.300 APPOINTED SHE WAS A FIRST I THINK ASSISTANT ATTORNEY GENERAL, JIL DAF EVEN PORT, 865 01:15:31.300 --> 01:15:36.186 LOOKED AT NUMBER ONE THE INTERNAL AFFAIRS PROCESS. AND WHAT THEY DID IS 866 01:15:36.186 --> 01:15:41.453 THEY LOOKED AT THE INVESTIGATIVE TECHNIQUE, THEY LOOKED AT ACTUAL INTERNAL AFFAIRS 867 01:15:41.453 --> 01:15:46.051 INVESTIGATION GOES, AND THEY FOUND THAT IN THEIR WORDS THE INTERNAL AFFAIRS 868 01:15:46.051 --> 01:15:51.100 UNIT IN THE ELIZABETH POLICE DEPARTMENT WAS ALIVE AND HEALTHY VRMENT AND WHAT THEY 869 01:15:51.100 --> 01:15:56.189 DID IS THEY LOOKED AT 74 DIFFERENT FILES THAT WERE COMPILED IN THE YEAR 870 01:15:56.189 --> 01:16:01.588 FWIENT WHICH WAS THE YEAR WHEN ALL THIS WENT DOWN. AND THEY FOUND THAT OUTS OF 871 01:16:01.588 --> 01:16:09.271 73 OUT OF 74 POLICIES, INVESTIGATIONS, THAT THEY AGREED WITH NOT ONLY THE 872 01:16:09.271 --> 01:16:14.527 OUTCOME OF THE INVESTIGATION, THE FINDING OF THE INVESTIGATION, BUT THE ACTUAL 873 01:16:14.527 --> 01:16:19.523 INVESTIGATION TECHNIQUE. AND BY THAT I MEAN WAS THERE A DOCUMENT A SEARCH FOR 874 01:16:19.523 --> 01:16:25.112 DOCUMENTS, WERE WITNESSES INTERVIEWED, WERE THE INTERVIEWS VIDEOTAPED, WHAT 875 01:16:25.112 --> 01:16:29.808 WAS THE EFFORT TO FIND WITNESSES BESIDES THE COMPLAINANT AND THEY FOUND THAT 876 01:16:29.808 --> 01:16:34.295 THEY COMPLIED WITH EVERY GUIDELINE I BELIEVE IT WAS 11 CERTAIN PRINCIPLES IN THE 877 01:16:34.295 --> 01:16:43.039 IAPP THAT THEY HAD THAT THEY ACTUALLY HAD AGREED WITH OR COMPLIED WITH. BUT THEY 878 01:16:43.039 --> 01:16:47.583 WENT FURTHER THAN THAT. THEY LOOKED AT TRAINING AND THEY FOUND THAT THE 879 01:16:47.583 --> 01:16:55.712 TRAINING WAS SUFFICIENT, IN A THERE WAS THERE THEY CITESED FOUR GENERAL ORDERS 880 01:16:55.712 --> 01:17:03.126 AND A COMPUTER PROGRAMING TRAINING AND HARASSMENT AND DISCRIMINATION AND 881 01:17:03.126 --> 01:17:08.592 BIAS AND THEY FOUND THAT THE TRAINING WAS EXCELLENT, MET WITH ALL THE GUIDELINES 882 01:17:08.592 --> 01:17:13.383 AND IT IS IRONICALLY THAT 3 OF THOSE FOUR GENERAL ORDERS WERE ACTUALLY 883 01:17:13.383 --> 01:17:21.183 INSTITUTED PUTD INTO PLACE BY THEN DIRECTOR COSGROVE IN THE YEARS 2015 THROUGH 2017 884 01:17:21.183 --> 01:17:27.391 THEY ALSO LOOKED AT THE IA RED FLAG SYSTEM AND FOUND THAT THERE WAS ACTUALLY 885 01:17:27.391 --> 01:17:32.580 A WARNING OR AN ARBITRATIONING SYSTEM IN IN FERNL TERRIBLE AFFAIRS THAT OFFICERS 886 01:17:32.580 --> 01:17:37.185 WERE TRACKED THAT THERE WAS A PROGRAM IA PRO AND IA ^ CON ^ CONNECTICUT 887 01:17:37.185 --> 01:17:42.780 SO THAT THERE A RED FLAG WOULD REGISTER WHEN AN OFFICERS' CONDUCT AFTER A CERTAIN 888 01:17:42.780 --> 01:17:45.748 NEW JERSEY OF TIMES WOULD BE INVESTIGATED. THEY ALSO TALKED ABOUT A DEE 889 01:17:45.748 --> 01:17:51.930 MANYS PROGRAM IN WHICH EVERY POLICE OFFICER AND EVERY CIVILIAN EMPLOYEE OF THE 890 01:17:51.930 --> 01:17:56.449 POLICE DEPARTMENT HAD TO TAKE AND AT THE END OF THAT PROGRAM WAS A QUESTION 891 01:17:56.449 --> 01:18:02.185 ARE YOU AWARE OF ANY DISCRIMINATION BIAS OR HARASSMENT IN THE LIST BET MROOEFT 892 01:18:02.185 --> 01:18:07.193 AND IN THAT QUESTION WAS ANSWERED YES, THAT PERSON WAS THEN TALKED TO BY 893 01:18:07.193 --> 01:18:11.633 A CAPITAL AND A COMPLAINT WAS TAKEN AND WAS INVESTIGATED. THEY WENT INTO HIRING 894 01:18:11.633 --> 01:18:14.727 PRACTICES AND THEY SHOWED I BELIEVE THAT 47 PUBLIC EMPLOYMENT RETIREMENT SYSTEM 895 01:18:14.727 --> 01:18:23.416 OF THE HIRE REES WERE NONE WHITE IN A CITY THAT IS 675 SGLIEFRJTS 65 PUBLIC EMPLOYMENT 896 01:18:23.416 --> 01:18:29.364 RETIREMENT SYSTEM HISPANIC. THEY WENT INTO NECESSITY REVIEWED 180 HOURS. 897 01:18:29.364 --> 01:18:31.446 JUSTICE PIERRE-LOUIS: COUNSEL, HOW DOES ALL THIS INFORMATION 898 01:18:31.446 --> 01:18:37.447 FACTOR INTO YOUR ARGUMENT IN THIS CASE? IS YOUR ARGUMENT THAT BECAUSE OF THESE 899 01:18:37.447 --> 01:18:42.246 REVELATIONS THAT THESE POLICIES AND PROERS WERE GOING TO POLICE DEPARTMENT 900 01:18:42.246 --> 01:18:49.138 WERE FINE, THAT THIS REQUESTED INFORMATION DOES NOT NEED TO BE PROVIDED OR. 901 01:18:49.138 --> 01:18:53.723 ROBERT F. VARADY: JUSTICE FAIR LOUS UNDER KED DEE THIS LOOK THEY LOOK AT THE 902 01:18:53.723 --> 01:18:58.155 INTEREST OF THE REQUEST OR VERSUS THE MUB DISCLOSURE AND HERE THE INTEREST 903 01:18:58.155 --> 01:19:04.651 ANTD REQUEST OR AT MY TIME MY UNDERSTANDING IS MR. RIVERA WAS A MEMBER OF A GROUP 904 01:19:04.651 --> 01:19:09.163 THAT LOOKED AT DISCRIMINATION WITH REGARD TO LA TIEN KNEE AMERICANS AND 905 01:19:09.163 --> 01:19:14.763 ALSO SERVED AS AN AND I KNOW FOR A FAK BECAUSE I HAVE DEALT WITH HIM AS AN EXPERT 906 01:19:14.763 --> 01:19:20.662 WITD IN REGARD TO POLICE PRACTICES SPECIFICALLY THOSE OF THE INTERNAL 907 01:19:20.662 --> 01:19:24.179 AFFAIRS UNIT. AND IF YOU LOOK AT THAT INTEREST AND WHAT HAS COME OUT WHAT WILL 908 01:19:24.179 --> 01:19:29.982 COME OUT WHAT WILL COME OUT FROM ANY FURTHER INFORMATION FROM THIS INVESTIGATION 909 01:19:29.982 --> 01:19:37.253 IN REGARD TO COSGROVE, THAT WE WILL KNOW MAYBE IS THE NUMBER OF PEOPLE WHO 910 01:19:37.253 --> 01:19:43.831 WERE INTERVIEWED AND THAT BECOMES A PROBLEM IN REGARD TO DISCLOSURE I THINK 911 01:19:43.831 --> 01:19:48.434 BECAUSE IT'S CLEAR THAT IT LOOKS LIKE IT APPEARS THAT THERE WERE EMPLOYEES 912 01:19:48.434 --> 01:19:53.669 OF THE CITY OF ELIZABETH POLICE DEPARTMENT WERE INTERVIEWED AND REDACTING THEIR 913 01:19:53.669 --> 01:19:58.357 NAMES ALONE MAY NOT BE ENOUGH TO PROTECT THEM. SO IF YOU TAKE THAT DISCLOSURE, 914 01:19:58.357 --> 01:20:05.707 THAT DANGER OF DISCLOSURE VERSUS THE BALANCE OF WHAT RIVERA WAS SEEKING HERE AS 915 01:20:05.707 --> 01:20:10.122 TO WHETHER OR NOT I THINK THE OVERALL, THE OVERALL IMPORTANCE HERE WE WOULD 916 01:20:10.122 --> 01:20:15.785 ALL AGREE WASN'T THE FACT JUST IN THE FAX OF WHAT WORDS THAT COSGROVE USED BUT 917 01:20:15.785 --> 01:20:23.514 HOW THE CIVILIAN DIRECTOR, HOW THOSE WORDS OR THAT ATTITUDE AFFECTED THE LIZ 918 01:20:23.514 --> 01:20:29.526 BETS POLICE DEPARTMENT AND AFFECTED THE ELIZABETH POLICE DEPARTMENT ABILITY TO 919 01:20:29.526 --> 01:20:37.837 OPERATE AND INTERACTS IN THE CITY THAT IS MULTI, MULTI RACIAL, DIVERSE, FOURTH 920 01:20:37.837 --> 01:20:42.497 LARGEST CITY. AND MY POINT JUSTICE PAIR LOUS IN RAISING ALL THIS IS THAT 921 01:20:42.497 --> 01:20:51.532 AS A RESULT OF THE FINDINGS, THIS AUDIT BROUGHT OUT THE ISSUES THAT WE SHUDZ BE 922 01:20:51.532 --> 01:20:56.120 CONCERNED ABOUT IN REGARD TO THIS PARTICULAR IA INVESTIGATION. 923 01:20:56.120 --> 01:20:59.908 JUSTICE ALBIN: AREN'T THERE OTHER ISSUES FORGET ABOUT THE AUDIT OF OTHER 924 01:20:59.908 --> 01:21:08.057 CASES. IS THERE AN INTEREST IN FINDING OUT WHETHER OR NOT OTHER OFFICIALS, 925 01:21:08.057 --> 01:21:14.224 MAYBE HIGH RANGING OFFICIALS KS CONDONED AND TOLERATED COSGROVE'S BEHAVIOR? WOULD 926 01:21:14.224 --> 01:21:16.884 THAT NOT BE A PUBLIC INTEREST? ROBERT F. VARADY: THAT WOULD BE 927 01:21:16.884 --> 01:21:20.656 A PUBLIC INTEREST IF IT WAS A SUBJECT MATTER OF THIS INVESTIGATION BUT MY 928 01:21:20.656 --> 01:21:25.946 UNDERSTANDING THAT THIS INVESTIGATION MERELY WAS NOT MERELY BUT WAS FOCUSED ON 929 01:21:25.946 --> 01:21:28.888 THE CONDUCT. JUSTICE ALBIN: WE DON'T KNOW. THIS IS WHERE 930 01:21:28.888 --> 01:21:36.437 WE ARE IN THE REALM OF SPECULATION AND CONJECTURE. I DON'T KNOW IF YOU'VE READ 931 01:21:36.437 --> 01:21:40.426 HAVE YOU REVIEWED THE REPORT? ROBERT F. VARADY: NO I HAVEN'T 932 01:21:40.426 --> 01:21:42.896 REVIEWED IT. JUSTICE ALBIN: YOU HAVEN'T AND I HAVEN'T AND 933 01:21:42.896 --> 01:21:49.696 WE HAVENTD ANLTS QUESTION IS WHETHER OR NOT AN IN CAMERA HEARINGS WHERE THE PARTIES 934 01:21:49.696 --> 01:21:55.554 INTERESTSED MAY HACH ACCESS AND THE JUDGE MAKING DECISIONS COULD DETERMINE 935 01:21:55.554 --> 01:22:02.284 WHETHER OR NOT THE PUBLIC INTEREST OUTWEIGHS THE INTEREST IN KEEPING THIS CONFIDENTIAL 936 01:22:02.284 --> 01:22:05.530 OR SECRET. ROBERT F. VARADY: IT WOULD SEEM TO ME JUSTICE 937 01:22:05.530 --> 01:22:14.023 ALBIN THAT IF FIRST OF ALL THAT WOULDN'T HAVE BEEN IN THE PURVIEW OF THE INVESTIGATION 938 01:22:14.023 --> 01:22:19.550 BY THE UNION COUNTY PROSECUTOR'S OFFICE, WHETHER OR NOT PUBLIC OFFICIALS. 939 01:22:19.550 --> 01:22:22.045 JUSTICE ALBIN: DOESN'T HAVE TO BE WITHIN THE PURVIEW IT IS 940 01:22:22.045 --> 01:22:27.971 A QUESTION OF WHETHER OR NOT WHETHER IN THE COURSE OF THIS INVESTIGATION THAT TYPE 941 01:22:27.971 --> 01:22:33.517 OF INFORMATION WAS DISCLOSED. WE DON'T KNOW. IT MAY NOT HAVE BEEN. I AM 942 01:22:33.517 --> 01:22:36.904 NOT SUGGESTING ONE WAY OR THE OTHER. WE ARE IGNORANT. ROBERT F. 943 01:22:36.904 --> 01:22:41.208 VARADY: I THINK IT CAN BE INFERRED AND THE REASON YOU WOULD WANT TO KNOW THAT 944 01:22:41.208 --> 01:22:47.784 AGAIN IS IF ADMINISTRATION OFFICIALS IN THE CITY OF I.E. LIST BET CONDONED 945 01:22:47.784 --> 01:22:54.694 THAT ACTIVITY AND I THINK ON THE BASIS OF THE AUDIT KUKD BY THE YUN PROSECUTOR'S OFFICE 946 01:22:54.694 --> 01:22:58.386 IN CONNECTION WITH THE TOERNGS'S OFFICE THAT THAT WASN'T SO BECAUSE YOU HAVE 947 01:22:58.386 --> 01:23:04.103 A POLICE DEPARTMENT THAT IN REGARD TO THEIR INVESTIGATION OR AUDIT OF THE POLICE 948 01:23:04.103 --> 01:23:09.518 DEPARTMENT SHOWED THAT THEY WERE JUST THE OPPOSITE OF WHAT COSGROVE ALLEGEDLY 949 01:23:09.518 --> 01:23:15.202 SAID OR SAID TO SOMEONE OR ANYBODY. CHIEF JUSTICE RABNER: 950 01:23:15.202 --> 01:23:20.559 DOES THE PUBLIC HAVE AN INTEREST, STRONG INTEREST IN KNOWING ABOUT AN AGENCIES' 951 01:23:20.559 --> 01:23:24.409 ABILITY TO MONITOR ITSELF AT THE VERY HIGHEST LEVEL. ROBERT F. 952 01:23:24.409 --> 01:23:26.352 VARADY: YES, ABSOLUTELY. ABSOLUTELY. CHIEF JUSTICE RABNER: 953 01:23:26.352 --> 01:23:30.121 REGARDLESS OF WHETHER ALL THESE OTHER CASE FILES ARE HANDLE APPROPRIATE 954 01:23:30.121 --> 01:23:34.911 LY? ROBERT F. VARADY: TRUE. BUT HERE WHAT WAS SHOWN FROM 955 01:23:34.911 --> 01:23:41.098 THIS INVESTIGATION WAS APPARENTLY THAT THE COMMAND THE COMMAND FORCE CHEEFR ON 956 01:23:41.098 --> 01:23:47.204 DOWN APPARENTLY DIDN'T FOLLOW WHAT COSGROVE SAID OR COSGROVE BELIEVED IN 957 01:23:47.204 --> 01:23:55.404 ACCORDANCE WITH THE ATTORNEY GENERAL. IF YOU READ THAT AUDIT REPORT ON ALL HIERGS, 958 01:23:55.404 --> 01:24:02.238 PROMOTIONS, INTERACTION WITH THE COMMUNITY, IT ALL STATES IT ALL SHOWS 959 01:24:02.238 --> 01:24:07.440 THAT THE ELIZABETH POLICE DEPARTMENT DID NOT EXHIBIT ANY ATTITUDE