April 13, 2016 – Milwaukee County Sheriff David Clarke must release unredacted immigration forms the office received from U.S. Immigration and Customs Enforcement (ICE) pursuant to an open records request, a state appeals court has ruled.

Voces de la Frontera Inc. (Voces), an immigrant rights group, submitted an open records request to the sheriff’s office in 2015, seeking I-247 forms received within a three-month period. I-247 forms request that local law enforcement agencies hold people brought into custody, for up to 48 hours, who are subject to deportation.

Sheriff Clarke ultimately produced copies of the requested forms, but the office’s records custodian had redacted five fields, including the nationality and immigration status of the deportation subjects, the subject’s ID number, and event and file numbers.

After an objection, the sheriff’s office released revised copies that disclosed the nationalities of the deportation subjects, but the other fields remained redacted.

Writ of Mandamus

Voces asked for a writ of mandamus in the Milwaukee County Circuit Court to compel production of unredacted copies. The sheriff’s records custodian later testified that she redacted portions of the forms because ICE said it was “law enforcement sensitive.”

But the circuit court granted Voces’ request, noting Wisconsin’s tradition of open government and the sheriff’s burden to justify redaction despite the public’s interest in disclosure. The court said “there was never a very good reason given.”

Voces had argued that disclosure was necessary to ensure the sheriff’s office was not engaged in the unlawful arrest or detention of persons turned over for deportation.

The circuit court ordered the release of unredacted records within 48 hours of its final order, which the court stayed for nine days. Clarke immediately appealed, and the order was temporarily stayed pending appeal a day before the 48-hour clock started ticking.

Appeals Court Affirms

In Voces de la Frontera Inc. v. Clark, 2015AP1152 (April 12, 2016), a three-judge panel for the District I Court of Appeals affirmed, rejecting Sheriff Clarke’s new argument that state open records law exempts federal immigration documents.

Wis. Stat. section 19.36(1) states that records that are “specifically exempted from disclosure by state or federal law” are not subject to open records requests.

Clarke said 8 C.F.R. section 236.6 specifically exempts immigration documents. That provision prohibits public disclosures relating to “detainees” held on behalf of ICE and other U.S. immigration agencies (the Service), which oversee lawful immigration.

“The Sheriff does not dispute the fact that the prisoners in question here were held on state charges which had not expired,” wrote Appeals Court Judge Kitty Brennan, “but argues that they were being held for the Service as well” pursuant to the I-247 forms.

“But the Sheriff is incorrect because the I-247 form itself makes clear, as does the case law, that federal custody only begins when the state custody ends. Here it is undisputed that the state custody had not ended” when Voces made its open records requests.

The panel noted that I-247 forms merely “request” that subjects be held so the U.S. immigration officials can decide whether to take custody. It is not an order.

“In short, receipt of an I-247 form by a local law enforcement agency does not convert a state prisoner into a federal detainee in the custody of ICE,” wrote Judge Brennan, noting persons are not held on federal authority until booked under the federal detainer.

The appeals panel noted that if the jailed individuals at issue were being held under federal authority, as Sheriff Clarke suggested, the sheriff’s office would have violated federal law if publicly disclosing any of the records to Voces, redacted or otherwise.

“The statute clearly states that any information pertaining to the prisoner, including the person’s name, is under the control of the Service and that the entire document shall not be released,” Judge Brennan wrote.

Finally, in the absence of a statutory exemption, the appeals court panel also ruled that Clarke failed to meet the burden of showing that nondisclosure of the immigration records outweighed the public’s interest in disclosure of the public records.

Sheriff Clarke had argued that disclosure of those records with identification numbers and other identifiers could lead to identity theft, fraud, or harassment. But the appeals court saw no concrete evidence of that.

“In short, there is no evidence in the record to support the assertion that release of the requested information might increase the risk of identity theft harassment in some tangible way,” wrote Judge Brennan, noting the open records law favors disclosure.