On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. HUD-L-463-02.
Before Judges Kestin, Steinberg and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant-intervenor, the United States of America (the United States or the government), appeals from the trial court's order and judgment requiring defendants, the counties of Hudson and Passaic and the administrators of those counties' jails (collectively, the counties), to disclose pedigree data and other specified information pertaining to certain inmates, including those in the counties' care pursuant to contracts with the Immigration and Naturalization Service (INS). Plaintiffs, the American Civil Liberties Union of New Jersey and Deborah Jacobs, its executive director, cross-appeal from the trial court's grant of the government's motion to intervene. The counties each cross-appeal, conditionally in the event the order granting intervention is reversed, from the trial court's order dismissing their third-party complaints against the INS. As to the appeal, we reverse; as to plaintiffs' cross-appeal, we affirm; and we dismiss the counties' cross-appeals.
The complaint alleges the counties' "unlawful refusal to make available to plaintiffs public records for inspection and copying as required by N.J.S.A. 30:8-16; N.J.S.A. 30:8-2; N.J.A.C. 10A:31-6.5; the [then effective] Right-to-Know Law, N.J.S.A. 47:1A-1 [to -4]; *fn1 and/or the common-law right of access to public records, as to all persons confined in the Hudson County Jail and in the Passaic County Jail since September 1, 2001." The complaint states further: "This action is premised exclusively on and demands relief solely pursuant to New Jersey law."
The matter came before the trial court on cross-motions for summary judgment. The intervention motion of the United States having previously been granted, the government participated as a defendant. On April 12, 2002, the trial court granted the disclosure plaintiffs sought on all bases advanced except the common law right of access. The latter claim was "dismissed with prejudice for plaintiffs' failure to respond to the motion of defendant-intervenor United States for summary judgment with respect thereto." There is no appeal from that dismissal. The order and judgment also dismissed the counties' third party complaints. Allowing time for an appeal, the trial court stayed enforcement of the disclosure order for ten days.
Shortly after filing its notice of appeal, the government moved before us, on an emergent basis, for a continuation of the stay pending appeal and for an acceleration of the appeal. On April 19, 2002, following oral argument of the motion by telephone, we granted those motions on the condition that the status quo will be maintained pending the outcome of the appeal, i.e., no INS detainee in the Hudson County or Passaic County jails will be removed from his or her current location except on consent (with the assistance of counsel of the individual's choice).
In an April 26 consent order entered on emergent cross-motions, we clarified the condition to permit the following:
1. The removal of any detainee who has agreed to voluntary departure.
2. The removal of any detainee with a final removal order who exhibits his consent to such removal by signing a form setting forth that consent.
3. The removal of any detainee who is authorized to leave the jail on bond. 4. The temporary removal of any detainee, such as for transportation to immigration or other court hearings, medical matters, or the like.
5. The removal of any detainee who is actually represented by counsel.
The appeal comes before us on an attenuated factual record consisting entirely of documents. The background facts are contained in a January 11, 2002 declaration (see 28 U.S.C.A. § 1746) by James S. Reynolds, Chief of the Terrorism and Violent Crime Section in the Criminal Division of the United States Department of Justice. That document, prepared as a certification for a matter pending in the United States District Court for the District of Columbia, was before the trial court in the instant matter.
According to Reynolds, following the September 11, 2001 attacks on the World Trade Center and the Pentagon, the United States government launched an extensive, world-wide investigation into terrorist activity and those who might attempt future terrorist attacks against United States citizens and interests. As part of this investigation, federal agents have attempted to apprehend those responsible for the September 11 attacks and to detect and dismantle terrorist organizations. The effort is "open and ongoing."
Federal agents have questioned over 1000 individuals in connection with the investigation. Some of the individuals questioned were taken into custody for alleged violations of federal criminal law or under material witness warrants pursuant to 18 U.S.C.A. § 3144. Others, determined to be in violation of federal immigration law, were detained by the INS.
