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State Denies ACLU-NJ Request for Information on Religious School Funding

June 6, 2013
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ACLU-NJ sought information on higher education institutions that applied for aid amid concerns that taxpayer dollars funded religious institutions

NEWARK – The state of New Jersey has denied a request (131k PDF) by the American Civil Liberties Union of New Jersey (ACLU-NJ) to release the applications of all higher education institutions that applied for public funding for construction projects, stating that if the information were made public, it would “give an advantage to competitors or bidders.” The ACLU-NJ filed the requests to learn more about the nature of the schools receiving funding, and in particular to determine whether Gov. Chris Christie’s administration violated the divide between church and state.

“New Jersey has an important interest in supporting higher education in the state, but it cannot be done at the expense of the separation of church and state,” said ACLU-NJ Executive Director Udi Ofer. “Public money should not be used to fund religious schools or institutions that may discriminate. Yet both appear to be happening under Gov. Christie’s proposal.”

“The state’s rationale for refusing to release the applications we requested makes no sense. The application process is already closed, so there would be no advantage or disadvantage in releasing these records,” Ofer added.

The state also failed to release scoring sheets and other records documenting how New Jersey Higher Education determined whether schools were eligible for funds and how much they should receive.

In May, the state released a list of 176 college building projects it selected to receive state grants from a voter-approved bond. The ACLU-NJ and state lawmakers have pressed New Jersey Higher Education to shed light on the criteria it used to select projects to fund. The ACLU-NJ is concerned that at least two of the institutions on the list, Beth Medrash Govoha and Princeton Theological Seminary, exist with the primary mission of training sectarian religious leaders and may be discriminatory in their polices or practices.

Beth Medrash Govoha, an Orthodox yeshiva in Lakewood, received $10.6 million. According to New Jersey Higher Education, Beth Medrash Govoha is a rabbinical school. Princeton Theological Seminary, which trains male and female Christian ministers, received $645,313.

The state legislature can reject the list within 60 days of its release.

On May 8, the ACLU-NJ filed a request under the Open Public Records Act (OPRA) for the applications of all private schools that received funding. It filed a separate request for the guidelines and parameters the state used in determining the grant amounts.

The state released to the ACLU-NJ only broad guidelines, which allow for great discretion in selecting how much each project receives.

On May 10, the ACLU-NJ filed a third OPRA request seeking all applications, scoring sheets and all correspondence between New Jersey Higher Education and representatives from each applicant. The state asked to extend the deadline for that request to June 24. The ACLU-NJ agreed to give the state more time to locate emails and other correspondence, but asked the state to release the scoring sheets by May 31. The state failed to meet that deadline.

“It’s extremely troubling that Gov. Christie’s administration expects the legislature to rubber stamp this list without answering any questions about how these schools were selected,” said ACLU-NJ Legal Director Edward Barocas. “The legislature should reject the funding until these serious public concerns are addressed.”

Issues: Open Government Religious Freedom

ACLU-NJ Seeks Information About Public Funds for Private Religious Schools

May 8, 2013
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NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) filed a public records request today seeking the parameters and guidelines Gov. Chris Christie’s administration used in determining which school construction projects to fund using taxpayer dollars.

The Christie administration this week released a list of private and public universities it intends to help using money from a voter-approved bond. The list included private religious schools, such as Beth Medrash Govoha, an all-male, orthodox Jewish rabbinical school in Lakewood and Princeton Theological Seminary, which trains male and female Christian ministers.

“State funding of some of these projects raises constitutional concerns that must be addressed,” said ACLU-NJ Executive Director Udi Ofer. “The legislature should reject this funding proposal until Gov. Christie sheds more light on the criteria the state used in selecting which schools and projects to fund, and assures the public that government funding is not used to support programs that discriminate.”

Beth Medrash Govoha received $10.6 million to build a new library and academic center and Princeton Theological Seminary received $645,313 to improve the technology infrastructure of its library and other technological projects.

