Feb. 24, 2017 – Federal immigration agencies can request that local law enforcement hold individuals for 48 hours after taken into custody, if subject to deportation. Recently, the state supreme court ruled those immigration hold requests are exempt from public records law.

In Voces De La Frontera v. Clarke, 2017 WI 16 (Feb. 24, 2017), a Wisconsin Supreme Court majority (4-2) ruled that the “immigration detainer” requests that the Milwaukee County sheriff’s office received from the U.S. Immigrations and Customs Enforcement (ICE)  are “statutorily exempt from disclosure” under state public records law.

The majority’s decision reversed lower court rulings, including a three-judge appeals court decision that Milwaukee County Sheriff David Clarke Jr. was required to produce unredacted copies of the immigration detainer requests to an immigrant rights group.

Open Records Request

Voces De La Frontera submitted an open records request to the Milwaukee County Sheriff’s Office in 2015, seeking the I-247 forms that the sheriff’s office received within a three-month period. Voces was making the request to determine whether the sheriff’s office was engaging in unlawful arrests or detentions of persons subject to deportation.

The sheriff’s office produced copies of the requested I-247 forms but redacted five fields, including the nationality and immigration status of the deportation subjects. The records custodian had consulted with ICE before redacting the information.

After Voces objected, the sheriff’s office provided revised copies that included information on nationality, but other fields remained sealed under redaction.

Voces sought to compel full disclosure through a writ of mandamus. The Milwaukee County Circuit Court granted the writ and ordered disclosure of unredacted copies. But Sheriff Clarke immediately appealed, and the order was stayed pending appeal.

The appeals court rejected Clarke’s claim that Wisconsin’s open records law exempts the federal immigration detainer forms. Under Wis. Stat. § 19.36(1), records that are “specifically exempted from disclosure by state or federal law” are not subject to open records requests.” Clarke argued that federal law specifically exempts the I-247 forms.

Majority Sides with Clarke

Specifically, Clarke argued that immigration detainer requests are exempted under 8 C.F.R. § 236.6, which says, in relevant part, that state or local government entities that hold detainees “on behalf of” federal immigration agencies shall not “disclose or otherwise permit to be made public the name of, or other information relating to, such detainee.” That provision says public disclosure is controlled by federal law.

The appeals court ruled that this exemption only applies to block record requests filed within the 48-hour period in which local law enforcement is holding someone “on behalf of” federal immigration agencies pursuant to the detainer request, Form I-247.

That is, an agency such as Voces can still seek an I-247 record request on individuals who are not being held under the federal immigration detainer, but are identified as possible deportation subjects in the I-247 form that was sent to local law enforcement.

The sheriff argued that the exemption is more expansive, applying to I-247 record requests on individuals subject to an immigration detainer, regardless of whether they are being held under the detainer and regardless of when the I-247 request was served.

The supreme court majority said that both Clarke’s and the appeals court’s interpretations of 8 C.F.R. § 236.6 was reasonable and thus the statute is ambiguous. Thus, the majority looked to extrinsic sources to confirm Clarke’s interpretation.

For instance, the majority noted a “statement of purpose” that indicates the rule is intended to protect detainee privacy, guarantee uniform treatment of detainee information, and “prevent ongoing investigations from being adversely impacted.”

“Our examination of the purposes underlying 8 C.F.R. § 236.6 removes any ambiguity as to its meaning,” wrote Chief Justice Patience Roggensack.

“The regulation must be read to protect a detainee's information regardless of when an I-247 form was received and regardless of whether a detainee is in the forty-eight hour hold requested in I-247 in order to protect a detainee's privacy,” Roggensack noted.

“If the documents could be released at any time prior to the forty-eight hour period, then the privacy protections at the heart of 8 C.F.R. § 236.6 would be illusory,” she wrote.

Because the majority ruled that the immigration detainer requests were “statutorily exempt,” it concluded that a common law “public interest balancing test” – which determines whether an identified public harm outweighs the public’s interest in disclosure of public documents – was inapplicable in deciding the case.

Dissent

Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Shirley Abrahamson, concluding that the unredacted I-247 forms should be released.

The dissent noted that Clarke raised the “obscure federal regulation” as a new argument on appeal, and in any event, it does not save him in this case. That is, 8 C.F.R. section 236.6 says federal law controls public disclosures of information if a local government agency is holding a detainee “on behalf of” the federal immigration agency.

“This time the majority rewrites a federal regulation by deleting the phrase ‘on behalf of the Service’ from the regulatory language in order to reach its conclusion that yet another public records request must fail,” Justice A.W. Bradley wrote.

Justice A.W. Bradley explained that § 236.6 has never been applied to state or local detainees, and the regulation’s plain language is clear: “the regulation applies only to detainees being held on behalf of federal immigration authorities.”

The dissent engaged in a balancing test to determine whether releasing the I-247s would result in harm that outweighs the public interest in allowing disclosure of public records, noting Clarke’s burden to overcome the presumption in favor of disclosure.

“The need to protect privacy of law enforcement records is a valid public policy concern,” Bradley wrote. “Here, however, Sheriff Clarke provides no details about how the information contained in the I-247 forms would actually affect the privacy concerns for law enforcement records or interfere with an ongoing prosecution of investigation.”

The dissent said Clarke threw a “hail mary” pass and the majority caught it, but the people of Wisconsin have lost ground as the majority “chips away” at open government.

How the Court Ruled

Majority: Chief Justice Patience Roggensack (opinion author); Justice Daniel Kelly; Justice Michael Gableman; Justice Rebecca Bradley.

Dissent: Justice Ann Walsh Bradley (opinion author); Justice Shirley Abrahamson.

Justice Annette Ziegler did not participate.