TOWARDS BIAS OR 960 01:24:07.440 --> 01:24:13.060 PREJUDICE MISOGYNY OR RACISM. JUSTICE ALBIN: DO WE KNOW HOW LONG 961 01:24:13.060 --> 01:24:20.098 COST GROEFRS' CONDUCT WAS ONGOING? THE MISOGYNISTIC, THE RAFRP RASH IFRT 962 01:24:20.098 --> 01:24:26.590 COMMENTS WAS WHETHER IT WAS OVER A LONG PERIOD OF TIME, SO LONG THAT IT MIGHT HAVE 963 01:24:26.590 --> 01:24:29.184 BEEN COMMON KNOWLEDGE. ROBERT F. VARADY: MY RECOLLECTION 964 01:24:29.184 --> 01:24:36.300 JUSTICE ALBIN WAS FLORIDA IT WAS I BELIEVE ESMERADO SAID IT WAS OVER A SHORT 965 01:24:36.300 --> 01:24:41.457 PERIOD OF TIME THAT THEY LOOKED AT. THAT'S WHAT THAT'S MY BELIEF. MY 966 01:24:41.457 --> 01:24:46.001 RECOLLECTION OF WHAT ESMERADO'S STATEMENT WAS. CHIEF JUSTICE 967 01:24:46.001 --> 01:24:50.545 RABNER: JUSTICE FUENTES: MR. FAR DEE, ARE WE GEEG DO DETERMINE 968 01:24:50.545 --> 01:24:58.606 THE SCOPE OF THE ACCESS THAT THE PUBL SHOULD HAVE UNDER OPRA OR THE COMMON LAW 969 01:24:58.606 --> 01:25:06.375 BASED ON WHAT THE MOTIVE OF THE REQUEST OR IS? DOES THAT FAK HAVE TO BE 970 01:25:06.375 --> 01:25:09.703 CONSIDERED? ROBERT F. VARADY: UNDER THE COMMON LAW IS WHAT 971 01:25:09.703 --> 01:25:15.233 THE INTEREST OF THE REQUEST OR IS. JUSTICE FUENTES: THE PUBLIC WOULD BE 972 01:25:15.233 --> 01:25:19.239 DETERMINEING NOW WHAT WOULD BE IN THE PUBLIC DOMAIN WHAT IS THE RIGHT OF THE 973 01:25:19.239 --> 01:25:26.658 PUBLIC TO KNOW WHETHER HE OR SHE WANTS IT OUT OF CURIOSITY OR BECAUSE THEY ARE 974 01:25:26.658 --> 01:25:30.127 CONDUCTING SOME COMMUNITY SUPERVISION FOR LIFE A STUDY, WHATEVER THE MOTIVES 975 01:25:30.127 --> 01:25:35.534 ARE DFLTD. ROBERT F. VARADY: I AGREE WITH YOU ON THAT JUDGE 976 01:25:35.534 --> 01:25:39.448 FUENTES I AGREE WITH YOU WHAT I AM SAYING HERE I SAID THE GREATER INTEREST HERE 977 01:25:39.448 --> 01:25:49.421 I BELIEVE WAS THAT DID COSGROVE'S ATTITUDES TOWARDS RAISE TOSHD TENDER 978 01:25:49.421 --> 01:25:53.669 TOWARDS SEX DID THAT POINL NAT A POLICE DEPARTMENT AND DID THAT EFFECT THE DAY-TO-DAY 979 01:25:53.669 --> 01:25:57.854 OPERATION OF THE ELIZABETH POLICE DEPARTMENT, DID IT EFFECT A 980 01:25:57.854 --> 01:26:03.208 PROMOTIONAL PROCESS WHERE SOMEONE WASN'T PROMOTED BECAUSE THEY DIDN'T ADVOCATE WHAT 981 01:26:03.208 --> 01:26:08.209 THE POLICE DIRECTOR DID, DID IT EFFECT RECRUIT MENT, DID IT EFFECT THE 982 01:26:08.209 --> 01:26:13.372 DAY-TO-DAY OPERATION OF THE INTERACTION OF A POLICE OFFICER WITH A MEMBER OF THE 983 01:26:13.372 --> 01:26:19.532 PUBLIC. AND THAT WAS ALL SHOWN NOT TO BE. AND THAT'S THE GREATER PUBLIC 984 01:26:19.532 --> 01:26:24.196 INTEREST, I BELIEVE, IN THIS CASE, NOT WHETHER OR NOT COSGROVE SAID A CERTAIN WORD 985 01:26:24.196 --> 01:26:32.283 20 TIMES, TEN TIMES, FIVE TIMES, AND THAT I THINK IS THE BIGGER INTEREST AND I 986 01:26:32.283 --> 01:26:37.453 THINK ND THE THIRD KED DEE FACTOR THAT OUTWEIGHS THE INTEREST IN THE PUBLIC 987 01:26:37.453 --> 01:26:44.687 LEARNING MORE SPECIFICS ABOUT WHAT COSGROVE MIGHT HAVE SAID. I ALSO HAVE A 988 01:26:44.687 --> 01:26:49.547 CONCERN IF I MAY IN REGARD TO EXACTLY WHAT YOU ARE DEALING WITH IN REGARD 989 01:26:49.547 --> 01:26:58.354 TO RELEASING TO THE PUBLIC AS YOU MAYBE AWARE INTERNAL AFFAIRS INVESTIGATIONS ARE 990 01:26:58.354 --> 01:27:05.315 QUITE CAN BE QUITE COMPLEX DEPENDING ON THE NATURE OF THE ALLEGATION. IT 991 01:27:05.315 --> 01:27:09.858 INVOLVES GALT ERG OF DOCUMENTS, IT MAY INVOLVE CRIMINAL HIS THERE IS, IT MAY INVOLVE 992 01:27:09.858 --> 01:27:16.900 ALLEGATIONS IN REGARD TO DOMESTIC VIOLENCE, IT COULD INVOLVE MEDICAL RECORDS 993 01:27:16.900 --> 01:27:22.589 AND THEN INTERVIEWS OF PEOPLE. NOW, IT'S BEEN SAID THAT IT'S BEEN BROUGHT 994 01:27:22.589 --> 01:27:30.062 UP WELL MAYBE SOMEONE WHO'S INTERVIEWED WANTS THEIR NAME TO BE KNOWN AND WANTS 995 01:27:30.062 --> 01:27:33.981 WHAT THEY SAID TO BE KNOWN FRM WELL IN THIS PARTICULAR CASE AND WHAT WE ARE 996 01:27:33.981 --> 01:27:40.823 DEALING WITH SO FAR NO ONE NONE OF THE WITNESSES WHOEVER THEY ARE, HAVE COME FORWARD 997 01:27:40.823 --> 01:27:46.697 AND TALKED TO THE PRESS. I CAN REPRESENT TO YOU AS OUTSIDE DOWN TO THE 998 01:27:46.697 --> 01:27:53.448 CITY OF ELIZABETH SINCE 1993 AND I HANDLE ALL LITIGATION, THAT SINCE THE COSGROVE 999 01:27:53.448 --> 01:28:00.063 REVELATIONS, THERE HAS BEEN NO NOBODY HAS SUED SAYING THAT THEY SPECIFICALLY 1000 01:28:00.063 --> 01:28:09.423 WERE A TARGET OF COSGROVE'S NAME CALLING, A TARGETS OF COSGROVE'S ACTIONS IN REGARD 1001 01:28:09.423 --> 01:28:13.954 TO. JUSTICE FUENTES: DO YOU BELIEVE THAT THE DIRECTOR THE 1002 01:28:13.954 --> 01:28:21.183 CIVILIAN DIRECTOR WHO'S OVER THE CHIEF OF POLICE HIRE IN RANGE IN TOINLTS FTD 1003 01:28:21.183 --> 01:28:26.888 ADMINISTER THE ITCH STRUCTURE OF THE CITY I OF ELIZABETH, THAT THE MISOGYNISTIC 1004 01:28:26.888 --> 01:28:32.578 AND RASH I HAVE THE ATTITUDES THAT HE APPEARED TO HACH EXHIBITED DOESN'T CREATE 1005 01:28:32.578 --> 01:28:42.729 A CULTURE THAT WOULD INTIMIDATE AND CAST CONCERNS OF MINORITY AND WOMEN 1006 01:28:42.729 --> 01:28:57.780 THAT THEY ARE NOT -- SHOULD BE CAREFUL ABOUT THE DIRECTOR OF THE DEPARTMENT IS THAT 1007 01:28:57.780 --> 01:29:01.690 AN STREEM IMPORTANT PUBLIC INTEREST. ROBERT F. VARADY: JUDGE YOU 1008 01:29:01.690 --> 01:29:07.311 BROKE UP BUT I THINK I GOT THE JIFT OF WHAT YOU SAID. FIRST OF ALL, HE IS 1009 01:29:07.311 --> 01:29:14.796 A CIVILIAN DIRECTOR AND HIS JOB IS TO MAKE POLICY. THE DAY-TO-DAY OPERATION FAUMS 1010 01:29:14.796 --> 01:29:20.683 TO THE REPLIES CHIEF. JUSTICE FUENTES: I WAS DREFRG REFRGS 1011 01:29:20.683 --> 01:29:25.108 TO POLICY THE POLICY OF THE DEPARTMENT AND THE DIRECTOR THE DIRECTOR SETS 1012 01:29:25.108 --> 01:29:31.462 AND IF THE DIRECTOR IS ASSOCIATED WITH MISOGYNISTIC AND RACIST COMMENTS, I THINK 1013 01:29:31.462 --> 01:29:40.658 THAT THAT BECOMES A DE FACTO CONCERN THE WAY THE CITY OF ELIZABETH POLICE 1014 01:29:40.658 --> 01:29:44.524 DEPARTMENT IS VIEWED. ROBERT F. VARADY: WELL IF YOU READ THE 1015 01:29:44.524 --> 01:29:50.975 EXHIBIT A D 2 HUNDRED, THERE WAS THE EXACT OPPOSITE FINDING, THAT THERE WAS NO D 1016 01:29:50.975 --> 01:29:56.942 E FACTO OR INSTITUTIONAL DISCRIMINATION WITHIN THE CITY OF ELIZABETH POLICE 1017 01:29:56.942 --> 01:30:02.939 DEPARTMENT. AND IN THIS CASE I'M SAYING THAT OUTWEIGHS THE GENERAL THE GENERAL 1018 01:30:02.939 --> 01:30:06.304 INTEREST OF THE PUBLIC. JUSTICE FUENTES: THIS DOCUMENT THIS STUDY 1019 01:30:06.304 --> 01:30:10.323 YOU ARE REFERRING TO IS OF PEMENT WHO WORKED FOR THE CITY OF LISZ BET? 1020 01:30:10.323 --> 01:30:14.105 ROBERT F. VARADY: NO IT WAS THE FIRST ASSISTANT ATTORNEY 1021 01:30:14.105 --> 01:30:21.563 GENERAL AND GENERAL DOWN TO THE ATTORNEY GENERAL'S OFFICE AND PROSECUTOR 1022 01:30:21.563 --> 01:30:26.393 INVESTIGATORS. NO ONE FROM THE CITY OF ELIZABETH KUKD THIS AUDIT. 1023 01:30:26.393 --> 01:30:28.924 JUSTICE FUENTES: THAT IS NOT MY QUESTION FRM I SAID WHO WERE THE PEOPLE WHO WERE 1024 01:30:28.924 --> 01:30:33.245 INTERVIEWED OR PARTICIPATED IN THIS STUDY? WHO WERE THE PEOPLE WHO WERE 1025 01:30:33.245 --> 01:30:39.769 ASKED TO GET THEIR XOINTS POINTSZ OF VIEW ABOUT WHETHER OR NOT THIS WAS A HOSTILE 1026 01:30:39.769 --> 01:30:44.759 WORK ENVIRONMENT IN TERMS OF RAZOR JENDZER? ROBERT F. 1027 01:30:44.759 --> 01:30:48.881 VARADY: THE PEOPLE WHO WERE INTERVIEWED WERE THE COMMAND STAFF OF THE CITY OF 1028 01:30:48.881 --> 01:30:54.942 ELIZABETH, THE INTERNAL AFFAIRS UNIT OF THE CITY OF ELIZABETH, 181 HOURS 1029 01:30:54.942 --> 01:31:01.357 OF BODY CAMERA OF PATROL OFFICERS OF THE CITY OF ELIZABETH INTERACTING WITH CITIZENS 1030 01:31:01.357 --> 01:31:07.231 OF THE CITY OF ELIZABETH TRAINING OFFICERS IN THE CITY OF ELIZABETH THERE 1031 01:31:07.231 --> 01:31:12.001 WAS AN EXTENSIVE PROCESS IT WASN'T ONE PERSON WHO WAS INTERVIEWED IT WASN'T ONE 1032 01:31:12.001 --> 01:31:15.914 POLICE CHIEF THAT WAS INTERVIEWED IT WENT FROM TOP TO BOTTOM IT WENT FROM 1033 01:31:15.914 --> 01:31:20.968 TOP RAIFRNG RANK TLUTD DAY-TO-DAY PATROLLING OFFICER AND THEIR INTERACTION WITH 1034 01:31:20.968 --> 01:31:23.847 THE COMMUNITY. JUSTICE PIERRE-LOUIS: SO YOUR ARGUMENT IS 1035 01:31:23.847 --> 01:31:30.596 THAT ALTHOUGH THE REQUEST WAS FOR THIS IA REPORT, THAT IA REPORT DOES IN THE NEED 1036 01:31:30.596 --> 01:31:34.474 TO BE PROVIDED BECAUSE THERE IS THIS AUDIT THAT SAYS EVERYTHING WAS FINE AND 1037 01:31:34.474 --> 01:31:40.745 WONDERFUL AT THE CITY OF ELIZABETH POLICE DEPARTMENT, AND BECAUSE THE A GOOD'S 1038 01:31:40.745 --> 01:31:44.663 OFFICE WAS PARTICIPATING IN THAT AUDIT AS WEALTH, THE A G ITSDZ GOING TO BE 1039 01:31:44.663 --> 01:31:50.745 SPEAKING NIDLY AFTER YOU AND THE A G IS GOING TO MAKE THE ARGUMENT THAT THE IA REPORT 1040 01:31:50.745 --> 01:31:56.793 IS SUBJECT TO RELEASE UNDER THE COMMON LAW SO WHAT IS YOUR RESPONSE. 1041 01:31:56.793 --> 01:32:00.933 ROBERT F. VARADY: WELL MY RESPONSE TO THAT IS ONE OF CURIOSITY BECAUSE UNDER THE 1042 01:32:00.933 --> 01:32:06.266 IAPP THE ATTORNEY GENERAL COULD HAVE RELEASE DZ THIS REPORT IMMEDIATELY. 1043 01:32:06.266 --> 01:32:13.072 THE ATTORNEY GENERAL COULD, THE UNION COUNTY PROSECUTOR COULD, THEY HAD THE ABLTD 1044 01:32:13.072 --> 01:32:18.316 TO DO THAT SGLIEFRJTS ABILITY TO DO THAT UNDER THE IAPP. THEY DON'T NEED 1045 01:32:18.316 --> 01:32:22.765 AN OPRA REQUEST, THEY DON'T NEED A REQUEST FOR RECORDS DISZ CLOESH USUAL UNDER 1046 01:32:22.765 --> 01:32:26.228 THE COMMON LAW, IT'S WITHIN THEIR POWER TO DO IT AND THEY DIDN'T COULD IT 1047 01:32:26.228 --> 01:32:34.659 SGLFRJTS DIDN'T DO IT. AND ONE HAS TO SAY WHY. WHY NOT? CHIEF 1048 01:32:34.659 --> 01:32:36.620 JUSTICE RABNER: IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD TO YOUR PRESENTATION. 1049 01:32:36.620 --> 01:32:38.586 ROBERT F. VARADY: NO CHIEF JUSTICE THANK YOU VERY MUCH. 1050 01:32:38.586 --> 01:32:41.208 CHIEF JUSTICE RABNER: THANK YOU WE WILL HEAR NEXT FROMAL EK SHIER NECK. 1051 01:32:41.208 --> 01:32:45.147 ALEC SCHIERENBECK: THANK YOU MR. CLUZ AND MAY IT PLEASE THE 1052 01:32:45.147 --> 01:32:51.013 COURT. BALANCING THE INTEREST OF TRANSPARENCY AND CONFIDENTIALITY IN INTERNAL 1053 01:32:51.013 --> 01:32:56.704 AFFAIRS INFORMATION IS DIFFICULT. AND I THINK WE HAVE HEARD THIS MORNING 1054 01:32:56.704 --> 01:33:02.984 PERSUASIVE ARGUMENTS ON BOTH SIDES THAT GO TO THOSE COMPETING INTERESTS. BUT WE 1055 01:33:02.984 --> 01:33:08.744 THINK THE ATTORNEY GENERALS' POSITION SIN THAT ADVERTISES TS MOST PERSUASIVE 1056 01:33:08.744 --> 01:33:13.803 ARGUMENTS THAT HAVE BEEN PUT FORWARD THIS MORNING AND IN THE PAPERS. 