Voces de la Frontera, Inc. v. David A. Clarke, Jr. , 373 Wis. 2d 348 ( 2017 )

2017 WI 16
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1152
COMPLETE TITLE: Voces De La Frontera, Inc. and Christine Neuman
Ortiz,
Petitioners-Respondents,
v.
David A. Clarke, Jr.,
Respondent-Petitioner-Appellant-
Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: February 24, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 3, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David L. Borowski
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. dissents, joined by
ABRAHAMSON, J. dissent.
NOT PARTICIPATING: ZIEGLER, A., J. did not participate.
ATTORNEYS:
For the respondent-petitioner-appellant-petitioner, there
was a brief by Oyvind Wistrom, Lindner & Marsack, S.C.,
Milwaukee, and oral argument by Oyvind Wistrom
For the petitioners-respondents, there was a brief by Peter
G. Earle, and Law Office of Peter Earle, LLC., Milwaukee, and
oral argument by Peter G. Earle
2017 WI 16
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1152
(L.C. No. 2015CV2800)
STATE OF WISCONSIN : IN SUPREME COURT
Voces De La Frontera, Inc. and Christine Neuman
Ortiz,
Petitioners-Respondents,
FILED
v. FEB 24, 2017
David A. Clarke, Jr., Diane M. Fremgen
Clerk of Supreme Court
Respondent-Petitioner-Appellant-
Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed;
writ of mandamus is quashed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a decision
of the court of appeals1 affirming an order of the circuit court2
that granted mandamus requiring Milwaukee County Sheriff David
A. Clarke, Jr. (Sheriff) to provide unredacted versions of
1
Voces de La Frontera, Inc. v. Clarke, 2016 WI App 39, 369
Wis. 2d 103, 880 N.W.2d 417.
2
The Honorable David L. Borowski of Milwaukee County
presided.
No. 2015AP1152
immigration detainer forms (I-247 forms) to Voces de la Frontera
(Voces) pursuant to its public records request. The I-247 forms
were sent to the Sheriff's office by the United States
Immigrations and Customs Enforcement (ICE) and contain
immigration-related information about certain individuals held
at the Milwaukee County Jail.
¶2 Our review requires us to determine whether the I-247
forms are exempt from disclosure under Wisconsin public records
law. Specifically, we decide whether there is a statutory or
common-law exemption to the public records law such that the
forms are exempt from disclosure. And, if there were no such
exemption, we would decide whether the public interest weighs in
favor of releasing or withholding the documents.
¶3 We conclude that I-247 forms are statutorily exempt
from disclosure according to the terms of Wisconsin public
records law, and therefore, we need not reach common-law
exemptions or the public interest balancing test. Stated more
fully, under Wis. Stat. §§ 19.36(1)-(2),3 any record specifically
exempted from disclosure pursuant to federal law also is exempt
from disclosure under Wisconsin law. Federal regulation
8 C.F.R. § 236.6 (2013) precludes release of any information
pertaining to individuals detained in a state or local facility
and I-247 forms contain only such information. Consequently,
read together, Wis. Stat. §§ 19.36(1)-(2) and 8 C.F.R. § 236.6
3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2015AP1152
exempt I-247 forms from release under Wisconsin public records
law. Furthermore, because I-247 forms are statutorily exempt
from release, the public interest balancing test has no
application here.
¶4 Accordingly, we reverse the court of appeals.
I. BACKGROUND
¶5 On February 5, 2015, Voces submitted a public records
request to the Sheriff. Voces requested copies of all I-247
forms4 that the Sheriff received from ICE since November 2014.
The custodian, Captain Catherine Trimboli, responded to Voces,
but indicated that she was unable to immediately provide the
requested forms. She explained that she needed to speak with
ICE.5
4
I-247 forms are requests by the federal government to a
state or local entity to hold an individual for a period of time
not to exceed forty-eight hours after the individual is released
from state custody.
5
Captain Trimboli did not cite 8 C.F.R. § 236.6 as a reason
for non-disclosure of the forms. However, it is sufficient that
Captain Trimboli recognized that I-247 forms may contain
sensitive information and accordingly took measures to ensure
that such information was not improperly released. We cannot
expect a records custodian to have expertise in federal
immigration law sufficient to determine the effect of federal
law on release of I-247 forms. For this reason, a record
custodian's failure to cite a statutory exemption to the public
records law is of no consequence to our analysis. Journal Times
v. Racine Bd. of Police & Fire Com'rs, 2015 WI 56, ¶¶74-75, 362
Wis. 2d 577, 866 N.W.2d 563 (reasoning, this "court's de novo
determination whether certain information is statutorily
exempted from disclosure is not aided by anything a custodian
might say in a denial letter, nor is it deterred by the
custodian's silence." (internal quotations omitted)). See also
State ex rel. Blum v. Bd. of Educ., Sch. Dist. of Johnson Creek,
(continued)
3
No. 2015AP1152
¶6 Voces filed a petition for a writ of mandamus seeking
to compel the Sheriff to produce the I-247 forms. Prior to
ruling on the mandamus, as a compromise, the circuit court
ordered the Sheriff to produce redacted copies of all I-247
forms. Accordingly, the Sheriff produced twelve I-247 forms,
but redacted the following information: (1) subject ID;
(2) event number; (3) file number; (4) nationality; and (5) a
series of boxes pertaining to immigration status. On April 7,
2015, the Sheriff provided forms with the detainee's nationality
no longer redacted.
¶7 On June 3, 2015, the circuit court granted Voces' writ
of mandamus and ordered the Sheriff to produce all I-247 forms,
unredacted. Conducting a balancing test, the court weighed
Voces' strong interest in examining I-247 forms against the
Sheriff's interest in protecting the information contained
within the forms.6 The circuit court concluded that the
balancing test weighed in favor of disclosure. The court
ordered the Sheriff to produce unredacted versions of the I-247
209 Wis. 2d 377, 387-88, 565 N.W.2d 140 (Ct. App. 1997)
(explaining, "the existence of a statute exempting certain kinds
of information from disclosure is not uniquely within the
custodian's knowledge" and therefore a custodian's "failure to
specifically cite the statutory exemption does not preclude us,
or the trial court, from determining whether the Board was
authorized to deny the request.").
6
On June 11, 2015, the court of appeals temporarily stayed
the circuit court's order compelling the Sheriff to provide
I-247 forms pending review.
4
No. 2015AP1152
forms to Voces within forty-eight hours, but stayed the order
until June 12, 2015.7
¶8 The court of appeals affirmed the circuit court. The
court concluded that I-247 forms are not exempt from disclosure
under Wisconsin public records law. The court concluded that
"(1) no exception to disclosure under Wisconsin's open records
law applies; and (2) the Sheriff failed to meet his burden of
showing that the public interest in non-disclosure outweighs
disclosure, given Wisconsin's very strong legislative intent and
public policy favoring disclosure."8
¶9 First, the court of appeals rejected the Sheriff's
argument that I-247 forms are exempt from disclosure under Wis.
