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Final INS rules keep local jailers mum about detainees they house

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    NMU         WASHINGTON, D.C.         Freedom of Information    

Final INS rules keep local jailers mum about detainees they house

  • Names of detainees housed in state and local jails must continue to be withheld by their jailers under a final rules issued Jan. 29 by the Immigration and Naturalization Service.

Jan. 30, 2003 — The Immigration and Naturalization Service issued final regulations Jan. 29 requiring state and local jails that house detainees under federal government contracts to release no information about the individuals.

The agency rejected comments arguing against secrecy and made no changes in the regulations, which were issued as interim in April 2002.

The federal government has arrested hundreds of aliens who either might be connected to the events of September 11 as material witnesses or who might have visa or other violations. Most have been housed in local jails around the country and it has been nearly impossible for reporters or civil liberties organizations to determine who they are or where or how they have been detained. Many have been deported.

After a New Jersey trial judge in March 2002 ordered names of federal detainees in New Jersey jails made public, the INS wrote interim federal rules prohibiting release. Acknowledging those rules, a state appeals court reversed the decision and the names stayed secret. Those interim rules became final this week.

In its Federal Register notice, INS addressed several issues raised in the few public comments it received..

INS said the secrecy rule infringes on no First Amendment interests. Instead, it guarantees that information will be “released under a uniform scheme” governed by the federal Freedom of Information Act and its exemptions, rather than by the open records acts in the 50 states.

By processing requests under the FOI Act, the federal government can ensure that its interests are protected, INS said. It also said, as it has said in the past, that by invoking the privacy exemptions to the FOI Act, the government can “protect” the detainees from being connected to terrorist activities.

The agency rejected comments that the rule exceeds the Attorney General’s authority. It said the Attorney General has full responsibility for enforcing the immigration laws, with broad authority to make rules, detain aliens and enter into agreements for their housing. It said that the federal government has authority for safeguarding national security and that local governments cannot know the extent of federal investigations or detainee roles in those investigations.

It said contracts between the federal and state and local governments are governed by federal law. Non-federal entities do not have to consent to the regulations, INS said, because they can “pull out” of the contract if they do not want to comply.

INS rejected arguments that the 10th Amendment to the U.S. Constitution, which prohibits the federal government from commandeering state law, would bar these rules. It noted that the U.S. Supreme Court unanimously rejected a 10th Amendment challenge to the federal Driver’s Privacy Protection Act, requiring states to keep “personal” information on drivers’ licenses confidential.

INS rejected comments that the rules violate due process concerns. INS detainees in removal proceedings are entitled to “a panoply” of administrative and judicial procedures, which are not affected by this disclosure rule, it wrote.

(Final Rule, Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities) RD

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