1057 01:33:13.803 --> 01:33:19.112 GIVEN THE DELICATE MIX OF INTEREST INVOLVED, BROAD ACCESS TO INTERNAL AFFAIRS 1058 01:33:19.112 --> 01:33:23.487 INFORMATION UNDER OPRA WOULD BE INAPPROPRIATE AND OPRA DOES NOT 1059 01:33:23.487 --> 01:33:27.622 REQUIRE THAT RESULT. BUT THE COMMON LAW OFFICE A PHYSICAL PAROLE INELIGIBILITY 1060 01:33:27.622 --> 01:33:34.067 NOT A HAMMER. AND IN AN APPROPRIATE CASE IN THE INTEREST OF DISCLOSURE RISE TO 1061 01:33:34.067 --> 01:33:40.056 A SUFFICIENT LEVEL, DISCLOSURE OF A PROPER REREDACT INTERNAL AFFAIRS REPORT 1062 01:33:40.056 --> 01:33:44.247 IS APPROPRIATE. NOW, UNDER THAT ANALYSIS THIS COURTS WOULD BEGIN AS IT SAID BEFORE 1063 01:33:44.247 --> 01:33:49.998 BY GIVING HEAVY WHATD TO THE TOERNGS'S POLICY DESIGNATESING INTERNING A 1064 01:33:49.998 --> 01:33:53.626 FARGS INFORMATION KFRPGS. A. BUT A CLEAR SHOWING OF A HEIGHT IN PUBLIC 1065 01:33:53.626 --> 01:33:59.157 INTEREST CAN NEVERTHELESS RESULT IN DISCLOSURE. IN LOIK MAN THIS COURT SPELL OUT 1066 01:33:59.157 --> 01:34:05.665 SOME OF THE FACTORS THAT GO INTO THAT COMMON LAW INQUIRY AND IN HIS BRIEF THE 1067 01:34:05.665 --> 01:34:09.377 ATTORNEY GENERAL OFFICE ADDITIONAL CONSIDERATIONS THAT ARE ESPECIALLY 1068 01:34:09.377 --> 01:34:13.554 PERTINENT TO THE INTERNAL AFFAIRS CONTEXT IN PARTICULAR. IF 1069 01:34:13.554 --> 01:34:18.644 AN TERN TERJ AFFAIRS REPORT CONCERNS A SUBSTANTIAL CONDUCT FWIE A HIGH RANKING 1070 01:34:18.644 --> 01:34:21.865 OFRTHS, E SP EGS LOOK E IF THAT MISS CONDUCT CONCERNED AN AREA OF 1071 01:34:21.865 --> 01:34:26.973 PARTICULAR PUBLIC CONCERN LIKE THE INAPPROPRIATE USE OF DEADLY FORCE OR BIAS OR 1072 01:34:26.973 --> 01:34:32.979 VICTIM NATION OF LAW ENFORCEMENT, RELEASE OF AN APALY REDACT REPORT MAYBE 1073 01:34:32.979 --> 01:34:38.182 APPROPRIATE. NOW, HERE THE UNDISPUTED FACTS INDICATE THAT THE INTERNAL AFFAIRS 1074 01:34:38.182 --> 01:34:43.086 REPORT SOUGHT BY PETITIONER IS WITH APPROPRIATE REDACTIONS TO PROTECTS THE 1075 01:34:43.086 --> 01:34:47.542 IDENTITIES OF COMPLAINANTS, WITNESSES, VICTIMS AND OTHER LEGITIMATE INTERESTS SUBJECT 1076 01:34:47.542 --> 01:34:52.614 TO DISCLOSURE. GUIDANCE FROM THIS COURT ON THIS IMPORTANT TOPIC IS NEEDED. 1077 01:34:52.614 --> 01:34:58.212 COURTS AND GOVERNMENT NEED CLARITY ABOUT WHEN INTERNAL AFFAIRS REPORTS MAYBE SUBJECT 1078 01:34:58.212 --> 01:35:01.890 TO DIFFICULTIES CLOESH YOU ARE UNDER THE COMMON LAW AND THE REDACTIONS THAT 1079 01:35:01.890 --> 01:35:07.811 MUST BE MADE PRIOR TO RELEASE. WE RESPECTFULLY ASK FOR THE KOIRT TO GIVE THAT 1080 01:35:07.811 --> 01:35:11.707 GIETD ANSWER TO REVERSE THE APPELLATE DIVISION AS TO THE COMMON LAW AND TO 1081 01:35:11.707 --> 01:35:16.387 REMAND TO THE TRIAL COURT TO PERFORM THE NECESSARY REDACTIONS PRIOR TO DISCLOSURE. 1082 01:35:16.387 --> 01:35:21.047 I WELCOME THE COURTS QUESTIONS BUT I CAN BEGIN WITH. JUSTICE 1083 01:35:21.047 --> 01:35:28.094 ALBIN: I HAVE ONE. YOU HAVE HEARD MR. VARADY SAY THAT THE ATTORNEY GENERAL UNDER 1084 01:35:28.094 --> 01:35:35.857 THE IAPP HAS AUTHORITY TO RELEASE THIS PARTICULAR REPORT. I SUPPOSE WITH 1085 01:35:35.857 --> 01:35:40.179 REDACTIONS. FIRST, DO YOU AGREE WITH THAT? ALEC SCHIERENBECK: 1086 01:35:40.179 --> 01:35:43.429 YES, YOUR HONOR. JUSTICE ALBIN: OKAY. SO THE NEXT QUESTION 1087 01:35:43.429 --> 01:35:49.515 IS, WHY NOT? WHY SNTS THE ATTORNEY GENERAL WHO'S NOW TELLING USZ TO REMAND THIS, 1088 01:35:49.515 --> 01:35:57.967 AND SEEMS TO BE FAVORING RELEASE, NOT DOING EVERYTHING THAT IT SAYS THE LAW 1089 01:35:57.967 --> 01:36:02.203 DIVISION SHOULD DO? AS THE CHIEF LAW ENFORCEMENT OFFICER OF THE STATE. WHY ISN'T 1090 01:36:02.203 --> 01:36:04.724 THE ATTORNEY GENERAL DOING THIS? ALEC SCHIERENBECK: YES, 1091 01:36:04.724 --> 01:36:08.361 YOUR HONOR. THERE ARE A FEW REASONS. I THINK IT MOST PROMINENT IS THAT 1092 01:36:08.361 --> 01:36:13.517 THIS IS NOT THE ONLY REQUEST THAT THE ATTORNEY GENERAL OR ANY GOVERNMENT CUSTODIAN 1093 01:36:13.517 --> 01:36:18.591 IS GOING TO RECEIVE OR INTERNAL AFFAIRS INFORMATION ^ ( ^ ) FOR 1094 01:36:18.591 --> 01:36:22.578 ^ ( ^ ) AND THIS WILL BE THE LAST TIME THIS COURT IS ASKED TO PASS 1095 01:36:22.578 --> 01:36:26.988 UPON IT OR OTHER COURTS ARE ASKED TO LOOK AT THIS ISSUE. AND GUIDANCE ON 1096 01:36:26.988 --> 01:36:32.953 THIS SUBJECT IS NEEDED. IT IS NOT JUST THE ATTORNEY GENERAL'S OWN POLICY THAT 1097 01:36:32.953 --> 01:36:37.441 DETERMINES WHETHER A DOCUMENT IS GOING TO BE INTERNAL AFFAIRS DOCUMENT IS GOING 1098 01:36:37.441 --> 01:36:41.946 TO BE SUBJECT TO RELEASE, THE ATTORNEY'S RESPONSIBILITY AND THE RESPONSIBILITY 1099 01:36:41.946 --> 01:36:47.597 OF ALL GOVERNMENT CUSTODY YENS EXISTS INDEPENDENT OF THE ATTORNEYS' POLICY. IT IS 1100 01:36:47.597 --> 01:36:51.830 A LEGAL DUTY ON THE COMMON LAW FRMG SO UNDERSTANDING THE SCOPE OF OF THAT. 1101 01:36:51.830 --> 01:36:54.687 JUSTICE ALBIN: SO WE ARE GOING TO DECIDE THIS ISSUE, THAT'S 1102 01:36:54.687 --> 01:37:00.039 OBVIOUS. I AM GOING TO I HAVE GOOD YOU A HYPOTHETICAL. BECAUSE YOU HAVE LAR STATED 1103 01:37:00.039 --> 01:37:03.583 THE CHIEF LAW ENFORCEMENT OFFICERS' BELIEVE THAT THIS SHOULD FEE RELEASED. 1104 01:37:03.583 --> 01:37:13.141 IF THIS WENT BACK FOR A DECISION UNDER THE COMMON LAW AND THE LAW DIVISION WAS 1105 01:37:13.141 --> 01:37:18.494 DECIDEDED NO WE DON'T ANY I DON'T THINK IT SHOULD BE RELEASED, WOULD THE 1106 01:37:18.494 --> 01:37:26.551 ATTORNEY GENERAL STILL HAFRTD AUTHORITY TO RELEASE IT UNDER SECTION 181? 1107 01:37:26.551 --> 01:37:29.383 ALEC SCHIERENBECK: YES, YOUR HONOR. AND THE REASON IS THERE ARE MULTIPLE 1108 01:37:29.383 --> 01:37:34.636 ROUTES TO DISCLOSURE. THERE IS OPRA IN ANY CASE WHERE WE ARE TALKING ABOUT 1109 01:37:34.636 --> 01:37:38.168 ANY GOVERNMENT INFORMATION THERE IS OPRA, THERE IS THE XHO THAN LA YOU, AND JUST 1110 01:37:38.168 --> 01:37:41.627 BECAUSE SOMETHING ISN'T SUBJECT FO DISCLOSURE UNDER OPEN PRACTICE DOESN'T MEAN 1111 01:37:41.627 --> 01:37:44.173 IT IS KNOW THE SNL TO THE COMMON LAW AND HERE IN THE PARTICULAR CONTEXT 1112 01:37:44.173 --> 01:37:49.696 OF INTERNAL AFFAIRS THERE IS A THIRD ROUTE WHICH IS THE ATTORNEY GENERAL'S POWER 1113 01:37:49.696 --> 01:37:55.459 TO DISCLOSE INTERNAL AFFAIRS RECORDS OR INFORMATION. AND SOMETIMES THAT'S 1114 01:37:55.459 --> 01:38:01.458 DONE IN A CATEGORY CALIFORNIA WAY BY AN ATTORNEY GENERAL DIRECTIVE AND THEN LATER 1115 01:38:01.458 --> 01:38:06.646 DISCIPLINE EXAMPLE IS THE MOST REENTS AND CLEAREST EAST WHERE THE ATTORNEY 1116 01:38:06.646 --> 01:38:09.473 GENERAL IS SAYING WELL WITH RESPECT TO A CERTAIN COMMUNITY SUPERVISION FOR LIFE 1117 01:38:09.473 --> 01:38:12.967 FOERGS AND A CERTAIN COMMUNITY SUPERVISION FOR LIFE CASES WE ARE DIRECTING 1118 01:38:12.967 --> 01:38:19.476 CATEGORY CALORIE LEASE. BUT THEN THERE'S A BROADER SET OF CASES THAT ARE REQUESTS 1119 01:38:19.476 --> 01:38:25.675 FOR PARTICULAR INFORMATION WHERE IT MAYBE THE ABILITY TO SPEAK CATEGORICALLY 1120 01:38:25.675 --> 01:38:28.330 BECAUSE OF THE ALL THE VARIOUS FACTORS INVOLVED IS A LITTLE BIT MORE DIFFICULT, 1121 01:38:28.330 --> 01:38:35.265 AND THAT'S PARTICULARIZED REQUESTS TO THE GOVERNMENT CUSTODIAN TO RELEASE THAT 1122 01:38:35.265 --> 01:38:38.968 COMMUNITY SUPERVISION FOR LIFE INFORMATION. AND THAT'S HOW WE SEE IT 1123 01:38:38.968 --> 01:38:44.339 PLAYING OUT NOT JUST IN THIS CASE BUT ACROSS THE GAMUT OF CASES AND HOW IT HAS 1124 01:38:44.339 --> 01:38:48.322 PLAYED OUT. I WOULDN'T PREJUDGE WHETHER THE ATTORNEY GENERAL 1125 01:38:48.322 --> 01:38:52.183 WOULD RELEASE THE REPORT I THINK. JUSTICE FERNANDEZ-VINA: COUNSEL 1126 01:38:52.183 --> 01:38:55.539 IF I UNDERSTAND YOUR ANSWER, SO THIS MATTER WENT BEFORE A COURT A COURT 1127 01:38:55.539 --> 01:39:01.283 FULLY VETED IT DETERMINED IT WAS NOT TO BE RELEASED IT WENTD TLUTD ANGS REVIEW 1128 01:39:01.283 --> 01:39:05.519 THE TRIAL KOIRT WAS AFRMENT THE ATTORNEY GENERAL I GO NOIRG THE COURT'S RULINGS 1129 01:39:05.519 --> 01:39:10.232 WOULD STILL BE ENTITLED TO RELEASE IT? IS THAT WHAT I UNDERSTAND YOUR ANSWER TO BE? 1130 01:39:10.232 --> 01:39:13.335 ALEC SCHIERENBECK: YOUR HONOR, IT IS NOT IGNORING THE COURT'S 1131 01:39:13.335 --> 01:39:17.435 POWER. JUSTICE FERNANDEZ-VINA: THE COURTS RULT THAT 1132 01:39:17.435 --> 01:39:21.611 IT SHOULD NOT FEE RELEASE THE TOERNG HAS THE AUTHORITY TO RE LESION IT AND NOT CONSIDER 1133 01:39:21.611 --> 01:39:28.976 THE COURT'S FINDINGS OR COURT'S RULINGS IS THAT THE TOEFRNG'S POSITION STHAS' 1134 01:39:28.976 --> 01:39:31.095 ALL I AM ASKING. ALEC SCHIERENBECK: THE SHORT AND ALSO IS 1135 01:39:31.095 --> 01:39:34.830 YES, YOUR HONOR BUT I WOULD NOT FRAME IT ASZ YOU HAVE FRAMED IT. 1136 01:39:34.830 --> 01:39:35.974 JUSTICE FERNANDEZ-VINA: HOW WOULD YOU FRAME IT. ALEC 1137 01:39:35.974 --> 01:39:39.033 SCHIERENBECK: I WOULD FRANL IT THIS WAY. IN THIS ANY CASE WHERE THERE IS AN IQ 1138 01:39:39.033 --> 01:39:42.597 FOR INFORMATION THERE ARE MULTIPLE PATHS TO DISCLOSURE. NOW, INDEPENDENT 1139 01:39:42.597 --> 01:39:47.348 OF FOR EXAMPLE N.J.S.A. OR DISCIPLINE CONTEXT THE ATTORNEY GENERAL HAS DIRECT THE 1140 01:39:47.348 --> 01:39:49.773 DIFFICULTIES CLOESH IR OF CERTAIN INFORMATION THAT WAS. 1141 01:39:49.773 --> 01:39:52.379 JUSTICE FERNANDEZ-VINA: I AM TALKING ABOUT I AM SKGS YOU ABOUT SKWENTD TO THE 1142 01:39:52.379 --> 01:39:55.361 COURTS RULTHS INITIALLY THE ATTORNEY GENERAL CAN ROO E LEASE I UNDERSTAND 1143 01:39:55.361 --> 01:40:00.152 THAT ONCE IT'S BEEN TO KOIRTD BECAUSE IT HASN'T E RELEASED BY THE ATTORNEY GENERAL 1144 01:40:00.152 --> 01:40:03.176 SUCH ASZ 234 M IN THIS CASE ANTD COURT HAS RULT WHETHER ILTHS THE TRIAL 1145 01:40:03.176 --> 01:40:08.719 COURT APPELLATE REVIEW OUR VOOUF WE HAVE REVIEWED IT IS NOT ADD MID- IBLG IT IS 1146 01:40:08.719 --> 01:40:12.325 THE TOERNGS POSITION THAT IT CAN STILL RELEAST DOCUMENTS? ALEC 1147 01:40:12.325 --> 01:40:14.750 SCHIERENBECK: YES, YOUR HONOR AND LET ME TRY A DIFFERENT WAY OF EXPLAINING TO YOU 1148 01:40:14.750 --> 01:40:20.098 WHY THAT'S NOT AN ODD RESULT. FAUGS FAUS I THINK IT IS A LITTLE MORE THAN 1149 01:40:20.098 --> 01:40:23.844 ODDS BUT GO AHEAD. ALEC SCHIERENBECK: OKAY:WELL THE COMMON 1150 01:40:23.844 --> 01:40:29.297 LAW I THINK IS GOING TO BE NECESSARILY DEFRN SHALL TO THE PROSZ EAST THAT MIGHT 1151 01:40:29.297 --> 01:40:33.714 PLAY OUT AS A POLICY MATTER. IT IS A HIDE EVENT SHOWING THAT IS REQUIRED THE 1152 01:40:33.714 --> 01:40:37.535 CLAIMANT TO OVERRIDE AN SKUFR POLICY OF CONFIDENTIALITY UNDER THE COMMON 1153 01:40:37.535 --> 01:40:42.172 LAW AND SO THIS COURT WOULD UNDERSTAND BLEE OR ANY COURT WOULD BE MORE TENTATIVE 1154 01:40:42.172 --> 01:40:46.865 ABOUT WHAT INFORMATION SHUDZ BE SUBJECT TO DIFFICULTIES CLOESH USUAL NA 1155 01:40:46.865 --> 01:40:49.691 POLICY. JUSTICE FERNANDEZ-VINA: IJT NOT TALKING 1156 01:40:49.691 --> 01:40:52.714 ABOUT A TEN TIFR RULING BY THIS COURT I AM TAUBLGING ABOUT A DEFINITIVE RULING BY 1157 01:40:52.714 --> 01:40:57.722 THIS COURT OR AN A PELLETS KOERTD IF IT DOESN'T COME TO HERE OR A TRIAL COURT 1158 01:40:57.722 --> 01:41:00.436 HAVING CONSIDERED ALL THOSE FACTORS AND DETERMINED THAT IT IS NOT DISCOVER 1159 01:41:00.436 --> 01:41:06.175 AND, ALT THAT POINT NOT BEFORE THE COURT RULES AFTER THE COURT RULES IS THE YOUR 1160 01:41:06.175 --> 01:41:09.030 POSITION THE ATTORNEY GENERAL STILL HAS THE AUTHORITY TO RELEASE THE DOUMTH 1161 01:41:09.030 --> 01:41:12.459 CONTRARY TO THE COURT'S RULING? ALEC SCHIERENBECK: YES, YOUR HONOR. 