Stat. § 19.36 because a federal regulation, 8 C.F.R. § 236.6,
prevented disclosure of immigration-related information in the
possession of state or local entities.9 The court reasoned that
the regulation applied to only those individuals currently in
custody of the federal government.10 Because the individuals at
issue in the present case were not currently in federal custody,
the court of appeals reasoned, the federal regulation did not
7
In the interim, the Sheriff petitioned for leave to
appeal. But on June 17, 2015, the circuit court issued a final
order, and the Sheriff filed a notice of appeal. Consequently,
on June 24, 2015, the court of appeals dismissed the Sheriff's
petition for leave to appeal as moot.
8
Voces, 369 Wis. 2d 103, ¶18.
9
Id., ¶40.
10
Id., ¶28.
5
 No. 2015AP1152
prevent the release of I-247 forms.11 Next, the court concluded
that the public interest balancing test weighed in favor of
disclosure.12
¶10 We granted the Sheriff's petition for review and now
reverse.
II. DISCUSSION
A. Standard of Review
¶11 This is a review of a writ of mandamus. Mandamus is a
remedy that can be used "to compel a public officer to perform a
duty of his office presently due to be performed." State ex
rel. Marberry v. Macht, 2003 WI 79, ¶27, 262 Wis. 2d 720, 665
N.W.2d 155. "In order for a writ of mandamus to be issued, four
prerequisites must be satisfied: '(1) a clear legal right;
(2) a positive and plain duty; (3) substantial damages; and
(4) no other adequate remedy at law.'" Pasko v. City of
Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d 72
(quoting Law Enforcement Standards Bd. v. Village of Lyndon
Station, 101 Wis. 2d 472, 494, 305 N.W.2d 89 (1981)).
¶12 Our review requires us to interpret and apply
Wisconsin public records law. Statutory interpretation and
application present questions of law that we review
independently, while benefiting from the analyses of the circuit
court and the court of appeals. Osborn v. Board of Regents of
11
Id.
12
Id., ¶47.
6
No. 2015AP1152
University of Wisconsin System, 2002 WI 83, ¶12, 254 Wis. 2d
266, 647 N.W.2d 158 (Nichols v. Bennett, 199 Wis. 2d 268, 273,
544 N.W.2d 428 (1996)).
¶13 Moreover, our review also requires us to interpret a
federal regulation, 8 C.F.R. § 236.6. We apply general
principles of statutory interpretation when construing federal
regulations. See State v. Busch, 217 Wis. 2d 429, 441, 576
N.W.2d 904 (1998) ("When interpreting an administrative
regulation, we generally use the same rules of construction and
interpretation as applicable to statutes."); Village of Lyndon
Station, 101 Wis. 2d at 489 ("As a corollary to the rule that
validly enacted administrative rules are given the effect of
law, it is generally accepted that the rules and regulations of
administrative agencies are subject to the same principles of
construction as apply to the construction of statutes . . . .");
see also Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 199
(3d Cir. 2015) ("In interpreting a federal regulation, we look
to well-established principles of statutory interpretation.").
B. Statutory Interpretation, General Principles
¶14 Statutory interpretation "begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry." Seider v. O'Connell, 2000 WI 76,
¶43, 236 Wis. 2d 211, 612 N.W.2d 659. "Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
7
No. 2015AP1152
Wis. 2d 633, 681 N.W.2d 110 (citing Bruno v. Milwaukee Cty.,
2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656).
Moreover, the "structure of the statute in which the operative
language appears" is important. Id., ¶46. And, "statutory
language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46 (citing State
v. Delaney, 2003 WI 9, ¶13, 259 Wis. 2d 77, 658 N.W.2d 416).
¶15 "The test for ambiguity generally keeps the focus on
the statutory language: a statute is ambiguous if it is capable
of being understood by reasonably well-informed persons in two
or more senses." Id., ¶47. And, "Wisconsin courts ordinarily
do not consult extrinsic sources of statutory interpretation
unless the language of the statute is ambiguous." Id., ¶50.
Extrinsic sources are those "interpretative resources outside
the statutory text—typically items of legislative history." Id.
(citation omitted).
¶16 It is under this framework that we review whether
I-247 forms are exempt from disclosure under the Wisconsin
public records law.
C. Wisconsin Public Records Law
¶17 Wisconsin public records law affords the public the
right to inspect certain documents within the possession of a
8
No. 2015AP1152
state entity.13 It "serves one of the basic tenets of our
democratic system by providing an opportunity for public
oversight of the workings of government." Nichols, 199 Wis. 2d
268, 273 (citing Breier, 89 Wis. 2d 417, 433-34). To that end,
"we have a presumption of open access to public records, which
is reflected in both our statutes and our case law." Osborn,
254 Wis. 2d 266, ¶13; see also Wis. Stat. § 19.31 (providing "it
is . . . the public policy of this state that all persons are
entitled to the greatest possible information regarding the
affairs of government and the official acts of those officers
and employees who represent them"). "This presumption reflects
the basic principle that the people must be informed about the
workings of their government and that openness in government is
essential to maintain the strength of our democratic society."
Linzmeyer v. Forcey, 2002 WI 84, ¶15, 254 Wis. 2d 306, 646
N.W.2d 811 (citing Breier, 89 Wis. 2d at 433-34).
¶18 Nevertheless, the public's right to access records is
not unrestricted. See Woznicki v. Erickson, 202 Wis. 2d 178,
194, 549 N.W.2d 699 ("However, the right to public access is not
absolute."). "The strong presumption of public access may give
13
The public records law applies only to "records." Record
is defined expansively: "A 'record' subject to the Public
Records Law is 'any material on which . . . information is
recorded or preserved . . . which has been created or is being
kept by an authority.'" Hempel v. City of Baraboo, 2005 WI 120,
¶25, 284 Wis. 2d 162, 699 N.W.2d 551. In the present case,
neither party disputes that I-247 forms are records for purposes
of Wisconsin public records law.
9
No. 2015AP1152
way to statutory or specified common law exceptions, or if there
is an overriding public interest in keeping the public record
confidential." Kroeplin v. Wisconsin Dep't of Nat. Res., 2006
WI App 227, ¶13, 297 Wis. 2d 254, 725 N.W.2d 286 (citation
omitted); see also Hathaway v. Joint Sch. Dist. No. 1, City of
Green Bay, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984) ("Thus,
the general presumption of our law is that public records shall
be open to the public unless there is a clear statutory
exception, unless there exists a limitation under the common
law, or unless there is an overriding public interest in keeping
the public record confidential."). Accordingly, there are three
ways in which a record may be exempt from disclosure: (1) the
record is statutorily exempt; (2) the record falls under a
common-law exemption; or (3) the public interest balancing test
weighs in favor of non-disclosure. See Linzmeyer, 254
Wis. 2d 306, ¶¶23-24.
