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Wednesday, September 28, 2005

Federal Judge Says Criminal Aliens Have Privacy Rights That Trump Public's Right to Know How Well Government Immigration Enforcement Works

Federal District Court Judge Richard J. Leon ruled Tuesday that the privacy rights of illegal aliens convicted here of crimes, including the most serious felonies, are more important than the public's right to know data needed to assess how the government is complying with the law that requires such aliens to be escorted out of the country upon their release from jail.

The ruling is in the case of CEI Washington Bureau Inc. v United States of America Department of Justice, Civ. No. 03-2651 (RJL). CEI is Cox Newspapers Washington Bureau, which earlier this year asked Leon to overturn a Justice Department denial of a Freedom of Information Act request for data, including the names, dates of birth and their FBI case numbers of several hundred thousand illegal aliens.

The aliens had been convicted in domestic courts of various crimes, including many of the most serious felonies such as rape and murder, and had served time in local or state jails. Federal law requires that federal officials meet such aliens on their release from jail and escort them out of the country.

Cox Newspapers reporters Eliot Jaspin and Julia Malone had found numerous examples from Georgia state records for 2002 of convicted aliens being released and then disappearing into the U.S. because Immigration and Customs Enforcement officials weren't present to escort them out of the country.

Since the federal government reimburses state and local jurisdications for some of their costs of incarcerating illegal aliens, Jaspin and Malone asked for the federal data on those reimburesements, including the names of the criminals involved. Justice refused, citing the FOIA's privacy and law enforcement exemptions.

Cox argued, according to Judge Leon, that "disclosure of the information concerning the incarcerated or formerly incarcerated alien criminals .... will help in the public's overseeing and evaluating of State Criminal Alien Assistance Program and Institutional Removal Program and help determine wehterh governmental agencies are effectively communicating with each other in the management of the incarceration and removal of criminal aliens."

He added that Cox "also contends that the public benefit of government oversight in this instance outweighs the privacy interests of those individuals listed in the SCAAP database."

Leon's response? "I disagree."

Citing a 1989 and 1991 decisions, Leon said he finds "that these privacy interests, and the privacy intrusion associated with disclosing this information clearly outweighs the public disclosure of this information."

He also argued that criminal aliens have "a substantial personal privacy interest" in such data as their FBI case numbers and that that interest also outweighs the public's interest in being able to assess the performance of government officials required by the law to meet alien criminals on their release from jail and escort them out of the country.

Cox officials are deliberating whether to appeal Leon's decision.

You can read my January 2005 column on this case here.