ACLU of New Jersey Goes to Court for Open Government Records

Affiliate: ACLU of New Jersey
May 4, 2006 12:00 am

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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.


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.

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