¶19 Under this framework, we first examine whether the
records at issue are statutorily exempt from disclosure.14 The
legislature codified a presumption of public access. It
follows, that the legislature is similarly free to codify which
records are subject to public inspection and which records are
statutorily exempt from inspection. See Wis. Stat. § 19.35(1)
14
Because we ultimately conclude that the I-247 forms at
issue in the present case are exempt from disclosure under a
statutory exemption, we do not address the contours of the
common-law exceptions or weigh competing interests under the
balancing test.
10
No. 2015AP1152
("Except as otherwise provided by law, any requester has a right
to inspect any record." (emphasis added)).
¶20 There are statutory exemptions to the Wisconsin public
records law's presumption of access that are codified in Wis.
Stat. § 19.36. See, e.g., Wis. Stat. § 19.36(1)-(13). For the
types of records described in the statute, the legislature has
determined that they are categorically exempt from disclosure to
the public.
¶21 Exemptions detailed in Wis. Stat. §§ 19.36(1)-(2) are
of particular relevance in this case. These sections provide:
(1) APPLICATION OF OTHER LAWS. Any record which is
specifically exempted from disclosure by state or
federal law or authorized to be exempted from
disclosure by state law is exempt from disclosure
under s. 19.35(1), except that any portion of that
record which contains public information is open to
public inspection as provided in sub. (6).
(2) LAW ENFORCEMENT RECORDS. Except as otherwise
provided by law, whenever federal law or regulations
require or as a condition to receipt of aids by this
state require that any record relating to
investigative information obtained for law enforcement
purposes be withheld from public access, then that
information is exempt from disclosure under
s. 19.35(1).
Wis. Stat. §§ 19.36(1)-(2). As the text of the statute relates,
§ 19.36(1) prevents the release of any record that is exempted
from disclosure under federal law. Similarly, § 19.36(2)
exempts from disclosure any record "relating to investigative
information obtained for law enforcement purposes."
¶22 Therefore, we examine whether federal law prohibits
disclosure of I-247 forms. In the case now before us, it
11
No. 2015AP1152
follows that if 8 C.F.R. § 236.6 prohibits disclosure of
information in I-247 forms, they are exempt from disclosure
under Wisconsin public records law. At oral argument, Voces
agreed, but contended that 8 C.F.R. § 236.6 did not prohibit
disclosure of the information in I-247 forms.
D. 8 C.F.R. § 236.6
¶23 Our consideration of the text and purpose of 8 C.F.R.
§ 236.6 compels the conclusion that it applies to any detainee
for whom an I-247 form has been issued by the federal
government. As we explain below, to hold otherwise would flout
the language and purpose of the federal regulation.
¶24 We begin with an examination of the text of 8 C.F.R.
§ 236.6 to determine its meaning. The regulation provides as
follows:
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.
12
No. 2015AP1152
¶25 The court of appeals reasoned that the phrase "holds
any detainee on behalf of" the federal government required that
the individual be in federal custody at the time when I-247 form
was served in order for 8 C.F.R. § 236.6 to apply.15 The court
of appeals reasoned that 8 C.F.R. § 236.6 applied only to those
detainees who were then subject to the forty-eight hour hold
requested by I-247 forms.16
¶26 In contrast, the Sheriff contends that the first
sentence of 8 C.F.R. § 236.6 is definitional. He reasons that
the clause "holds any detainee on behalf of" the federal
government refers to those individuals subject to an immigration
detainer insofar as the facility is or was housing, maintaining,
or servicing them prior to the federal government's potential to
obtain custody. Under this interpretation, 8 C.F.R. § 236.6 is
not temporally limited; rather, it explains which types of
entities and individuals are subject to the regulation. And,
any individual that is subject to an I-247 request (an
immigration detainer request) is a detainee who has been housed,
maintained or provided services by a state or local entity,
regardless of when that occurred.
¶27 Both of these interpretations are reasonable, as
reasonably well-informed persons could interpret the text of
8 C.F.R. § 236.6 as the court of appeals has and as the Sheriff
15
Voces, 369 Wis. 2d 103, ¶28.
16
Id., ¶¶28-29.
13
 No. 2015AP1152
has. The existence of two reasonable interpretations compels
the conclusion that the regulation is ambiguous. See Bruno,
2003 WI 28, ¶19.
¶28 When a regulation is ambiguous, we may consult
extrinsic sources to interpret the regulation's meaning. See
State v. Williams, 2014 WI 64, ¶19, 355 Wis. 2d 581, 852
N.W.2d 467 ("Finally, and most important, if the interpreting
court concludes that the statute is ambiguous, the court may
consider extrinsic sources such as legislative history to
discern the meaning of the statute." (citing Kalal, 271
Wis. 2d 633, ¶51)). Consistent with this principle, we look to
extrinsic sources to assist us in determining the meaning of
8 C.F.R. § 236.6.
¶29 The statement of purpose of 8 C.F.R. § 236.6 was
provided by the agency that promulgated the regulation and was
set out in the notices in the Federal Register. It demarcates
three purposes underlying the regulation: (1) to protect
privacy of detainees; (2) to guarantee uniform treatment of
information pertaining to detainees; and (3) to prevent ongoing
investigations from being adversely impacted. See Comm'r of
Correction v. Freedom of Info. Com'n, 52 A.3d 636, 647-48 (Conn.
2012) ("The regulation was intended to ensure that the
disclosure of information about detainees would be subject to a
uniform federal policy, to protect the privacy of detainees,
and, most significantly, to prevent adverse impacts on ongoing
investigations and investigative methods.").
14
No. 2015AP1152
¶30 Indeed, the privacy interests of the detainees were a
substantial concern. This interest is evinced in the statement
of purpose of 8 C.F.R. § 236.6 as set out in the notices:
By channeling requests for information through the
FOIA, which contains a privacy exception, the rule
also protects detainees' privacy. Just as the
government has a substantial interest in protecting
legitimate national security, intelligence and law
enforcement functions under the FOIA, detainees may
have a substantial privacy interest in their names and
the personal information connected with their status
as detainees.17
Release of Information Regarding Immigration and Naturalization
Service Detainees in Non-Federal Facilities, 68 FR 4364-01, 4366
(January 29, 2003). And, allowing public access to information
about an individual could have grave consequences for that
17
The notices of the regulation also explain:
For example, individuals who were originally detained
because of their possible connection to terrorism,
have an overwhelming interest in not being connected
with such activity. And particularly with respect to
those individuals cooperating with the government's
law enforcement investigations, there are powerful
reasons why such persons would wish to conceal their
identities and whereabouts. Indeed, other INS
regulations expressly shield from disclosure
information pertaining to or contained in an asylum
application. See 8 CFR § 208.6(a). Contrary to some
of the commenters' suggestions, the fact that certain
detainees may wish to publicly identify themselves,
which they are free to do, in no way undermines this
assessment.
