A new directive from U.S. Immigration and Customs Enforcement (ICE) may violate Florida's open records laws.
These so-called 287(g) agreements keep participating local agencies, like police, sheriff's offices and airports, from releasing information about immigration enforcement activities without federal approval.
This contradicts Chapter 119 of the Florida Statutes that protects the public's access to government records. The state's public records law also prohibits an agency from entering into a contract that "impairs the ability of the public to inspect or copy the public records."
"Any documents created by the LEA that contain information developed or obtained as a result of this MOA, is under the control of ICE," according to text from the memorandum.
READ MORE: A secret ICE directive is testing one of Florida's strongest traditions: open government
This isn't the first time the federal government has used this strategy to obscure public records.
Michael Barfield, an investigative reporter with the Florida Trident and executive director of the Florida Center for Government Accountability, sued the federal government — and won — over a similar issue more than a decade ago.
In 2014, Barfield sued the city of Sarasota for information about the police department's use of "StingRay" cell phone surveillance equipment. Access to the records was initially denied by the U.S. Marshal Service, which claimed the task force's records were under federal control.
"We fought that battle ... and the federal government decided to settle the case, and we got the records. And those records showed...that law enforcement were violating the Constitution," he said.
Barfield recently spoke with WUSF's Gabriella Paul about how the courts' opinion in his decades-old public records case could inform the legality of modern ICE directives.
This interview transcription has been edited for clarity and length.
In 2014, you sued the City of Sarasota after they refused to hand over public records about how they were using cell phone tracking equipment known as 'StingRay' technology. Why did you want this information in the first place?
It really was as a result of an incident that happened with a StingRay device, where a citizen's home was invaded by camouflaged federal agents entering her house with guns pointed — not knocking, no warrant — in search of someone that they believed was inside that house. Of course, it turns out that person never lived there. Wasn't there. Wasn't anywhere around. And the StingRay device was acting up that day.
So, we wanted to know why that happened, and they weren't talking until we made the records request.
And what was your experience requesting records from the Sarasota Police Department, which was partnering with the U.S. Marshal Service?
Well, I initially had an appointment to inspect the records. And the day before that appointment, I got a call from the city attorney saying that federal marshals literally had come in the dark of night and removed the records from the police department. And they didn't ask. They said these are our records.
This argument ultimately got shot down in court. Yet, this same argument is being made today on a much grander scale. Thousands of local agencies are partnering with ICE under so-called 287(g) agreements that restrict the release of public records. What's the deal with these?
The ICE agreements, known as 287(g) agreements ... say that the records relating to those activities of [immigration] enforcement are federal records, subject to the federal code and federal law. The problem is that on the state side, there's long been a body of law that says state agents cannot agree or enter into agreements that restrict access under Chapter 119 to records held by state agents.
By that logic, and drawing on your experience with the StingRay case, do you think what the Feds are doing is illegal here, too?
There's not been any court decision yet that I'm aware of, specifically on the 287(g) issue. On the StingRay case, and the unlawful warrantless interception of communications, there are clear court opinions. And in my view, those same decisions would rationally apply here.
You cannot avoid access to information under some theory that exposing the information would somehow subvert law enforcement safety or operational security. You can have justifiable reasons for law enforcement safety and security. No one disputes that. But there has to be some ability of the citizens to check what their government is doing — and whether they're doing it properly. Invoking 287(g) to avoid any scrutiny is just a ripe opportunity for abuse.
Why is the information kept by local agencies partnering with ICE of the public's interest?
For example, difficulties that loved ones have in finding their loved ones in navigating the system is one issue that's come up. We've also had documented instances of American citizens being swept up in these immigration enforcement actions. And the Alligator Alcatraz controversy, where we were promised by the governor at the time that all of that would be reimbursed by the federal government. Well, only recently — after persistent requests from a lot of reporters — under Chapter 119, did the governor acknowledge that it's unlikely taxpayers will get reimbursed any of that money.
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Chapter 119 of the Florida Statutes protects the public's access to local government records. What kind of responses are you hearing from local agencies under 287(g) agreements when requesting records?
I've heard so many different explanations that are different from agency to agency. There's no uniformity, which I believe is one of the reasons why this is an issue of concern. It also invites, in my view, agencies to invoke 287(g) as a barrier to access for records that were previously turned over routinely.
We also have pretty solid information that the methods they are using to locate individuals suspected of being illegal immigrants is very dystopian and [uses] mass surveillance. License plate reader data privacy is being violated, not just of the people who they are looking for, but everyday American citizens are losing their privacy rights in the name of the crackdown on immigration.
Michael, how do you see this playing out?
The law doesn't always catch up as quickly as it should. I think the 287(g) "era" is another example where we're going to find out, eventually, that the Constitution is being skirted in the name of being able to quickly round people up and deport them.
We also try to avoid litigation when we can because it's expensive and time-consuming and the outcome is always uncertain. So, we're finding other ways to get information about what is going on. Being a little clever in what records we're seeking.
But at the same time, 287(g) is on a collision course with Chapter 119.
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