VOCES DE LA FRONTERA, INC. AND CHRISTINE NEUMAN ORTIZ, PETITIONERS-RESPONDENTS,
DAVID A. CLARKE, JR., RESPONDENT-PETITIONER-APPELLANT
on Briefs February 2, 2016.
from an order of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Cir. Ct. No. 2015CV002800.
behalf of the respondent-petitioner-appellant, the cause was
submitted on the briefs of Oyvind Wistrom, of Lindner &
Marsack, S.C., Milwaukee.
behalf of the petitioners-respondents, the cause was
submitted on the brief of Peter G. Earle, Milwaukee.
Kessler, Brennan and Brash, JJ.
[¶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 ("
[¶2] Sheriff Clarke argues that
Wisconsin's open records law, Wis. Stat. § §
19.31-19.37 (2013-2014), 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
[¶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?
Q. And you had already determined that the I-247 forms were,
in fact, records, right?
[¶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?
Q. And you did that in this case?
Q. On March 31, 2015, correct?
Q. And you determined that none of those statutory exceptions
applied; isn't that right?
[¶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?
Q. And you did that as well, correct?
Q. And you determined that none of the common law exceptions
apply; isn't that right?
[¶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 ...