Lawyers for the Wyatt Detention Facility today responded to my appeal of their decision to deny me a list of the names of the people being detained in the prison by United States Immigration and Customs Enforcement (ICE). In an email, attorney Patrick McBurney from the law firm of Pannone Lopes Devereaux and O’Gara LLC outlined the Wyatt’s objections to my request.
In his letter to the Rhode Island Attorney General‘s office, the government body with the authority to rule on my appeal, McBurney reiterated the position that the detainees have privacy rights that my inquiry would violate. McBurney cites both the state Access to Public Records Act (APRA) and the federal Freedom of Information Act (FOIA) to assert that my request “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
(I’ll point out here that the Wyatt, being a state level, city run facility, is not covered under FOIA.)
Importantly, if the names of the detainees at [Central Falls Detention Facility Commission] were subject to disclosure, not only would Complainant receive the personally identifiable information, but so too would any other individual or group, as disclosure pursuant to APRA is disclosure to the general public. As [Tuffly v. United States Department of Homeland Security] recognized, “[t]here is no question, as the government points out, that undocumented immigrants face a serious risk of ‘harassment, embarrassment, and even physical violence and reprisal by citizens and law enforcement.’ . .. To disclose the identities of the  detainees would be to publicize their immigration status and the fact of their prior detention—a disclosure that could well have a serious impact on the privacy and other rights of the affected individuals.”
Importantly, if the names of the detainees at CFDFC were subject to disclosure, not only would Complainant receive the personally identifiable information, but so too would any other individual or group, as disclosure pursuant to APRA is disclosure to the general public. As Tuffly recognized, “[t]here is no question, as the government points out, that undocumented immigrants face a serious risk of ‘harassment, embarrassment, and even physical violence and reprisal by citizens and law enforcement.’ . .. To disclose the identities of the  detainees would be to publicize their immigration status and the fact of their prior detention—a disclosure that could well have a serious impact on the privacy and other rights of the affected individuals.” Id. at 1096.2
In Tuffly, the agency did produce records, which were redacted. The redactions included names, file numbers, and case identification numbers. As Complainant has asserted that the purpose of his request was to identify the detainees by name in order to research who is being detained, or to reach out with community aid and assistance” and has not identified how redacted records will “open agency action to the light of public scrutiny,” see Schiffer v. F.B.I., 78 F.3d 1405, 1410 (9th Cir. 1996), the CFDFC has not yet undertaken a review and redaction of the requested prisoner records. Should the Office direct the CFDFC to do so, the CFDFC requests that it be permitted to provide Complainant with a cost estimate pursuant to § 38-2-4 before being required to undertake such a review. 2 It makes little difference that the detainees in Tuffly had been released. The same privacy concerns apply both instances.
Can we please ask a favor?
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The idea that these detainees might face harassment if their identities were revealed is certainly a concern, but what of the harassment anyone might face when arrested for a crime or imprisoned? When the government sends people into prisons for detainment, then refuses to reveal the names and statuses of those being imprisoned against their will, where does such secretive government work end?
Who will be the next class of people to be secretly arrested and detained without access to lawyers, clergy, or representation?
The detainees may possibly face a risk of harassment if their identities are revealed, but is that risk of possible harassment greater than the actual, ongoing denial of rights and identity these detainees are subject to by the government and by a public-private prison subject hiding behind powerful, high-paid attorneys to ensure their anonymity and suffering?
This is the same government, by the way, that feeds the anti-immigrant rhetoric that may possibly expose these undocumented asylum seekers to public harassment. First the government, under President Donald Trump and his allies, created the atmosphere under which these immigrants may be harassed, then the same government proceeded to anonymously arrest and detain these immigrants under the pretense that they are somehow protecting them.
Anyone in the United States who is arrested and detained is subject to having their identity publicly released. There is no expectation of privacy when a person is charged, convicted and/or imprisoned. There is an online database maintained by the Rhode Island Department of Corrections that anyone can used to gather information on anyone incarcerated. This is public knowledge.
There is another concern: The people detained at the Wyatt have no access to lawyers, clergy, or or other services. In order to get a lawyer to them, advocates need to know their names. If these names are not known, no lawyer can get to them. Worse, making phone calls in the Wyatt costs money. None of the detainees have money in their Wyatt accounts. How can someone in the public get these detainees the money they need for phone calls? The public must have a way through this pernicious Catch-22. They need to know their names.
The lawyers from Pannone Lopes Devereaux and O’Gara LLC are pretending to protect these detainees, but they are actually working to keep them from accessing the very services they need to escape harm.
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