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SCOW: Open records law exempts Sheriff Clarke from disclosing immigration detainer forms

Voces de La Frontera, Inc. v. David A Clarke, Jr., 2017 WI 16, reversing a published court of appeals opinion, 2/24/107; case activity (including briefs)

Voces filed an open records request for immigration detainer forms (aka I-247 forms) for persons held at the Milwaukee County Jail. It wanted to confirm that Sheriff Clarke was following federal law governing the deportation of immigrants. See Journal Sentinel story. When Clarke provided only redacted forms, Voces sued for full disclosure and won at the circuit court and the court of appeals. SCOW now reverses in a decision the dissent calls a loss for the people of Wisconsin and their longstanding commitment to open government.

The parties and the justices agree that under §§19.36(1)-(2) any record exempted from disclosure under federal law is also exempted under state law. Thus, the line of scrimmage is 8 C.F.R. §236.6, which 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 . . . shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee . . . (Emphasis supplied).

Following Clarke’s lead, the majority reads this regulation as saying that all I-247 detainer forms are exempt from disclosure even if the person listed in the form is being held by a state or local government and not “on behalf of the service.”  Thus, it follows that all I-247 detainer forms are exempt under §§19.36(1)-(2). ¶44. End of story.

The dissent (AW Bradley joined by Abrahamson) says the majority stepped out of bounds on this play.

¶49 Sheriff Clarke now contends that no detainer forms should be released. He asserts that the forms are statutorily exempt from disclosure and that his office erred when it previously released redacted detainer forms to Voces.

¶50 Reneging on previously uncontested facts and relying on a belatedly cited obscure federal regulation——never before applied to state or local detainees——Sheriff Clarke tosses a “hail mary” pass to the Wisconsin Supreme Court.

¶51 The majority catches the pass and runs with it, but unfortunately makes no forward progress for the people of this state. Instead, a majority of this court loses ground, yet again chipping away at Wisconsin’s long-standing commitment to open government. See, e.g., Democratic Party of Wisconsin v. Wisconsin Dep’t of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584.

The dissent notes that the majority’s “non-textual” reading of  8 C.F.R. §236.6 omits the words “on behalf of the service,” which means the reg applies to detainees being held on behalf of federal immigration authorities. ¶63. That does not include folks held by local government on state charges. The Federal Register makes clear that the regulation applies to detainees being housed or maintained “on behalf of the Immigration and Naturalization Service.” ¶65.

The dissent also highlights admissions Clarke made during oral argument. Before responding to Voce’s open records request, his staff consulted ICE. Neither cited 8 C.F.R. §236.6 as a reason for redacting or withholding the I-247 forms. ¶70. That idea debuted in the court of appeals.

¶71 It is not surprising that neither ICE nor Sheriff Clarke was familiar with 8 C.F.R. § 236.6 in this context. After all, this relatively obscure regulation was promulgated to protect information about individuals detained by the federal government on suspicion of terrorism following the attacks of September 11, 2001. . . .

¶72 Indeed, the drafting records of 8 C.F.R. § 236.6 are replete with references to federal 9/11 detainees. Absent from the Federal Register is any mention of the need to prevent the release of information about detainees in state or local custody who may later be transferred to federal custody.

¶73 In sum, I conclude that the plain language of 8 C.F.R. § 236.6 indicates that its application is limited to federal immigration detainees. This conclusion is supported by the promulgation history of the regulation and the fact that neither ICE nor Sheriff Clarke referred to this relatively obscure regulation until this case was on appeal. Accordingly, unlike the majority, I determine that Wis. Stat. § 19.36(1)-(2) when read in conjunction with the entire text of 8 C.F.R. § 236.6 do not statutorily exempt the detainer forms from disclosure.

The majority excuses Clarke’s failure to cite 8 C.F.R. §236.6 as a reason for not disclosing the I-247 forms: “[I]t is sufficient that Captain Trimboli recognized that I-247 forms may contain sensitive information and accordingly took measures to ensure such information was not properly released. We cannot expect a records custodian to have expertise in federal immigration law sufficient to determine release of I-247 forms.” ¶5 n.5.  (Empahsis supplied).

Perhaps not. But compare that with the empathy SCOW showed to a pro se,  non-English speaking immigrant just 2 terms ago when it dismissed his §974.06 motion because he failed to allege “with specificity” that his 2nd postconviction lawyer was ineffective for failing to allege that his 1st postconviction lawyer was ineffective for failing to make a plea withdrawal claim in the 1st postconviction motion and because his pro se motion used the generic term “postconviction counsel” instead of specifying which postconviction counsel. See our post on State v. Romero-Georgana here. Talk about unnecessary roughness.


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