Release of Information Regarding Immigration and Naturalization
Service Detainees in Non-Federal Facilities, 68 FR 4364-01, 4366
(January 29, 2003).
15
No. 2015AP1152
individual. After all, "allowing such disclosures would be
highly adverse to the privacy interests of a detainee who does
not wish to be identified as a possible terrorist or who, after
his release from detention, is cooperating with an ongoing
government investigation." Comm'r of Correction, 52 A.3d at
648.
¶31 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) ("The rule bars release of such
information by non-[f]ederal providers in order to preserve a
uniform policy on the release of such information."). I-247
forms are federal records; the state does not generate or input
information into them. The federal government has an interest
in seeing that the information contained within the forms is
treated uniformly by all facilities.
¶32 A final purpose of 8 C.F.R § 236.6 is "to prevent
adverse impacts on ongoing investigations and investigative
methods." Comm'r of Correction, 52 A.2d at 648; see also Am.
Civil Liberties Union of New Jersey, Inc. v. Cty. of Hudson, 352
N.J. Super. 44, 69, 799 A.2d 629 (App. Div. 2002) ("The counties
are not privy to the character and extent of federal
investigations in progress nor, apparently, do they possess any
independently acquired information regarding the role of the INS
16
No. 2015AP1152
detainees in those investigations."). The notices containing
the statement of purpose initially passed in 2002,18 provide:
Release of information about a specific detainee or
group of detainees could also have a substantial
adverse impact on ongoing investigations being
conducted by federal law enforcement agencies in
conjunction with the Service. Even though an
individual detainee may choose to disclose his own
identity or some information about himself, the
release by officials housing detainees of a list of
detainees or other information about them could give a
terrorist organization or other group a vital roadmap
about the course and progress of an investigation. In
certain instances, the detention of a specific alien
could alert that alien's coconspirators to the extent
of the federal investigation and the imminence of
their own detention, thus provoking flight to avoid
detention, prosecution and removal from the United
States. Premature release of the identity of or
information relating to a specific alien in detention
18
The regulation was initially passed as a temporary
regulation in 2002 before being permanently enacted in 2003.
The regulation was promulgated in response to a request for
documents pertaining to individuals detained by, what was at the
time, the Immigration and Naturalization Service (INS). In that
case, "INS detainees [were] housed in the Hudson County
Correctional Center and the Passaic County Jail pursuant to
long-standing contracts between the INS and the counties." Am.
Civil Liberties Union of New Jersey, Inc. v. Cty. of Hudson, 352
N.J. Super. 44, 58, 799 A.2d 629, 637 (App. Div. 2002). The
plaintiff requested the records of the individuals detained
pursuant to these agreements, and a trial court in New Jersey
ordered the jails to provide the records. Id. at 638. As the
Appellate Division of the New Jersey Superior court explained,
"five days after the trial court's order and judgment were
entered, the INS promulgated as an 'interim rule' a regulation
barring disclosure of the information sought here, 8 C.F.R.
§ 236.6 (2002)." Id. Based on the interim regulation, the
court concluded that, "[t]o the extent the State laws involved
may be viewed as requiring public disclosure of information
regarding INS detainees, they would be in conflict with 8 C.F.R.
§ 236.6." Id. at 655.
17
No. 2015AP1152
could reasonably be expected to disclose the identity
of a confidential source and techniques or procedures
for law enforcement investigations or prosecution.
Release of Information Regarding Immigration and Naturalization
Service Detainees in Non-Federal Facilities, 67 FR 19508-01,
19509 (April 22, 2002).
¶33 Our examination of the purposes underlying 8 C.F.R.
§ 236.6 removes any ambiguity as to its meaning. We conclude
that 8 C.F.R. § 236.6 is not temporally limited; it applies to
all information pertaining to those individuals subject to I-247
forms. It is evident after exploring the purpose of the
regulation that "detainee" is a generalized term; it refers to
all individuals subject to an I-247 form.19 It would be
inconsistent with the three main purposes of 8 C.F.R. § 236.6 to
hold that it applies only to information pertaining to those
individuals presently in federal custody. And, "[a]ll of these
purposes would be undermined by allowing state and local
entities to disclose information about a detainee . . . subject
only to their own policies and procedures." Comm'r of
Correction, 52 A.3d at 648.
¶34 The regulation must be read to protect a detainee's
information regardless of when an I-247 form was received and
19
The inclusion of the phrase "such detainee" at the end of
the second sentence of the regulation does not alter this
analysis. "Such detainee" merely refers back to the phrase "any
detainee" in the preceding sentence. 8 C.F.R. § 236.6.
Accordingly, the phrase "such detainee," like the phrase "any
detainee," is a categorical description and does not temporally
limit the regulation.
18
No. 2015AP1152
regardless of whether a detainee is in the forty-eight hour hold
requested in I-247 in order to protect a detainee's privacy.
After all, the sensitivity of a detainee's information cannot,
and we conclude does not, depend on when the I-247 form was
received by the state or local entity. 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.20 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.
¶35 Similarly, the federal government's interest in the
uniform treatment of immigration-related records by all
facilities requires that the regulation applies to all I-247
forms, without a temporal limitation. Stated otherwise,
8 C.F.R. § 236.6 controls I-247 information pertaining to
detainees without regard for when a facility receives that form.
State or local entities do not have discretion to decide whether
I-247 forms may be released. A contrary interpretation would
20
We note that the intent of those seeking the information
does not diminish the detainee's privacy interest in the
information. If the information can be accessed by one party,
then it can be obtained by any other organization or individual
that seeks the same information. This, of course, includes
those individuals or organizations with potentially less noble
aspirations than Voces.
19
No. 2015AP1152
vitiate consistency in treatment of I-247 forms and the
information they contain.
¶36 Finally, the regulation is meant to protect sensitive
information pertaining to government criminal or immigration-
related investigations. Surely, such an important interest
cannot succumb to the temporal limitations that an alternative
interpretation of 8 C.F.R. § 236.6 would impose. For this
reason alone, the regulation must be interpreted to protect the
information contained within I-247 forms.
¶37 Accordingly, we conclude that the court of appeals
inaccurately interpreted 8 C.F.R. § 236.6 when it added the
requirement that an individual who is subject to a I-247 form
must be in the custody of the federal government for 8 C.F.R.
§ 236.6 to apply. The regulation is not so narrow, and the word
"custody" is conspicuously absent from its text. Section 236.6
applies to any individual subject to an I-247 immigration
detention request. And, a different federal regulation
discussing detainers distinguishes between "custody" and an
individual subject to a detainer request:
Any authorized immigration officer may at any time
issue a Form I–247, Immigration Detainer–Notice of
Action, to any other Federal, State, or local law
enforcement agency. A detainer serves to advise
another law enforcement agency that the Department
seeks custody of an alien presently in the custody of
that agency, for the purpose of arresting and removing
the alien.