1162 01:41:12.459 --> 01:41:17.443 AND I WILL TRY ONE MORE A DIFFERENT WAY OF GETTING AT IT VRMENT ASSUME THERE 1163 01:41:17.443 --> 01:41:22.141 IS A COURT CASE ABOUT A REQUEST FOR DIFFICULTIES CLOESHG YOU ARE UNDER OPRA AND 1164 01:41:22.141 --> 01:41:27.483 THIS COURT DETERMINED THAT CERTAIN INFORMATION WASN'T SUBJECT TO 1165 01:41:27.483 --> 01:41:32.761 DISCLOSURE UNDER OWN PRACTICE BECAUSE IT WAS AN EXEMPT RECORDS UNDER OPRA IT WOULDN'T 1166 01:41:32.761 --> 01:41:36.514 BE UNUSUAL FOR THE HEAD OF A DEPTD NO LESS THE CHIEF LAW ENFORCEMENT OFFICER TO 1167 01:41:36.514 --> 01:41:41.452 AS A MATTER OF DISCRETION DECIDE INDEPENDENT OF THE LEGAL DETERMINATION 1168 01:41:41.452 --> 01:41:46.946 ABOUT OPRA, TO MAKE A RECORD AVAILABLE TO THE PUBLIC CHLTD WE WOULD SUBMITS, YOUR 1169 01:41:46.946 --> 01:41:50.960 HONOR, THAT AFTER LITIGATION UNDER OPRA AND THE COMMON LAW IN THIS CASE THAT 1170 01:41:50.960 --> 01:41:56.014 SAME AUTHORITY TO ACT INDEPENDENTLY OF A LEGAL CHALLENGE WOULD EXIST. 1171 01:41:56.014 --> 01:41:58.971 CHIEF JUSTICE RABNER: COUNSEL, YOU ARE BEING ASKED THROUGH OUR QUESTIONS ABOUT 1172 01:41:58.971 --> 01:42:03.216 THE AUTHORITY OF THE ATTORNEY GENERAL HAS. HOW OFTEN DOES IT HAPPEN THAT 1173 01:42:03.216 --> 01:42:08.188 A CASE IS FULLY LITIGATED THROUGH THE COURTS ACCESS IS DENIED AND THEN THE ATTORNEY 1174 01:42:08.188 --> 01:42:10.504 GENERAL STEPS IN AND RELEASES THE INFORMATION? ALEC 1175 01:42:10.504 --> 01:42:17.269 SCHIERENBECK: I CAN'T THINK OF AN I DENY KNOW THE WHOLE GAMUT OF HISTORICAL PRACTICE, 1176 01:42:17.269 --> 01:42:22.210 YOUR HONOR, BUT I CAN THINK OF AN EXAMPLE WHERE THAT IS THE CASE. I CAN 1177 01:42:22.210 --> 01:42:27.234 THINK OF DPAM PELTSZ WHERE THERE HAS MEDIA REST IN LITIGATION THE ATTORNEY GENERAL 1178 01:42:27.234 --> 01:42:30.955 HAS MADE THE DETERMINATION TO DIRECT DISCLOSURE BUT NOT ONE WHERE THERE 1179 01:42:30.955 --> 01:42:34.959 HAS BEEN A FULL LITIGATED FINAL JUDGMENT DENYING DISCLOSURE AND THEN THE ATTORNEY 1180 01:42:34.959 --> 01:42:40.790 GENERAL HAS DIRECTED. BUT I JUST I SAY THAT WITH ALL QUALIFICATIONS ABOUT THE 1181 01:42:40.790 --> 01:42:43.887 LINLTS OF MY OWN KNOWLEDGE OF THE FULL RECORD THIS HAS BEEN HAPPENING FOR 1182 01:42:43.887 --> 01:42:48.398 A LONG TIME. JUSTICE SOLOMON: CAN I JUSZ ASK YOU ONE 1183 01:42:48.398 --> 01:42:54.830 QUESTION PICKING UP A LITTLE BIT OF WHAT JUSTICE CHEST AND IT IS CHEEFR. YOU ARE 1184 01:42:54.830 --> 01:42:57.562 ASKING US TO ESSENTIALLY IN THIS COMMUNITY SUPERVISION FOR LIFE CASE WHERE THE 1185 01:42:57.562 --> 01:43:03.179 IA FILES ARE REQUESTED TO COME UP WITH A PROCESS OR PROCEDURE TO BE FOLLOWED 1186 01:43:03.179 --> 01:43:10.716 WHAT IF THAT PROCESS OR PROCEDURE IS THAT UNDER THE IAPP THE ATTORNEY GENERAL 1187 01:43:10.716 --> 01:43:15.768 IS THE GAIT KEEPER OF SUCH RECORDS AND HAS THE AUTHORITY TO RELEASE THEM 1188 01:43:15.768 --> 01:43:22.832 WITH OR WITHOUT THE COURT'S APPROVAL OR CONSENT, WHY ARNTS THEY THE GAIT KEEPER 1189 01:43:22.832 --> 01:43:27.609 AND THE FIRST STEP AND YOU COME TO COURT WHEN YOU HAVE A DIENL BY THE ATTORNEY 1190 01:43:27.609 --> 01:43:31.923 GENERAL? IN OTHER WORDS, IF THE REQUEST HAS NEVER BEEN MADZ FOR THESE RECORDS OF THE 1191 01:43:31.923 --> 01:43:37.769 AFRMENT G DIRECTLY AND THE A G HAS NOEFR RELEASED THEM DIRECTLY, WHY IS THIS 1192 01:43:37.769 --> 01:43:42.792 INDICATION HERE IF UNDER THE IAPP THEY ARE ESSENTIALLY THE GAIT KIEPER WHICH YOU 1193 01:43:42.792 --> 01:43:45.983 ACKNOWLEDGE 1234. ALEC SCHIERENBECK: YES, YOUR HONOR. I 1194 01:43:45.983 --> 01:43:50.967 TAKE THE TEACHING OF THIS COURT'S CASES NTD COMMON LAW TO BE THAT WHILE THE 1195 01:43:50.967 --> 01:43:55.774 ATTORNEY JENS POLICY IS ENTITLED TO A VERY HE EVER REWEIGHT IT IS NOT DETERMIN 1196 01:43:55.774 --> 01:44:02.305 ATIVE OF THE SCOPE OF THE COMMON LAW RIGHT OF PUBLIC ACCESS AND SO THIS COURT 1197 01:44:02.305 --> 01:44:07.538 OBVIOUSLY CAN COULD COULD. JUSTICE SOLOMON: THAT IS NOT WHAT I AM 1198 01:44:07.538 --> 01:44:09.499 ASKING. ALEC SCHIERENBECK: OKAY. 1199 01:44:09.499 --> 01:44:12.468 JUSTICE SOLOMON: REGARDLESS YOU HAVE ALREADY SAID IN AND I THINK UNDER THE IAPP 1200 01:44:12.468 --> 01:44:20.971 I THINK YOU ARE PROBABLY RIGHT. THIS WHETHER OR NOT THIS COURT FOLLOWS 1201 01:44:20.971 --> 01:44:27.387 THE COMMON LAW AND SAYS IT IS OR IS NOT DISCLOSABLE, UNDER THE IAPP THE GAIT KEEPER, 1202 01:44:27.387 --> 01:44:33.727 THE PERSON THAT SAYS YES OR NO IS THE ATTORNEY GENERAL REGARDLESS OF WHAT 1203 01:44:33.727 --> 01:44:41.667 WE SAY SO AS TO THESE CASES INTERNAL AFFAIRS FILES WHERE A REQUEST IS MADE SINCE 1204 01:44:41.667 --> 01:44:47.667 THE ULTIMATE GAIT KEEPER IS THE A G, AND I DON'T THINK WE DISAGREE THE COURT 1205 01:44:47.667 --> 01:44:51.102 HAS A RIGHT TO OVERRULE AND SAY IT HAS TO BE DISCLOSED NOT WITHSTANDING BECAUSE 1206 01:44:51.102 --> 01:44:54.903 YOU DON'T HAVE THE AUTHORITY UNDER THE IAPP TO WITHHOLD WHAT YOU ARE SAYING 1207 01:44:54.903 --> 01:45:00.213 IS BEING WITHHELD HOWEVER IN THE ABSENCE OF THAT FINDING, WHY SNTS POTENTIALLY 1208 01:45:00.213 --> 01:45:08.094 THE FIRST STEP FOR RESOLUTION OF ANY OF THESE KIEFRS CASES TO BE WE'LL DECIDE 1209 01:45:08.094 --> 01:45:13.846 IF THERE IS A COMMON LAW RIGHT OR A STATD TRI RIGHT BUT THE FIRST STEP IS MAKE 1210 01:45:13.846 --> 01:45:18.548 THE REQUEST TO THE A G, THEY'RE THE GAIT KEEPER THEY CAN RELEASE OR NOT RELEASE 1211 01:45:18.548 --> 01:45:22.693 IT REGARDLESS OF WHAT WE SAY. ALEC SCHIERENBECK: YI, YOUR HONOR. 1212 01:45:22.693 --> 01:45:26.641 SO AS A FORMAL MATTER THE ATTORNEY GENERAL NTS S GOING TO BE THE GOVERNMENT 1213 01:45:26.641 --> 01:45:31.244 CUSTODIAN THAT HOLDS A LOT OF THESE RECORDS BUT I JUST TWRANTS TO MAKE THAT 1214 01:45:31.244 --> 01:45:32.306 QUALIFICATION. JUSTICE SOLOMON: INL KNOW THE ASKING DHA IS 1215 01:45:32.306 --> 01:45:38.685 NOT PARTD OF MY QUESTION. ALEC SCHIERENBECK: OKAY. I DO UNDERSTAND 1216 01:45:38.685 --> 01:45:43.822 YOUR HONOR THAT THIS COURT COULD DECIDE IT IS NOOT GOING TO ENGAGE IN A 1217 01:45:43.822 --> 01:45:50.398 COMMON LAW ANALYSIS UNTIL THE ATTORNEY GENERAL KWHAGS IN SGLIEFRJTS WLAS IN OR 1218 01:45:50.398 --> 01:45:54.052 WHETHER A DOCUMENT IS SUBJECT TO DISCLOSURE IS THAT THE NATURE OF YOUR 1219 01:45:54.052 --> 01:45:55.860 QUESTION. JUSTICE SOLOMON: NO VRMENT MY QUESTION IS YOU'RE 1220 01:45:55.860 --> 01:46:02.383 ASKING US TO COME UP YOU'RE ASKING US TO SUGGEST A POLICY OR PROCEDURE TO BE FOLLOWED 1221 01:46:02.383 --> 01:46:08.424 IN CASES LIKE THIS WHERE IA FIESZ ARE REQUESTED. AND THAT PROCESS OR 1222 01:46:08.424 --> 01:46:14.407 PROCEDURE THAT THIS COURT MAY FOLLOW IS THAT IN LIGHTS OF THE FACT THAT THE AUTHORITY 1223 01:46:14.407 --> 01:46:20.663 TO RELEASE OR NOT RELEASE IA FILES NSDZ THE IAPP RESTS WITH THE ATTORNEY 1224 01:46:20.663 --> 01:46:26.295 GENERAL, BEFORE WE EVER CONSIDER THE ISSUE WHETHER THERE IS STRAT TRI OR COMMON 1225 01:46:26.295 --> 01:46:31.928 LAW RIGHT TO ACCESS THE REQUEST NEEDS TO BE MADE DOINLTDZ OR NOT RESPONDED TO 1226 01:46:31.928 --> 01:46:35.108 BY THE ATTORNEY GENERAL. WHY IS THAT NOT THE FIRST STEP BEFORE YOU GET TO 1227 01:46:35.108 --> 01:46:39.473 COURT? BECAUSE OBVIOUSLY WE DON'T WANT TO LOAD UP OUR COURTS WITH THESE REQUESTS. 1228 01:46:39.473 --> 01:46:43.587 WHY IS THAT NOT POTENTIALLY THE FIRST STEP? ALEC SCHIERENBECK: 1229 01:46:43.587 --> 01:46:49.946 YOUR HONOR, IF THE COURT WERE TO SAY THAT THE ATTORNEY GENERAL WOULD COMPLY 1230 01:46:49.946 --> 01:46:53.716 BECAUSE. JUSTICE SOLOMON: I AM NOT SAYING COMPLY I AM JUST 1231 01:46:53.716 --> 01:46:57.649 SAYING WHY IS THAT NOT THE FIRST STEP? THEN IT IS UP TO THE AFRMENT G THEY COULD 1232 01:46:57.649 --> 01:47:00.539 RELEASE IT OR NOT RELEASE IT. ALEC SCHIERENBECK: I ANY AS 1233 01:47:00.539 --> 01:47:06.989 A SGLIEFRJTS THINK AS A MATTER OF POLICY SOMEONE ASKING FOR THE ATTORNEY 1234 01:47:06.989 --> 01:47:13.161 GENERAL TO EXERCISE HIS DISCRETION TO RELEASE INTERNAL AFFAIRS INFORMATION IT'S 1235 01:47:13.161 --> 01:47:18.436 ALWAYS AVAILABLE. THE QUESTION IS WHAT DOES ANY COURT DO WHEN IT GETS A 1236 01:47:18.436 --> 01:47:23.780 CONCRETE REQUEST THAT'S BEEN DENIED AND NOW YOU ARE IN THE TRIAL COURT AND A TRIAL 1237 01:47:23.780 --> 01:47:27.882 COURT JUDGE IS FACED WITH THE QUESTION OF WHAT DO I DO BECAUSE THERE IS THIS OPEN 1238 01:47:27.882 --> 01:47:31.848 PRACTICE REQUEST AND THERE IS THIS COMMON LAW REQUEST AND SO IT IS THE CONCRETE 1239 01:47:31.848 --> 01:47:36.133 CASE CONTROVERSY IN FRONTD OF THE TRIAL COURT THAT NEEDS THE GUIDANCE FROM THIS 1240 01:47:36.133 --> 01:47:38.890 COURT. CHIEF JUSTICE RABNER: COUNSEL, THE OUT #K078 1241 01:47:38.890 --> 01:47:42.631 OF THIS CASE MAY EFFECT A NUMBER OF IA FILES THAT ARE REQUESTED BUT CAN YOU TEM 1242 01:47:42.631 --> 01:47:48.200 US ROUGHLY HOW MANY ARE REQUESTED TODAY AND PERHAPS COUNSEL FOR MR. RIVERA CAN 1243 01:47:48.200 --> 01:47:50.638 HELP US ON THAT QUESTION AS WELL CHLTD. ALEC SCHIERENBECK: 1244 01:47:50.638 --> 01:47:56.676 YOUR HONOR, I UNFORTUNATELY CANNOT. AND IN PART OF THE REASON IS THAT AGAIN 1245 01:47:56.676 --> 01:48:02.983 THE ATTORNEY GENERAL ISN'T THE CUSTODIAN FOR ALL INTERNAL AFFAIRS RECORDS. THE 1246 01:48:02.983 --> 01:48:07.408 ATTORNEY GENERAL SETS POLICY, RESPECTING INTERNAL AFFAIRS RECORDS AND HAS 1247 01:48:07.408 --> 01:48:11.349 THE