Can States Regulate Immigration? Part 13
Does the Privacy Act protect the records of unlawful aliens?
15 Aug 2010 in Regulatory Policy
The Washington Examiner reports that the Department of Homeland Security will not release records of unlawful aliens detained in Prince William County VA, on the ground that doing so would violate the Privacy Act of 1974.
Is this correct?
David Sherfinski of the Washington Examiner reports:
Prince William County has turned over more than 2,500 suspected illegal immigrants to the federal government since July 2007.
Through June 30, 2,786 federal detainers were issued and the county jail turned over 2,586 suspected illegal immigrants to Immigration and Customs Enforcement, according to Col. Pete Meletis, superintendent of the Prince William County/Manassas Regional Jail.
Prince William County officials asked the Department of Homeland Security for "personal information such as names or addresses," which DHS says it cannot release because the information is protected from disclosure:
ICE recently agreed to release information about the crimes and custody status of suspected Prince William illegal immigrants turned over to the agency, said spokesman Richard Rocha.
"We anticipate that research to take a few weeks," he said.
But ICE will not provide personal information such as names or addresses.
"Under DHS's Privacy Policy, the Privacy Act, which protects against the release of certain personal information, extends to aliens as well as U.S. citizens," Rocha said.
In a letter to ICE Assistant Secretary John Morton, Prince William Board of Supervisors Chairman Corey Stewart, R-at large, had requested that the names of offenders and their offenses be given to the county's police department.
The provision of the Privacy Act DHS appears to be relying on is Sec. 552a(b), which includes very broad prohibitions on information disclosure:
No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains...
There are 12 exceptions listed, none of which would apply to Prince William County.
This subsection does not stand on its own, however. It applies to "individuals," which Sec. 552a(a)(2) defines as follows:
For purposes of this section, the term "individual" means a citizen of the United States or an alien lawfully admitted for permanent residence.
Thus, the text of the Privacy Act does not apply to unlawful aliens.
What about DHS' regulations implementing the Privacy Act? These regulations are silent with respect to aliens in general, and DHS not alter in any way the definition of "individual" in the law.
In short, neither the Privacy Act nor DHS' regulations implementing it forbid the disclosure of personal information about unlawful aliens.
On what other grounds could DHS legally refuse to disclose this information? We can think of two possibilities:
- It is a matter of DHS policy to extend Privacy Act protections to unlawful aliens. If such a policy exists, it is not easily found on the DHS Website.
- Prince William County officials did not limit their request to information about unlawful aliens. For example, they might have asked DHS to release personal information on all persons transferred by the County to DHS custody because they were suspected of being unlawful aliens. Some aliens who are suspected of being unlawful might prove to have been "lawfully admitted as permanent residents," and it would be a violation of law to release records about them.
If the first possibility is true, DHS' policy would conflict with the law, in which case it would be inaccurate for DHS to assert that records on unlawful aliens are protected from disclosure by the Privacy Act.
If the second possibility is true, Prince William County officials could cure the error by revising their records request to persons determined by DHS to be unlawful aliens.
