Government crafts new INS rule to skirt disclosure of information about detainees

From the Summer 2002 issue of The News Media & The Law, page 39.

When a New Jersey trial court ordered jailers in Hudson and Passaic Counties to identify the detainees held in their jails under contract with the federal Immigration and Naturalization Service, the INS reacted swiftly.

The federal agency was not going to allow names of the foreign nationals it rounded up after the events of September 11 to be made public.

New Jersey’s open records law did not allow the federal government to interfere with the state’s disclosures absent some law or rule requiring secrecy.

So the INS simply adopted a new rule.

In late June, a New Jersey appeals court accepted the federal agency’s hastily adopted new rules as valid, reversed the trial court and held that New Jersey would have to defer to the federal government and keep those names secret.

The decision was an important one in determining whether the public will know anything about the detainees. More of them are housed in New Jersey jails than in any other jurisdiction.

In late March, Judge Arthur D’Italia in Jersey City ruled in a case brought against the jailers by the American Civil Liberties Union that the state open records law requires the public identification of persons held in the state’s jails. He also pointed to a state Department of Corrections rule requiring that certain information about adult inmates– including name, sentence, place of incarceration and documents filed in court — be publicly available.

D’Italia allowed the federal government to intervene and voice its objections to disclosure, but it did not prevail in his court. However, the judge stayed his ruling so the government could file an appeal.

While its appeal was pending before the New Jersey Court of Appeals, the agency issued an interim rule, immediately effective, prohibiting any state or private entity housing persons on behalf of the INS from releasing names or other information about them.

The INS said the rule establishes a uniform policy on the public release of information on INS detainees and assures its ability “to support law enforcement and national security needs of the United States.”

The appeals court noted that the New Jersey open records law specifically exempts from disclosure information that is confidential under federal regulation.

It based its ruling in favor of the INS on the “pre-emption doctrine,” which applies when it is impossible to comply with both state and federal law. The doctrine allows federal regulations to displace conflicting state laws so long as an agency intends to pre-empt state law and acts within the scope of its authority. Here, because the U.S. Congress has exclusive authority over naturalization and immigration, regulations by a federal agency would pre-empt state law.

The appellate panel discussed at some length the federal government’s claims that release could cause harm. Some detainees might not want their names to be made public and releasing their names might jeopardize the safety of the detainees or their families, the court said.

The court also discussed the inability of state courts to protect information that would interfere with federal investigations since the counties “are not privy to” the “character and extent” of the federal investigations in progress, and have no independently acquired information about the role of the detainees in those investigations.

The court did not discuss any interest of New Jersey citizens in knowing who is jailed in their communities.

The Justice Department in late November disclosed the names of 93 persons who were then facing criminal charges in connection with September 11. It made public charges faced by 548 other detainees listed by their country of origin, but did not identify them.

On Aug. 2, a federal district judge in Washington, D.C., ordered the INS to release basic information about more than 1,000 detainees. However, the court said details of arrests, detentions and release could be withheld. The lawsuit was brought by the Center for National Security Studies and 16 other public interest and civil liberties groups, including The Reporters Committee for Freedom of the Press. (ACLU v. County of Hudson; Center for National Security Studies v. Department of Justice) — RD