POWER TO ISSUE THEIR DISCLOSURE BUT WE ARE TALKING ABOUT EVERY LAW ENFORCEMENT 1248 01:48:11.349 --> 01:48:20.406 ENTITY IN THE STATE THAT HAS ITS OWN INTERNAL AFFAIRS FILES. I QUANTITY FO 1249 01:48:20.406 --> 01:48:25.257 SAY A WORD ABOUT THE OPRA ISSUE. I THINK THE MOST STRAIGHTFORWARD WAY OF RESOLVING 1250 01:48:25.257 --> 01:48:32.291 THAT ISSUE IS THAT SECTION NINE AND SECTION ONE OF OPRA SAY THAT IF AN 1251 01:48:32.291 --> 01:48:36.972 OTHER STATUTE MAKES A RECORD EXEMPT FROM DISCLOSURE, THEN IT IS NOT SUBJECT TO 1252 01:48:36.972 --> 01:48:43.983 DISCLOSURE, AND HERE'S SESHGS 181 IS THAT OTHER STATUTE. AND IT'S A VERY, VERY 1253 01:48:43.983 --> 01:48:50.466 NARROW WAY OF RESOLVING THIS CASE ON THE OPRA GROUND. THE COMMON LAW THOUGH 1254 01:48:50.466 --> 01:48:56.819 IS A MORE TEXTURED INQUIRY. AND I WILL NOT BELABOR WHAT'S IN OUR BRIEF BUT WE 1255 01:48:56.819 --> 01:49:01.139 THINK SOME OF THE SAIL YENT FACTORS THAT WOULD BE HEFRL FOR THIS COURT TO 1256 01:49:01.139 --> 01:49:07.047 GIVE GUIDANCE ON ARE THE INTERESTS IN CONFIDENTIALITY COMPLAINANTS THAT ENCOURAGE 1257 01:49:07.047 --> 01:49:10.876 S CANDOR IN THE THAN TERRIBLE AFFAIRS PROCESS, THE INTEREST OF TRANLS PARNS 1258 01:49:10.876 --> 01:49:15.814 SEE TO THE PUBLIC AND MOST SALIENT IN THE INTERNAL AFFAIRS CONTEXT IN PARTICULAR 1259 01:49:15.814 --> 01:49:20.622 WHETHER THE MISZ CONDUCT IS SUBSTANCE YATSED THE NATURE AND GRAVITY OF THE 1260 01:49:20.622 --> 01:49:23.857 HARM CAUSED IN AN IS WHETHER THERE HAS BEEN COMBES I HAVE OR DEADLY FORCE, 1261 01:49:23.857 --> 01:49:28.035 DISCRIMINATE FLAGS OR BIAS, OI ABUSE OF THE PUBLIC TRUST, TS NATURE AND GRAVITY 1262 01:49:28.035 --> 01:49:31.788 OF THE CONSEQUENCES, WHETHER IT RESULTED IN TERMINATION SHGSZ RESIGNATION, 1263 01:49:31.788 --> 01:49:36.790 A SUBSTANTIAL SUSPENSION OF TIME, THE SENIORITY OF LAW ENFORCEMENT OFFICIAL BECAUSE 1264 01:49:36.790 --> 01:49:40.670 IT GOES TO WHETHER THAT MISS CONDUCT MIGHT HAVE PERMISSION NATED THE ENTIRE 1265 01:49:40.670 --> 01:49:45.787 LAW ENFORCEMENT APPARATUS, AND WHETHER THERE HAS ALREADY BEEN SUBSTANTIAL PUBLIC 1266 01:49:45.787 --> 01:49:51.192 INTEREST IN THE DOCUMENT. AND I ALSO WANTD FO SPEAK FO THE INTEREST ON 1267 01:49:51.192 --> 01:49:55.769 THE OTHER SIDE WHICH IS WHY THERE NEEDS TO BE AN EXTENSIVE PROCESS OF DEE DAKS 1268 01:49:55.769 --> 01:50:02.229 S TO INSURE FOR EXAMPLE THAT ANY INFORMATION THAT MIGHT LEAD TO THE 1269 01:50:02.229 --> 01:50:07.807 DISZ CLOESHL YOU ARE THAT WOULD REASONABLY LEAD TO THE DISCLOSURE OF A COMPLAINANT 1270 01:50:07.807 --> 01:50:13.456 IS SHRUBBERY DAKTDED AND THAT KAFRL FULL PROCESS IS NECESSARY. IT IS ALSO NOT 1271 01:50:13.456 --> 01:50:17.673 TRUE THAT IN THE ORDINARY IS CASE THE NECESSARILY NEEDS TO BE IN CAMERA 1272 01:50:17.673 --> 01:50:23.476 REVIEW OF AN INTERNAL AFFAIRS REPORT. AS THIS COURT SAID IN BOIG MAN THERE IS 1273 01:50:23.476 --> 01:50:30.089 NO PER SE RIGHT TO IN CAMERA INSPECTION AND IN SOUTH JERSEY PUBLISHING THE 1274 01:50:30.089 --> 01:50:34.387 COURT SAID IF A COURT DETERMINES THAT DIFFICULTIES CLOESH USUAL UNDER THE 1275 01:50:34.387 --> 01:50:39.undefined COMMON LAW IS WARRANTED THEN IT SHOULD CONDUCT AN IN CAMERA INSPECTION. SO I THINK 1277 01:50:44.608 --> 01:50:50.956 THAT THIS DOESN'T BECOME A GREAT BURDEN ONG NOT JUST GOVERNMENT DECIDED YENLS BUT 1278 01:50:50.956 --> 01:50:54.691 ON COURTS TO CONDUCT AN IN CAMERA INSPECTION IN EVERY CASE AND PICKING 1279 01:50:54.691 --> 01:51:01.586 UP ON A POINT BY MY FRIEND MR. VARADY, INTERNAL AFFAIRS FILES ARE VOLUMINOUS IN 1280 01:51:01.586 --> 01:51:06.293 SOME CASES. THEY INCLUDE NOT JUST THE REPORT WHICH IS A SUMMATION OF THE 1281 01:51:06.293 --> 01:51:12.045 FIENTDZ GOESS THE FACTS EVERYTHING THAT CAME ACROSS THE INVESTIGATOR BUT ALL THE 1282 01:51:12.045 --> 01:51:16.111 INLD MEED COMBRAT WORK PRODUCT. AND THE NOTION THAT ALL OF THOSE MATERIALS 1283 01:51:16.111 --> 01:51:24.686 WOULD BE POTENTIALLY SUBJECT TO DISCLOSURE UPON A MRIMENT SHOWING OF A PUBLIC INTEREST 1284 01:51:24.686 --> 01:51:27.844 IS CLEARLY INAPPROPRIATE. ESPECIALLY IN LIGHT OF THE HEAVY WHATD THAT NEEDS 1285 01:51:27.844 --> 01:51:31.994 TO BE GIVEN TO THE POLICY OF NON DISCLOSURE. CHIEF JUSTICE RABNER: 1286 01:51:31.994 --> 01:51:36.110 COULD I ASK YOU TO ADDRESS THE LAST FACTOR THAT YOU SUGGESTED WITH RESPECT TO 1287 01:51:36.110 --> 01:51:40.995 WHAT SHOULD BE CONSIDER UNDER OUR COMMON LAW ANALYSIS AND THAT IS WHERE THE MISS 1288 01:51:40.995 --> 01:51:45.359 CONDUCT HAS ALREADY BEEN THE SUBJECT OF SUBSTANTIAL PUBLIC INTEREST? THAT MAY 1289 01:51:45.359 --> 01:51:51.271 WELL DEPEND ON WHETHER THE MEDIA HAS PIKDZ IT UP AND THAT COULD NOT AT ALL REFLECT 1290 01:51:51.271 --> 01:51:57.049 NECESSARILY THE SIGNIFICANCE OF THE PUBLIC INTEREST. WHY IS THAT AN APPROPRIATE 1291 01:51:57.049 --> 01:52:01.142 CONSIDERATION? ALEC SCHIERENBECK: YOUR HONOR, IT IS NOT 1292 01:52:01.142 --> 01:52:07.572 DETERMINATIVE IN ANY CASE BUT I THINK THE PROOF OF THE PUDING IS SOMETIMES IN THE 1293 01:52:07.572 --> 01:52:15.523 EATING. IF THE PUBLIC HAS SHOWN QUITE A BIT OF INTEREST IN A CONTROVERSY, AND 1294 01:52:15.523 --> 01:52:21.067 THAT'S REPRESENTED IN MEEDZ YA ACCOUNTS, INVESTIGATIONS, THEN I THINK IT IS 1295 01:52:21.067 --> 01:52:27.736 PROBATIVE OF WHETHER THERE WHETHER THE PUBL IS INTERESTED IN A MATTER. 1296 01:52:27.736 --> 01:52:30.520 CHIEF JUSTICE RABNER: IT COULD BE A CHICKEN AND AN FOR EXAMPLE PROBLEM THAT 1297 01:52:30.520 --> 01:52:33.962 WE HAVE HERE BECAUSE THE PUBLIC SIMPLY MAY NOT BE AWARE OF THE ISSUE YET 1298 01:52:33.962 --> 01:52:37.721 AND YES SGLIET YIT IT COULD BE ONE OF HEIGHTENED PUBLIC INTEREST AND THAT'S WHY 1299 01:52:37.721 --> 01:52:43.312 I QUESTIONED WHAT SHUDZ BE AWARDED FO THAT LAST FACTOR. ALEC 1300 01:52:43.312 --> 01:52:46.016 SCHIERENBECK: IT IS A FAIR FOINT YOUR HONOR IN THE ABSENT EJS OF IT ENABLE THAT 1301 01:52:46.016 --> 01:52:49.525 THERE HAGS NTS BEEN DISCUSSION IN THE FUBL ABOUT AN INCIDENT BECAUSE THERE 1302 01:52:49.525 --> 01:52:52.922 HASN'T BEEN SUFFICIENT DIFFICULTIES CLOESH USUAL ABOUT THAT INCIDENTS. AND IF 1303 01:52:52.922 --> 01:53:02.820 THAT IS WHAT A COURT IF THAT'S WHERE A COURT WHAT A COURT THINKS IS HAPPENING 1304 01:53:02.820 --> 01:53:08.216 WHEN IT'S CONDUCTING THIS ANALYSIS THEN THAT SHUDZ BE GIVEN AEN TWHAT OR IT SHOULD 1305 01:53:08.216 --> 01:53:11.141 BE APPROPRIATELY DIFFICULTIES DISCOUNTED. JUSTICE FUENTES: 1306 01:53:11.141 --> 01:53:18.816 TO THE CHIEF JUSTICE Z QUESTION PLEADS YA AND EFFECT NOL GEE THE WAY IT IS HOW 1307 01:53:18.816 --> 01:53:25.050 DO WE DETERMINE WHETHER THERE IS A PUBLIC INTEREST IF WE CONSIDER A PUBLIC 1308 01:53:25.050 --> 01:53:31.026 INTEREST TO BE IN EXISTENCE IF THERE IS A GREAT DEAL OF SOCIAL MIED YA DISCUSSION, 1309 01:53:31.026 --> 01:53:37.640 IF THERE IS A GREAT DEAL OF INTEREST AND DISCUSSIONS IF THERE IS A POD CAST 1310 01:53:37.640 --> 01:53:43.175 THAT DEAD INDICATES IT IS RECEIVE TO THE ISSUE, IN THIS COMPLEX TECH NO LOGICAL 1311 01:53:43.175 --> 01:53:48.431 WORL HOW SHOULD WE CONSIDER THIS? ALEC SCHIERENBECK: WELL, 1312 01:53:48.431 --> 01:53:52.895 YOUR HONOR, I ANY YOUR HONOR POINTS TO HOW DIFFICULT THIS INQUIRY COULD BE 1313 01:53:52.895 --> 01:53:58.729 IN CERTAIN CASES. BUT I DON'T THINK THAT I THINK IT'S CLEAR THAT IF THERE IS A 1314 01:53:58.729 --> 01:54:03.495 THAN NL DOT COME IN DEPTH INVESTIGATION INTO A MATTER THAT THAT IS ONE KIND OF 1315 01:54:03.495 --> 01:54:11.503 PROVEN TRACK RECORD OF PUBLIC INTEREST BUT IN TODAY'S' DAY AND AGE THERE ARE INCIDENCES 1316 01:54:11.503 --> 01:54:18.627 OF POLICE CONDUCT OR ALLEGE MISS CONDUCT THAT ARE OFTEN CAPTURED ON SOCIAL 1317 01:54:18.627 --> 01:54:25.692 MEDIA AND I THINK IT WOULD GO INTO THE POT IN THE OVERALL GESTALT COMMON LAW ANALYSIS. 1318 01:54:25.692 --> 01:54:31.420 AND IT IS JUST THAT'S THE NATURE OF THE COMMON LAW. IT MROFS IN KREMENTD 1319 01:54:31.420 --> 01:54:36.084 LY AND IT TAKES INTO ACCOUNT MANY THINGS. WE MEAN TO SUGGEST THAT THIS IS AN EXCLUSIVE 1320 01:54:36.084 --> 01:54:39.029 LIST OF FACTORS YOUR HONOR ^ ( ^ ) DON'T SNFRMENT IT IS REALTY 1321 01:54:39.029 --> 01:54:42.827 MINTHD TO AN I ALSO TRATD I HAVE LIST OF WHAT THE ATTORNEY GENERAL HAS DETERMINING 1322 01:54:42.827 --> 01:54:48.413 TO BE SOME OF THE NO, SIR SALIENT FACTORS. IF THERE ARE NO OTHER. 1323 01:54:48.413 --> 01:54:53.843 JUSTICE ALBIN: I HAVE ONE LAST QUESTION. THIS IS GOING BACK TO OPRA. I WANT TO 1324 01:54:53.843 --> 01:55:01.464 UNDERSTAND YOUR POSITION WITH RESPECT TO 181. IS IT YOUR POSITION THAT THE 1325 01:55:01.464 --> 01:55:08.131 GUIDELINES OR REGULATION OR THE E KWIFRL EVENTS OF REGULATIONS OR IS IT YOUR POSITION 1326 01:55:08.131 --> 01:55:16.793 THAT 181 I AM ABUSE THE GUIDELINES WITH THE SAME STATUTORY AUTHORITY AS THOUGH 1327 01:55:16.793 --> 01:55:24.152 THE CONFIDENTIALITY PROVISIONS WERE IN 181 ITSELF? ARE YOU FOLLOWING ME? 1328 01:55:24.152 --> 01:55:29.593 ALEC SCHIERENBECK: I ANY SO THINK SO. THE WAY I WOULD PUT IT YES TO ALL 1329 01:55:29.593 --> 01:55:32.868 OF THE ABOVE BUT THE EAST YEGS WRA FO COME TO THE DECISION IN THIS CASE, YOUR 1330 01:55:32.868 --> 01:55:40.768 HONOR, IS SECTION ONE AND SECTION NINE TALK ABOUT OTHER STATUTES, SESHGS 181 HEARS 1331 01:55:40.768 --> 01:55:45.854 THAT OTHER STATUTE AS THIS COURT HAS SPLAJDZ IN OTHER CASES IN FOP IS THE 1332 01:55:45.854 --> 01:55:50.513 CLEAREST, THE LEGISLATURE WAS COULD GO IN A SANTD I THINK THE COURT SAYS OR HAD 1333 01:55:50.513 --> 01:55:55.119 TO HAVE BEEN COGNIZANT OF THE CONFIDENTIALITY RULES IN THE IAPP WHEN IT 1334 01:55:55.119 --> 01:56:00.902 MADE THE MANDATORY POLICY FOR ALL LOCAL LAW ENFORCEMENT AND SO SECTION 181 1335 01:56:00.902 --> 01:56:08.920 HERE IS AS IF INCORPORATES BY REFRNS THE CONFIDENTIALITY PROVISIONS OF THE IAPP. 1336 01:56:08.920 --> 01:56:13.039 NOW, YOU CAN THINK ABOUT IT ANOTHER WAY WHICH I THINK IS EQUALLY PLAUSIBLE 1337 01:56:13.039 --> 01:56:19.255 WHICH IS SECTION NINE B TALKS ABOUT GRANTS OF CONFIDENTIALITY RECOGNIZED BY STATUTE. 1338 01:56:19.255 --> 01:56:26.738 NAB THAT IS A MORE NATURAL FIT HERE. IN THE TEXT THE. GIVEN SECTION 181. 