Legal Department Report

Update on Denver Police Spy Files

After completing its much-heralded review of the "Spy Files" maintained by the Denver Police Department's Intelligence Unit, a panel of three former judges issued a brief report June 30 and made recommendations, most of which Mayor Webb accepted.

Mayor Webb appointed the panel in response to the ACLU's March 11 disclosure of documents indicating that the Denver police department's Intelligence Unit was monitoring and recording the peaceful protest activities of Denver residents and keeping files on the expressive activities of law-abiding advocacy organizations, labeling many of them falsely as "criminal extremist."

The judges concluded that not a single one of the 3200 computer files on individuals and 208 files on organizations contains sufficient facts to meet the minimum standard ("reasonable suspicion") for a legitimate criminal intelligence database. Although they recommended that the entire database be purged, they left police an opening: police can re-enter the names if they add specific facts that amount to reasonable suspicion that the individuals or organizations are involved in ongoing criminal activity. The City apparently plans to purge the files on peaceful protesters who are not suspected of criminal activity.

The files on law-abiding dissidents were compiled in direct violation of an already-existing written City policy on gathering intelligence information. That policy, which tracks the language of a federal regulation that is widely known in law enforcement, forbids the police from collecting information on individuals' political views or association unless it is directly connected to criminal activity and there is reasonable suspicion that the individual is involved in that criminal activity. The policy also prohibits keeping criminal intelligence files on an individual unless there is reasonable suspicion that the individual is involved in ongoing criminal activity.

According to the judges' report, officers in the Intelligence Unit did not know that this written policy even existed, because the police captain who drafted it did not bother to distribute it. "In effect," the report explained, "there were no rules because they were not disseminated to the officers who were collecting and entering the data." The judges proposed a new policy that, presumably, will be distributed to the officers who are expected to follow it.

The panel's 7-page report, which is available on the ACLU of Colorado web site, www.aclu-co.org, leaves many questions unanswered and fails to provide the complete explanation the public deserves. It neither questions nor explains the Intelligence Unit's decision to smear law-abiding advocacy organizations, such as the American Friends Service Committee, with the false label of "criminal extremist." Nor does it question the Intelligence Unit's long-standing practice of videotaping and photographing rallies and demonstrations conducted by peaceful groups, especially those that call for greater police accountability. Meanwhile, the ACLU's class action lawsuit, filed March 28, remains pending in federal district court in Denver.

In the wake of the judge's report, the City has confirmed that it will permit the subjects and targets of the purged Spy Files to obtain copies (with the names of other individuals blacked out to protect their privacy). Unfortunately, the City has gone back on its prior commitment to notify the persons whose names appear in the purged files, thus forcing curious individuals to come in person to the Denver Police Department during a specified time period just to find out if there is a file they can review and copy.

According to the City's news release, individuals will be able to see their files beginning September 3, from 8 am to 8 p.m., Monday through Friday, and from 2 to 5 p.m. on Saturdays. After September 15, the hours will be cut back to Monday through Friday, 8 a.m. to 5 p.m. Complete details of the disclosure plan also appear on the ACLU of Colorado web site.

A mass gathering of persons who intend to ask if they are in the Spy Files is planned for 5:30 p.m. Tuesday, September 3, outside the Denver Police Department's headquarters at 1331 Cherokee Street in Denver. The ACLU encourages everyone who is concerned about the City's political spying to come at that time and ask to see their files.