NEWARK - Concerned about the intrusion into New Jerseyans’ privacy, the ACLU of New Jersey today filed an Open Public Records Act request (PDF) with NJ Transit seeking information about audio and video surveillance of passengers on its three light rail lines that came to light in April. The ACLU-NJ also requested copies of actual recordings of New Jerseyans’ conversations captured by NJ Transit.
“This kind of surveillance is chilling on so many levels – it’s chilling to know that NJ Transit is listening to us without sharing any details, and it chills free speech to know these microphones are always on,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero. “This kind of intimate surveillance changes the character of our public spaces, and it creates a kind of society that doesn’t reflect who we are as Americans.”
NJ Transit has not shared information with the public about the surveillance. The public does not know whether the audio and video footage are recorded continuously, who has access to the footage, how the recordings are stored, and how long they are maintained.
The ACLU-NJ has requested, among other records:
“You don’t find a needle by building a much bigger haystack, and that’s what NJ Transit is doing here,” said ACLU-NJ Legal Director Ed Barocas. “The public has a right to know how we’re being recorded and how those recordings are being used. With microphones that can pick up even private conversations, that’s an invasion of our privacy on the order of Big Brother. Only it’s not fiction, and it’s happening right now.”
Microphones and video cameras have been installed in trains serving the River Line, which connects Camden and Trenton, and the Newark Line. NJ Transit is finishing installation of the recording equipment on the Hudson-Bergen Line, which runs from Bayonne to North Bergen. Altogether, these light rail lines serve approximately 72,000 riders per weekday.
The posted signs read, “Notice – video and audio systems in use – this vehicle is equipped with onboard video and audio recording systems,” giving passengers no indication of how the equipment is recording them and how the recordings are used.
“Especially if NJ Transit truly believes its surveillance serves the interests of the public, the agency owes the public basic information about how it records riders and what it does with that footage,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “It’s bad enough to violate riders’ privacy, but even worse when it’s being done with this level of secrecy.”
By ACLU-NJ Transparency Fellow Iris Bromberg
Last week was Sunshine Week, an annual observance of the fundamental role of transparency in a free society. But transparency is arguably even more important to talk about when it’s ¬not¬ Sunshine Week.
The ACLU-NJ has been on a roll filing, arguing, and appealing cases for transparency. And we see a disturbing trend: despite the mandate under the Open Public Records Act (OPRA) to err on the side of openness, government agencies seem almost by default to deny the public access to government’s inner workings.
Here are three important open government cases the ACLU-NJ is working on:
North Jersey Media Group requested records — including audio and video — related to a car chase and the fatal shooting by police of driver Kashad Ashford. Agencies incorrectly cited several OPRA exemptions that do not apply, the ACLU-NJ argued in a March 1 appeal. Our state’s access to all police records hangs in the balance.
The Lawyers’ Committee for Civil Rights Under Law, a nonprofit that has long advocated for New Jersey students’ rights, requested records about Atlantic City Public Schools’ enrollment and discipline, including police involvement. Because Lawyers’ Committee’s offices are in Washington, D.C., Atlantic City refused in a misinterpretation of the New Jersey Open Public Records Act, the ACLU-NJ argued in its March 11 brief.
Jeffrey Carter wanted access to records related to the Franklin Fire District’s financial software, but was denied. The agency simply ignored him. Incredibly, the Franklin Fire District first acknowledged the request more than two years after it was made, long after Carter began challenging the denial. The ACLU-NJ is now challenging the Government Records Council, which sided with the district to shield information about its financial software.
There are far too many open government cases, big and small, to list them here.
It’s hard to know which is more disturbing: a society that openly scorns transparency, or one that purports to embrace it while officials seem to do all they can to subvert it.
Open government is a cornerstone of democracy. Public access to the inner workings of government is essential to evaluating our representatives’ performance and holding them accountable. Such oversight weeds out corruption and supports efficient government.
These needless denials have an immeasurable cost — to transparency, public trust, public participation, and government accountability.
You can take a stand for transparency. This is a conversation that needs to continue well beyond Sunshine Week. Tell your elected officials to support S1046, a bill to modernize the Open Public Records Act. Maybe by next Sunshine Week, we can celebrate its passage.
