BENCH BLOG: Sheriff fights law, law wins

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A sheriff did battle with the open records law and lost.

In February 2015, Voces de la Frontera, an immigrant-rights organization, submitted an open records request to Milwaukee County Sheriff David Clarke Jr. seeking copies of all immigrant detainer forms (I-247 forms) that Clark had received from U.S. Immigration and Customs Enforcement since November 2014 for persons held in the county jail.

Captain Catherine Trimboli, a records custodian, produced copies of 12 I-247 forms, parts of which had been blacked out. Specifically missing was information concerning the subjects’ IDs, event numbers, file numbers and various boxes relating to immigration status.

Circuit court proceedings

Voces filed a writ of mandamus in circuit court to compel the sheriff to provide the blacked-out information. Milwaukee Circuit Court Judge David Borowski conducted an evidentiary hearing and Trimboli took the stand.

She testified that she had first determined that the forms were records that fell within the scope of the open-records law. She then ascertained that none of the statutory or common law exceptions to disclosure applied to the forms.

She understood she needed to conduct a balancing test between the public’s interest in disclosure and its interest in privacy. But since this was a federal form, she was unsure of the significance of some of the information. So she contacted Immigration and Customs Enforcement and then blacked out any information that the agency deemed “law enforcement sensitive.”

Judge Borowski noted that Voces’ reason for requesting disclosure of the information was to make sure the sheriff was not detaining anyone unlawfully — a “fairly compelling” reason.

In conducting the balancing test, he decided that “the strong presumption in favor of releasing records to ensure transparent government and an informed constituency” was not outweighed by the sheriff’s reason for concealing the information. Accordingly, he granted the writ of mandamus.

The sheriff appealed.

Court of Appeals decision

On appeal, Clarke first argued that federal law exempts disclosure of the I-247 forms.

Voces correctly countered that the detainees were not held in federal custody but in custody by local law enforcement. Therefore, the federal law Clarke relied on was inapplicable and did not defeat Wisconsin’s open-record law.

Clarke’s second argument was that the required balancing test favored nondisclosure of the redacted information.

In an opinion written by Judge Kitty Brennan, the Court of Appeals first found that the burden was on Clarke to overcome the presumption favoring disclosure. It was also incumbent on the records custodian to specify the reason for secrecy.

Here, the reason was simply a routine practice of deferring to other law-enforcement agencies in their determination of what is “law enforcement sensitive” information. “That is the extent to which the Sheriff conducts any balancing test, which is none at all.”

A per se deferral to law-enforcement interests does not outweigh the public policy of openness that is embodied in the open-records law.

Clarke’s only public-policy argument against disclosure was the possibility of an increased risk of identity theft to an individual. But the court responded that this was a nonevidentiary hypothetical, not a policy argument.

More importantly, harm to an individual is not the focus. The real question is: Whether there is a harm to a public interest that outweighs the public interest in disclosure and inspection.

The court ended with Judge Borowski’s statement:

“We have one of the strongest open records laws in the country. It’s called the blue sky statute. It presumes all information held and used by public officials is open to the public so we know what our government is doing. It’s an invitation to monitor and surveil the conduct of government. … If these records unredacted could allow the public … [to be] able to identify if the Sheriff violated federal law; … maybe detaining people that he should not be detaining, that’s a pretty strong public policy argument in favor of me ordering nonredacted copies to be turned over.”

Commentary

This case is a muscular addition to open-records jurisprudence.

The court emphasizes and elucidates the required balancing test. This is instructive not only to the bench and bar, but also to the plethora of record custodians throughout the state.

On another note, the extent to which the Court of Appeals quoted the circuit court’s statements reflects the convincing power of the circuit judge’s remarks and analysis.