ACLU of New Jersey Goes to Court for Open Government Records
CONTACT: media@aclu.org
Charges Former Attorney General Peter Harvey with Fraud in the Matter
NEWARK, NJ -- The American Civil Liberties Union of New Jersey filed one
lawsuit and reopened another today in actions concerning refusals by five New
Jersey towns and the State Attorney General's Office to disclose information
about individuals and organizations designated as "potential threat elements,"
including the criteria used by the state to make such determinations.
The court actions are the latest steps in the ACLU's ongoing
effort to shed light on possible government monitoring of political and peace
groups in New Jersey -- an effort in which it has encountered deceit, denial and
diversion at the top levels of state government. Government officials refuse to
disclose even the criteria they use to decide who constitutes a terrorist threat
under the law, information which other states -- such as Texas, Washington and
Minnesota -- have made publicly available and posted on their Web
sites.
"Our courts have said that 'democracy dies behind closed
doors,' " said Gary Nissenbaum of Nissenbaum & Associates, the ACLU of New
Jersey's cooperating attorney in the case. "The public should be able to find
out whether resources and funds established to fight terrorism are being misused
to target innocent Americans who have done nothing more than criticize the
government or practice their religion."
The designation of
individuals or organizations as "potential threat elements" was required in
connection with the application for Department of Homeland Security grant money.
The Homeland Security grant applications asked municipalities to identify at
least 15 individuals or organizations as potential threat elements. While some
states, including Texas, Washington and Minnesota, have publicly disclosed the
names of potential threats or criteria used to identify them, the New Jersey
Attorney General's office has gone to great -- and in fact fraudulent -- lengths
to keep it a secret in New Jersey.
"Open government is a
cornerstone of our democracy," said ACLU of New Jersey Executive Director
Deborah Jacobs. "In a climate where the federal government is spying on innocent
Americans and conducting other un-American activities in secret, it's disturbing
to learn that the state's highest law enforcement official misrepresented
himself in order to avoid disclosure of a rather benign memo."
Jacobs added:
"Abuse of power thrives in a climate of such secrecy. You have to ask, what else
is being hidden from the public and the press?"
Concerns about
government abuse of power under the guise of antiterrorism efforts are well
founded. Through Freedom of Information Act requests made around the country on
behalf of more than 150 organizations and individuals, the ACLU has learned that
the FBI, the Pentagon and local police have engaged in surveillance -- and in
some cases infiltration -- of political, environmental, antiwar and faith-based
groups. The targets for government surveillance include peace activists handing
out peanut-butter-and-jelly sandwiches outside of Halliburton headquarters in
Texas, as well as the Quakers, Catholic Worker, the Vegan Community Project and
other Americans who are merely exercising their constitutional rights to free
speech and dissent.
Background:
In 2004, nine
municipalities denied ACLU of New Jersey Executive Director Deborah Jacobs' Open
Public Records Act (OPRA) request for information about "potential threat
elements," or PTEs, with some municipalities stating that the Attorney General's
Office directed them to deny the request. Jacobs, therefore, filed an OPRA
request directly with the Office of the Attorney General, seeking any
"memorandum, letters, email, or other correspondence related to the
identification or disclosures of PTEs; . [and a] copy of all directives issued
by the NJ State Government regarding requests for information regarding PTEs. ."
That request was denied, prompting an ACLU-NJ lawsuit.
During the
course of the lawsuit, then-Attorney General Peter Harvey sent a letter to the
ACLU's cooperating attorney stating: "The Department of Law and Public Safety
has no records responsive to the OPRA request upon which the above complaint is
based. In addition, this Department did not direct or control the responses made
by local law enforcement agencies to OPRA requests for PTE records, which
requests had been made at an earlier date by plaintiffs and/or the ACLU." Based
on that assurance, the ACLU of New Jersey agreed to dismiss the lawsuit in
December 2005 and, instead, renew its requests directly with the municipalities.
Attorney General Harvey's letter, however, provided false and fraudulent
information.
In response to the ACLU's renewed request sent on
March 21, 2006 to the towns for information about potential threat elements, one
town appended an April 2004 Attorney General's Office memorandum to county
prosecutors providing justifications for denying the ACLU's original 2004
request. The memorandum, whose subject line was "ACLU OPRA Request," from Deputy
Attorney General E. Robbie Miller states: "As you may know, many municipal
police departments have received an Open Public Records Act (OPRA) request from
the American Civil Liberties Union of New Jersey (ACLU-NJ) seeking access to
certain government records. This memo delineates the reasons upon which a denial
of access to these documents can be based." After describing the ACLU of New
Jersey's request, the memo then states: "The following are specific reasons for
denial of access under both OPRA and the common law."
After
receiving copies of the memo, the ACLU of New Jersey confirmed that the Attorney
General's Office was aware of it but nevertheless had assured the ACLU and the
court in September and October 2005 that such a memo did not exist. The ACLU of
New Jersey, therefore, has filed a motion to reopen the lawsuit against Peter
Harvey, explaining that the ACLU's agreement to withdraw the case against him
was based on fraud, and the ACLU is now seeking sanctions for those
actions.
In addition, the ACLU of New Jersey has filed suit against
the five towns that again denied access to records pertaining to the
identification of or criteria for determining potential threat elements. Those
five towns are Linden, Middletown, Newark, Wayne and West New York.
The case against the towns, Deborah Jacobs v. Val D. Imbriaco, et
al., was filed in New Jersey Superior Court, Union County. The case against
Peter Harvey, Deborah Jacobs v. Peter Harvey, et al. and was filed in New Jersey
Superior Court, Mercer County.