Certain INS detainees are housed in the Hudson County Correctional Center and the Passaic County Jail pursuant to long-standing contracts between the INS and the counties. In the Passaic County contract, signed in January 1985,
[t]he County agrees to accept and provide for the secure custody, care and safekeeping of US INS detainees in accordance with state and local laws, standards, policies, procedures, or court orders applicable to the operations of the facility.
The Hudson County contract, of unspecified date, recites that
[t]he Contractor will provide housing, safekeeping, subsistence and other services for INS detainee(s) within its facility . . ., consistent with the types and levels of services and programs routinely afforded its own population, and fully consistent with all applicable laws, standards, policies, procedures and court orders applicable to its facility . . ., unless or as specifically modified by this Agreement. According to the Reynolds certification, the federal government has ordered withheld the names of these detainees, the locations where they were initially arrested or detained, the locations where they are being held, the dates of their detention, and the names of their attorneys.
In addition to describing the extent of the government investigation in the wake of the September 11, 2001 attacks, the Reynolds certification states that disclosing information about INS detainees could harm the United States and the detainees by subjecting the detainees or their families to intimidation at the hands of terrorists; deterring the detainees from cooperating with the government and impairing their usefulness in ongoing investigations; revealing the direction and progress of the investigations by identifying where the government is focusing its efforts; allowing terrorist organizations to interfere with pending proceedings by creating false or misleading evidence; and facilitating contact between detainees and members of terrorist organizations. Reynolds asserts that the detainees have a substantial privacy interest in their names and an overwhelming interest in not being associated with the September 11 attacks. According to him, all detainees have the right to retain counsel and many have done so. Further, according to Reynolds, any detainee who wishes to disclose his or her name may do so.
On November 28, 2001, plaintiffs' representative wrote to defendant Ralph Green, the Director of the Hudson County Department of Corrections and custodian of records for the Hudson County Correctional Center, and to defendant Felix Garcia, Warden and custodian of records for the Passaic County Jail, requesting copies of records pertaining to each person committed to those facilities since September 1, 2001. The information requested was the name of each such person as well as his or her: (a) age, (b) birthplace, (c) nationality, (d) date of entry, (e) date of discharge, (f) reason for confinement, (g) whether or not he or she is or was being held in [the respective institution] pursuant to an agreement or contract with any federal agency and, if so, the name of the agency, and (h) whether or not he or she is represented by counsel and, if so, the name of counsel.
In a letter dated December 10, 2001, Passaic County Counsel's office informed plaintiffs that the INS had directed the Passaic County Sheriff's Department not to release any information regarding INS detainees committed to the Passaic County Jail. Counsel nevertheless offered to provide plaintiffs with the information they requested regarding all non-INS detainees in the Passaic County Jail. In a letter dated January 11, 2002, Hudson County Counsel's office informed plaintiffs that because federal detainees housed in the Hudson County Correctional Center were under the sole authority of the federal government, the County was not permitted to release the information that plaintiffs had requested. Hudson County also offered to gather and release the requested information for all other inmates.
On January 23, 2002, counsel for the INS wrote to Passaic County Counsel formally requesting that the County withhold all information relating to INS detainees in its jail. The letter stated that release of information about the detainees might constitute an invasion of their personal privacy and interfere with ongoing law enforcement proceedings.
As presented on appeal, plaintiffs' statutory claims for the information sought arise from this State's general legislation governing access to public records (the Right-to-Know Law) in effect at the time, N.J.S.A. 47:1A-1 to -4, and, more specifically, from a so-called Jailkeeper's Law, N.J.S.A. 30:8- 16, which provides:
The keeper of every jail or other penal or reformatory institution supported by public moneys of any county or municipality, shall keep a book provided by the board of freeholders in the county where the institution shall be, in which he shall set forth the date of entry, date of discharge, the description, age, birthplace and such other information as he may be able to obtain as to the inmates committed to his care, which book shall be exposed in a conspicuous place in the institution and shall be open to public inspection. Plaintiffs also rely upon a public records provision of Department of Corrections regulations governing adult county correctional facilities, N.J.A.C. 10A:31-1.1 to -29.1:
The following information and documents regarding an adult inmate or parolee shall be available for public inspection and copying: 1. Name; 2. Number; 3. Sentence; 4. Place of incarceration; 5. Order of Commitment; and 6. Any documents filed in a court of competent jurisdiction. [N.J.A.C. 10A:31-6.5(a).]