After receiving a copy of an email (PDF) from an anonymous source, the ACLU of New Jersey has called on the Attorney General to investigate whether Wyckoff Police Department Chief Benjamin Fox advised his officers to engage in racial profiling. “Profiling, racial or otherwise, has it’s (sic) place in law enforcement … Don’t ask police to ignore what we know. Black gang members from Teaneck commit burglaries in Wyckoff. That’s why we check out suspicious black people in white neighborhoods,” the email, apparently sent to the town’s entire police department, said.
“When you look at everything we know about the kind of policing that fosters trust between officers and communities, this email shows Wyckoff heading in the opposite direction,” said ACLU-NJ Senior Staff Attorney Alexander Shalom of the leaked email. “Encouraging police officers to act with racial bias is unacceptable. Sowing mistrust at this level damages civil rights, and it threatens public safety by diminishing the faith people have in the police. If Chief Fox sent the email, community members — and the police department — will need real accountability to heal from this fractured and divisive approach to policing.”
The email addressed from Chief Fox was written in 2014 but anonymously shared with the ACLU-NJ the week of March 14. The email encourages officers to violate both state and federal civil rights laws that ban racial profiling, as well as an official statewide policy established through Attorney General directive that prohibits racially influenced policing. The ACLU-NJ asked New Jersey Acting Attorney General Robert Lougy to investigate (PDF) the email and, after determining the message’s authenticity, to fire Fox, retrain officers, and conduct audits for both racially biased policing and use of force.
The ACLU-NJ also filed an Open Public Records Act request (PDF) with the Wyckoff Police Department to understand whether the organizational culture as demonstrated in the email has affected police practices there. The request sought arrest data, use of force reports, stop-and-frisk numbers, training materials, and email correspondence containing “profiling,” among other records. The ACLU-NJ repeated a call it has made previously, most recently in a deep-dive report on enforcement of low-level offenses, for the Office of the Attorney General to mandate policing data collection and its public release, in Wyckoff specifically and in all New Jersey police departments.
“Racial profiling has no place in New Jersey, and if Chief Fox sent the email in question, then he must be held accountable,” said ACLU-NJ Executive Director Udi Ofer. “But removing one chief will not ensure accountability over police departments. This is a wake-up call for New Jersey to implement stronger oversight and transparency in policing practices across the state. That’s why the Attorney General must mandate that all police departments in New Jersey report to the public basic policing data — whether on stop-and-frisk or arrests and summonses — to determine whether racial bias exists in policing on our streets and on our roads.”
The ACLU-NJ has sent a letter (PDF) as well to Wyckoff Mayor Kevin Rooney, the Wyckoff Township Committee, Acting Bergen County Prosecutor Gurbir Grewal, and fellow advocates for police accountability, including the Bergen County NAACP, NAACP New Jersey State Conference, and the National Organization of Black Law Enforcement Executives.
The ACLU of New Jersey and two New York law firms – Siegel Teitelbaum & Evans and McLaughlin & Stern – filed a brief (PDF) today on behalf of Kaci Hickox, the nurse held against her will in a makeshift tent in Newark in 2014 after returning from treating Ebola patients in Sierra Leone. The brief opposes the motion Governor Christie and his co-defendants filed in January to dismiss Hickox’s lawsuit against them challenging her detention under New Jersey’s severe quarantine policies.
“Kaci Hickox’s confinement against her will was unconstitutional, illegal and unjustified,” said ACLU-NJ Legal Director Edward Barocas, who represents Hickox. “Kaci Hickox deserves the right to proceed with her case and, ultimately, to have her day in court to challenge a detention that was based on fear rather than science.”
The brief filed today explains that when Governor Chris Christie, then-Commissioner of Health Mary O’Dowd and other health department officials quarantined Hickox despite showing no valid symptoms of Ebola, they violated Hickox’s “clearly established” constitutional rights to have freedom from unlawful seizure, freedom from unnecessary restraints and due process of law.
“When Governor Christie and other New Jersey officials held me in the tent a year and a half ago, those officials downplayed my valid objections and ignored my rights,” said Kaci Hickox. “I have a right to challenge that injustice in federal court, and that is exactly what I am attempting to do.”