1339 01:56:26.738 --> 01:56:31.664 ANG THEN IF YOU THOUGHT THAT WASN'T SUFFICIENT YOU COULD GO DOWN THE TREE AND 1340 01:56:31.664 --> 01:56:36.319 ASK WHETHER WHETHER RULE MASHG CAN IS NECESSARY THO CONSTITUTE A REGULATION RNDZ 1341 01:56:36.319 --> 01:56:40.471 SEKSZ NINE I DON'T THINK WE NEED TO GET THERE IT IS AN INTERESTING ACADEMIC 1342 01:56:40.471 --> 01:56:46.752 DISCUSSION FWU FO ME I RESPECTFULLY SMITD THE EAST WAY WAY TO THINK ABOUT IT IS 1343 01:56:46.752 --> 01:56:50.709 RTD OTHER STATUTE LANGUAGE YOUR HONOR. CHIEF JUSTICE RABNER: ANY 1344 01:56:50.709 --> 01:56:54.407 OTHER QUESTIONS? THANK YOU COUNSEL. ALEC SCHIERENBECK: 1345 01:56:54.407 --> 01:57:08.558 THANK YOU. CHIEF JUSTICE RABNER: REWRITE E CJ GRIFFIN: I 1346 01:57:08.558 --> 01:57:12.859 AM GOING TO USE MY TIME TO SFOND TO QUESTIONS FROM THE JUSTICES AND MY ADVERSARIES AND 1347 01:57:12.859 --> 01:57:16.741 COME BACK THAT TO THE OPRA ISSUE TOWARD THE END. I WANT TO RESPOND TO -- CHIEF 1348 01:57:16.741 --> 01:57:20.739 JUSTICE RABNER: I HOPE AT SOME POINT YOU CAN RESPOND TO WHAT THE ATTORNEY GENERAL JUST 1349 01:57:20.739 --> 01:57:25.633 ARGUED WITH RESPECT TO THE ANY OTHER STATUTE LANGUAGE. CJ GRIFFIN: YES, 1350 01:57:25.633 --> 01:57:31.286 I WILL TRY TO DO THAT. FIRST I WANTED TO RESPOND TO JUSTICE SOLOMON's QUESTION ABOUT 1351 01:57:31.286 --> 01:57:37.193 THE A G BEING THE GATEKEEPER AND SO SHOULD THE REQUEST BE FILED WITH HIM. I WOULD NOTE 1352 01:57:37.193 --> 01:57:42.638 THAT THE PROSECUTOR IS EQUALLY A GATEKEEPER IN THE IAPP. THE PROSECUTOR HAS JUST AS MUCH 1353 01:57:42.638 --> 01:57:48.773 AUTHORITY TO RELEASE THESE RECORDS AS THE A G DOES AND WE APPROPRIATELY FILED THE REQUEST 1354 01:57:48.773 --> 01:57:54.699 WITH THE PROSECUTOR BECAUSE THE PROSECUTOR IS ALSO THE CUSTODIAN OF THE RECORD. THE A 1355 01:57:54.699 --> 01:58:00.591 G DOESN'T HAVE THE RECORDS. IF WE FILED A REQUEST THERE, WE WOULD LIKELY HAVE GOTTEN 1356 01:58:00.591 --> 01:58:05.261 A RESPONSE BACK THAT THEY'RE NOT THE CUSTODIAN OF RECORD. SO WHAT I WOULDN'T WANT IS 1357 01:58:05.261 --> 01:58:11.320 THAT SORT OF PROCESS DECISION WHERE WE SOMEHOW HAVE TO START BACK OVER WITH THE ATTORNEY 1358 01:58:11.320 --> 01:58:19.508 GENERAL. WE'VE SPEND HUNDREDS OF HOURS LITIGATING THIS CASE. AND MY OPENING AS I 1359 01:58:19.508 --> 01:58:23.781 SAID TRANSPARENCY DELAYED IS TRANSPARENCY DENIED. I WOULD ALSO SAY THAT THE COMMON LAW 1360 01:58:23.781 --> 01:58:29.049 REALLY EXISTS FOR TWO REASONS. THERE IS INDIVIDUALIZED ACCESS, MEANING THE RECORD IS 1361 01:58:29.049 --> 01:58:33.679 EXEMPT, BUT THERE COULD BE A SPECIFIC PERSON THAT HAS A VERY SPECIFIC NEED FOR IT. AND 1362 01:58:33.679 --> 01:58:39.993 THAT'S THE GILLERAN TYPE OF CASE. WHERE THE COURT HELD IT WOULDN'T BE WISE FOR SECURITY 1363 01:58:39.993 --> 01:58:45.407 CAMERA FOOTAGE TO BE UNIVERSALLY AVAILABLE TO EVERYONE. BUT THEN THERE'S 1364 01:58:45.407 --> 01:58:52.619 ALSO MORE PUBLIC INTEREST DRIVEN CASES AND THAT'S THIS CASE. AND THAT'S WHY FOR WHATEVER 1365 01:58:52.619 --> 01:58:58.289 REASON THE LAW HASN'T CAUGHT UP TO WHAT THE PUBLIC INTH IS. AND I THINK THIS IS -- 1366 01:58:58.289 --> 01:59:03.580 LYNDHURST WAS AN EXAMPLE OF THAT. WHERE THE LAW EXEMPTED DASH CALMS BUT YET THERE WAS 1367 01:59:03.580 --> 01:59:07.766 A SIGNIFICANT PUBLIC INTEREST IN DISCLOSURE OF THEM, ESPECIALLY WHEN THEY RE-LATED TO 1368 01:59:07.766 --> 01:59:14.323 POLICE DEADLY FORCE. AND AS A RESULT OF THE COURT'S DECISION, THE LAW HAS NOW CAUGHT 1369 01:59:14.323 --> 01:59:20.525 UP TO THAT DECISION, AND AGENCIES ROUTINELY RELEASE THEM. AND I THINK THAT'S TRUE HERE. 1370 01:59:20.525 --> 01:59:26.440 THAT THERE HAS BEEN A CHANGE IN THE VIEW OF THE IMPORTANCE OF TRANSPARENCY IN POLICE 1371 01:59:26.440 --> 01:59:32.521 MISCONDUCT INVESTIGATIONS, RECOGNIZED EVEN BY THE ATTORNEY GENERAL, AND THE POLICY MAKER 1372 01:59:32.521 --> 01:59:37.817 HERE IS ASKING THE COURT TO RELEASE THESE RECORDS WHEN HE ALONE HAS STATUTORY AUTHORITY 1373 01:59:37.817 --> 01:59:44.120 TO MAKE THEM PUBLIC. AND I THINK THAT'S A FAILURE IN GOVERNMENT BUT ONE THAT THE COURT 1374 01:59:44.120 --> 01:59:49.282 CAN AND SHOULD CORRECT. AND THERE ARE POLITICAL CONSIDERATION THAT'S THE ATTORNEY GENERAL 1375 01:59:49.282 --> 01:59:54.759 FACES THAT THIS COURT DOESN'T FACE. AND THAT IS THAT IF HE AMENDED THE IAPP TO INCLUDE 1376 01:59:54.759 --> 02:00:01.191 THE LANGUAGE THAT HE ASKED THE COURT TO ADOPT, HE WOULD LIKELY BE SUED BY THE POLICE UNIONS 1377 02:00:01.191 --> 02:00:09.157 AS HE WAS WHEN HE GAVE THE TINY LITTLE SLIVER OF TRANS 0 THAT DIRECTIVE 2025 GAVE US. 1378 02:00:09.157 --> 02:00:14.275 SO IT IS APPROPRIATE FOR THIS COURT TO EXPAND THE COMMON LAW FACTORS WHICH CURRENTLY WEIGH 1379 02:00:14.275 --> 02:00:20.603 SO HEAVILY AGAINST DISCLOSURE TO RECOGNIZE THAT IT IS AN IMPORTANT PUBLIC INTEREST IN 1380 02:00:20.603 --> 02:00:24.263 POLICE MISCONDUCT INVESTIGATIONS SNIECHL THERE'S AN ADDITIONAL CONSIDERATION AS WELL, 1381 02:00:24.263 --> 02:00:29.091 AS I WAS LISTENING TO THE BACK AND FORTH ON THIS ISSUE F THE ATTORNEY GENERAL YESTERDAY 1382 02:00:29.091 --> 02:00:34.121 HAD RELEASED A REDACTED VERSION AND LET'S ASSUME THAT THE REDACTIONS WERE ALL MADE IN 1383 02:00:34.121 --> 02:00:39.903 GOOD FAITH, WITH OTHERS NOT YET HAVING SEEN THAT, IT WOULDN'T END A LAWSUIT, WE CAN? 1384 02:00:39.903 --> 02:00:45.348 CJ GRIFFIN: CORRECT. AND THAT'S ACTUALLY WHAT HAPPENED IN THE GANNETT VERSUS 1385 02:00:45.348 --> 02:00:52.329 NEPTUNE CASE. THE ATTORNEY GENERAL DID RELEASE RECORDS. AND DURING SORT OF ON THE EVE 1386 02:00:52.329 --> 02:00:56.378 OF THE APPELLATE DIVISION -- NOT LONG BEFORE THE APPELLATE DIVISION ARGUMENT IN THAT CASE. 1387 02:00:56.378 --> 02:01:01.618 AND I THINK IT CAUSED PROBLEMS BECAUSE THERE WERE STILL DISPUTES IN THE REDACTIONS AND 1388 02:01:01.618 --> 02:01:06.540 THE APPELLATE DIVISION DECISION ENDED UP NOT CAPTURING THAT. THEN THERE WERE ALSO 1389 02:01:06.540 --> 02:01:11.753 COMPLICATIONS BY THE 73 SHIFTING ARGUMENT AND THE CATALYST THEORY FOR THE REQUESTER. SO 1390 02:01:11.753 --> 02:01:16.781 THERE'S ALL SORTS OF OTHER PROBLEMS WITH THIS COURT NOT REACHING A DECISION AND THE 1391 02:01:16.781 --> 02:01:22.279 ATTORNEY GENERAL JUST ISSUING THEM. AS WELL AS THE FACT THAT IF THE ATTORNEY GENERAL RELEASE 1392 02:01:22.279 --> 02:01:28.902 D THE RECORDS AND MOOTED THE LOWER COURTS AND LOWER AGENCIES AND MORE IMPORTANTLY WOULDN'T 1393 02:01:28.902 --> 02:01:34.491 IT BENEFIT FROM KNOWING WHEN ADDITIONAL FILES SHOULD BE RELEASED AND WE WOULD JUST BE 1394 02:01:34.491 --> 02:01:39.094 CONSTANTLY LITIGATING THESE. TO THAT I WOULD GO TO THE QUESTION ABOUT THE 1395 02:01:39.094 --> 02:01:44.350 NUMBER OF REQUESTS SFOR THESE FILES. I WILL SAY I LITIGATE A LOT OF OPRA CASES AND I 1396 02:01:44.350 --> 02:01:49.757 KEEP AWARE OF MOST OF THE OPRA CASES THAT ARE LITIGATED. THESE FILES HAVE LARGELY NOT 1397 02:01:49.757 --> 02:01:54.955 BEEN REQUESTED BECAUSE AGENCIES NEVER RELEASE THEM. HOWEVER, IN THE PAST THREE TO FOUR 1398 02:01:54.955 --> 02:02:03.265 YEARS, THEY'VE BEEN REQUESTED MORE. AS -- ESPECIALLY IN LIGHT OF THE LYNDHURST DECISION 1399 02:02:03.265 --> 02:02:09.318 WHERE THE COURT STARTED RECOGNIZING THE SIGNIFICANT INTEREST IN POLICE TRANSPARENCY, 1400 02:02:09.318 --> 02:02:14.984 ESPECIALLY IN LIGHT OF THE PAST FEW YEARS AFTER GEORGE FLOYD's MURDER AND THE INCREASED 1401 02:02:14.984 --> 02:02:24.200 ATTENTION ON POLICEMEN CONDUCT AND THE FACT WHEN DERRICK IS CHAUVEN MURDERED GEORGE FLOYD, 1402 02:02:24.200 --> 02:02:29.490 WE KNEW IMMEDIATELY HE HAD 18 PRIOR COMPLAINTS AGAINST HIM, BUT A WEEK LATER, A STATE 1403 02:02:29.490 --> 02:02:38.993 TROOPER SHOT MAUR RI ON THE STATE PARKWAY AND WE DON'T HAVE A LOT OF INFORMATION. 1404 02:02:38.993 --> 02:02:49.435 SO THEN I HAVE TO TAKE THE RISK IN THOSE CASES TO INVEST A SIGNIFICANT AMOUNT OF TIME 1405 02:02:49.435 --> 02:02:54.734 TO DETERMINE WHETHER I CAN CONVINCE A COURT THAT THEY'RE SUBJECT TO OPRA OR THE COMMON 1406 02:02:54.734 --> 02:03:01.357 LAW AND IF THEY'RE SUBJECT TO COMMON LAW WHETHER I CAN CONVINCE THE COURT TO APPLY MASON 1407 02:03:01.357 --> 02:03:05.319 AND GIVE US A DISCRETIONARY AWARD OF ATTORNEY'S FEES TO DO SO. CHIEF JUSTICE 1408 02:03:05.319 --> 02:03:08.820 RABNER: CAN YOU QUANTIFY THE NUMBER AT ALL OR IS THAT TOO DIFFICULT? CJ GRIFFIN: 1409 02:03:08.820 --> 02:03:15.838 I BELIEVE I'VE HAD MYSELF OR CLIENTS OR REPORTER CLIENTS REQUEST PROBABLY TEN OF THEM 1410 02:03:15.838 --> 02:03:23.237 IN THE PAST YEAR OR TWO. I HAVEN'T SEEN ANY OF THEM GRANTED. AND, CHIEF, 1411 02:03:23.237 --> 02:03:28.949 I ALSO WANT TO ADDRESS YOUR COMMENT ABOUT PUBLICITY. I AGREE WITH YOU THAT IT'S A 1412 02:03:28.949 --> 02:03:35.384 CHICKEN AND EGG PROBLEM. ON ONE HAND, WHEN THERE IS PUBLICITY, THEN THE PUBLIC KNOWS ABOUT 1413 02:03:35.384 --> 02:03:39.647 IT AND THEY WANT TO KNOW MORE DETAILS AND THEY SHOULD BE ABLE TO LEARN MORE DETAILS. 1414 02:03:39.647 --> 02:03:44.954 AND MR. RIVERA BELIEVES THAT KNOWING MORE DETAILS ACTUALLY COULD BENEFIT POLICE OFFICERS. 1415 02:03:44.954 --> 02:03:50.825 BECAUSE ONE PROBLEM WITH THE IAPP'S CONFIDENTIALITY PROVISIONS IS THAT THE AGENCY 1416 02:03:50.825 --> 02:03:57.196 CAN'T COMMENT ON WHAT THE PRESS REPORTS. BUT A COMPLAINANT CAN ALWAYS GO TO THE PRESS. 1417 02:03:57.196 --> 02:04:02.236 SO OFTEN THE COMPLAINANT WILL GO TO THE PRESS AND THE PRESS HEARS THE ALLEGATION AND 1418 02:04:02.236 --> 02:04:07.714 THEN WHEN THEY CONTACT THE AGENCY IT'S A NO COMMENT. AND THE PUBLIC OFTEN ASSUMES THE 1419 02:04:07.714 --> 02:04:18.736 VERY WORSE. TRANSPARENCY THERE COULD HELP CLEAR OR PROVIDE MORE PUBLIC CONTEXT AS TO 1420 02:04:18.736 --> 02:04:25.911 WHETHER OR NOT THERE WAS ACTUAL MISCONDUCT. TRANSPARENCY CAN'T RELY SOLELY ON LEAKS. 1421 02:04:25.911 --> 02:04:32.421 AND MY FEAR IS THAT IF THE COMPLAINANTS IN THIS CASE HADN'T GONE TO THE PRESS, WE MIGHT HAVE 1422 02:04:32.421 --> 02:04:36.600 NEVER KNOWN ABOUT IT AND COSGROVE MIGHT STILL BE ON THE FORCE. I SAY THAT BECAUSE IT 1423 02:04:36.600 --> 02:04:41.639 TOOK TWO SQUEAKS FOR HIM TO RESIGN AND THE MAYER WOULD NEVER CALL FOR HIS RESIGNATION. 1424 02:04:41.639 --> 02:04:49.394 IT WAS ONLY AFTER IT WAS WROTE ABOUT PILED ON THAT HE EVENTUALLY D BUT WHAT IF THE NEW 1425 02:04:49.394 --> 02:04:57.472 YORK TIMES AND THE NAACP DIDN'T KNOW ABOUT IT? HE MIGHT STILL BE ON THE FORCE. 1426 02:04:57.472 --> 02:05:01.667 JUSTICE ALBIN: CAN I ASK YOU A QUESTION ABOUT THE SCOPE OF YOUR REQUEST? IN YOUR PETITION 1427 02:05:01.667 --> 02:05:07.125 YOU'RE REQUESTING REPORTS. I DON'T KNOW WHETHER OR NOT YOU'RE REQUESTING THE FINAL IA 1428 02:05:07.125 --> 02:05:12.677 REPORT OR WHETHER OR NOT YOU'RE ALSO REQUESTING ALL OF THE UNDERLYING DOCUMENTS. LIKE 1429 02:05:12.677 --> 02:05:20.177 INTERVIEWS AND WHATEVER ELSE. OTHER REPORTS THAT MAY HAVE BEEN DONE BY INDIVIDUAL OFFICERS. 