In addition to asking the state to provide the guidelines it used in making its funding decision, the ACLU-NJ is also seeking any applications the private institutions submitted to the state requesting the money.

Issues: Open Government Religious Freedom

ACLU-NJ Calls for More Public Input into Sandy Relief Plans and Equitable Allocation of Resources

March 20, 2013
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NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) and the Rutgers Constitutional Litigation Clinic submitted a letter to the state Department of Community Affairs (DCA) yesterday, asking it to be more transparent and to include opportunities for public input in its plans to disburse federal funds for Hurricane Sandy relief.

They also called for a thorough assessment of the special needs of low and moderate income households and communities of color created by Sandy, as well as the effect of planning decisions on those communities, as required by the regulations governing disbursement of federal disaster relief funds.

The DCA released a draft of its plan to the public on March 13, but only gave the public seven days to review or submit comments on the plan. But the state did not schedule any public hearings on the plan, nor does it have a strategy to include public input in the future.

“This plan will have a long-lasting impact on New Jersey residents across the state, and across economic, racial and ethnic lines,” said Udi Ofer, executive director of the ACLU-NJ. “The public has a vested interest in reviewing the plan thoroughly and providing its input on decisions that will affect them. Any plan must also consider the disproportionate hardship imposed upon economically disadvantaged communities. We all share collective responsibility for the reconstruction and rehabilitation of communities affected by natural disasters.”

Ronald K. Chen of the Rutgers Constitutional Litigation Clinic, said he recognizes that time is critical in making sure that relief is distributed to help those in need.

“On balance, asking for additional time for the public to review the plan would not seriously impair the interest to help New Jersey residents and provide relief,” said Chen. “This is an enormous undertaking and we all share the goal of developing a plan that is sustainable and boosts the long-term viability of the state.

The ACLU-NJ and Fair Share Housing Center (FSHC), which also submitted a letter to the state, are also concerned that a disproportionate amount of the federal funds will go to homeowners, rather than renters. This includes relief funds to relocate renters and for any property they lost during the storm.

Issue: Open Government

City of Newark Releases Emails about Facebook Donation

December 31, 2012
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NEWARK – In response to a lawsuit filed by the ACLU-NJ, the City of Newark has released emails exchanged between public officials about a $100 million donation to Newark Public Schools. The city released the emails after a judge ordered the city to release the correspondence.

"It is unfortunate that it took a lawsuit and ruling from the judge to force the City of Newark to turn over public documents," said Ed Barocas, legal director for the ACLU-NJ. "We and our clients will now review the documents. And if there are no bombshells in these emails, the public has a right to ask why the city was so adamant in its refusal to release them, costing the city significant legal fees."

The case is captioned Secondary Parent Council v. Newark

Case Documents

Email Correspondence Ordered Released

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Issue: Open Government

Judge Orders Newark to Release Emails about Facebook Donation

December 20, 2012
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City refused to release public records sought by a local parents organization

NEWARK – A Superior Court judge has ordered the City of Newark to release emails that were exchanged about the $100 million pledge that Facebook founder Mark Zuckerberg made to Newark schools in September 2010.

The ruling was issued in response to a lawsuit filed by the American Civil Liberties Union of New Jersey (ACLU-NJ) on behalf of the Secondary Parent Council (SPC), a group of Newark parents and grandparents seeking more transparency about the donation.

"The City of Newark posed as many legal objections as it could to releasing these emails, which were exchanged by public officials," said Frank Corrado, an attorney with Barry, Corrado & Grassi, who represents SPC on the ACLU-NJ's behalf. "The judge's ruling repudiated all of their arguments."

The city originally stated it did not have any documents about the donation. It later admitted in a January court hearing that emails existed, but argued they did not have to release them because they were shielded by mayoral executive privilege, contain personal information and are deliberative in nature. The city also argued Newark Mayor Cory Booker was not acting in his official capacity as mayor when he accepted Zuckerberg's pledge on the Oprah Winfrey show.