On January 15, the defendants filed a motion to have the case dismissed. They argued that Hickox’s right to be free from quarantine was not “clearly established,” and that government officials are entitled to immunity from monetary damage claims that do not involved “clearly established” rights.
“The officials who quarantined Kaci Hickox did so unconstitutionally and without sound medical reasons, in violation of her basic constitutional right to liberty,” said civil rights attorney Norman Siegel, of Siegel Teitelbaum & Evans, one of Hickox's attorneys. “New Jersey's quarantine policy violates basic constitutional principles, and Kaci Hickox has a right to challenge it in court.”
Christie and O'Dowd continued to hold Hickox even after two negative blood tests and afforded her no right of appeal except to the very person who ordered her quarantine in the first place, Commissioner O’Dowd.
NEWARK - Arguing that everyone should have access to public information under the state’s Open Public Records Act regardless of whether they live in New Jersey, the ACLU of New Jersey filed an appeal on behalf of the Lawyers’ Committee for Civil Rights Under the Law for access to Atlantic City’s school records, which the city had originally denied because the Lawyers’ Committee’s offices are not located in New Jersey.
The ACLU-NJ argued that the Legislature clearly meant for residents and non-residents alike to have access to public records. However, Atlantic County Superior Court Judge Nelson Johnson ruled on Feb. 19 that only New Jersey residents can have access to records in the state, contrary to OPRA according to the ACLU-NJ.
“OPRA was created to serve the people of New Jersey by giving anyone with an interest in the state the right to access public records, not by limiting who can view those records,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “Granting access to public information for out-of-state requestors, whether they’re potential homebuyers, journalists, or civil rights advocates, doesn’t just create more access — it builds a culture of transparency and accountability.”
The Lawyers’ Committee requested specific records documenting enrollment and disciplinary statistics in Atlantic City public schools, records that the city is required to maintain and send to the U.S. Board of Education. In fact, the Lawyers’ Committee found an Atlantic City board document online that had been provided to the federal government. The Atlantic City board then claimed it had lost all such records, which proved to be untrue. The Lawyers’ Committee also requested disciplinary policies and procedures of the Atlantic City Board of Education, including when to involve law enforcement.
“We see these records as similar to an educational canary in the coal mine for New Jersey families,” said Brenda Shum director of Lawyers’ Committee’s Educational Opportunities Project, which defends the rights of school children to receive a quality education. “The Lawyers’ Committee happens to be initiating the search, but everything we’re asking for will ultimately benefit residents of New Jersey above all. These kinds of documents reveal patterns about whether students in New Jersey are getting the education they’re entitled to, and if they aren’t, it signals to organizations like ours that these students need advocates to fight for their rights under the state Constitution.”
When the Lawyers’ Committee requested education records in 2015 from the Atlantic City Board of Education about its two high schools, the board refused, claiming in violation of OPRA that the group’s out-of-state Washington, D.C., mailing address precluded them from obtaining that information. The Atlantic City board also refused to fill the request based on the claim that it did not have any records responsive to the Lawyers’ Committee’s request.
As the ACLU-NJ explained to the trial court, OPRA consistently and clearly grants the right of access to “any person” requesting information. Crucially, only the preamble of OPRA mentions “citizens of the state,” which appears to be a holdover from the Right to Know Law, an earlier, now-defunct predecessor to OPRA. When the New Jersey Legislature repealed and replaced the state’s previous law with OPRA, it affirmatively replaced the term “citizen” with the term “any person” in the new law’s main sections. The fact that OPRA allows for anonymous requests, in which the address of the requestor is unknown, indicates that New Jersey residency is not required for access to records.
“The language of the statute is consistent and clear: it states that ‘any person’ may access records under the Open Public Records Act,” said ACLU-NJ Legal Director Edward Barocas. “Given that state agencies have long treated out-of-state requestors as they would in-state requestors, and given OPRA’s clarity on allowing anonymous requests for records, there is no question that our Legislature intended for everyone, including representatives from out-of-state groups like Lawyers’ Committee, to have the right to access public information.”
The case is captioned Lawyers’ Committee v. Atlantic City Board of Education.
The ACLU of New Jersey, joined by eight civil rights groups, submitted arguments in a landmark case to define the limits of transparency when it comes to police accountability in New Jersey.