8 C.F.R. § 287.7 (2011).
20
No. 2015AP1152
¶38 Therefore, 8 C.F.R. § 236.6 protects all information
contained within I-247 forms pertaining to detainees that are
housed, maintained, or held in facilities run by state or
private entities. Stated otherwise, the regulation is not
temporally limited and does not apply only to those individuals
in federal custody. Rather, 8 C.F.R. § 236.6 renders the I-247
forms that Voces seeks "record[s] . . . specifically exempted
from disclosure by . . . federal law," under Wis. Stat.
§ 19.36(1). For similar reasons, these records also contain
information obtained for federal law enforcement investigative
purposes, and Wis. Stat. § 19.36(2) prevents their disclosure.21
¶39 We are not alone in our interpretation of 8 C.F.R.
§ 236.6. The Supreme Court of Connecticut also examined the
purpose of 8 C.F.R. § 236.6 and concluded that the regulation
prohibits disclosure of documents that pertain to those
individuals that are no longer in state or federal custody.
Comm'r of Correction, 52 A.3d at 649 ("Nothing in the language
of the regulation differentiates between information about
detainees who have been transferred to the custody of another
21
We note that our decision does not pass judgment on the
desirability of the Sheriff's compliance or non-compliance with
the Department of Homeland Security's immigration detention
requests. Rather, the issue in the present case "involve[s] the
nature and scope of information that must be made available to
the public concerning INS detainees. The power to regulate
matters relating to immigration and naturalization resides
exclusively in the federal government." Am. Civil Liberties
Union of New Jersey, Inc. v. Cty. Of Hudson, 799 A.2d 629, 654
(N.J. App. Div. 2002).
21
No. 2015AP1152
governmental entity and information about detainees who have
been released."). In Commissioner of Correction, the
Connecticut Supreme Court rejected the lower court's conclusion
that "because the first sentence of 8 C.F.R. § 236.6 uses the
present tense when it refers to any 'person . . . that houses,
maintains, provides services to, or otherwise holds any
detainee'; the regulation applies only to a person who currently
engages in one of the described activities . . . ." Id. at 646
(internal citations omitted). Rather, the court accepted the
federal government's reasoning and concluded that "the use of
the present tense . . . [is] not a temporal limitation with a
beginning and an end." Id. (internal quotation marks omitted).
Accordingly, the court concluded that the regulation continues
to prevent the release of I-247 forms even after a detainee has
been released from custody. Id. at 649. Our interpretation,
that the regulation is not temporally limited in application, is
consistent with the Connecticut Supreme Court's holding.
¶40 Finally, we note that our opinion does not curb the
presumption of openness that Wisconsin public records law so
carefully protects. An overarching purpose of 8 C.F.R. § 236.6
is to channel requests for federal records through federal law;
namely the Freedom of Information Act (FOIA).22 See generally
22
The notices explaining the purpose of the regulation
state: "Accordingly, any disclosure of such records will be
made by the Service and will be governed by the provisions of
applicable Federal law, regulations, and Executive Orders. This
rule does not address or alter in any way the Service's policies
regarding its release of information concerning detainees; these
(continued)
22
No. 2015AP1152
5 U.S.C. § 552. After all, the federal government is in a
better position to determine whether there are privacy and
safety risks innate in releasing records that it created.
¶41 In the present case, the requested records, I-247
forms of individuals housed in Milwaukee County Jail, fall under
the umbrella of 8 C.F.R. § 236.6. The individuals in the
present case, all of whom are subject to I-247 requests, are
detainees that were housed, maintained, or serviced by a local
entity.23 Accordingly, federal law mandates that information
pertaining to these detainees contained in I-247 forms not be
released.
¶42 Given that a federal law prevents the release of the
information in I-247 forms, we conclude that both Wis. Stat.
§ 19.36(1) and Wis. Stat. § 19.36(2) apply to exempt I-247 forms
from disclosure under Wisconsin public records law. As the text
of the statute suggests, § 19.36(1) prevents the release of any
document that is exempted from disclosure under federal law.
¶43 Similarly, Wis. Stat. § 19.36(2) exempts from
disclosure any record containing information that federal law
mandates not be released because it "relat[es] to investigative
policies remain unchanged." Release of Information Regarding
Immigration and Naturalization Service Detainees in Non-Federal
Facilities, 67 FR 19508-01, 19509 (April 22, 2002).
23
Neither party disputes that the Milwaukee County
Sheriff's Department participates in ICE's detainer program, and
Voces cited the Sheriff's participation in the program as one of
the reasons it sought to obtain the requested forms.
23
No. 2015AP1152
information obtained for law enforcement purposes." And, as
discussed above, 8 C.F.R. § 236.6 mandates that state or local
entities are not to release information contained within I-247
forms. Therefore, both of these provisions exempt I-247 forms
from disclosure pursuant to the provisions of Wisconsin public
records law. Accordingly, the Sheriff cannot be compelled to
produce them.
III. CONCLUSION
¶44 In light of the foregoing, we need not reach the
common-law exemptions or balancing test because we conclude that
the I-247 forms are statutorily exempt from disclosure under
Wisconsin public records law. Stated more fully, under Wis.
Stat. §§ 19.36(1)-(2), any record exempted from disclosure
pursuant to federal law is exempt from disclosure under
Wisconsin law. And, federal regulation 8 C.F.R. § 236.6
precludes the release of any information pertaining to
individuals detained by a state or local facility and I-247
forms contain such information. Accordingly, read together,
Wis. Stat. §§ 19.36(1)-(2) and 8 C.F.R. § 236.6 exempt I-247
forms from release under Wisconsin public records law.
Furthermore, because I-247 forms are statutorily exempt from
release, the public interest balancing test has no application
here.
By the Court.—The decision of the court of appeals is
reversed; writ of mandamus is quashed.
¶45 Annette Kingsland Ziegler, J., did not participate.
24
No. 2015AP1152.awb
¶46 ANN WALSH BRADLEY, J. (dissenting). Wisconsin's
Public Records Law "serves one of the basic tenets of our
democratic system by providing an opportunity for public
oversight of the workings of government." Majority op., ¶17
(citations omitted). Relying on this basic tenet, Voces de la
Frontera requests unredacted copies of federal immigration
detainer forms issued to Milwaukee County Sheriff David Clarke
by Immigration and Customs Enforcement ("ICE").
¶47 The circuit court determined that Wisconsin's Public
Records Law requires the release of unredacted copies of the
detainer forms. It explained that Voces de la Frontera made a
compelling case and that Sheriff Clarke offered no good reason
to justify any redaction.
¶48 The court of appeals affirmed. Noting uncontested
facts, it rejected Sheriff Clarke's newly raised argument that
an obscure federal regulation, 8 C.F.R. § 236.6, precluded
release of the detainer forms.1
1
8 C.F.R. § 236.6 provides in relevant part:
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. . . . (emphasis added).