1430 02:05:20.177 --> 02:05:26.299 TELL ME OR TELL US SPECIFICALLY WHAT THE SCOPE OF YOUR REQUEST IS. CJ GRIFFIN: 1431 02:05:26.299 --> 02:05:32.804 I THINK WHEN WE FILED THE REQUEST WE HAD IN MIND THE NOT LIKE WITNESS STATEMENTS AND WORK, 1432 02:05:32.804 --> 02:05:42.399 LIKE THOSE SORT OF WORK PRODUCT CONTENTS OF THE FILE, BUT REPORTS, FOR EXAMPLE, U C P 1433 02:05:42.399 --> 02:05:48.983 O's FINAL REPORT DETAILING THE SUSTAINED FINDINGS. BUT NOT JUST FOR THIS INCIDENT 1434 02:05:48.983 --> 02:05:53.530 EITHER. WHETHER OR NOT COSGROVE HAD ANY OTHER IA REPORTS THAT MIGHT HAVE CLEARED HIM AND 1435 02:05:53.530 --> 02:05:58.565 SHOULDN'T HAVE. BECAUSE THERE WAS A QUESTION ABOUT WHETHER OR NOT MISCONDUCT WAS WAS 1436 02:05:58.565 --> 02:06:02.692 RECENT OR NOT. I DON'T THINK GOING BACK TO THE SUFFICIENCY OF THE CERTIFICATION, WE DON'T 1437 02:06:02.692 --> 02:06:07.118 HAVE ANY INFORMATION THAT ACTUALLY SAYS THAT. BUT THERE ARE LAWSUITS GOING BACK A DECADE 1438 02:06:07.118 --> 02:06:15.921 THAT ALLEGE THAT THE B WORD AND THE C WORD AND OTHER RACIST WORDS HAD BEEN UTTERED. SO 1439 02:06:15.921 --> 02:06:19.929 I DON'T THINK THIS IS NEW CONDUCT. AND I DISCUSSED IN MY OPENING THAT THERE'S A PUBLIC 1440 02:06:19.929 --> 02:06:27.059 LAWSUIT FILED IN UNION COUNTY AGAINST COSGROVE AND ELIZABETH POLICE DEPARTMENT. A 1441 02:06:27.059 --> 02:06:33.166 DEPOSITION TRANSCRIPT IN VAUGHN INDEX IT'S ON THE E-COURT'S FILE SHOWED THAT MISCONDUCT 1442 02:06:33.166 --> 02:06:39.582 OCCURRED IN THE POLICE CHIEF's OFFICE. IT WAS WIDESPREAD AND PEOPLE KNEW BIT. SO THAT'S 1443 02:06:39.582 --> 02:06:44.867 WHERE I WOULD DISAGREE WITH MR. VARADY's COMMENT THAT THE SYSTEM WORKED HERE JUST BECAUSE 1444 02:06:44.867 --> 02:06:49.979 THERE WAS SUSTAINED FINDINGS. IT DIDN'T WORK. IT TOOK TWO WEEKS FOR HIM TO RESIGN. 1445 02:06:49.979 --> 02:06:59.720 HE WASN'T IMMEDIATELY FIRED. THERE'S OTHER EVIDENCE TO SUGGEST THAT IT WAS WIDESPREAD. 1446 02:06:59.720 --> 02:07:05.376 THAT IT WENT ON FOR YEARS. THAT THERE MIGHT HAVE BEEN PRIOR COMPLAINTS. WE DESERVE TO 1447 02:07:05.376 --> 02:07:12.444 KNOW ALL OF THAT. IT'S NOT ABOUT WHETHER THE PROSECUTOR'S OFFICE AUDIT. IA UNIT WAS 1448 02:07:12.444 --> 02:07:18.800 SUFFICIENT. THE ELIZABETH IA UNIT DIDN'T DO THIS INVESTIGATION. WE ALSO DESERVE TO WHETHER 1449 02:07:18.800 --> 02:07:23.580 THE PROSECUTOR'S INVESTIGATION WAS SUFFICIENT. I BELIEVE MR. VARADY MADE A COMMENT THAT 1450 02:07:23.580 --> 02:07:29.850 THE INVESTIGATION WOULDN'T RE-VEAL WHETHER THE MAYER OR OTHERS KNEW. WELL, I THINK THAT'S 1451 02:07:29.850 --> 02:07:34.731 SOMETHING THAT THE PROSECUTOR'S OFFICE SHOULD HAVE INVESTIGATED AND IF THE REPORT SHOWS 1452 02:07:34.731 --> 02:07:39.648 THEY DIDN'T, THE PUBLIC SHOULD BE ABLE TO WEIGH IN. JUSTICE ALBIN: DO YOU KNOW 1453 02:07:39.648 --> 02:07:44.086 BY THE ELIZABETH IA DID NOT INITIALLY DO THAT? OR IS THAT ONE OF THE THINGS YOU WANT 1454 02:07:44.086 --> 02:07:48.529 TO LEARN? CJ GRIFFIN: WELL, ONE THING I MIGHT WANT TO LEARN IS WHETHER OR NOT 1455 02:07:48.529 --> 02:07:55.421 THESE COMPLAINANTS EVER WENT TO HR AND HAD THEIR COMPLAINTS IGNORED SO THAT'S WHY THEY 1456 02:07:55.421 --> 02:08:01.717 CHOSE TO GO TO THE PROSECUTOR'S IA UNIT AND GO THERE THROUGH THE IA PROCESS INSTEAD OF THE 1457 02:08:01.717 --> 02:08:06.026 PERSONNEL PROCESS. I WANT TO KNOW THAT. IN TERMS OF WHY THE PROSECUTOR INVESTIGATED 1458 02:08:06.026 --> 02:08:12.920 IT, THAT'S WHERE THE COMPLAINANTS FILED THEIR COMPLAINT. AND THE IAPP HAS A PROVISION 1459 02:08:12.920 --> 02:08:16.799 THAT SAYS WHERE THE COMPLAINT IS FILED WITH THE MUNICIPAL DEPARTMENT AND IT'S N ALLEGATION 1460 02:08:16.799 --> 02:08:23.591 AGAINST THE POLICE CHIEF OR THE POLICE DIRECTOR, THEN THE COUNTY PROSECUTOR INVESTIGATES 1461 02:08:23.591 --> 02:08:28.266 IT. THAT'S A MATTER OF PROCESS. BUT THERE'S STILL MORE TO LEARN THERE ABOUT WHETHER 1462 02:08:28.266 --> 02:08:35.015 THERE ARE PRIOR COMPLAINTS WITH HR THAT WEREN'T EVER INVESTIGATED. AND THERE'S A LOT 1463 02:08:35.015 --> 02:08:39.665 OF ALLEGATIONS WITHIN THE COMMUNITY, WITHIN THE PLAINTIFFS THAT THESE WERE SWEPT UNDER 1464 02:08:39.665 --> 02:08:45.704 THE RUG UNTIL THIS. AND THAT'S WHAT WE WANT TO LEARN IN THIS CASE. AND 1465 02:08:45.704 --> 02:08:55.173 SO ANOTHER COMMENT BY THE CHIEF POINTED OUT THE LACK OF DETAIL IN THE ESMERADO CERTIFICATION. 1466 02:08:55.173 --> 02:09:00.197 AND THE COMMENTS I'LL MAKE WITH RESPECT TO THAT ARE EQUALLY APPLICABLE WITH BOTH OPRA 1467 02:09:00.197 --> 02:09:04.971 AND THE COMMON LAW. WHICH IS THAT THESE CERTIFICATIONS THAT ARE ENTERED INTO THE 1468 02:09:04.971 --> 02:09:10.994 RECORD IN AN OPRA CASE OR A COMMON LAW CASE ARE ALMOST ALWAYS BARE BONES LIKE THIS AND 1469 02:09:10.994 --> 02:09:18.283 THEY ARE LARGELY CONCLUSIONS OR ASSERTIONS OR ARGUMENTS RATHER THAN FACTS. THIS CASE 1470 02:09:18.283 --> 02:09:23.352 DOESN'T SAY THERE WERE PROMISES OF CONFIDENTIALITY. IT JUST SAYS -- IT JUST 1471 02:09:23.352 --> 02:09:28.478 SAID THAT PEOPLE WERE RETICENT TO GIVE STATEMENTS. I HAVE LEARNED THAT IT'S 1472 02:09:28.478 --> 02:09:34.471 WHAT THEY DON'T SAY THAT'S OFTEN WHAT'S IMPORTANT. THEY CAREFULLY CRAFT THEM TO 1473 02:09:34.471 --> 02:09:39.212 SUPPORT THEIR ARGUMENT BUT THEY'RE NOT DISCLOSING FACTS THAT UNDERMINE THE ARGUMENT OR 1474 02:09:39.212 --> 02:09:43.669 THAT SUPPORT TRANSPARENCY. SO THEY DIDN'T PROVIDE ANY OF THE DETAILS THAT THE 1475 02:09:43.669 --> 02:09:48.883 DEPOSITION TRANSCRIPTS IN THAT PUBLIC CASE SAY. THEY DIDN'T DISCLOSE THAT THESE COMMENTS 1476 02:09:48.883 --> 02:09:53.295 WERE MADE IN FRONT OF THE POLICE CHIEF, WHICH WOULD BE A SIGNIFICANT FACTOR IN FAVOR OF 1477 02:09:53.295 --> 02:09:58.819 DISCLOSURE. THEY DIDN'T DISCLOSE THAT THAT TESTIMONY SAID THAT COSGROVE WAS PUT ON 1478 02:09:58.819 --> 02:10:06.697 NOTICE OF BEING INTERVIEWED. SO ONE THING THAT COULD BE HELPFUL IF THIS 1479 02:10:06.697 --> 02:10:13.100 COURT DOES REMAND IS INSTRUCTIONS THAT IT IS APPROPRIATE IN A COMMON LAW OR OPRA CASE TO 1480 02:10:13.100 --> 02:10:20.042 ALLOW THE REQUESTER TO HAVE SOME DISCOVERY, WHETHER IT'S DEPOSITIONS OR TESTIMONY, WHEN 1481 02:10:20.042 --> 02:10:25.939 WE BELIEVE THAT IT'S NECESSARY BECAUSE THE CERTIFICATIONS ARE INSUFFICIENT OR THERE'S 1482 02:10:25.939 --> 02:10:35.896 OTHER EVIDENCE THAT WOULD CONTRADICT IT. SO ONE MORE PIECE ON THE COMMON 1483 02:10:35.896 --> 02:10:42.144 LAW BUT IT GOES INTO OPRA TOO. WHICH IS THAT THE LOIGMAN FACTORS ARE SIMPLY NOT SUFFICIENT. 1484 02:10:42.144 --> 02:10:47.144 AND THAT'S WHY WE WANT THE COURT TO ISSUE A BROADER DECISION. THE LOIGMAN FACTORS ARE 1485 02:10:47.144 --> 02:10:54.990 VERY OUTDATED. THEY'RE NOT DESIGNED -- GEARED TOWARDS THE INTERNAL AFFAIRS PROCESS. 1486 02:10:54.990 --> 02:11:00.760 AND THEY'RE ALL INHERENTLY DESIGNED WITH THE PRESUMPTION AGAINST ACCESS. BUT THERE'S 1487 02:11:00.760 --> 02:11:05.764 PLENTY -- AND NONE OF THEM REALLY ADDRESS THE PUBLIC INTEREST. SO WE NEED FACTORS THAT 1488 02:11:05.764 --> 02:11:10.975 DO ADDRESS THE PUBLIC INTEREST. WE LIKE THE FACTORS THAT THE ATTORNEY GENERAL PUT FORTH. 1489 02:11:10.975 --> 02:11:16.384 WE HAD ADDITIONAL ONES THAT WE INCLUDED IN MY PRELIMINARY STATEMENT THIS MORNING. AND 1490 02:11:16.384 --> 02:11:22.270 WE DISCUSSED SOME OF THEM TODAY. BUT THEY APPLY EQUALLY TO OPRA AND THE COMMON LAW. 1491 02:11:22.270 --> 02:11:28.385 SO EVEN IF THE COURT HOLDS THAT THESE RECORDS ARE SUBJECT TO OPRA AND I'LL SAY IT IN A 1492 02:11:28.385 --> 02:11:33.539 MINUTE WHY THEY SHOULD, THAT THOSE FACTORS COULD STILL COME INTO PLAY BECAUSE THERE'S 1493 02:11:33.539 --> 02:11:44.540 SO MANY DIFFERENT OPRA EXEMPTIONS THAT CAN APPLY. AND THAT SORT OF THING AS I DISCUSSED 1494 02:11:44.540 --> 02:11:49.149 EARLIER. AS TO OPRA, CHIEF, I'M NOT SURE IF YOUR XHEVENT WAS AN INVITATION 1495 02:11:49.149 --> 02:11:55.353 TO CONCEDE IT OR NOT. BUT I WILL NOT CONCEDE THAT THEY'RE NOT SUBJECT TO OPRA, BECAUSE 1496 02:11:55.353 --> 02:12:00.898 MY CLIENT BELIEVES THEY ARE. IT'S AN UN-ANSWERED QUESTION BY THE COURTS. AND I KNOW 1497 02:12:00.898 --> 02:12:06.577 THERE'S MANY PEOPLE OUT THERE LISTENING, CIVIL RIGHTS ADVOCATES, WHO WANT THESE RECORDS 1498 02:12:06.577 --> 02:12:10.032 TOUB SHUKT TO OPRA. SO WHAT I WOULD SAY -- CHIEF JUSTICE RABNER: BEFORE 1499 02:12:10.032 --> 02:12:15.424 YOU CONTINUE, MAY I? NO ONE WAS ASKING, I CERTAINLY WASN'T ASKING FOR A CONCESSION. 1500 02:12:15.424 --> 02:12:20.859 I WAS ASKING FOR YOU TO JUST STATE FOR US WHETHER YOU ARE PURSUING THE ARGUMENT NOW AND 1501 02:12:20.859 --> 02:12:27.524 INTEND TO HAVE THE COURT ISSUE A RULING ON THAT AS OPPOSED TO JUST FOCUS ON THE COMMON 1502 02:12:27.524 --> 02:12:33.434 LAW. CJ GRIFFIN: YES, WE WOULD LIKE A JUDICIAL RULING ON THE ISSUE. AS 1503 02:12:33.434 --> 02:12:39.901 TO THE NOTION OF WHETHER OR NOT THE ATTORNEY GENERAL'S POLICY IS A REGULATION, I BELIEVE 1504 02:12:39.901 --> 02:12:46.664 THE ANSWER LEGALLY IS NO. SECTION ONE AND NINE USES THE WORDS REGULATION PROMULGATED 1505 02:12:46.664 --> 02:12:51.212 UNDER THE AUTHORITY OF ANY STATUTE OR EXECUTIVE ORDER OF THE DIRECTOR -- OF THE GOVERNOR. 1506 02:12:51.212 --> 02:12:59.728 THIS POLICY DOES NOT PROMULGATE IT. IN MULTIPLE CASES INCLUDING IN RE: CARROLL AND 1507 02:12:59.728 --> 02:13:07.847 LYNDHURST, THE ATTORNEY GENERAL HIMSELF -- I BELIEVE IT WAS A MAIL ATTORNEY GENERAL -- 1508 02:13:07.847 --> 02:13:13.919 BUT THE ATTORNEY GENERAL ARGUED THEY WERE NOT LAWS, THEY WERE NOT STATUTES OR REGULATIONS, 1509 02:13:13.919 --> 02:13:18.495 AND THE COURT HELD THEY WERE NOT REGULATIONS AND THEY DIDN'T NEED TO BE PROMULGATED PURSUANT 1510 02:13:18.495 --> 02:13:23.286 TO THE ADMINISTRATIVE PROCEDURES ACT BECAUSE THERE WERE STATEMENTS CONCERNING THE INTERNAL 1511 02:13:23.286 --> 02:13:34.774 MANAGEMENT OR DISCIPLINE OF AN AGENCY AND NOT SORT OF RULES OF GENERAL AGENCY 1512 02:13:34.774 --> 02:13:38.499 APPLICABILITY. SO THEY ARE NOT REGULATIONS. THAT IS A DANGEROUS HOLDING TO 1513 02:13:38.499 --> 02:13:43.020 SAY THEY ARE REGULATIONS BECAUSE IT WOULD GIVE A SINGLE POLICY MAKER THE AUTHORITY TO 1514 02:13:43.020 --> 02:13:53.481 EXEMPT ANY RECORD VIA A POLICY. AND THAT WOULD BE DANGEROUS IN A DEMOCRATIC SOCIETY. 