Voces De La Frontera, Inc. v. Clarke

• Citation: 369 Wis.2d 103,880 N.W.2d 417
• Decision Date: 12 April 2016
• Docket Number: No. 2015AP1152.,2015AP1152.
• Parties: VOCES DE LA FRONTERA, INC. and Christine Neuman Ortiz, Petitioners–Respondents, v. David A. CLARKE, Jr., Respondent–Petitioner–Appellant.
• Court: Court of Appeals of Wisconsin

369 Wis.2d 103

880 N.W.2d 417

VOCES DE LA FRONTERA, INC. and Christine Neuman Ortiz, Petitioners–Respondents,

v.David A. CLARKE, Jr., Respondent–Petitioner–Appellant.^†

No. 2015AP1152.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 2, 2016.

Opinion Filed April 12, 2016.

On behalf of the respondent-petitioner-appellant, the cause was submitted on the briefs of Oyvind Wistrom, of Lindner & Marsack, S.C., Milwaukee.

On behalf of the petitioners-respondents, the cause was submitted on the brief of Peter G. Earle, Milwaukee.

Before KESSLER, BRENNAN and BRASH, JJ.

BRENNAN

, J.

¶ 1 Milwaukee County Sheriff David A. Clarke, Jr., (“Sheriff Clarke”) appeals the trial court's grant of a writ of mandamus to produce unredacted immigration detainer forms (“I–247”) received from U.S. Immigration and Customs Enforcement (“ICE”).

¶ 2 Sheriff Clarke argues that Wisconsin's open records law, Wis. Stat. §§ 19.31

–19.37 (2013–2014),¹ does not require disclosure of the redacted portions of twelve detainer forms at issue here because: (1) federal law, 8 C.F.R. § 236.6, specifically exempts disclosure of the redacted portions, and/or (2) non-disclosure is favored by the factors of the balancing tests set forth in Linzmeyer v. Forcey, 2002 WI 84, 254 Wis.2d 306, 646 N.W.2d 811, and Woznicki v. Erickson, 202 Wis.2d 178, 549 N.W.2d 699 (1996).

¶ 3 Voces de la Frontera, Inc. (“Voces”) argues that: (1) the federal exemption to disclosure does not apply here because the jail inmates in question were not in federal custody, and (2) the balancing test factors compel disclosure of the redacted portions, especially given Wisconsin's very strong legislative statement of intent and public policy favoring disclosure.

¶ 4 We agree with Voces and affirm the trial court.

BACKGROUND

¶ 5 On February 5, 2015, Voces submitted an open records request to Sheriff Clarke requesting copies of all I–247 forms received by Sheriff Clarke from ICE since November 2014. After discussions with the trial court and Voces, on April 2, 2015, Sheriff Clarke provided redacted copies of twelve I–247 forms. Records custodian Captain Catherine Trimboli redacted the following information: (1) subject ID, (2) event number, (3) file number, (4) nationality, and (5) a series of boxes pertaining to immigration status. On April 7, 2015, Sheriff Clarke produced revised redacted I–247 forms, this time disclosing the previously objected-to item of the nationalities of the detainees. Voces filed a writ of mandamus in Milwaukee County Circuit Court, seeking full disclosure of the four redacted items under Wisconsin's open records law, Wis. Stat. § 19.31 et seq.

¶ 6 The trial court held a hearing on Voces' writ of mandamus on May 6, 2015. Captain Trimboli testified that the requested I–247 forms were records in the possession of Sheriff Clarke:

Q. And the first thing you do when you receive an open records request is you determine whether or not the information sought constitutes a record or not?

A. Correct.

Q. And you had already determined that the I–247 forms were, in fact, records, right?

A. Correct.

¶ 7 After determining that the request was for “records” in the possession of Sheriff Clarke, Captain Trimboli determined that none of the statutory exceptions to the disclosure of the I–247 forms applied:

Q. ... So you pulled out Section 19.36

and you look at those exceptions that are listed there to determine whether any apply to this?

A. Correct.

Q. And you did that in this case?

A. Correct.

Q. On March 31, 2015, correct?

A. Correct.

Q. And you determined that none of those statutory exceptions applied; isn't that right?

A. Correct.

¶ 8 Captain Trimboli further testified that none of the common law exceptions applied to this request:

Q. So then the next step is to determine whether there is a common law exception that applies, correct?

A. Correct.

Q. And you did that as well, correct?

A. Yep.

Q. And you determined that none of the common law exceptions apply; isn't that right?

A. Correct.

¶ 9 Captain Trimboli also demonstrated that she understood that she needed to conduct a balancing test and that she deferred to ICE to make the determination on whether to redact and what to redact:

A. ... When I looked at the form and determined that there was not state law based on the statute, then we conduct a balancing test. If I look at a document and I see that there may be law enforcement sensitive or personally identifiable information on it, that is then the next step in determining if the information is releasable.

