August 25, 2010

CONTACT: Meredith Curtis, ACLU of Maryland, 410-889-8555;

BALTIMORE - Rejecting the Maryland State Police's contention that the public information lawsuit against them should be dismissed prior to any discovery taking place, the American Civil Liberties Union of Maryland has filed a brief challenging as preposterous the State's assertions that the suit is now moot because all documents have been disclosed, or that the plaintiffs waited too long to sue.

The ACLU of Maryland's response to the state police's motion to dismiss AFSC v. MSP was filed in Baltimore City Circuit Court on Friday. The ACLU brief argues that there are strong indications that MSP may be withholding other documents relevant to surveillance of peaceful activists.  The brief also ridicules the MSP's assertion that the case should be dismissed because the plaintiffs didn't resort to litigation quickly enough.

"After being exposed and widely condemned for more than 14 months of wrongful spying on entirely peaceful political activists, the Maryland State Police now has the audacity to argue that the public information lawsuit against them should be dismissed because those being spied on were wrong to accept MSP's response to the MPIA requests at face value rather than immediately challenging them in court," said David Rocah, Staff Attorney for the ACLU of Maryland. "The state police's cynical argument is yet another affront to basic principles of open government and accountability. It also amounts to an extraordinary admission by their own lawyers that MSP's factual assertions ought not to be taken seriously. Our clients and the general public have a right to know the full extent of spying on constitutionally protected free speech activity, and protecting that right to know is exactly why public information laws exist."

In August 2006, the ACLU filed open records requests with numerous federal, state, and local law enforcement entities on behalf of several local peace groups and activists within those organizations, seeking to determine whether any agency had been engaging improper surveillance of the requestors' peaceful political activities.  In January 2007, the MSP responded that it had a single responsive record, but asserted that it was not disclosable under the MPIA because doing so would reveal a confidential source and confidential law enforcement technique. The MSP refused several subsequent requests seeking an explanation of what kind of record existed, and why the confidential information could not simply be redacted.

After waiting fruitlessly to see whether other agencies' responses to the public records requests might shed some light on the MSP record, the ACLU of Maryland filed suit in June 2008, challenging the MSP's refusal to provide even a redacted version of the record.  In response, the MSP turned over not one record, but rather 21 pages of surveillance logs detailing the covert infiltration and monitoring of several local anti-death penalty organizations (in which individual plaintiffs were active) over a 14 month period in 2005 - 2006.  The MSP also turned over printouts of two entries in the Washington/Baltimore High Intensity Drug Trafficking Area Case Explorer database showing that one of the plaintiff peace groups had also been infiltrated and monitored in 2005. Contrary to their earlier assertions that it could not be done, the MSP redacted the name of the undercover officer involved in the infiltration, but did not make any redactions relating to any law enforcement technique, confidential or otherwise.

The ACLU of Maryland's brief also points out the substantial reasons to believe that there are likely other responsive documents that have not yet been disclosed.  For example, the brief notes that while summaries of the surveillance logs have been produced, the actual surveillance reports, which were clearly sent to superior officers, were not, nor were the responses of those officers authorizing continued investigation produced.  In addition, the documents disclosed indicate that numerous reports were made to other federal, state, and local police agencies, but none of those reports have been produced.

The brief also notes that none of the documents disclosed to date indicate the factual basis on which the state police determined that there was a danger of violence at anti-death penalty protests (which is the only justification that has been offered for the spying that occurred), nor do any documents offer the slightest factual basis to explain why the database entries indicate that one of the plaintiffs was wrongly being investigated as a suspected anti-government and anti-war terrorist, or why the peace group Baltimore Pledge of Resistance was wrongly labeled a "security threat group" in the same database. The ACLU of Maryland argues that it would be extraordinary, and equally troubling, if such labels could be applied in shared law enforcement databases without the slightest factual basis documented in a single document.

Attorneys representing the plaintiffs in the lawsuit are Kit Pierson and Richard Rinkema from the Washington, DC office of the law firm Heller Ehrman LLP, donating their time pro bono, and ACLU _of Maryland staff attorney David Rocah.