1515 02:13:53.481 --> 02:14:00.103 AS TO SECTION 181, AGAIN IT'S A STATUTE THAT'S -- THE IAPP IS TWICE RE-MOVED 1516 02:14:00.103 --> 02:14:07.711 FROM AN EXEMPTION. SO 181 TELLS POLICE DEPARTMENTS THAT THEY HAVE TO ADOPT THE IAPP. 1517 02:14:07.711 --> 02:14:13.015 THAT'S IT. IT DOESN'T MENTION CONFIDENTIALITY. IT JUST SAYS POLICIES CONSISTENT WITH. 1518 02:14:13.015 --> 02:14:21.345 IT DOESN'T SAY IDENTICAL TO. THE IAPP GIVES LAW ENFORCEMENT AGENCIES FLEXIBILITY I BELIEVE 1519 02:14:21.345 --> 02:14:31.177 IS THE WORD USED TO ADOPT POLICIES. IT LISTS SOME PRIVILEGES THAT ARE MANDATORY. THE 1520 02:14:31.177 --> 02:14:35.919 CONFIDENTIALITY PORTION ISN'T SOLICITED AS ONE OF THOSE MANDATORY. THESE ARE ARGUMENTS 1521 02:14:35.919 --> 02:14:43.389 I MADE IN MY BRIEF. THE APPELLATE DIVISION IN SPHINX NOTED THAT WHEN SECTION 181 WAS 1522 02:14:43.389 --> 02:14:47.115 ADOPTER, THE CONFIDENTIALITY PROVISION WAS A VERY SMALL PORTION OF A VERY LARGE POLICY. 1523 02:14:47.115 --> 02:14:52.727 AND THE LEGISLATIVE HISTORY OF THAT STATUTE DOES NOT DISCUSS CONFIDENTIALITY. THERE WAS 1524 02:14:52.727 --> 02:14:59.492 AN ENTIRELY LAW ENFORCEMENT COMMISSION THAT ISSUED A REPORT. CONFIDENTIALITY IS NOT 1525 02:14:59.492 --> 02:15:05.381 ADDRESSED IN THAT REPORT BUT THEY RECOMMENDED 181 BE ADOPTED AND IT WASN'T THROUGH THE 1526 02:15:05.381 --> 02:15:09.882 LENZO OF CONFIDENTIALITY. SO THOSE ARE MY ARGUMENTS. WE DO HOPE THE COURT 1527 02:15:09.882 --> 02:15:15.100 WILL FIND THAT THEY'RE SUBJECT TO OPRA BUT IF THEY'RE NOT I BELIEVE THE COMMON LAW INCREASE 1528 02:15:15.100 --> 02:15:20.890 THE PUBLIC's ACCESS TO INTERNAL AFFAIRS FILES WHICH IS CRITICAL. CHIEF JUSTICE 1529 02:15:20.890 --> 02:15:27.397 RABNER: THE LAST POINT. ANY STATUTE -- AND FOCUS ON SECTION 181. IT WAS ENACTED IN 1530 02:15:27.397 --> 02:15:36.982 1996 AND THEN AMENDED IN 2015. WHAT WAS THE EXTENT OF THE CONFIDENTIALITY PROVISIONS BOTH 1531 02:15:36.982 --> 02:15:40.569 TIMES? CJ GRIFFIN: SO THE CONFIDENTIALITY PROVISION -- WELL, IT'S 1532 02:15:40.569 --> 02:15:45.091 STILL, THE CONFIDENTIALITY PROVISIONS TO THIS DAY ARE STILL JUST A FEW PAGES WITHIN A DOCUMENT 1533 02:15:45.091 --> 02:15:50.264 THAT'S OVER AN INCH THICK. CHIEF JUSTICE RABNER: BUT THEY DO SPEAK DIRECTLY 1534 02:15:50.264 --> 02:15:57.071 TO THE ISSUE OF CONFIDENTIALITY. HOWEVER MANY PAGES THEY TAKE UP OUT OF THE ENTIRE DOCUMENT 1535 02:15:57.071 --> 02:16:02.824 ITSELF, OUT OF THE IAPP. CORRECT? CJ GRIFFIN: THEY DO. THEY SPEAK ABOUT 1536 02:16:02.824 --> 02:16:08.664 CONFIDENTIALITY. AND IT WAS AMENDED IN 2015 ONLY TO REQUIRE I THINK HIGHER EDUCATION 1537 02:16:08.664 --> 02:16:17.225 POLICE DEPARTMENTS TO ADOPT IT. BUT AT THE SAME TIME THERE WAS NEVER ANY JUDICIAL, PUBLISHED 1538 02:16:17.225 --> 02:16:24.003 JUDICIAL OPINION HELD THAT IAPP CREATED AND EXEMPTION UNDER OPRA. SO I DON'T KNOW IF 1539 02:16:24.003 --> 02:16:28.302 WE CAN PRESUME THAT THE LEGISLATURE BELIEVED THAT THE CONFIDENTIALITY PROVISIONS CREATED 1540 02:16:28.302 --> 02:16:36.307 AN EXEMPTION UNDER OPRA AND THE LEGISLATURE NEVER AMENDED OPRA ITSELF TO CREATE AN EX 1541 02:16:36.307 --> 02:16:40.346 EMPTION FOR POLICE DISCIPLINE. JUSTICE ALBIN: BUT THE ATTORNEY GENERAL HAS 1542 02:16:40.346 --> 02:16:48.996 MADE AN INCORPORATION ARGUMENT. SO IF YOU LOOK AT 181, IT TALKS ABOUT EVERY LAW ENFORCEMENT 1543 02:16:48.996 --> 02:16:54.867 AGENCY SHALL ADOPT AND IMPLEMENT GUIDELINES WHICH SHALL BE CONSISTENT WITH THE GUIDELINES 1544 02:16:54.867 --> 02:17:00.631 GOVERNING THE -- AND THEN IT REFERS TO THE DIVISION OF CRIMINAL JUSTICE. AND THE 1545 02:17:00.631 --> 02:17:09.323 ATTORNEY GENERAL IS ARGUING THAT THAT IAPP WAS ALREADY ON THE BOOKS. THE LEGISLATURE KNEW 1546 02:17:09.323 --> 02:17:15.811 ABOUT THAT. WHEN IT PASSED 181. AND THEREFORE THEY MUST HAVE INTENDED IT TO HAVE THE 1547 02:17:15.811 --> 02:17:21.494 FORCE OF LAW. THAT I THINK IS THE ARGUMENT. HOW DO YOU RESPOND TO THAT? CJ 1548 02:17:21.494 --> 02:17:24.713 GRIFFIN: WELL, I THINK THAT IS THE ARGUMENT. THAT'S THE ARGUMENT THAT THE APPELLATE 1549 02:17:24.713 --> 02:17:30.213 DIVISION ACCEPTED IN GANNETT. SO I UNDERSTAND THAT COURTS HAVE ACCEPTED THAT ARGUMENT 1550 02:17:30.213 --> 02:17:39.313 AND THAT WE PROBABLY FACE AN UPHILL BATTLE ON OPRA WHICH IS PARTLY WHY WE -- BUT I DON'T 1551 02:17:39.313 --> 02:17:43.234 THINK WE CAN MAKE THAT ASSUMPTION BECAUSE AGAIN LOOKING AT THE LEGISLATIVE HISTORY WHICH 1552 02:17:43.234 --> 02:17:48.297 WE BRIEFED EXTENSIVELY IN OUR APPELLATE DIVISION BRIEF I BELIEVE IT WAS, CONFIDENTIALITY 1553 02:17:48.297 --> 02:17:54.274 DID NOT SEEM TO BE ON THE MIND OF THE LEGISLATURE WHEN IT PASSED THE STATUTE. THIS STATUTE 1554 02:17:54.274 --> 02:18:03.221 AROSE FROM THE LAW ENFORCEMENT COMMISSION's LONG TIME WORK GATHERING TESTIMONY AND TRYING 1555 02:18:03.221 --> 02:18:12.685 TO IMPROVE WHAT REALLY WAS THE DISCIPLINARY PROCESS IN TERMS OF THE SAFETY OF OFFICERS 1556 02:18:12.685 --> 02:18:17.182 AND EQUIPMENT. SO THERE WERE A VARIETY OF STATUTES THAT SKAM OUT OF THAT COMMISSION 1557 02:18:17.182 --> 02:18:22.153 REPORT. THIS BEING ONE. AND IT HAD TO DO WITH THIS COMPLIANCE WITH CIVIL SERVICE LAWS 1558 02:18:22.153 --> 02:18:26.967 AND TENURE LAWS AND THAT SORT OF THING AND THERE WAS NO MENTION OF CONFIDENTIALITY ANYWHERE 1559 02:18:26.967 --> 02:18:32.361 IN THAT REPORT OR ANYWHERE IN THE LEGISLATIVE HISTORY OF THE STATUTE. SO THAT'S ALL I 1560 02:18:32.361 --> 02:18:35.624 WOULD SAY. CHIEF JUSTICE RABNER: IF WE WERE TO LINE UP THE IAPP AT THE TIME 1561 02:18:35.624 --> 02:18:43.794 SECTION 181 WAS ENACTED AND LATER AMENDED, TELL US WHY THERE IS NOT A GRANT OF 1562 02:18:43.794 --> 02:18:49.054 CONFIDENTIALITY RECOGNIZED BY STATUTE LOOKING AT THE LANGUAGE IN 9B. CJ GRIFFIN: 1563 02:18:49.054 --> 02:18:54.545 I WOULD SAY THAT THE STATUTE DOESN'T SAY ANYTHING ABOUT CONFIDENTIALITY. IT SAYS GUIDELINES 1564 02:18:54.545 --> 02:19:01.107 CONSISTENT WITH THE IAPP. CONSISTENT DOESN'T MEAN IDENTICAL TO. IT MEANS LARGELY 1565 02:19:01.107 --> 02:19:06.306 CONFORMING WITH, PERHAPS. IT DOESN'T SAY IDENTICAL AND THE STATUTE DOESN'T SAY 1566 02:19:06.306 --> 02:19:12.769 CONFIDENTIALITY. AND THE LEGISLATIVE HISTORY OF THE 2015 AMENDMENT ALSO DOESN'T ADDRESS 1567 02:19:12.769 --> 02:19:20.396 CONFIDENTIALITY EITHER. SO I BELIEVE WHAT THE LEGISLATURE HAD IN MIND WAS TRYING TO IMPROVE 1568 02:19:20.396 --> 02:19:26.567 THE DISCIPLINARY PROCESS ITSELF, THE DUE PROCESS RIGHTS OF THE LAW ENFORCEMENT OFFICERS 1569 02:19:26.567 --> 02:19:33.185 AS THEY RECEIVED DISCIPLINE AS THEY'RE INTERVIEWED THROUGH THE ATTORNEYS GENERAL 1570 02:19:33.185 --> 02:19:42.190 PROCESS BY PROVIDING UNIFORMITY OF HOW THAT PROCESS WORKS, CONFIDENTIALITY WASN'T 1571 02:19:42.190 --> 02:19:46.925 MENTIONED. IN MY MIND THE IAPP IS TWICE RE-MOVED FROM THE STATUTE. JUSTICE 1572 02:19:46.925 --> 02:19:53.764 ALBIN: THIS IS GOING TO BE MY LAST QUESTION. IF WE AGREED WITH YOUR ARGUMENT UNDER OPRA, 1573 02:19:53.764 --> 02:20:00.854 WOULD THE FACTORS BE ANY DIFFERENT THAN UNDER THE COMMON LAW? WOULD WE STILL BE LOOKING 1574 02:20:00.854 --> 02:20:08.004 AT BASICALLY THE SAME ANALYSIS FOR DETERMINING WHETHER OR NOT DOCUMENTS -- INTERNAL AF 1575 02:20:08.004 --> 02:20:14.059 FAIRS REPORTS SHOULD BE RELEASED? CJ GRIFFIN: LARGELY SO, YES. A BENEFIT 1576 02:20:14.059 --> 02:20:19.892 WOULD BE THE COMMON LAW -- AT LEAST THE TEST UNDER THE COMMON LAW RIGHT NOW, LOIGMAN, 1577 02:20:19.892 --> 02:20:25.118 IS A PRESUMPTION AGAINST ACCESS. OPRA SAYS THERE'S A PRESUMPTION FOR ACCESS. AND I 1578 02:20:25.118 --> 02:20:29.445 THINK THAT'S BENEFICIAL IN THIS TYPE OF CASE THAT THERE SHOULD BE A GENERAL PRESUMPTION. 1579 02:20:29.445 --> 02:20:35.263 BUT THE COURTS SHOULD LAYOUT WHAT THE CONFIDENTIALITY INTERESTS ARE SO THAT 1580 02:20:35.263 --> 02:20:40.305 AGENCIES KNOW WHEN TO WITHHOLD THEM. AND I THINK THEY WOULD BE SIMILAR FACTORS. I THINK 1581 02:20:40.305 --> 02:20:47.410 COMPLAINANT CONFIDENTIALITY AND WITNESS CONFIDENTIALITY WOULD BE FACTORS. BUT THEY 1582 02:20:47.410 --> 02:20:55.061 WOULD FALL UNDER OPRA's PRIVACY BALANCING TEST. OR -- AND WHETHER THERE ARE CONFIDENTIAL 1583 02:20:55.061 --> 02:21:00.222 INFORMANTS. THERE'S AN EXEMPTION FOR THAT. SAFETY AND SECURITY INFORMATION. I THINK 1584 02:21:00.222 --> 02:21:04.046 THERE WOULD BE THE SAME ANALYSIS -- JUSTICE ALBIN: BUT YOU'D GET THE BENEFIT 1585 02:21:04.046 --> 02:21:07.482 OF THE FEE SHIFTING STATUTE. CJ GRIFFIN: RIGHT. SO PUBLISHED CASE LAW, 1586 02:21:07.482 --> 02:21:14.982 BOTH THIS COURT'S DECISION IN MAY HAVE BEEN VERSUS CITY OF HOBOKEN AND THE RECENT GANNETT 1587 02:21:14.982 --> 02:21:20.809 VERSUS NEPTUNE DECISION SAY THERE IS FEE SHIFTING UNDER THE COMMON LAW. SO I WON'T SAY 1588 02:21:20.809 --> 02:21:24.581 THAT I DON'T GET THE BENEFIT OF FEE SHIFTING. I THINK IT WOULD BE APPROPRIATE IN THIS 1589 02:21:24.581 --> 02:21:28.734 CASE WHERE THE A G SAYS THEY SHOULD BE RELEASED AND THE PROSECUTOR WON'T DO IT. BUT UNDER 1590 02:21:28.734 --> 02:21:35.842 OPRA YOU GET THE BENEFIT OF A MANDATORY STATUTORY FEE SHIFT WITHOUT DISCRETION, WITHOUT 1591 02:21:35.842 --> 02:21:41.987 JUDICIAL DISCRETION, AND I THINK THAT THE GANNETT CASE IN PARTICULAR SHOWS THAT ALTHOUGH 1592 02:21:41.987 --> 02:21:48.748 THERE IS DISCRETION IN THE TRIAL COURT FELT IT WAS APPROPRIATE, THE FEES AREN'T ALWAYS 1593 02:21:48.748 --> 02:21:55.320 GUARANTEED BECAUSE THE ATTORNEY GENERAL ESSENTIALLY MOOTED THE FEE ISSUE IN THAT CASE 1594 02:21:55.320 --> 02:22:00.602 AND THE COURT HELD BECAUSE THE REQUESTER WAS A NEWSPAPER THEY HAD THE MONEY TO LITIGATE 1595 02:22:00.602 --> 02:22:06.619 IT. SO WHEN I KNOW THERE'S OPRA ACCESS AND I BELIEVE THAT I CAN WIN, I CAN TAKE A CASE 1596 02:22:06.619 --> 02:22:11.341 AND LITIGATE IT ALL THE WAY TO THE SUPREME COURT BECAUSE I KNOW IF I WIN I GET FEES. 1597 02:22:11.341 --> 02:22:17.552 WHEN IT'S COMMON LAW, IT'S A MAJOR RISK. SO WHAT I WORRY IS THAT IT WOULD ONLY BE THE 1598 02:22:17.552 --> 02:22:24.043 MOST EGREGIOUS CASES LIKE THIS ONE WHERE THERE'S SO MUCH INFORMATION IN THE RECORD THAT 1599 02:22:24.043 --> 02:22:30.813 I FEEL FAIRLY CONFIDENT THAT I WOULD WIN THAT I WOULD PICK THOSE CASES AND STILL RISK 1600 02:22:30.813 --> 02:22:35.425 NOT GETTING FEES BUT I WOULD HAVE TO PASS ON SO MANY OTHERS THAT REALLY SHOULD COME TO 1601 02:22:35.425 --> 02:22:38.531 LIGHT. CHIEF JUSTICE RABNER: THANK YOU, COUNSEL. THANK YOU TO ALL COUNSEL. 1602 02:22:38.531 --> 02:22:44.064 WE APPRECIATE THE FINE ARGUMENTS THIS MORNING INTO THIS AFTERNOON. WE'LL TAKE THE MATTER 1603 02:22:44.064 --> 02:22:47.064 UNDER ADVISEMENT.