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Sheriff Clarke ordered to produce unredacted immigration detainer forms

Voces De La Frontera, Inc. v. David A. Clarke, Jr., 2016 WI App 39, petition for review granted 6/15/16, reversed, 2017 WI 16; case activity (including briefs)

Voces De La Frontera submitted an open records request for all immigration detainer forms that Sheriff David Clarke received during a 15-month period. Clarke supplied the forms but redacted 5 categories of information from them, including the person’s nationality and immigration status. So Voces sought, and received, a circuit court writ of mandamus ordering Clarke to produce the records. The court of appeals here affirms that writ.

“I-247 forms” are requests by ICE (Immigration and Customs Enforcement) to hold a prisoner for the federal government after his state custody ends.  Voces wanted these forms to make sure that the Sheriff’s department (a) was complying with state and federal law and (b) was not detaining someone illegally.

Clarke agreed that the I-247 forms qualify as “records” under §19.32, Wisconsin’s open records law. But he claimed that portions of the records were exempt from disclosure under §19.36(1)-(2), which protects information about detainees being held for the federal government. See 8 C.F.R. §236.6 (“No person, including any state or local government entity … that … holds any detainee on behalf of the Service … shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee.”) The court appeals disagreed:

¶31 From the plain language of both the I-247 form and 8 C.F.R. § 287.7, it is clear that DHS merely sought custody with a “request,” not an order, for a 48-hour hold after the alien was to be released from state custody. The form itself acknowledges that the prisoner is in the local law enforcement agency’s custody until DHS makes further determination of whether it will take the prisoner into federal custody.

¶32 This conclusion is further supported by the fact that 8 C.F.R. § 287.7(e) makes it clear on its face that the detainer itself is a request only. The statute expressly states that the federal government will not be financially obligated to pay the detainee’s expenses until the federal government actually takes custody of the detainee: “No detainer issued as a result of a determination made under this chapter shall incur any fiscal obligation on the part of the Department, until actual assumption of custody by the Department[.]” 8 C.F.R. § 287.7(e) (Emphasis added.) This language makes it clear that local law enforcement agencies cooperating with an I-247 request do not relinquish custody and that the subject of the detainer request remains in local law enforcement custody until DHS actually assumes custody.

¶33 Case law supports our conclusion that the detainer is only a notification that a removal decision will be made at some later date. See Campos v. Immigration and Naturalization Serv., 62 F.3d 311, 313-14 (9th Cir. 1995) . . . [and] United States v. Female Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004). 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.

The court of appeals also highlighted a flaw in Sheriff Clarke’s reasoning. If the jail’s receipt of the an I-247 form makes the hold federal (rather than state), then Clarke shouldn’t disclose “any part of the form at all–redacted or otherwise–including the names of prisoners.” ¶39.

Because the court of appeals found that the I-247 forms were not exempt from disclosure, it’s next task was to balance the public’s right to inspect public records against the public’s interest in nondiclosure. Clarke failed to identify any public interest in keeping the records confidential.  Rather, the undisputed testimony showed that his office defers to other law enforcement agency determinations that certain information is too sensitive to disclose. In other words, Clarke doesn’t conduct any balancing test at all. According to the court of appeals, he assumes that “the interests of law enforcement per se outweigh the statutory public policy of openness, which runs counter to the purpose and spirit of Wisconsin’s open records law.”

For more, see the Milwaukee Journal Sentinel’s article on this case.

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