1
No. 2015AP1152.awb
¶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.2
¶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.
¶52 Once more a majority of this court reverses a
unanimous court of appeals decision affirming a circuit court
order requiring the release of records to the public, further
undermining the principle that Wisconsin Public Records Law be
construed "in every instance with a presumption of complete
public access." Wis. Stat. § 19.31.
¶53 This time the majority rewrites a federal regulation
by deleting the phrase "on behalf of the Service" from the
2
A "hail mary" is "a long forward pass in football,
especially as a last-ditch attempt at the end of a game, where
completion is considered unlikely." Random House Unabridged
Dictionary 859 (2d ed. 1993).
2
No. 2015AP1152.awb
regulatory language in order to reach its conclusion that yet
another public records request must fail. Given the cumulative
effect of the majority's approach, one wonders if a day will
come when we awake to find that this continuous "chipping away"
has substantially gutted Wisconsin's commitment to open
government.
¶54 Contrary to the majority, I agree with the circuit
court that Clark offers no good reason to counter the strong
presumption of open access to these public records. I likewise
agree with the unanimous court of appeals that the federal
regulation does not statutorily exempt immigration detainer
forms from release under Wisconsin's Public Records Law. Both
the plain language of the federal regulation and its
promulgation history establish that it applies only to detainees
in the custody of the federal government.
¶55 Accordingly, I respectfully dissent.
I
¶56 I begin by setting forth more complete facts to
provide the necessary context. After new federal guidelines
were released, Voces de la Frontera ("Voces") submitted a public
records request seeking copies of immigration detainer forms (I-
247) issued by ICE to Sheriff Clarke's office. Following a
delay without a response, Voces filed an action seeking the
issuance of a writ of mandamus to compel the release of the
detainer forms under Wisconsin's Public Records Law.
¶57 Sheriff Clarke eventually released redacted versions
of the requested detainer forms. In reaching a determination
3
No. 2015AP1152.awb
about what information to redact, Sheriff Clarke's record
custodian explained that she consulted with ICE, and redacted
certain information based primarily on ICE's advice.
¶58 Voces sought release of unredacted versions of the
detainer forms. The circuit court ordered Sheriff Clarke to
produce unredacted copies, concluding that Voces made a
compelling case that it had a strong interest in ensuring its
government was complying with federal guidelines. It further
observed that "there was never a very good reason given as to
why [] information should be redacted other than ICE [] believes
it should be redacted."
¶59 Sheriff Clarke appealed, raising a new argument before
the court of appeals that an obscure federal regulation, 8
C.F.R. § 236.6, precludes release of the redacted portions of
the detainer forms. Relying on undisputed facts, the court of
appeals several times observed that Sheriff Clarke "does not
dispute the fact that the prisoners in question here were held
on state charges which had not expired." Voces De La Frontera,
Inc. v. Clarke, 2016 WI App 39, ¶28, 369 Wis. 2d 103, 880
N.W.2d 417; see also id., ¶¶25, 36.
¶60 The court of appeals rejected Sheriff Clarke's new
argument, concluding that the plain language of the federal
regulation applies only to detainees held on behalf of the
federal government. Id., ¶28. Applying the balancing test, it
further determined that Sheriff Clarke failed to meet his burden
to overcome the strong presumption in favor of release of the
unredacted detainer forms. Id., ¶47.
4
 No. 2015AP1152.awb
¶61 Having been unsuccessful in both the circuit court and
the court of appeals, Sheriff Clarke now turns to this court.
At issue is whether the detainer forms are statutorily exempt
from disclosure pursuant to Wis. Stat. § 19.36(1)-(2).
II
¶62 The parties agree and the majority acknowledges that
the requested I-247 forms are public records as defined by Wis.
Stat. § 19.32(2). Majority Op., ¶17 n.13. Consequently, any
analysis must begin with a strong presumption favoring release
of the requested records. See Linzmeyer v. Forcey, 2002 WI 84,
¶15, 254 Wis. 2d 306, 646 N.W.2d 811.
¶63 The majority contends that read together Wis. Stat.
§ 19.36(1)-(2) and the federal regulation statutorily preclude
release of the I-247 forms.3 Majority op., ¶3. It posits that 8
C.F.R. § 236.6 prohibits release of any information pertaining
to individuals detained in a state or local facility, despite
3
Wisconsin Stat. § 19.36(1)-(2) (2013-14) provide:
(1) Any record which is specifically exempted from
disclosure by state or federal law or authorized
to be exempted from disclosure by state law is
exempt from disclosure under s. 19.35(1), except
that any portion of that record which contains
public information is open to public inspection
as provided in sub. (6).
(2) Except as otherwise provided by law, whenever
federal law or regulations require . . . that any
record relating to investigative information
obtained for law enforcement purposes be withheld
from public access, then that information is
exempt from disclosure . . . .
5
No. 2015AP1152.awb
the fact that this obscure federal regulation has never before
been applied to state or local detainees.4 See id.
¶64 However, the majority's non-textual interpretation is
trumped by the regulation's plain language and the agency's
intent at the time of the regulation's promulgation. See
Gardebring v. Jenkins, 485 U.S. 415, 429–30 (1988). The plain
language of 8 C.F.R. § 236.6 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 added).
"Service" refers to the federal government's Immigration and
Naturalization Service ("INS").5 The phrase "on behalf of the
Service" indicates that that the regulation applies only to
4
Neither the majority nor the parties cite to any case that
has previously applied 8 C.F.R. § 236 to detainees in state or
local custody. Additional research yielded no such case.
5
The INS promulgated 8 C.F.R. § 236.6 as an interim rule in
April 2002, and adopted it as a final rule without change in
January 2003. Release of Information Regarding Immigration and
Naturalization Service Detainees in Non-Federal Facilities, 67
Fed. Reg. 19508-11 (Apr. 22, 2002); 68 Fed. Reg. 4364-67 (Jan.
29, 2003). In March 2003, pursuant to the Homeland Security Act
of 2002, INS was disbanded and replaced with three new federal
agencies, one of which is ICE. U.S. Citizenship and Immigration
Services, Overview of INS History 11 (2012),
https://www.uscis.gov/sites/default/files/USCIS/History%20and%20
Genealogy/Our%20History/INS%20History/INSHistory.pdf. Therefore,
in the context of this discussion of 8 C.F.R. § 236.6,
references to the INS and ICE are used interchangeably.
