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Does Your Name Appear in the Spy Files?

Spy Files are available at the Denver Public Library. On June 17, 2004, Mayor John Hickenlooper announced that the Denver Police Department’s Spy Files will be indexed, archived, and available to the subjects of the files and members of the public, as part of the Denver Public Library’s Western History Collection. The announcement came after months of discussions between ACLU attorneys, the City Attorney’s Office, and archivists employed by the Denver library.

Now that the archiving and indexing process is complete, any person is able to review documents referring to them by name, with the names of other individuals redacted. Names of organizations will not be redacted. Individuals representing organizations will be able to review any documents mentioning that organization.

Some portions of the collection will be open to all members of the public; others will be closed to the public for 50 years.

What is a "Criminal Extremist"?

The Spy Files revealed that the Denver Police Department's Intelligence Unit was falsely labeling many peaceful activist organizations as "criminal extremist." The groups labeled as "criminal extremist" include the American Friends Service Committee, the National Abortion Rights Action League (NARAL), and the Rocky Mountain Peace and Justice Center.

During the ensuring controversy, the Denver Police Department never provided a definition of the term "criminal extremist," nor did it explain the meaning of the label or the consequences to organizations who are labeled as "criminal extremist" in the intelligence files.

At one point, police department officials blamed the use of the "criminal extremist" label on the Orion computer software that the Intelligence Unit began using in 2000. The database software provides a field labeled "group type." A pull-down menu permits the data entry worker to select from a list of possible group types, which include "criminal extremist," "civil disobedience," "protest group," "anti-government," "militia," and "outlaw biker."

Documents obtained by the ACLU demonstrate, however, that labels such as "extremist" and "criminal extremist" did not originate with the Orion software. The terms are widely used among law enforcement agencies that collect and disseminate political intelligence.

Denver is a member, for example, of the Law Enforcement Intelligence Network (LEIU). The Constitution and Bylaws of the LEIU state that it exists "to promote the gathering, recording and exchange of confidential information not available through regular police channels" and "to establish a central clearinghouse for information regarding organized crime and terrorism and to provide for its dissemination to the membership." The bylaws list "criminal extremists" as one of the categories of groups that are the subject of LEIU intelligence collection and dissemination.

The term "extremist" is frequently used by intelligence officers to describe the targets of their politically-motivated intelligence gathering. For example, the Denver Police Department's Intelligence unit participates in the Multi-Agency Group Intelligence Conference (MAGIC), which describes its meetings as "limited to sharing of information on extremist groups (left-wing, right-wing, foreign)." Although MAGIC provides no definition of the term "extremist," agendas for its meetings reveal plans to discuss "environmentalists," and "the Green Movement," as well as the American Friends Service Committee and Amnesty International.

In 2002, the FBI announced that numerous categories of "extremists" had been added to a computer database known as the Violent Gang and Terrorist Organization File. The FBI memo referred to categories such as "black extremist," "animal rights extremist," "environmental extremist," "domestic extremist," "radical Islamic extremist," "European origin extremist," "Latin origin extremist," and "Asian origin extremist." No definitions were provided in the FBI memo.

In a declaration submitted in connection with the Spy Files case, a Denver police department intelligence officer who works full time for the FBI's Joint Terrorism Task Force states that he instructs Denver police officers about the "criminal protest tactics" employed what what he refers to as "protest extremists."

During the Spy Files litigation, none of the Denver police officers deposed by the ACLU were able to supply a definition of the term "extremist" or "criminal extremist."

What is a Confidentiality Order?

The rules governing lawsuits provide for an exchange of information and documents in a process called "discovery." Each party is required to answer written questions and to provide documents about information that is relevant to the issues in the case. The parties are also allowed to take depositions, where witnesses must answer questions under oath.

Although court proceedings and documents filed in court are almost always open to the public, the discovery process is conducted out of court. The discovery process often deals with a wide range of information that never winds up being part of the public trial or the public court papers.

Sometimes a party seeks what is called a protective order or a confidentiality order that limits the ability of the opposing party to disclose certain sensitive information that is exchanged in the discovery process. These orders usually specify that certain information obtained in the discovery process must be used only for the purpose of conducting the litigation. To implement that, courts will sometimes require that information designated as "confidential" cannot be disclosed outside the lawsuit. In some cases, the court will order that special procedures accompany every use of this "confidential" information, even when it will be discussed in briefs or other documents that are filed in court and thus ordinarily subject to public inspection.

These confidentiality orders are often controversial, because they deny public access to information in which there is a strong public interest in disclosure.

In the Spy Files case, the discovery process is carried out under a confidentiality order that the parties negotiated and the magistrate judge signed on July 12, 2002. Pursuant to this order, Denver's lawyers can designate documents as "confidential - subject to protective order." They make this designation at the time that they provide the information to the ACLU attorneys representing the plaintiffs. The order also applies to deposition transcripts. Within ten days after a transcript is prepared, Denver's lawyers can designate certain portions of the deposition transcript as "confidential." (Although either side of the lawsuit can designate documents as "confidential," it is Denver that requested and has relied on the confidentiality order to prevent information concerning the Spy Files from becoming public.)

When a document or a portion of a deposition transcript is designated as "confidential," the ACLU attorneys and their clients are prohibited from disclosing the contents to anyone who is not connected to the lawsuit. If a document marked "confidential" must be discussed in a paper filed in court or attached as an exhibit, then it must be filed under seal, which means that it will not be placed in the court file to which the public has access.

When a document is marked as "confidential," that designation is preliminary, not final. The confidentiality order provides a procedure to challenge a document's designation as "confidential." When that procedure is invoked, the party arguing for confidentiality must ask the federal court to evaluate the document and determine whether the "confidential" designation is proper. In the Spy Files case, the party arguing for confidentiality has the burden of persuading the federal court that disclosure of the information outside the litigation would "cause substantial harm to the public interest."

At the end of 2002, the discovery portion of the Spy Files case was still ongoing, and the ACLU lawyers had not yet challenged any of the "confidential" designations. On December 26, 2002, however, the Denver Post filed a motion to participate in the lawsuit for the limited purpose of challenging the "confidential" designation of some of the documents disclosed to the ACLU lawyers. If that motion is granted, then the Denver Post would be permitted to argue that certain documents should not be marked as "confidential" but should instead be made available to the newspaper and to the public.

Read the Denver Post's motion to intervene in Spy Files lawsuit, filed December 26, 2002