Q. How can you, a record custodian, conduct a balancing test when you don't know anything about the information that's being redacted?

A. I would ask somebody who knows what that information is.

Q. But how are you able to evaluate that information and the desire for secrecy for that information or nondisclosure of that information versus public access to that information if you don't know anything about it?

A. If it's concurring with another law enforcement agency, we would take that—another law enforcement agency telling us that something is a law enforcement sensitive identifier.

Q. So you just take their word for it? You don't scrutinize it to determine whether or not it has any merit? They said redact this, you redact it?

A. Yes. We work with other law enforcement agencies and if they tell me that one of their numbers that I don't know what it is is law enforcement sensitive, yes, I believe them.

¶ 10 On June 3, 2015, the trial court granted Voces' request for the writ of mandamus, emphasizing that this was a narrow ruling. The court considered Wisconsin's “long history of favoring openness in government, as mentioned [in] the ‘blue sky law’ or the ‘blue sky litigation,’ which favors openness in government and favors strongly the ability of citizens to ... review the actions of their government officials.” The court next addressed the balancing test as set forth in

The John K. MacIver Institute for Public Policy, Inc. v. Erpenbach, 2014 WI App 49, 354 Wis.2d 61, 848 N.W.2d 862

.² Recognizing that it was the Sheriff's burden to show that the public interest favoring redaction outweighed disclosure, the court found that “there was never a very good reason given as to why that information should be redacted other than ICE ... believes it should be redacted.”

¶ 11 Among the redacted information discussed by the parties was the “A” number, which is a unique number assigned to each person. Captain Trimboli testified that she has “no idea what the A number is used for.” The court made findings of fact regarding the “A” number:

[I]t's closer to a number that you would receive if you were arrested by the Sheriff's Department for a battery and taken into custody or if you were in the Wisconsin State Prison system, for example, ... [which is] a unique number that identifies them and follows them through their time in and out of the prison system, but it's not to the degree that the Social Security number was used[.]

The court reasoned that the “A” number is not as valuable as a Social Security number because it is not “something that someone would be likely to steal,” as it would not be helpful to identity theft or fraud.

¶ 12 In conducting the balancing test, the court noted arguments from both sides:

[A]s the county noted, you don't have to give really much of a reason as to why you want to view particular public records. The proffered reason from the petitioners is to make sure that the Sheriff's Department and the Sheriff in Milwaukee County is complying with the relevant State and Federal Laws, and to make sure that Sheriff Clarke and the Sheriff's Department is not and are not violating any laws by potentially detaining someone illegally or unlawfully.

¶ 13 The court found that “the request or the reasons given by the petitioners [were] fairly compelling.” It further found that:

[T]he respondent's reasons for redacting the information is not as compelling. First of all, they've already agreed that under the open records law it is appropriate for them to turn over much of the information, they turned over the actual documents for the 12 individuals that have been detained, probably two-thirds to three quarters of the information has not been redacted.... The county has already conceded that significant information that could be obviously private to those individuals should be turned over as part of the open records law in the State of Wisconsin.

¶ 14 The court reiterated Wisconsin's “ ‘strong’ presumption in favor of releasing records to ensure transparent government and an informed constituency” and further stated: “I think in this case it's clear that the petitioner has established that they have a legal right to review the records, that the governmental entity, in this case the Sheriff's Department, has a duty to disclose.” Additionally:

I think that the petitioners have pursued the proper route [f]or the disclosure of these public records, and I believe that the Sheriff's Department has not met their burden to present the sufficient argument relative to overcoming the strong presumption as noted earlier pursuant to statute and pursuant to case law in presumption of full, open disclosure of records.

The bottom line in this case is that the petitioner has presented significant evidence that they desire these records for oversight of their government, oversight of the Sheriff's Department, Sheriff Clarke and others. Again, in this case the Sheriff's Department, would have to present a more compelling argument, would have to meet their burden that there's a better reason for non-disclosure or a better reason for some level of secrecy.

In this case the Court believes that the Sheriff's Department has not met their burden, which would outweigh the interest in public disclosure which would outweigh the longstanding interests of the ‘blue sky law’ of open records of openness to the public that goes back as I said decades, if not hundreds of years in the State of Wisconsin.

So having conducted the balancing test,

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