Judge Rachel N. Davidson rejected all those arguments, noting for instance that a press release on the City of Newark's own website touts Booker's involvement in the donation as mayor and that all of the emails in dispute are maintained by Booker's executive assistant in Newark City Hall. The judge also noted that Booker's role as mayor is repeated in statements about the donation that are mentioned on his campaign website, as well as in some of the emails that are being sought.

"The fact that some of the emails were sent to the mayor using a personal, or perhaps, a campaign-related email address does not exempt them from being considered a public record," the judge stated in her ruling.

The judge also said it is not clear if executive privilege applies to mayors at all, but assuming that it does, "it does not apply here."

"The executive privilege would apply, for example, to deliberations within Newark about whether to accept the $100 million donation," Davidson said. "Such deliberations are completely absent from the emails."

Davidson also held that, with the exception of email addresses and a portion of one email, the contents of the emails do not contain any personal information that should be safeguarded from the public, nor were they deliberative in nature.

The judge did not set a deadline for the release of the 36 emails that were exchanged between public officials including Booker, Superintendent of Newark Public Schools Cami Anderson, Commissioner of the New Jersey Department of Education Christopher Cerf and other individuals or officials.

The emails that Newark identified in response to SPC's request were sent between Sept. 13, 2010 through June 27, 2011.

SPC is a group of parents and grandparents with children in Newark public schools. The organization filed its open records request after Zuckerberg's pledge because it wanted more insight on how the gift would affect public education.

The case is captioned Secondary Parent Council v. Newark.

Case Documents

Issue: Open Government

State Settles ACLU-NJ Lawsuit by Agreeing to Drop TRU-ID Program

October 5, 2012
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The program was NJ’s version of the federal Real ID program

NEWARK – The New Jersey Motor Vehicle Commission (MVC) has agreed to drop its TRU-ID licensing program, bringing an end to a lawsuit filed by the American Civil Liberties Union of New Jersey (ACLU-NJ). The program has been suspended since May when the ACLU-NJ convinced a judge to bring the program to a halt because it ran afoul of legal requirements for the state to inform members of the public of changes in policy that could affect them.

“I am thrilled to see implementation of the REAL ID Act toppled in New Jersey,” said Deborah Jacobs, the former ACLU-NJ executive director who served as an individual plaintiff in the case. “I hope the state’s attempts to implement the REAL ID Act are now over, and we can join the majority of the states in our nation that have rejected the federal law as overly invasive and expensive.”

The state has agreed to maintain its existing 6-Point license system, which has been in place since 2003. If the MVC decides to pursue TRU-ID again, it has agreed to go through the formal regulatory process and elicit public input.

“New Jersey law demands a transparent, democratic process that would give the public a chance to weigh in on a program such as TRU-ID that would adversely affect our privacy,” said Ed Barocas, acting executive director of the ACLU-NJ. “It’s disturbing to think how close New Jersey got to having such an intrusive ID system pushed onto us by mere fiat rather than through proper legal channels.”

The state has also agreed to pay the ACLU-NJ’s attorney fees and the ACLU-NJ reserves the right to challenge any regulations the state adopts in the future.

The ACLU-NJ alleged the MVC violated New Jersey’s Administrative Procedure Act, which dictates any new rule or regulation requires, at minimum, public notice and the chance for citizen review. The state released minimal information about TRU-ID before the planned implementation and sought no input from the public, legislators or stakeholders.

State officials said TRU-ID was conceived in order to comply with the federal Real ID Act, a 2005 policy that sought to create a national identification card. But at least 25 states have opted out of Real ID, with many of them passing legislation making it illegal for their state governments to participate.

The New Jersey program would have required citizens to turn over sensitive personal documents to the government, such as birth certificates and Social Security cards without any assurances from the government that the documents would be safely housed from identity thieves or other threats. Now, the state will continue to accept a range of documents as proof of identity, rather than limiting the list to only the most sensitive, as TRU-ID would have done.

