Q: I’m working on a story about inmates in county jail released into ICE (Immigration Customs Enforcement) custody. Seeking records of these individuals has brought up two questions.
The first: are records of jail inmates (aka booking info) public? The county sheriff’s office says no.
The second: are local jails prohibited from release names of inmates on immigration holds? I’ve asked for info on inmates released into ICE custody. They refused first on the (incorrect) grounds that I was asking for summary criminal history and later when pressed on thy refused and cited federal law.
I could send all of my correspondence (requests and denials) by fax to give you the whole back and forth.
Here’s the latest email from a county sheriff’s records clerk:
The Sheriff’s Office believes that the names of jail inmates are protected from disclosure under the California Public Records Act as security records under Government Code Section 6254(f). In addition, disclosure of local summary criminal history information is prohibited pursuant to Penal Code Section 13300 (violation is a misdemeanor per Penal Code Section 13302), which also makes such information exempt under Government Code Section 6254(k).
In addition, your Public Records Act requests solely sought information relating to persons held in the jail on ICE holds. Subsequent research has revealed that the federal government prohibits disclosure of such information, pursuant to 8 C.F.R. Section 236.6. Accordingly, our office must withdraw the offer we previously made to you to provide arrest and release dates regarding such inmates.
Should you believe that these positions are incorrect, we would be happy to review any authority you would like to provide. Once again, please let us know if you have any questions.
A: Turning first to the federal piece, the regulation cited by the sheriff’s office is 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. 8 CFR 236.6.
According to 8 CFR 1.1, “[t]he term Service means the Immigration and Naturalization Service, as it existed prior to March 1, 2003. Unless otherwise specified, references to the Service after that date mean the Bureau of Citizenship and Immigration Services, the Bureau of Customs and Border Protection, and the Bureau of Immigration and Customs Enforcement.”
This regulation suggests that information related to ICE detainees may be available through “applicable federal laws,” but that state or local agencies may not disclose the information.
This regulation was discussed at length in a New Jersey case, American Civil Liberties Union of New Jersey, Inc. v. County of Hudson, 352 N.J. Super. 44 (App. Div. 2002), in which detention records were sought under New Jersey’s open records law.
The regulation was evidently promulgated after the trial court had ordered the release of certain detention records, and the appellate court reversed the order on the grounds that the federal regulation trumped the state records law.
The parties seeking disclosure in that case evidently made a number of arguments about whether the regulation was valid and constitutional, most of which the court seemed to determine were beyond the scope of the issues before it — i.e., whether the records could be released under state law notwithstanding the federal regulation.
Assuming the records you seek are implicated by the regulation, it may be necessary to pursue disclosure through federal channels, including possibly a request under the federal Freedom of Information Act.
To the extent you seek records that are not implicated by 8 CFR 236.6, it is not clear why the exemptions cited by the sheriff’s office would apply.
Section 6254(f) of California’s Public Records Act exempts from disclosure:
Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. …
However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.”
But it also provides that:
Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
(3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. … Address information obtained pursuant to this paragraph may not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. Nothing in this paragraph shall be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.
Gov’t Code § 6254(f) (emphasis added).
This statutory language seems to mean that the sheriff’s office is required to disclose booking information (except, perhaps, to the extent that the federal regulation about ICE detainees is implicated).
Penal Code § 13300 makes the issues more confusing, but it doesn’t necessarily change the outcome.
In the 70s the California legislature enacted a series of statutory provisions designed to provide agencies with “greatly improved aggregate information for the performance of their duties,” finding that “the recording, reporting, storage, analysis, and dissemination of criminal offender record information in this state must be made more uniform and efficient, and better controlled and coordinated.” Penal Code § 13100.
The statutory scheme provides limitations on disclosure of certain information, namely, “local summary criminal history information” which is defined as “the master record of information compiled by any local criminal justice agency pursuant to Chapter 2 (commencing with Section 13100) of Title 3 of Part 4 pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, dates of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person.” Penal Code § 13300.
But Penal Code § 13200 expressly provides that “[n]othing in this chapter shall be construed to affect the right of access of any person or public agency to individual criminal offender record information that is authorized by any other provision of law.”
Although this chapter of statutory provisions is not entirely clear, it seems reasonable to interpret the limitations of Section 13300 as applying only to information aggregated as “the master record” by the particular agency.
The Court of Appeal relied on Section 13300 in refusing to release “a compilation of data from a data base maintained by the Municipal Courts of Los Angeles County, including the name, birth date and zip code of every person against whom criminal charges are pending in those courts, together with the case number, date of offense, charges filed, pending court dates, and disposition,” in response to a PRA request. Westbrook v. County of Los Angeles, 27 Cal. App. 4th 157, 160 (1994).
In that case the requester evidently sought copies of the entire Municipal Court Information System, which it would use to provide criminal background checks as a commercial service.
The court concluded that “[s]ince the MCI system constitutes a master record of compiled information within the meaning of Penal Code section 13300, it must not be disseminated except as provided by that statute.” Id. at 164.
But the court noted that “[t]he statutory restrictions on dissemination of the information do not affect any right of access to individual criminal offender record information authorized by any other law,” and emphasized the aggregated nature of the records sought:
“There is a qualitative difference between obtaining information from a specific docket or on a specified individual, and obtaining docket information on every person against whom criminal charges are pending in the municipal court. If the information were not compiled in MCI, respondent would have no pecuniary motive (and presumably no interest) in obtaining it. It is the aggregate nature of the information which makes it valuable to respondent; it is that same quality which makes its dissemination constitutionally dangerous.” Id. at 165.
There is language in Westbrook, however, that lends itself to a broader reading of restrictions on criminal history information.
I am not aware of any authority discussing the potential contradiction of such a broad reading with the requirement in Gov’t Code 6254(f) that certain booking information be released.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.