Border Patrol Union Won’t Get Names of Released Detainees

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Bernie Pazanowski

The names of detainees released pending possible removal needn’t be given to a national border patrol union under the Freedom of Information Act, the U.S. Court of Appeals for the Ninth Circuit held Sept. 13 ( Tuffly v. DHS , 2017 BL 323988, 9th Cir., No. 15-67, 9/13/17 ).

The privacy interest the former detainees have in their names outweighs the public interest in evaluating the effect of government actions, the court’s opinion by Judge Stephen Reinhardt said.

Facing a government shutdown and loss of money in 2013, the Department of Homeland Security released 149 detainees awaiting removal proceedings. Most either weren’t criminals or hadn’t committed serious offense, but some were charged with serious crimes. DHS explained their release was “dictated by special circumstances.”

The National Border Patrol Council sought information about the released detainees under FOIA. DHS released certain records, but not the detainees’ names. FOIA exemption 7(C), which protects from disclosure law enforcement information that “could reasonably be expected to constitute an unwarranted invasion of privacy,” prohibited the disclosure, DHS said.

Undocumented aliens have a strong privacy interest in keeping their names from being disclosed, the court here said. When linked with the information already disclosed, they could lead to harassment and reprisals.

In contrast, the union’s asserted public interest was “abstract,” it said.

Chief Judge Sidney R. Thomas and Judges Edward R. Korman, sitting by designation, joined the opinion.

Judicial Watch represented the union. The Department of Justice represented the government.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law