6
No. 2015AP1152.awb
detainees being held on behalf of federal immigration
authorities.6
¶65 Likewise, the supplementary information published in
the Federal Register in connection with the promulgation of 8
C.F.R. § 236.6 consistently makes clear that the regulation is
limited to detainees held "on behalf of" federal immigration
authorities. Release of Information Regarding Immigration and
Naturalization Service Detainees in Non-Federal Facilities, 68
Fed. Reg. 4364 (Jan. 29, 2003) ("This final rule governs the
public disclosure by any state or local government
entity . . . of . . . information relating to any immigration
detainee being house or otherwise maintained . . . on behalf of
the Immigration and Naturalization Service (INS or Service)");
67 Fed. Reg. 19508 (Apr. 22, 2002) ("This rule will establish a
6
Receipt of an I-247 form by a state or local law
enforcement agency does not convert a state or local detainee
into a federal detainee in the custody of ICE. The language of
the I-247 form explains that it is simply a request from ICE to
a state or local agency: "IT IS REQUESTED THAT YOU: Maintain
custody of the subject for a period not to exceed 48
hours . . . beyond the time when the subject would have
otherwise been released from your custody to allow DHS to take
custody of the subject" (emphasis in the original).
Additionally, a federal regulation explains that a detainer
serves to advise another law enforcement agency that the federal
government seeks custody of a detainee presently in the custody
of a state or local agency. 8 C.F.R. § 287.7(a); see also
Galarza v. Szalczyk, 745 F.3d 634, 642 (3rd Cir. 2014)
("[D]etainers are not mandatory."); Milwaukee County Board of
Supervisors, Resolution 12-135 (June 4, 2012),
https://milwaukeecounty.legistar.com/LegislationDetail.aspx?ID=1
124069&GUID=3D583485-4F01-4B43-B892-D6FFE5D327BF ("[D]etainers
are not mandatory but are considered 'requests'").
7
No. 2015AP1152.awb
uniform policy on the public release of information on Service
detainees") (emphasis added).
¶66 Despite the plain language of 8 C.F.R. § 236.6 and the
clear indications in the Federal Register reiterating that the
application of the regulation is limited to detainees in federal
custody, the majority concludes otherwise. By positing that the
regulation is not limited to detainees in federal custody, i.e.
"8 C.F.R. § 236.6 is not temporally limited," the majority
impermissibly rewrites the regulation, deleting words from it.
See Majority op., ¶33.
¶67 The majority concedes as reasonable the court of
appeals' conclusion that a detainee must be in federal custody
at the time the detainer form was served in order for 8 C.F.R.
§ 236.6 to apply. Majority op., ¶¶25, 27. Nevertheless, it
deletes words from the federal regulation to embrace an
alternative interpretation. Majority op., ¶¶33-34.
¶68 The majority embraces a conclusion of ambiguity, as it
must, in order to be free to borrow from extrinsic sources to
support its contention that the federal regulation applies to
any detainee with a federal immigration detainer——even those in
state or local custody. Majority op., ¶¶27-28. By deleting
words from the regulation to render it ambiguous, the majority
undermines the principle that statutory exceptions under
Wisconsin's Public Records Law must be clear and explicit.
¶69 As this court explained, "the general presumption of
our law is that public records shall be open to the public
unless there is a clear statutory exception . . . Exceptions
8
No. 2015AP1152.awb
should be recognized for what they are, instances in derogation
of the general legislative intent, and should, therefore, be
narrowly construed; and unless the exception is explicit and
unequivocal, it will not be held to be an exception." Hathaway
v. Joint Sch. Dist. No. 1, City of Green Bay, 116 Wis. 2d 388,
397, 342 N.W.2d 682 (1984) (emphasis added). If, as the
majority contends, 8 C.F.R. § 236.6 is ambiguous and subject to
alternative reasonable interpretations, it follows that the
regulation does not present a "clear statutory exception"
precluding release of the record to the public. See id.
¶70 Further evincing that 8 C.F.R. § 236.6 does not apply
here is the fact that neither ICE nor Sheriff Clarke cited 8
C.F.R. § 236.6 as a justification for denying Voces' public
records request until this case was on appeal.7 Such a void
7
At oral arguments, counsel revealed that Sheriff Clark's
office consulted with two different ICE representatives and the
ICE representatives did not cite 8 C.F.R. § 236.6 as
justification for denying the release of the requested I-247
forms:
The Court: [D]id ICE tell the Sheriff's office you
cannot release any information or these records
pursuant to 8 C.F.R. § 236.6?
Counsel for Sheriff Clarke: They were not provided
with that advice, no. The advice they received was
certain specific information on these forms should be
redacted and here are the reasons why under federal
law under FOIA (Freedom of Information Act) ICE
believed the information should be protected.
The Court: Then it doesn't appear that ICE was
applying § 236.6 to these forms because they oked the
release of the names among other arguably personal
identifiable information.
(continued)
9
No. 2015AP1152.awb
highlights that this relatively obscure federal regulation was
never intended to apply to detainees in state or local custody.
Apparently both were unfamiliar with this obscure regulation
upon which Clark and the majority now rely.
¶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. See Am. Civil Liberties Union of New
Jersey, Inc. v. Cty. of Hudson, 799 A.2d 629, 648 (N.J. App.
Div. 2002) ("the real focus of the regulation, as evidenced by
the rationale presented in its preamble, may be seen to be on
the facilitation of law enforcement efforts in the wake of
September 11.").
¶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
Counsel for Sheriff Clarke: It appears that way.
236.6 is a relatively obscure provision and why it
wasn't relied upon at the trial court level I am not
sure. But I think it clearly applies to the facts of
this case.
The Court: But not just at the trial court level, ICE
itself was not applying 236, or were they?
. . .
Counsel for Sheriff Clarke: At the time of the open
records request ICE did not tell Milwaukee County
don't produce them because 236 applies.
10
No. 2015AP1152.awb
release of information about detainees in state or local custody
who may later be transferred to federal custody.8
¶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.9
8
See e.g., Release of Information Regarding Immigration and
Naturalization Service Detainees in Non-Federal Facilities, 67
Fed. Reg. 19510 (Apr. 22, 2002) ("Disclosure could reveal
important information about the direction, progress, focus and
scope of investigations arising out of the attack on September
11, 2001, and thereby assist terrorist organizations in
counteracting investigative efforts of the United
States. . . . In light of the national emergency declared by the
President . . . with respect to the terrorist attacks of
September 11, 2001, and the continuing threat by terrorists to
the security of the United States, and the need immediately to
control identifying or other information pertaining to Service
detainees . . . ."); see also 68 Fed. Reg. 4366 (Jan. 29, 2003).
9
The majority further missteps by concluding that the
requested I-247 forms are exempt in their entirety without
analysis of the possibility of redaction. Majority op., ¶3. In
so doing, the majority disregards the statutory requirement that
when a record contains some information subject to disclosure
and other information that is not, the record custodian "shall
provide the information that is subject to disclosure and delete
the information that is not subject to disclosure from the
record before release." Wis. Stat. § 19.36(6). Thus, once
again, a majority of this court "renders meaningless the
statutory direction to redact." Democratic Party of Wisconsin,
372 Wis. 2d 460, ¶121 (Abrahamson, J., dissenting).
11
No. 2015AP1152.awb
¶74 Having concluded that the distinction between whether
a detainee is in federal versus state or local custody is
dispositive, I normally would turn next to apply that
distinction to this case. But not here.