The Association of Black Women Lawyers of New Jersey, Black Lives Matter NJ, the Garden State Bar Association, Garden State Equality, Latino Action Network, LatinoJustice PRLDF, the Latino Leadership Alliance, and People’s Organization for Progress joined the ACLU-NJ in a friend of the court brief before the New Jersey Supreme Court in the case North Jersey Media Group v. Lyndhurst.
“It would not be an exaggeration to say that our state’s access to police records as a whole hangs in the balance,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “The lower court’s ruling is so broad that it would give law enforcement agencies in New Jersey license to deny almost any public records request dealing with police matters. The public has an enormous interest in understanding how law enforcement operates, from the local police department to the Office of the Attorney General.”
The case centers on requests the North Jersey Media Group (NJMG) made for records concerning a car chase that ended with a police officer fatally shooting the driver, Kashad Ashford. The Appellate Division in June 2015 drastically limited public access to law enforcement records when it reversed a lower court decision that had upheld the right of NJMG to access the requested police records under the Open Public Records Act (OPRA).
North Jersey Media Group, which owns The Record and Herald News newspapers, sought arrest reports, police logs, use of force reports and motor vehicle accident reports, among other records, shortly after the shooting of Ashford in September of 2014. Crucially, the request sought audio and video footage recorded during the incident. These recordings have become a powerful force for holding police accountable nationally, as evidenced throughout the brief with references to several high-profile police-involved deaths recorded on video. These incidents have sparked a national conversation regarding police abuse of power.
“This case is about so much more than access to records, in the same way that the videos of Rodney King, Eric Garner or Laquan McDonald are about so much more than just interactions captured on camera,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “The proliferation of video has irrevocably changed the landscape of policing for the better, but if police recordings have a blanket exemption from our records laws, much of that progress we see on the horizon will come to a sudden halt.”
“Police accountability, and the promise of video, has captured the national dialogue,” Shalom added. “What a shame it would be for New Jersey to head in the opposite direction of history.”
The defendants in the case — which include government representatives and law enforcement agencies in Lyndhurst, North Arlington, Rutherford and Bergen County, where the car chase happened, as well as the State Police — claimed the records sought were exempt from OPRA based on exemptions for criminal investigatory records and ongoing investigatory records.
The ACLU-NJ and its fellow amici argued that several important facts disqualify these records from the exemptions. First, the records sought here would be non-investigatory in nature, and they are required by law to be made, both of which invalidate any criminal investigatory exemption. Second, the ongoing investigatory exemption applies if the release of the records would be “inimical to the public interest,” which itself calls for a record-by-record analysis rather than the blanket rejection that was given. Further, the brief argues, given the current climate of policing it would be harmful to the public not to release the records, as it would sow even more distrust between community members and the officers sworn to protect them at a time when even law enforcement leaders lament the shortage of data within the profession.
“Our laws are clear: in our state, we err on the side of openness and transparency, and that principle doesn’t change when the information at issue involves law enforcement,” said ACLU-NJ Legal Director Ed Barocas. “The government is asking for powers of secrecy that the law does not grant. At a time when the law enforcement community readily acknowledges its shortcomings in collecting data, we should be tearing down the barriers that cast a shadow of secrecy over law enforcement, not erecting more.”
The amicus brief (PDF) and additional materials in the case, captioned North Jersey Media Group v. Township of Lyndhurst, can be read online. It will be argued before the New Jersey Supreme Court later this year.
NEWARK - The ACLU of New Jersey and Rutgers School of Law-Newark Constitutional Rights Clinic today submitted comments to the Motor Vehicle Commission Chairman and Chief Administrator Raymond Martinez making the case against proposed amendments to the state’s driver’s license laws that would authorize the Motor Vehicle Commission to scan and retain copies of documents that prove New Jerseyans’ identities and residency. The public comment period for these changes, which would challenge the privacy, security, and constitutional rights of New Jerseyans, ends on Friday, December 4.
Currently, the state’s regulations require people seeking a state-issued ID card to show an MVC representative certain documents to prove their identity and residency before obtaining identification, most commonly a driver’s license. Under the new proposal, the MVC would scan and maintain those documents, which can include birth certificates and Social Security cards, creating fertile ground for identity thieves, whether they are hackers or MVC employees themselves.
