State’s top court to decide records dispute in police discipline case

Lawmakers like to tout New Jersey as the “state for second chances,” citing its expungement law as a crucial tool for helping people move on from their mistakes.

But should cops who commit serious crimes that they later get expunged get to hide their wrongdoing from the public they police?

That was the question before the New Jersey Supreme Court Tuesday, when justices heard arguments in the case of a Jersey City police lieutenant who got his felony charges expunged after authorities say he downed six to eight beers and then shot at his guests during a dispute at a party at his Sussex County home.

States Newsroom, the parent company of New Jersey Monitor, sued Jersey City in 2022 after officials there refused to release the police department’s internal affairs report on the August 2019 incident that led state troopers to charge Lt. Michael Timmins with terroristic threats and possession of a weapon for unlawful purposes. County prosecutors allowed Timmins to complete a pretrial diversionary program that cleared the way for expungement, even though his offenses violated the Graves Act, a state law that requires mandatory prison sentences for some gun crimes.

City officials defended their refusal to disclose Timmins’ disciplinary file as necessary under the state’s expungement statute, which threatens violators who knowingly disclose expunged records with a $200 fine and disorderly conduct charge.

Internal affairs reports are not public records under New Jersey’s Open Public Records Act. But a state Supreme Court ruling from March 2022 requires police to release internal affairs reports under the common law right of access when the public’s interest in them outweighs an officer’s confidentiality concerns, noted attorney CJ Griffin, who represents the New Jersey Monitor.

The city’s denial also came before a judge approved Timmins’ expungement request, compounding officials’ error in their failure to disclose, Griffin added. That wrongly impeded the New Jersey Monitor from alerting the public about a problematic officer whose “sweetheart deal” to dodge discipline raises questions about police accountability in Jersey City, the state’s second-largest city, she said.

“The IA unit concluded that it was merely negligent behavior, and this officer received only a 90-day suspension and is still on this force despite his dangerous behavior that could have resulted in killing someone,” Griffin told justices Tuesday.

The city’s response to Timmins’ misconduct is even more of a matter of public concern because Jersey City’s longtime mayor, Steven Fulop, is now running for New Jersey governor, she added.

“Transparency is very important to the public, trusting the police. And the public often feels that police are given special treatment, that they cover up for each other, that the internal affairs unit doesn’t hold their fellow officers accountable. And I’ve personally seen that every time we come to this court and obtain a landmark decision that gives us transparency, then we see agencies finding a way to evade that transparency. So those things are all present in this case,” Griffin said.

Attorneys from the state attorney general’s and public defenders’ offices joined Griffin in arguing that such disclosure is warranted, though for slightly different reasons.

Viviana M. Hanley, representing the Attorney General’s Office, said such internal affairs records should be made public to protect the public’s trust in police accountability — as long as they’re redacted to hide things a judge has ordered expunged, such as the cop’s arrest, detention, trial, and offense.

Michael Noveck, from the Office of the Public Defender, echoed that sentiment but rejected the idea of redactions. Officers’ misconduct — including expunged crimes — serve as exculpatory and impeachment evidence that authorities are obligated to share with the juries that are tasked with weighing the credibility of cops who testify against criminal defendants, Noveck said. Details of Timmins’ arrest were revealed in just such a case.

Attorney Jeremy Jacobsen, representing Jersey City, countered that the state’s expungement statute contains no exceptions that allow expunged records to be disclosed to media outlets.

“We need to make sure that we are adhering to the plain language of the statute, because there’s a lot at risk here if we get it wrong,” Jacobsen said. “We’re exposing our employees to criminal penalties here.”

The New Jersey Monitor’s fight is a policy one that should be fought in the Statehouse, he added.

“If they’re looking for public policy changes, they’re in the wrong building. They should be lobbying the Legislature,” he said.

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The Municipal Clerks’ Association of New Jersey backed Jacobsen, with attorney Michael S. Carucci telling the justices that clerks labor under “this heavy cloud” of risking a disorderly persons offense for wrongly releasing expunged records. Disclosure laws require public officials to reveal reasons for redactions, so clerks weighing whether to release information on expunged cases risk litigation either from requestors who get no answer when they challenge redactions or from officers who feel their expungements were wrongly revealed, he added.

“The cat would be out of the bag. The requester would know that something’s up here, that there is expunged information,” Carucci said.

Such concerns did give some justices pause.

“Under what authority can this court overrule the Legislature when it passes a law that says ‘X’ will not be disclosed?” Justice Rachel Wainer Apter asked Griffin.

Griffin underscored that New Jersey Monitor’s request for Timmins’ internal affairs report predated the expungement.

“The facts were all public when we filed the request and when we filed the lawsuit,” she said.

In further questioning over nearly three hours of arguments, some justices seemed to side with disclosure, possibly with redactions to protect information excluded under the expungement statute.

Internal affairs investigators weigh administrative violations, more so than crimes, and the expungement statute applies to criminal justice matters rather than workplace discipline, Wainer Apter noted.

“I’m just having trouble understanding why if a criminal proceeding — if the person happens to be charged with a crime, the entire existence of the IA investigation all of a sudden becomes expunged,” she said.

It’s unclear when the court will return a ruling.