¶75 Before this case reached this court it was undisputed
that the detainees in question were in state custody. The court
of appeals repeatedly explained, "[i]t is undisputed that
Sheriff Clarke held the jail prisoners in state custody and that
custody had not expired at the time of the open records
requests." Voces De La Frontera, 369 Wis. 2d 103, ¶25; see also
id., ¶28 ("The Sheriff does not dispute the fact that the
prisoners in question here were held on state charges which had
not expired. . . . Here it is undisputed that the state custody
had not ended."); id., ¶36 ("Here the twelve detainees were
still in custody on their state charges . . . ").
¶76 However, during oral argument before this court
Sheriff Clarke reneged on the previously uncontested facts. He
now asserts that some of the detainees in question were in
federal custody at the time Voces submitted this request.
¶77 Sheriff Clarke's attempt to reconstruct the factual
record at oral arguments is unavailing. He is not requesting,
pursuant to Wis. Stat. § 809.15(3), that this court supplement
or correct the record because it does not accurately reflect
what occurred in the circuit court. Rather, it appears he now
wants to create a different factual record. Sheriff Clarke had
the burden before the circuit court to present sufficient facts
and legal arguments to overcome the presumption favoring release
12
No. 2015AP1152.awb
of the requested records. See Fox v. Bock, 149 Wis. 2d 403,
416, 438 N.W.2d 589 (1989). As explained further below, he
failed to meet his burden. The time to develop a factual record
is before the circuit court, not at oral arguments before this
court.
III
¶78 Having determined that 8 C.F.R. § 236.6 pertains to
detainees in the custody of only the federal government and that
no statutory exemptions precluding release apply here, I examine
next whether the records should be released. See Linzmeyer, 254
Wis. 2d 306, ¶24.
¶79 This court applies "a balancing test on a case-by-case
basis to determine whether permitting inspection of the records
would result in harm to a public interest which outweighs the
public interest in opening the records to inspection." Id., ¶25
(citation omitted). As the party seeking nondisclosure, Sheriff
Clarke has the burden of overcoming the presumption in favor of
releasing the requested I-247 forms. See Fox, 149 Wis. 2d at
416.
¶80 The balancing test is first applied by the records
custodian. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279
N.W.2d 179 (1979). "If the custodian decides not to allow
inspection, he must state specific public-policy reasons for the
refusal. These reasons provide a basis for review in the event
of court action." Id. (citations omitted); Fox, 149 Wis. 2d at
416-17.
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¶81 Here, the records custodian explained that her
decision to redact information from the I-247 forms was made
pursuant to guidance provided by ICE. She stated, "[w]e work
with other law enforcement agencies and if they tell me one of
their numbers . . . is law enforcement sensitive, yes, I believe
them." The records custodian did not cite 8 C.F.R. § 236.6 or
another public policy reason as justification for her decision
to not fully comply with Voces' public records request.
¶82 Nevertheless, the majority declares, "it is sufficient
that [the records custodian] recognized that I-247 forms may
contain sensitive information and accordingly took measures to
ensure that such information was not improperly released"
because "[w]e cannot expect a records custodian to have
expertise in federal immigration law . . . ." Majority op., ¶5
n.5.
¶83 On appeal, Sheriff Clarke argues that "[t]he balancing
test requires consideration of Wisconsin's presumption of
privacy with respect to law enforcement records and personally
identifiable information . . . ." He also cites several FOIA
factors generally supporting these two public policies.
¶84 The need to protect privacy of law enforcement records
is a valid public policy concern. Linzmeyer, 254 Wis. 2d 306,
¶30 (explaining that records of law enforcement investigations
can be particularly sensitive and "are generally more likely
than most types of public records to have an adverse effect on
other public interests if they are released."). Additionally,
as the Linzmeyer court explained, if the release of a police
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record would interfere with an on-going prosecution or
investigation, the general presumption of openness will likely
be overcome. Id.
¶85 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 on-going prosecution or investigation.
Unlike a police report which contains details about a specific
crime under investigation, the detainer forms contain
generalized information, much of which Sheriff Clarke already
disclosed on his website.
¶86 For example, evidence introduced in the circuit court
revealed that during the course of this litigation, Sheriff
Clarke's office posted on its website information about
detainees in his custody. Four separate posts were introduced
with each containing the name of a detainee, his photograph and
other personally identifying information. In bold letters above
each photograph appeared the word "Hold." Below the photograph
appeared information that indicated that it was an immigration
or ICE hold. This evidence undermines Clark's purported privacy
concerns about ICE holds.
¶87 Sheriff Clarke further argues that the strong public
interest in protecting a detainee's privacy and reputation
precludes release of the records. Yet, Sheriff Clarke's concern
about the detainees' privacy interests rings hollow considering
the disclosures he made on his website of some of the very
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No. 2015AP1152.awb
information he now seeks to withhold from Voces. Before the
circuit court Voces questioned:
[I]s it accurate to say that the only difference
between what Sheriff Clarke sua sponte on his own
behalf publishes on his website about the immigration
status of individuals in his custody and what is on
the form and what has been redacted by Sheriff Clarke
on this form under the pretext of a concern for
individual privacy is that Voces' ability to monitor
and surveil compliance with administrative priorities
is impaired . . . ?
¶88 On the other side of the balancing test is Voces
attempt to provide public oversight of law enforcement and
immigration law implementation, specifically to ensure that
Sheriff Clarke's office is complying with federal and state law.
Before the circuit court, Voces explained that it has an
interest in monitoring and collecting data to ensure that
Sheriff Clarke's office is complying with federal immigration
guidelines. Voces also expressed concern that non-compliance
with federal guidelines would hinder law enforcement abilities
by eroding public trust and collaboration between law
enforcement and immigrant communities. The circuit court found
these interests to be "compelling." I agree.
¶89 Further weighing in favor of disclosure is the fact
that Voces seeks information about the actions of an elected
official. See Democratic Party of Wisconsin, 372 Wis. 2d 460,
¶18 (citing Linzmeyer, 254 Wis. 2d 306, ¶29). Additionally, "the
process of police investigation is one where public oversight is
important." Linzmeyer, 254 Wis. 2d 306, ¶27.
¶90 Sheriff Clarke points to the important public
interests of the need to protect "privacy with respect to law
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No. 2015AP1152.awb
enforcement records and personally identifiable information."
Nevertheless, on balance, I conclude that he has failed to meet
his burden. Sheriff Clarke has not established that the release
of the I-247 forms would result in harm to the public interest
outweighing the strong public interest in providing public
oversight of an elected official to ensure compliance with
federal and state law. Accordingly, I would affirm the court of
appeals decision ordering the unredacted release of the I-247
forms.
¶91 For the foregoing reasons, I respectfully dissent.
¶92 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2015AP1152.awb
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