Judge D'Italia, expressing his views orally and in a superseding written opinion, ruled in plaintiffs' favor. He held the statutes to be independent of each other and co- existent. He viewed the statutes to be clear and unqualified in their purport, requiring the county defendants to make the disclosures sought because the INS detainees were plainly inmates of the jails. Judge D'Italia rejected the government's arguments that Governor Whitman's Executive Order No. 69 (1997) or a confidentiality regulation, N.J.A.C. 10A:31-6.6, were within any statutorily created exceptions to the legislated disclosure requirements that applied here.
On April 17, 2002, five days after the trial court's order and judgment were entered, the INS promulgated as an "interim rule" a regulation barring disclosure of the information sought here, 8 C.F.R. § 236.6 (2002). It provides:
No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the Service (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of the Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders. Insofar as any documents or other records contain such information, such documents shall not be public records. This section applies to all persons and information identified or described in it, regardless of when such persons obtained such information, and applies to all requests for public disclosure of such information, including requests that are the subject of proceedings pending as of [April 17, 2002].
In addition to the arguments it advanced in the trial court, the United States contends on appeal that 8 C.F.R. § 236.6 pre- empts State law and forbids disclosure of the requested information. By way of response, in addition to the arguments they advanced in the trial court, plaintiffs contend that State law is not pre-empted by 8 C.F.R. § 236.6 because promulgation of that regulation exceeded the federal agency's authority and failed to follow the notice, publication and comment procedures mandated by the federal Administrative Procedure Act, 5 U.S.C.A. § 553. Plaintiffs further contend that the regulation is invalid because it applies retroactively and because it violates state autonomy under the Tenth Amendment to the United States Constitution. They argue also that well-established precepts of international law support granting the relief they request.
As we explore the issues presented, we are guided by the wisdom of the second Justice Harlan: "In order to lay hands on the precise issue[s] which this case involves, it is useful first to canvass various matters which this record does not present." Cohen v. California, 403 U.S. 15, 18, 91 S. Ct. 1780, 1784, 29 L. Ed. 2d 284, 289 (1971).
The rights of the detainees to representation by counsel, or to consular notice and assistance, or to other access, including information on file, see Tran v. United States Dep't of Justice, ___ F. Supp. 2d ___, 2001 WL 1692570 (D.D.C. 2001)(decided Nov. 20, 2001), are not before us. Those interests have not been directly pleaded, and the standing of the plaintiffs in this matter to raise those rights is doubtful even in the context of New Jersey's liberal standing rules, see, e.g., New Jersey Builders Ass'n v. Mayor and Township Comm. of Bernards Township, 108 N.J. 223, 227 (1987); Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107-08 (1971); Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81 (App. Div. 2001); United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 50 (App. Div.), certif. denied, 170 N.J. 390 (2001), especially where the public interest is involved, see Jersey Shore Med. Ctr. - Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 144 (1980). Nevertheless, we have been aware throughout that such interests may be at the root of the relief plaintiffs seek. The conditions attached to our order extending the trial court's stay were informed by these concerns, and we requested the parties to brief certain issues so that we might have fuller perspective regarding these ancillary questions.
We are not confronted here with First Amendment claims, or the parallel guarantees of N.J. Const. art. I, ¶ 6, bearing upon the INS's non-disclosure policies, either before the promulgation of 8 C.F.R. § 236.6 or since, such as have been before several federal courts of late, most recently in North Jersey Media Group v. Ashcroft, ___ F. Supp. 2d ___, 2002 WL 1163637 (D.N.J. 2002)(decided May 29, 2002); see also Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D. Mich. 2002); ...