In addition to privacy concerns, the ACLU-NJ feared the potential impact of TRU-ID on some of New Jersey’s most vulnerable communities with regard to civil rights and personal safety. The MVC’s attempt to require all documents, including birth certificates, be in English imposed a burden on anyone born in a non-English speaking country. It was also initially uncertain whether the state would make any exceptions for victims of domestic violence, who are currently allowed to use an alternate address for all state and local government purposes, rather than their actual home addresses to protect their safety.

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Issue: Open Government

State Police Refuse to Release Statehouse Free Speech Policy

September 24, 2012
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ACLU-NJ files suit after receiving complaint that visitors were required to remove buttons to enter Statehouse

NEWARK — The American Civil Liberties Union of New Jersey (ACLU-NJ) filed a lawsuit against the State of New Jersey today for unlawfully refusing to release its policy on wearing buttons, pins or stickers in the Statehouse. The ACLU-NJ requested the policy under the Open Public Records Act (OPRA) after receiving a complaint from Statehouse visitors who were told they would have to remove politically expressive buttons to enter.

“It is completely absurd that the State Police may have a policy restricting what the public can or cannot do, but then refuses to let the public know what the policy actually says,” stated ACLU-NJ acting executive director Ed Barocas.

After receiving the complaints, an attorney for the ACLU-NJ contacted the State Police Superintendent, requesting that he provide the current policy on wearing buttons or stickers in the Statehouse. On August 13, the State Police’s Records Custodian rejected the ACLU-NJ’s request, stating the policy falls under “standard operating procedures” and is therefore exempt from OPRA under new regulations adopted by the Attorney General.

“The Statehouse belongs to the public, and the public has a right to know if the government has placed any unconstitutional restrictions on their free speech,” said Janie Byalik of Pashman Stein, P.C., which represents the ACLU-NJ in the matter. “The state’s refusal to release its free speech policy is an affront to transparency and to democracy.”

The Attorney General’s office has attempted to justify withholding “standard operating procedure” records from the public because they “do not generally impact the public’s interactions with agencies in the Department of Law and Public Safety” and “may also provide insight into law enforcement techniques, legal strategy and other confidential matters that may put lives at risk.”

The ACLU-NJ has opposed these regulations, adopted in December 2011, saying they are overly broad and allow the state to withhold broad categories of public documents — even general policies such as the ones at issue here — from the public unlawfully.

“It is difficult to fathom how releasing the state’s policies on buttons and pins would put the public’s lives at risk,” said Byalik. “And if any restrictions exist, they directly affect how the public is being asked to interact with State Police and with our legislators. This is another example of how the state is using these regulations to keep the public in the dark about basic government policies that they have a right to know about.”

The ACLU-NJ is challenging the Attorney General’s regulations directly in a separate lawsuit filed in the state appellate division on June 29, asking the court to invalidate several provisions of the regulations that allow the state to exempt documents such as: standard operating procedure and training manuals, employment policies, and State Trooper overtime.

Last week, the ACLU-NJ filed yet another separate lawsuit after the State Police unlawfully denied a request for public records detailing its promotion policies. Calling the request too broad, the state said it considered those records exempt from OPRA because they are standard operating procedures and relate to employment.

Issue: Open Government

ACLU-NJ Sues State Police to Learn Promotion Policies

September 17, 2012
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State Police denied request for public records, stating basic policies are exempt from Open Public Records Act

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) has filed a lawsuit against the New Jersey State Police for unlawfully denying a request for public records detailing its promotion policies. This is the second time this summer that the ACLU-NJ has legally challenged the State for lack of transparency regarding public records. The ACLU-NJ filed the lawsuit on behalf of Richard Rivera, who requested the documents on behalf of the Civil Rights Protection Project of the Latino Leadership Alliance.

