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Voces de la Frontera, Inc. v. Clarke

Court of Appeals of Wisconsin

April 12, 2016

VOCES DE LA FRONTERA, INC. AND CHRISTINE NEUMAN ORTIZ, PETITIONERS-RESPONDENTS,
v.
DAVID A. CLARKE, JR., RESPONDENT-PETITIONER-APPELLANT

         Submitted on Briefs February 2, 2016.

          APPEAL from an order of the circuit court for Milwaukee County: DAVID L. BOROWSKI, Judge. Cir. Ct. No. 2015CV002800.

         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.

          OPINION

          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 ...

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