Accessing Information from ICE
Q: Local reporters have complained that they have been unable to get basic information from US Immigration and Customs Enforcement (ICE) following ICE\’s recent raids targeting immigration fugitives in northern California. In reporting on raids in which scores of people are arrested and removed from their communities, reporters say that ICE declines to state: how many people have been arrested; who has been arrested; where they have been taken, etc.
I’ve heard that ICE has invoked the federal Privacy Act as a reason for withholding even basic information.
My question is: What are the rights of journalists, under FOIA or other authority, to demand this information? What advice can we give, legal or just practical, to assist journalists in getting this information?
A: The Privacy Act does not provide a basis for withholding records which an agency would otherwise be required to disclose under FOIA. The Act does a number of things (for instance, it not only prohibits the release of certain records, but also affirmatively requires agencies to provide individuals access to records concerning them), but the relevant section for this inquiry appears to be 5 USC § 552a(b), which provides: “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains . . .” However, there are a number of exceptions, one of which requires disclosure under the Privacy Act if disclosure is required under FOIA. See 5 USC 552a(b)(2). This subsection “expressly defers to the mandatory disclosure requirements of the FOIA by prohibiting the nonconsensual release of personal information unless the information is required to be disclosed under the FOIA.” Cochran v. United States, 770 F.2d 949, 954-955 (11th Cir. 1985). Thus, the only practical limit the Privacy Act places on FOIA disclosures is to prohibit disclosure in circumstances where agencies already have the discretion to withhold records under a FOIA exemption.
Nor does the Privacy Act provide a basis for withholding records through “Exemption 3” of FOIA (exempting from FOIA records specifically exempted by statutes meeting certain criteria). See 5 USC 552(b)(3). While the Privacy Act allows agencies to exempt certain records from disclosure under the Act (including certain law enforcement and investigative records), see 5 USC 552a(j), (k), a 1984 amendment provides that “[n]o agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to such individual under the provisions of [FOIA].” 5 USC 552a(t)(2). The Seventh Circuit clarified the effect of the amendment:
Congress intends that the courts construe the Privacy Act and the Freedom of Information Act separately and independently so that exemption from disclosure under the Privacy Act does not exempt disclosure under the Freedom of Information Act, and vice versa. . . . In other words, the information may be unavailable when a party requests access to that information under the Privacy Act but may be available when that information is requested under the Freedom of Information Act.
Shapiro v. Drug Enforcement Admin., 762 F.2d 611, 612 (7th Cir. 1985), on remand from United States DOJ v. Provenzano, 469 U.S. 14 (U.S. 1984). Note that some courts require a written FOIA request for disclosure of records otherwise protected under the Privacy Act.
The question, then, is whether FOIA contains any exceptions to disclosure that would apply to the information in question, such as the number and identities of persons arrested by the ICE and where they have been taken. It looks like the ICE generally relies on Exemption 7, which allows agencies to hold certain records pertaining to law enforcement investigations. See 5 USC 552(b)(7). The section of the ICE website dealing with FOIA/Privacy Act tracks the language of Exemption 7, asserting that “U.S. Immigration and Customs Enforcement records are investigatory records compiled for law enforcement purposes.” To invoke Exemption 7 an agency must (1) demonstrate that the info requested is contained in “records or information compiled for law enforcement purposes”, and (2) demonstrate that disclosure would cause one of 6 types of foreseeable harms enumerated in the statute as follows:
(A) could reasonably be expected to interfere with enforcement proceedings,
(B) would deprive a person of a right to a fair trial or an impartial adjudication,
(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,
(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
(F) could reasonably be expected to endanger the life or physical safety of any individual
Depending on the facts of a particular case and the specific information sought, several of these might be applicable, but the most likely candidate seems to be the privacy exemption of 7C. Courts applying this exemption balance the privacy concerns against the public interest in disclosure. E.g., Sakamoto v. United States EPA, 443 F. Supp. 2d 1182, 1196 (N.D. Cal. 2006). As you might imagine, the inquiry is highly fact-specific, and courts have reached varying results. Compare, e.g., Tennessean Newspaper, Inc. v. Levi, 403 F. Supp. 1318, 1321 (D. Tenn. 1975) (Disclosing age, address, marital status, employment status, scope of investigation leading to arrest or indictment or other background material about persons arrested or indicted for federal criminal offenses “does not involve substantial privacy concerns.”), with e.g., SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991) (noting that 7C affords broad privacy rights to suspects, witnesses, and investigators: “[U]nless there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity, and access to the names of private individuals appearing in the agency’s law enforcement files is necessary in order to confirm or refute that evidence, there is no reason to believe that the incremental public interest in such information would ever be significant.”).
Note that the ICE could also potentially rely on one other FOIA exemption, Exemption 6, concerning “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 USC § 552(b)(6). However, there would seem to be no reason for it to do so since we are likely dealing with law enforcement records, and therefore Exemption 7C provides the ICE a less demanding standard for withholding records on the basis of privacy. Rushford v. Civiletti, 485 F. Supp. 477, 478 (Dist. D.C. 1980).
In terms of practical advice, the best thing a reporter can do is to be aggressive about pursuing these requests. The reporter should memorialize his or her request in a written FOIA request; follow up any denials with a written appeal (keeping in mind the FOIA’s relatively short time period for pursuing an appeal), and explain why the Privacy Act does not apply, and why the FOIA’s law enforcement exemption would not apply to the basic information the reporter is seeking. By making it more difficult and time-consuming for the agency to deny these requests, they might decide it’s easier to go ahead and disclose the information. In addition, reporters should be reminded to use the editorial page to take ICE officials to task for refusing to disclose this kind of basic information.