“These amendments are incredibly disturbing, and it would be a huge blow to our privacy for them to slide through the approval process without a fight,” said ACLU-NJ Legal Director Edward Barocas. “These regulations have no adequate protections for our privacy. These regulations make us more vulnerable to identity thieves, not less, whether from outside hackers or from within the MVC, as has happened before. We hope these amendments are scrapped or drastically rewritten for the good of our constitutional rights.”
The MVC has not explained why it must maintain copies of New Jerseyans’ personal documents nor justified why the state’s interest in copying them outweighs residents’ privacy rights. The MVC has said only that it seeks to keep documents for “security” purposes, but the agency does not adequately elaborate on the privacy protections involved.
The fraud cited in a 2002 report that led to the creation of a six-point ID system was perpetrated by MVC employees. Later, in 2011, six MVC employees were indicted on several charges for selling counterfeit licenses. The MVC has not explained its rationale for stockpiling New Jersey residents’ documents in the hopes that it will discourage fraud committed by MVC employees themselves.
“We keep coming back to this crucial point: the Motor Vehicle Commission has not identified any real need for keeping copies of people’s highly sensitive documents,” said Rutgers School of Law-Newark Dean Ronald Chen, on behalf of the Rutgers Constitutional Rights Clinic. “The MVC is telling the public to trust them by making our personal information vulnerable. The public should not be forced to sacrifice their privacy under any circumstances, and especially not when the MVC has not even articulated a colorable justification for retaining these documents.”
The proposed regulations fail to satisfy the requirements of even the woefully problematic federal Real ID Act, which requires that states “take measures to protect any personally identifiable information pursuant to the Real ID Act as described in their security plan.”
“The proposed amendments do not articulate, much less justify, the need to retain copies of the document, as distinct from the need to inspect them,” the ACLU-NJ and Rutgers Constitutional Rights Clinic’s comments said. “… Indeed, the compilation of this vast amount of sensitive personal information will create a treasure trove for identity thieves, whether they are hackers or government employees."
NEWARK -- The ACLU of New Jersey is asking the state Department of Human Services and state Office of Homeland Security and Preparedness to make public the “directive” issued by Gov. Chris Christie that bars state agencies from assisting in the resettlement of any Syrian refugees in New Jersey.
In a request made through the Open Public Record Act (OPRA), the ACLU-NJ seeks further detail about the plan envisioned by the governor, including documentation of his directive and documents showing how the agencies are implementing the directive.
Christie first mentioned the directive in a Nov. 17 letter to President Obama in which he declared the state will not accept any refuges from Syria.
“Effective today, I am directing the New Jersey Department of Human Services not to participate in the resettlement of any Syrian refugees in the State of New Jersey,” Christie wrote, “and am requesting that all nongovernmental organizations assisting with the resettlement of refugees in New Jersey notify the New Jersey Office of Homeland Security and Preparedness and Department of Human Services of their placement of any refugees from Syria.”
So far, 75 refugees from Syria have been resettled in New Jersey, according to social service agencies. The Obama Administration is considering allowing thousands more resettle in the U.S.
NEWARK - On the most important civil liberties issues facing the 216th Legislature, a majority in the General Assembly voted with the ACLU of New Jersey at least 90 percent of the time.
The first-ever ACLU-NJ legislative scorecard tracks the records of Assembly members on 13 key issues votes during the legislative session that began Jan. 2014. In the run-up to the Nov. 3 election, in which Assembly members are at the top of the ticket, the ACLU-NJ is releasing a scorecard of those votes to educate the public at large as well as its 20,000 members and donors who live in every single legislative district in the state. The information can be found online at https://www.aclu-nj.org/scorecard. It includes a table showing how every Assembly member voted on the issues and allows users to learn details about the scored bills, compare Assembly members’ voting records, find out who made the Honor Roll, and look up scores for legislative districts and an interactive map of New Jersey.
“The good news is that most Assembly members vote for civil liberties and civil rights most of the time. The bad news is that our elected officials aren’t always there when it counts, like with the bill to allow transgender New Jerseyans access to birth certificates that reflect their true gender,” said Ari Rosmarin, ACLU-NJ Public Policy Director. “With this kind of sound information, civil rights voters can hold elected officials accountable because they know where their representatives stand on the key issues of the day when they go to the polls.”
