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By Erin O'Neill June 30, 2011

Acting Newark Police Director Samuel DeMaio says he can’t release his internal affairs record

Acting Newark Police Director Samuel DeMaio has set many precedents during his tenure with the Newark Police Department.

But there is one distinction he doesn’t want: "to be the first cop in the state of New Jersey" to release his internal affairs record.

During a recent interview on FOX 5’s "Good Day New York" program, a reporter said to DeMaio, "The city council president, Donald Payne Jr., has really been pressing. He wants to see your internal affairs record. He believes there have been infractions in the past, committed by you. He wants to see your record. Why not release it to him?"

"It's really that I can't," DeMaio replied. "There are Attorney General guidelines in place that protect it because of what's in those records. It's any allegation ... what I can say is there’s no sustained complaints on my record. I don't want to be the first cop in the state of New Jersey to set that precedent. It’s just not an issue."

PolitiFact New Jersey learned there are guidelines covering different files kept on police officers, and there are strict protections on internal affairs files to maintain their confidentiality. But there are exceptions -- one of which would allow the release of DeMaio’s internal affairs file.

First, let’s explain why DeMaio is being asked to release his records.

DeMaio was appointed acting top cop in Newark days before the U.S. Justice Department announced an investigation into the Newark Police Department.

The American Civil Liberties Union of New Jersey last year petitioned the federal government to investigate alleged civil-rights abuses by the department. When the previous police director, Garry McCarthy, announced his departure, ACLU-NJ Executive Director Deborah Jacobs asked Newark Mayor Cory Booker to require any internal candidate for the position  to "voluntarily disclose to the public their work assignment history and their internal affairs/disciplinary history."

After DeMaio’s appointment was announced, Jacobs wrote in a May 10 opinion-editorial piece, "For DeMaio, the need for transparency is especially pressing," citing a 2007 incident when DeMaio was reprimanded by the state Attorney General’s Office for questioning a witness about his immigration status, as well as other concerns about DeMaio’s reputation in the community.

In Jacobs’ op-ed, she referred to the files she wants released as both internal affairs records and disciplinary records.

City council members and a group of Newark pastors have also called for DeMaio to release his file, which they often refer to as his disciplinary record.

But a disciplinary record is generally not maintained as a separate file. The state Attorney General’s Office recommends police departments keep a personnel file, an internal affairs file and a medical file on police officers.

A Booker spokeswoman told us the Newark Police Department follows that system.

DeMaio correctly stated that state Attorney General guidelines protect internal affairs files. The guidelines state that "the nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information."

The guidelines describe several "limited circumstances" under which records from internal affairs investigations can be released, including upon a court order and upon the request of the county prosecutor or Attorney General.

But the guidelines also state, "the law enforcement executive officer may authorize access [to] a particular file or record for good cause."

The state Attorney General’s Office refused to confirm that the guidelines authorize Newark’s police director to release an internal affairs file.

Booker’s spokeswoman said the police director is the "law enforcement executive officer" in the city. She also noted, "it should be pointed out that when they say a ‘particular file’ they mean incident specific."

James Drylie, executive director of Kean University’s school of criminal justice, said that while DeMaio has the authority to release his internal affairs file as the "law enforcement executive officer," the state Attorney General guidelines clearly aim to keep those files confidential.

The city administration sent this statement when we requested comment from DeMaio: "Acting Police Director DeMaio remains focused on his number one priority - the public safety of our residents and making sure that this summer will be Newark’s safest."

Let’s review. DeMaio said he can’t release his internal affairs record because there are state Attorney General guidelines protecting it.

The state Attorney General’s guidelines describe an internal affairs file as a confidential document, but also lays out specific exceptions to that policy -- one of which technically allows DeMaio to release his file.

We rate DeMaio’s statement False.

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Our Sources

Fox 5 Good Day New York,Interview with Newark Police Director Samuel DeMaio and Newark Mayor Cory Booker, June 9, 2011

Interview with Peter Aseltine, spokesman for New Jersey Attorney General’s office, June 13 &14, 2011

Interview with Raymond Hayducka, second vice president of the New Jersey State Association of Chiefs of Police and South Brunswick police chief, June 13, 2011

New Jersey Attorney General, Internal Affairs Policy & Procedures, accessed June 13, 2011

The Star-Ledger, "Acting Newark police director Samuel DeMaio vows changes, shrugs off controversy," May 18, 2011

The Star-Ledger, "Deputy Chief Samuel DeMaio is named Newark's acting police director," May 3, 2011

The Star-Ledger, Newark pastors, council members ask new police director to release disciplinary record, May 6, 2011

U.S. Department of Justice, "Justice Department Opens Investigation into the Newark, N.J., Police Department," May 9, 2011

Deborah Jacobs, executive director of the American Civil Liberties Union of New Jersey, "Release Newark Police Director's Disciplinary Records,"  May 10, 2011

Email interview with Anne Torres, spokeswoman for Newark Mayor Cory Booker, June 17, 2011 and June 22, 2011

Interview with Alexander Shalom, policy counsel for ACLU-NJ, June 17, 2011

Email interview with Rachel Goemaat, spokeswoman for the state Attorney General’s Office, June 17, 2011 and June 20, 2011

Open Public Records Act," C.47:1A-10 Personnel, pension records not considered public document; exceptions," accessed June 17, 2011

Interview with James Drylie, executive director of Kean University’s School of Criminal Justice, June 21, 2011

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