“The State Police is operating in virtual secrecy with no accountability to the public it serves,” said Rivera. “The public has an interest and a right to know what types of policies determine why some officers get promoted, including whether those policies favor one racial or ethnic group over another.”

On July 25, Rivera filed a request under the Open Public Records Act (OPRA) for all written policies, procedures, or orders that reflect the criteria, processes and methods of promotion in the State Police.

The state rejected his request on Aug. 2, stating it was too broad and that newly adopted regulations allow the state to withhold broad categories of public documents – even general policies – from the public.

“This case is a prime example of how the Attorney General’s recently adopted regulations violate OPRA, by exempting more information from public view than the law allows,” said attorney Janie Byalik of Pashman Stein, P.C., which represents Rivera as a cooperating firm for the ACLU-NJ. “The State failed to provide any reason why it is in the public’s interest to keep this document confidential.”

Open government advocates, such as the ACLU-NJ, testified against the regulations for compromising transparency prior to the regulations’ passage in December 2011, arguing that many of the documents the State considers exempt are innocuous. The state Attorney General assured the ACLU-NJ that the regulations were not intended to make general policies and procedures – such as the ones Rivera requested – confidential.

“We raised these red flags with the state Attorney General, who assured us that the regulations would not be used to keep innocuous records, such as general personnel policies, from the public view,” said ACLU-NJ Legal Director Ed Barocas. “Instead, the State did exactly what we feared in its response to Rivera’s request for records.”

In July, the ACLU-NJ challenged the regulations directly in the state appellate division, asking it to invalidate several provisions of the regulations that allow the State to exempt documents such as: standard operating procedure and training manuals, employment policies, duty assignments and overtime. Byalik and Michael Stein of Pashman Stein, a law firm based in Hackensack, NJ, represent the ACLU-NJ in that case as well.

The case is captioned Richard Rivera v. Ismael E. Vargas and the New Jersey State Police.

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Listen to audio comments from attorney Janie Byalik of the law firm Pashman Stein, P.C. about this case.



Issue: Open Government

ACLU-NJ Seeks Details on Automatic License Plate Readers From 21 Police Departments

July 30, 2012
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Information Sought on How Cameras are Used by Police Agencies and How Data is Stored

Newark – The American Civil Liberties Union of New Jersey (ACLU-NJ) sent public records requests today to 21 police departments in New Jersey that seek information on how they use automatic license plate readers (ALPRs) to track and record people’s movements. The ACLU-NJ joined ACLU affiliates in 38 other states requesting this information from local police departments and state agencies.

“The legitimate needs of public safety and law enforcement do not include tracking the movements of law-abiding citizens who take to the roads of New Jersey,” said Thomas MacLeod, the Open Government Project Fellow for the ACLU-NJ. “It is critical for the public to know whether adequate safeguards are in place to limit the collection and storage of each individual’s license plate information.”

The ACLU-NJ sent records requests to Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Camden, Cherry Hill, Passaic, Middletown, Franklin, Vineland, New Brunswick, Evesham, Hackensack, Atlantic City, and the New Jersey State Police.

The ACLU-NJ sent a separate request to the N.J. Office of Homeland Security & Preparedness and to the Department of Law & Public Safety, regarding the availability of state and federal funding to obtain ALPR technology.

In addition, the ACLU and the ACLU of Massachusetts filed federal Freedom of Information Act requests with the departments of Justice, Homeland Security and Transportation to learn how the federal government funds ALPR expansion nationwide and uses the technology itself.

ALPRs are cameras mounted on patrol cars or on stationary objects along roads – such as telephone poles or the underside of bridges – that snap a photograph of every license plate that enters their fields of view. Typically, each photo is time, date, and GPS-stamped then stored, and sent to a database, which provides an alert to a patrol officer whenever a match or “hit” appears.

