Federal court favors Cox in fight for records

By REBECCA CARR
Cox News Service

Wednesday, November 22, 2006

WASHINGTON — A federal court of appeals ruled Tuesday that a lower court erred in dismissing a case that sought records under the Freedom of Information Act about illegal immigrant convicts who are not deported as required by law.

The U.S. Court of Appeals for the District of Columbia Circuit ordered the trial court to settle factual disputes between Cox Newspapers and the Justice Department over the privacy rights of illegal immigrants convicted of a crime. At the heart of the case is whether those privacy rights outweigh the public's right to know that they have been released into the community.

"We're gratified that the judges agreed with us that the trial court shouldn't have granted the government's motion for summary judgment," said Andrew Alexander, bureau chief of the Cox Washington bureau. Cox will confer with its lawyers to determine how to proceed, he said.

"We continue to believe that what we're seeking is clearly in the public interest," Alexander said. "Disclosure far outweighs any privacy interests for undocumented immigrants who have been convicted of serious crimes in our courts and who have been sentenced to spend time in our jails."

The information is essential for assessing whether the government is properly enforcing deportation laws, Alexander said. "At its core, the case involves a bedrock American principle that citizens should have access to information that enables them to evaluate the performance of their government," he said.

The Justice Department declined to comment other than to say it would review the 5-page ruling.

The department's lawyers have argued that it has turned over some of the information requested by Cox under the Freedom of Information Act filed three years ago.

The department gave Cox information about illegal immigrants, including the convict's native country; date taken into custody; and date of release, according to the legal documents.

But personally identifiable information such as full names, dates of birth, alien registration numbers and FBI numbers would invade the privacy of convicted illegal immigrants and serve no public interest, Justice Department lawyers wrote in legal briefs.

U.S. District Judge Richard J. Leon issued a summary judgment in favor of the Justice Department on Sept. 27, 2005. In that decision, Leon wrote that the privacy interest of convicted illegal immigrants "far outweighs" the public interest that might be served from disclosing the information.

Some immigration groups have supported the Justice Department's position.

Benjamin Johnson, director of the Immigration Policy Center, an immigrant advocacy group, said the public has the right to know the dysfunctions of the immigration system and how it may be failing. But, that does not mean it should release personal information because immigration officials make mistakes and deport the wrong people, he said.

Other immigrant groups disagree, saying it is "outrageous" to hold back the personal information of illegal immigrants who are convicted of a crime.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the ruling is encouraging because it shows that the higher court is requiring the Justice Department to show that the privacy rights of illegal immigrants would be violated through discovery, testimony and additional affidavits, she said.

"I think it's progress in that they are not just willing to take the government's word," Dalglish said. "There is an opening. It looks to me that the appeals court is saying if releasing these records is going to do all this damage, you are going to have to say how."


Rebecca Carr is a Washington correspondent for Cox Newspapers.
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