Of the hundreds of bills the Legislature considered, the ACLU-NJ identified 13 votes as the most central to civil rights and civil liberties, including legislation to:
Out of New Jersey’s 80 Assembly members, 32 – or 40 percent – made the ACLU-NJ’s Honor Roll, with ratings of 100 percent.
The lowest rating belonged to Assemblyman Gregory McGuckin (R-Brick) at 38 percent. Eight other members of the Assembly scored below 50 percent and also earned a spot on the ACLU-NJ’s less-than 50 percent list.
“Above all, this scorecard is a tool for public accountability. We created it to allow New Jerseyans to learn where their lawmakers stand on key issues involving our rights and freedoms,” said ACLU-NJ Executive Director Udi Ofer. “We’re here to ensure those who have taken a stand for our fundamental civil rights continue to act in defense of our rights and liberties, and we’re here to put pressure on those who need a refresher in what it means to defend the rights of the people. Our goal is for every elected official to achieve a 100 percent rating. Even more importantly, our goal is for every resident of New Jersey to know where their representatives stand.”
The ACLU-NJ will continue to monitor important votes as the Legislature returns for its biennial lame-duck session after the election and before the 217th Legislature is convened in January. An updated scorecard, including scores for the Senate, will mark the end of the legislative term.
Visit https://www.aclu-nj.org/scorecard to read the scorecard online, look up legislative districts, compare Assembly members on an interactive map of New Jersey, and learn about the details of the scored bills in more detail.
The ACLU of New Jersey has teamed up with two New York law firms – Siegel Teitelbaum & Evans and McLaughlin & Stern -- to represent Kaci Hickox, the nurse who was detained last year in Newark after returning from treating Ebola patients in Sierra Leone, in a challenge to New Jersey’s draconian quarantine policies.
The lawsuit (PDF), filed in U.S. District Court in Newark almost a year after her detention, charges that New Jersey Governor Chris Christie and then-Commissioner of Health Mary O’Dowd illegally and unconstitutionally held Hickox against her will as part of a mandatory quarantine (PDF) for anyone returning from certain West African countries who treated patients with Ebola.
Hickox landed at Newark Liberty International Airport on October 24, 2014, en route home to Maine from West Africa. She was ordered to be held against her will despite showing no symptoms and engaging in no activities in Sierra Leone that would have put her at a high risk for contracting Ebola. She was first held at Newark Liberty International Airport, and soon after at University Hospital in Newark. Even after the negative blood test, New Jersey held Hickox for an additional two days, stretching her confinement to more than three days.
“I never had Ebola. I never had symptoms of Ebola. I tested negative for Ebola the first night I stayed in New Jersey governor Chris Christie’s private prison,” Hickox said. “My liberty, my interests and consequently my civil rights were ignored because some ambitious governors saw an opportunity to use an age-old political tactic: fear.”
Hickox is suing New Jersey Governor Chris Christie, former New Jersey Department of Health Commissioner Mary O’Dowd, and other health department officials. The suit claims they violated Hickox’s rights by depriving her of due process and unlawfully seizing, detaining and quarantining her, while relying on fear rather than science to justify her confinement.
“When Kaci Hickox was held against her will a year ago, it was unconstitutional, illegal, and unjustified,” said civil rights attorney Norman Siegel of Siegel Teitelbaum & Evans. “Kaci knew her rights, and today she is fighting for them.”
Steve Hyman of McLaughlin & Stern said, “While this lawsuit has been filed to vindicate Kaci’s constitutional rights, an important corollary of this action is to change the existing New Jersey quarantine policy so that what happened to Kaci will not happen to another health care worker on their return.”
Hickox was held in a field tent in an unheated parking garage at University Hospital in Newark. She had access to a portable toilet but not a shower, and had to ask for extra blankets. Ultimately, she was released and allowed to return to Maine.”
”The decision to quarantine anyone must be made based on science, not fear and politics,” said Udi Ofer, executive director of the ACLU of New Jersey. “In holding Kaci Hickox, the governor and the former head of the Department of Health not only violated her basic constitutional rights, but they did so without any scientific foundation. Now, a year later, we are proud to help Kaci vindicate those rights.”
The suit is captioned Hickox v. Christie, et al.