Editorial: Unwarranted secrecy in arrests case
In a troubling case with serious ramifications for society, U.S. District Court Judge Paul Barbadoro of New Hampshire ruled that the Department of Homeland Security and its Immigration and Customs Enforcement division can legally keep secret the names of six illegal immigrants arrested for crimes. Barbadoro’s ruling is in line with several other court decisions that involve the redaction of arrestee names and personal information under federal law on privacy grounds. If his ruling, in a suit for the information brought by the New Hampshire Union Leader, is correct, then the law is in need of change.
This ruling and others by federal district court judges have made the United States a nation of secret arrests, a place where all the police need say under federal law is that someone was arrested for a crime who might then be deported. In South America, such people are called “los desaparecidos,” the disappeared ones.
The people whose names the Union Leader sought were arrested by ICE as part of a national crackdown to arrest convicted criminal aliens called Operation Cross Check. The program was launched in 2010 and nabbed 2,442 convicts. The following year 2,901 convicted “aliens” to use the court’s term, were arrested, including six in New Hampshire.
Union Leader attorney Greg Sullivan rightly called secret arrests “dangerously un-American” and argued that “the public interest in scrutinizing the arrest activities of ICE clearly outweighs any alleged privacy interest of the six criminal aliens at issue in this case.”
A new state law, crafted in reaction to a dispute between the Monitor and the local police, requires that police arrest reports include the names of everyone they arrest. But federal law, in this case the exemptions in the Freedom of Information Act cited by Barbadoro, trump state law. Congress, in the interests of accountability and government transparency, intended that the Freedom of Information Act be interpreted as broadly as possible. It put the onus on those who sought to keep a public record secret to justify that secrecy. That was not done in this case – nor do people who have been arrested under federal law deserve any more protection from the embarrassment and unwanted public attention that comes with being arrested than people arrested under state law. Their privacy interest, such as it is, should not trump the public’s right to know whom the government has arrested and why.
Perhaps out of deference to federal agencies, or in response to the use of what have become magic words, “national security,” agencies and courts have been interpreting the privacy exemptions far too broadly. Barbadoro, for example, faulted the Union Leader for not specifying precisely how the public interest would be served by releasing the arrestees’ names, but that approach turns the issue upside down. The public, and the press that represents it, does not, and should not, have to justify a request for a public record or explain how it will be used.
In December, the Boston Globe and New York Times sued the Department of Homeland Security to learn the names of more than 8,000 illegal immigrants who were convicted of crimes but released rather than deported because their home nations refused to take them back. If decisions like the one made by Barbadoro and other federal judges stand, the public may never know who they are. Congress should revisit the Freedom of Information Act and drastically narrow the exemptions that allow government agencies to withhold information that the public should have, including information that could shed light on the actions of the agency or reflect badly on it.