“Automatic license plate readers make it possible for the police to track our location whenever we drive our cars and to store that information forever,” said Catherine Crump, staff attorney with the ACLU’s Speech, Privacy & Technology Project. “The American people have a right to know whether our police departments are using these tools in a limited and responsible manner, or whether they are keeping records of our movements for months or years for no good reason.”

ALPRs are spreading rapidly around the country, but the public has little information about how they are used to track motorists’ movements, including how long data collected by ALPRs is stored, and whether local police departments pool this information in state, regional or national databases. If ALPRs are being used as a tool for mass routine location tracking and surveillance and to collect and store information not just on people suspected of crimes, but on every single motorist, the American people should be informed so that they can voice their concerns.

ALPRs have already proven controversial. Just last month the Drug Enforcement Administration withdrew its request to install ALPRs along certain portions of Interstate 15 in Utah after they were met with resistance by local lawmakers.

“Tracking and recording people’s movements raises serious privacy concerns, because where we go can reveal a great deal about us, including visits to doctor’s offices, political meetings, and friends.” said Kade Crockford, Director of the Technology for Liberty Project of the ACLU of Massachusetts. “We need legal protections to limit the collection, retention and sharing of our travel information, and we need these rules right away.”

More information about the requests is available at: aclu.org/plates.

Issue: Open Government

NJ Supreme Court Rules Rutgers Board Failed to Provide Adequate Information to Public Before 2008 Meeting

July 25, 2012
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Decision also highlights limitations in current Sunshine Law to hold public bodies accountable for violating law

Newark — The American Civil Liberties Union of New Jersey (ACLU-NJ) applauds today’s decision by the New Jersey Supreme Court, which held that Rutgers Board of Governors violated the Open Public Meetings Act (also known as the Sunshine Law) by failing to inform the public of issues it planned to discuss at a 2008 meeting and for improperly discussing public matters about the athletics program in closed session.

“Open government is a cornerstone of democracy that enables advocates, activists and the press to monitor government performance and expose corruption,” said ACLU-NJ Legal Director Ed Barocas. “This decision sets an important precedent that government bodies cannot be so vague in their meeting notices so as to effectively hide from the public issues that they expect to discuss at a public meeting.”

The court’s decision makes clear that government bodies must provide the public with an agenda that describes issues to be discussed “to the extent known,” rather than merely making “generic references” about what might be discussed. It also held that a government body cannot discuss public matters in private simply because the discussion may “indirectly relate” to issues that could be discussed in closed session.

At issue is a September 2008 meeting of the Rutgers Board of Governors. As required by law, the board placed advanced notice of the Sept. 10, 2008 meeting in newspapers. The notice stated the board would convene immediately in executive session to discuss contract negotiations and attorney-client matters, but it did not offer any other details. There was no mention of the Rutgers athletic department, a controversial stadium project, or naming rights for the stadium, even though the board knew these items would come up for discussion.

The court took issue with Rutgers’ actions, noting, “clearly that by the time this notice was prepared and published, more was known about the extent of the proposed agenda than what was conveyed by the generic references to ‘contract negotiation and attorney-client privilege.’ ... The Board had an obligation to include as part of the notice of the meeting of September 10 the agenda of that meeting to the extent it was known.”

The court also rejected the board’s contention that its discussion of policies and guidelines could be done behind closed doors because it “indirectly relates” to subjects that could properly be the subject of a closed meeting. The court rejected this argument, stating that it could “eviscerate the (Sunshine Law) and runs counter to our mandate to construe the statute in such a manner as to maximize public participation.”

Although Rutgers violated the Sunshine Law, it will not suffer any consequences because no formal action was taken at the meeting and because the plaintiff did not establish a pattern and practice of violations. The current Sunshine Law does not offer a remedy for situations such as the one in this case.

“This highlights one of the major deficiencies of the current law,” Barocas said. “Government agencies will have no incentive to follow the law if there are no consequences for violating the law.”

The case is captioned McGovern v. Rutgers Board of Governors, can be read online, as can the ACLU-NJ’s amicus brief.

Issue: Open Government