Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Department of Community Corrections, Lexington Fayette Urban County Government (LFUC(j), violated the Open Records Act by denying a request from the American Civil Liberties Union (ACLU) for copies of federal immigration detainer forms received from the Department of Homeland Security by LFUCG, and other records for individuals for whom a detainer was issued. For the reasons set forth below, we find that LFUCG did not violate the Open Records Act by denying those requests.
By letter dated May 16, 2017, Kate Miller, American Civil Liberties Union of Kentucky (ACLU), requested the Department of Community Corrections (Department), LFUCG, to provide:
a) Copies of any and all Immigration Detainers (Form I-247) received between January 1, 2017, and May 10, 2017; and
b) For every individual for whom a detainer was issued under subsection (a), above, a copy of any public records that identify: i) the offense(s) for which they were charged; ii) orders of commitment or release issued in connection with those charges; and iii) the date, if any, on which ICE assumed custody of the individual.
LFUCG responded by letter, March 17, 2017, stating that it is not the custodian for the requested records, and to direct the request to Tammy Bissen, US Marshals Office, or the Office of General Counsel, Freedom of Information/Privacy Act, Alexandria, Virginia. Heather Gatnarek, Legal Fellow, on behalf of the ACLU of Kentucky, appealed LFUCG's response by letter dated July 11, 2017. Ms. Gatnarek stated that she had contacted the Custodian of Records for the Department and that the Custodian confirmed that the Department does retain records when an inmate is released pursuant to federal detainers into the custody of the U.S. Marshal's Office.
Hon. J. Todd Henning, attorney, Department of Law, LFUCG, responded to the appeal by letter dated July 20, 2017. Mr. Henning explained that "LFUCG is only the casual possessor of the requested information and has properly directed the request to the official custodian. " Mr. Henning referenced our decision in 94-ORD-155 for the proposition that LFUCG is a "casual custodian" of the detainer forms. In 94-ORD-155, we addressed an appeal where the requester sought to inspect records generated by the United States Department for Health and Human Services, Social Security Administration, which were in the custody of the Cabinet for Human Resource's Division of Disability Determinations. Access to those records was restricted by federal regulation and policy which provided that only the Director of the Social Security Administration's Office of Information was authorized to determine whether to release or withhold Social Security Administration records. On that basis, we determined that the Division of Disability Determination was the "casual custodian" of the disputed record, and was therefore not required to address the inspection issue. Mr. Henning also referenced our decision at 00-ORD-229 where we determined that the Kentucky Department of Corrections was a "casual possessor" of records generated by a hospital. In that decision we determined that the hospital had not relinquished custody and control of the records merely by routing the records to the Department of Corrections.
Mr. Henning closed his letter by stating that, in the present case, access to the detainer forms is restricted by 8 C.F.R § 236.6, which "leaves no doubt that the requested information is '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.' Therefore, LFUCG is unable to 'disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. ' 8 C.F.R § 236.6. Here, the proper avenue for inspection would [be] through a request pursuant to the Freedom of Information Act."
Analysis : The ACLU describes an Immigration Detainer, DHS Form I-247, as "a written request that a local jail or other law enforcement agency detain an individual for an additional 48 hours (excluding weekends and holidays) after his or her release date in order to provide ICE agents extra time to decide whether to take the individual into federal custody for removal purposes." 1 Mr. Henning argues that LFUCG is merely the "casual possessor" of the immigration detainers, and cites to past decisions of this office (94-ORD-155, and 00-ORD-229), where we found that release of certain records is not within the discretion of the public agency possessing the responsive records. For the reasons stated below, we find that the concept of "casual possession" 2 should be dispensed with, in this instance, in favor of the specific exception found at KRS 61.878(1)(k). That exemption excludes from disclosure "All public records or information the disclosure of which is prohibited by federal law or regulation [.]"
A detainer includes the statement: "This request derives from federal regulation 8 C.F.R. § 287.7." 8 C.F.R. § 287.7 itself states: "Detainers are issued pursuant to sections 236 and 287 of the Act and this chapter []." 8 C.F.R § 236.6 provides that:
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. [67 FR 19511, Apr. 22, 2002]" (Emphasis added).
LFUCG argues that its Department of Community Corrections, as a local government entity that houses detainees, is prohibited from releasing the detainer forms pursuant to the federal regulation, 8 C.F.R § 236.6.
As this is an issue of first impression for this office, we have searched for other authority that may provide guidance on the issue. In Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, 373 Wis.2d 348, 892 N.W.2d 803, issued February 24, 2017, the Wisconsin Supreme Court reversed a decision of the Wisconsin Court of Appeals which had affirmed a circuit court's order to the Milwaukee County Sheriff to provide unredacted versions of I-247 forms to an immigrant advocacy group. The Wisconsin Court of Appeals had determined that the regulation, 8 C.F.R § 236.6, applied only to individuals currently in custody of the federal government. The Court of Appeals reasoned that, as the individuals at issue were not currently in federal custody, the federal regulation did not prevent the release of the forms. The Wisconsin Supreme Court cited to a decision of the Connecticut Supreme Court, Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 52 A.3d 636 (2012) which had reviewed the statements of purpose of 8 C.F.R. 236.6 in Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities , 68 FR 4364-01, 4366 (January 29, 2003). That statement of purpose had recognized that the federal government had a substantial interest in protecting legitimate national security, intelligence, and law enforcement functions, and that detainees have a substantial privacy interest in their names and personal information connected with their status as detainees. Voces , at 366. "Another purpose of the regulation is to ensure the uniform treatment of the information contained within the forms. See Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities , 67 FR 19508-01, 19509 (2002.)" Voces , at 366. The court also found that that a third purpose of 8 C.F.R § 236.6 was to "to prevent adverse impacts on ongoing investigations and investigative methods." Voces , at 366, citing Comm'r of Correction, 52 A.3d at 648. The Wisconsin Supreme Court determined that 8 C.F.R § 236.6 applies to all individuals subject to an I-247 form, and not just during the time when detainees are being held subject to the detainer:
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.[] As a consequence, the regulation must be interpreted to cover all information contained within an I-247 form regardless of whether the individual that is the subject of the detention request is solely in state or federal custody or has been released. Our conclusion that the regulation is not temporally limited is consistent with this directive.
Voces , at 369.
Our analysis agrees with the reasoning of the Voces De La Frontera, Inc . decision, and the authorities cited therein. For those same reasons regarding the purposes of 8 C.F.R. § 236.6, and its application to all detainees subject to I-247 Forms, we conclude that the disclosure of I-247 forms by LFUCG is prohibited pursuant to 8 C.F.R. § 236.6 as incorporated into the Open Records Act by operation of KRS 61.878(1)(k) .
The original request from Ms. Miller also asked for copies of records and information for those individuals for whom a detainer was issued. As the request for copies of the immigration detainers was properly denied, it follows that LFUCG's denial of the additional records was also proper as identification of the relevant individuals was dependent upon release of the detainers.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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