The state Freedom of Information Commission considered an appeal from Yale attorneys on Wednesday asking the state Department of Public Safety to release records pertaining to state police involvement in the Department of Homeland Security’s June 6 raids on illegal immigrants in Fair Haven, although the commission did not reach a decision.
Arguing that federal FOIA laws do not apply to a state agency assisting in an administrative procedure, Law School attorneys representing immigrant-rights groups contested the disclosure exemptions yesterday. The hearing commissioner will personally review the redacted documents in the next week, the commissioner said.
Citing federal Freedom of Information Act laws, the DPS refused in October to disclose a portion of its records, including an operational plan for the raids that they received from DHS on May 29.
Wednesday’s session was the first FOIA hearing held in the wake of the DHS raids — and is only the first of many to come, University attorneys predict. Law School attorneys and students, representing immigrant-rights groups JUNTA for Progressive Action and Unidad Latina en Accion, are also in the process of litigating FOIA requests with the DHS, as well as the State Department and the Department of Justice, regarding the inclusion of U.S. Marshals Service employees and Diplomatic Security Service members in raids operations, which they said they found puzzling.
“It’s surprising how readily [the DPS has] delegated their responsibility to disclose records to federal law,” said Justin Cox LAW ’08, who is working on the case. “Federal law does not pre-empt state law. There’s no supremacy of federal FOIA law over state law.”
In withholding the operations plan, the DPS invoked state FOIA law, which prohibits the release of records relating to criminal investigations. But in a June 14 letter to Sen. Chris Dodd, DHS Secretary Michael Chertoff acknowledged that the arrests made June 6 were administrative — not criminal — in nature.
DPS officials asked state police to be present at the raids on June 6 as a precaution, DPS Commissioner staff member Seth Mancini testified yesterday. If drugs appear as an investigation proceeds, state police would be the only law enforcement body authorized to issue arrests, he said. Simon Moshenberg LAW ’08, another intern at the Law School, said the raids’ non-criminal nature negated the exemption clause for relevant documents.
“What [the DPS is] saying is that this was a homeland security operation that they provided backup to,” Moshenberg said. “I’m hard-pressed to see how providing backup to an administrative warrant action counts as an investigation of a crime. If you look at the invitation [Immigration and Customs Enforcement] sent, it makes no mention of ‘we think there may be state violations here.’ ”
E-mail correspondence obtained through a request by the Yale attorneys representing immigants-rights groups, though partially censored with a black magic marker, indicate that at least some state and federal officials gleefully anticipated the operation. The e-mails include many exclamation points when discussing the raids, which were originally slated for May 2.
“We have an OP scheduled for Wed, 05/02/07 in New Haven,” one e-mail reads. “[I]f you’re interested we’d love to have you! We have 18 addresses — so it should be a fun time!! Let me know if you guys can play!!”
JUNTA Program Director for Economic Development Laura Huizar ’06 and Unidad Latina en Accion representative Khalil Iskarous said they found the e-mail’s language particularly disturbing and dehumanizing. Fair Haven community members have already endured trauma from the raids, Iskarous said, and the recently released e-mails indicate a distressing “language of sport.”
“The [Fair Haven] community is now much more afraid of government, and that includes state, federal and police agents, our local police,” Huizar testified. “So people are much more afraid of reporting crime, and that generally worries us because it creates a less safe environment for our community.”
Mancini referenced both federal and state FOIA exemptions as DPS’ reasons for withholding the operation plan as well as a list of 32 names with corresponding personal information, such as addresses and birthdates, which DHS had on file and used in conjunction with the raids. Keeping the names confidential would discourage state cooperation with federal authorities in the future, in addition to violating the privacy rights of the 32 individuals, he said.
“The sensitive nature of the information provides personnel, dates, times, techniques,” Mancini said. “That information being made public in the future, if similar types of action were undertaken, would make it much harder for law enforcement.”
But Moshenberg said federal records on file with the state are automatically classified as state records and are just as subject to disclosure as state records, regardless of their federal origins.
Although the immigrants’ attorneys are not certain which 32 names are listed on the documents, DHS arrested the same number of residents June 6, many of whom have posted bail. Moshenberg and Cox said the expedited hearing was important because the deadlines for their clients’ immigration court briefs are fast-approaching, and because FOIA is often the only resource for obtaining evidence in these types of cases.
“Discovery,” the process of requesting documents or calling up witnesses in civil or criminal court, does not exist in immigrant court proceedings, Cox said.
“We’re fighting a ticking clock,” Moshenberg said. “The immigration judge has ordered us to file our briefs by Nov. 30. Those briefs have to be supported by evidence, and that is in the hands of the DPS.”
When considering which files to disclose or keep private, DPS notified DHS, which made its own decisions about whether to release the requested documents. During the hearing, the FOI commissioner acknowledged that because Connecticut FOIA only allows for disclosure withholdings if they “would not be in the public interest,” the burden of proving the negative consequences of disclosure falls on the DPS.
Anastazia Taylor, a paralegal for FOIA requests, testified that she considered “everybody” when making the federal redactions, but Moshenberg said it was clear that she did not take Connecticut’s specific FOIA laws regarding public interest into consideration.
“She handled it like it was any other request to the federal government, which it wasn’t,” he said. “We are glad that [the commission] recognizes the importance of this.”
Based on the evidence presented Wednesday, the FOI hearing officer will present a recommendations report to the FOI commission. Final testimony is scheduled for next Wednesday, and the commission plans to reach a decision by Thursday on whether they agree or disagree with the hearing officer’s recommendations, FOI Commission attorney Hank Pawlowski said.