The American Immigration Council is a non-profit, non-partisan organization. By Meghan Conley, Ph.D., Spring Miller Senior Director of Legal Strategy, Tennessee Immigrant and Refugee Rights Coalition, and Raul Pinto
For years, immigration advocates and attorneys have used state open records laws to document how local law enforcement agencies participate in the detention of immigrants on behalf of U.S. Immigration and Customs Enforcement (ICE). Recently, it has come to light that ICE has been working to control the release of these records, demonstrating how ICE is shielding its operations from public scrutiny. A new request under the federal Freedom of Information Act (FOIA) filed this week seeks to expose this practice.
ICE has been telling local governments that partner with the agency what they can and can’t release to the public, even under their own state laws. The Dallas Morning News reported that in April, ICE emailed jurisdictions with 287(g) agreements, asserting that the “prohibition on [an] agency’s unilateral release of ICE information is expansive” and ordered them to “immediately consult with the ICE FOIA office, ICE Public Affairs, or your local Field Office Director” before responding to any public records requests.
Although these directives were sent in April, local law enforcement agencies were already blocking access to records under state law. Tennessee Immigrant and Refugee Rights Coalition (TIRRC) and Professor Meghan Conley requested records from certain Tennessee county jails temporarily housing people in detention on ICE’s behalf, including basic records that county jails routinely create for all detainees. The jails refused, at ICE’s direction.
The experience of TIRRC and Prof. Conley is not an isolated incident. In Iowa, for example, the Capital City Dispatch requested in February the contract between Muscatine County and ICE to house individuals at the local jail. The county attorney refused, claiming ICE “equities” in the documents and punting it to the federal FOIA process.
In 2022, the Michigan Supreme Court decided one of the most important court cases to address this issue. In ACLU of Michigan v. Calhoun County Sheriff’s Office, the Calhoun County Sheriff’s Office tried to withhold records about a U.S. citizen, detained first in the Calhoun County jail and then transferred to ICE custody. The Sherriff’s Office invoked a federal immigration regulation that bars state or local government entities from disclosing “the name, or other information relating to” a person detained “on behalf” of ICE.
Michigan’s Supreme Court was unpersuaded. Michigan law allows local governments to withhold information when federal law prohibits disclosure, and a regulation is not a law. The Court noted that the requested records weren’t even in ICE’s possession.
Therein lies the problem. Local law enforcement agencies refuse to release records created by their own agency by citing “ICE equities.” But those same records may not be in ICE’s possession, and thus not obtainable via a federal FOIA request to ICE. The result is a black hole for transparency: the records exist, but there is no avenue to get them.
Local records are an essential tool for community advocates to understand how local law enforcement agencies participate in immigration enforcement. These records are vital for investigating what happens to immigrants held in county jails before ICE takes custody. They may include arrest reports, records of medical treatment, and other data local law enforcement agencies collect on detained individuals. These documents are created by local agencies and may never be passed on to ICE, making them available only through state public records laws.
Even if the documents were available from ICE, the federal FOIA is not an adequate alternative. ICE often ignores FOIA requests, all too often releasing records only after requesters sue the agency in federal court. Not all requesters have the resources to do so, and litigation often takes months.
To shed light on the scope and nature of ICE’s directives to local law enforcement agencies, TIRRC, Prof. Conley, and the American Immigration Council have filed a federal FOIA request. The request seeks ICE’s internal directives on this issue, emails from local law enforcement agencies seeking guidance, and ICE’s responses. These records should reveal how ICE is working to suppress public oversight of its activities, even when state law demands it.
