ACLU Wins FOIA Case at Michigan Supreme Court, Which Says Records May Be Exempted Only by Statute, Not Regulation
by David M. Reutter
In a decision reached on February 4, 2022, the Michigan Supreme Court handed the state chapter of the American Civil Liberties Union (ACLU) a light to shine on the detention of a native U.S. citizen and Marine Corps veteran who was apprehended by federal Immigration and Customs Enforcement (ICE) in November 2018 on a tip from an off-duty Grand Rapids cop.
“They took a U.S. citizen, Marine Corps veteran, who had his passport on him, who had his Marine Corps tags on him and they tried to deport him,” observed Miriam Aukerman, the ACLU attorney representing the man, Jilmar Ramos-Gomez. “It’s outrageous.”
The ACLU submitted a request under the state Freedom of Information Act (FOIA), MCL 15.243(1)(d), to the Calhoun County Sheriff’s Office (CCSO) on January 23, 2019, seeking all records related to Ramos-Gomez’s detention, which was carried out pursuant to an Intergovernmental Service Agreement between ICE and the jail. Denying the request, CCSO asserted the records were exempt under FOIA because they related to an ICE detainee.
The ACLU then filed a complaint in the Calhoun County Circuit Court, alleging CCSO violated FOIA by denying its request. But circuit court granted CCSO summary judgement, finding the records FOIA-exempt. The ACLU’s only recourse, the court said was to obtain the records from ICE. The ACLU appealed that decision, but the Court of Appeals affirmed.
The ACLU turned then to the Michigan Supreme Court, pressing its entitlement to the records. The Court began by noting that FOIA provides, in relevant part, “A public body may exempt from disclosure as a public record…[r]ecords or information specifically described and exempted from disclosure by statute” (emphasis added by the Court).
To fall under that exemption, though, CCSO invoked a federal regulation, 8 CFR 236.6, which provides in pertinent part, “No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the [federal] Service…shall disclose or otherwise permit to be made public the name of, or other information relating to such detainee.”
The Court of Appeals held that exemption under FOIA means “exempted from disclosure by statute or regulation,” the Supreme Court noted, but it said this was error, since it “does not logically follow that a federal regulation is a federal statute.” The latter must pass Congress and be signed by the President, or have his veto overridden, while the former “need only be unilaterally promulgated by an Agency Secretary by following the Administrative Procedure Act.”
The Court also noted several instances where the legislature used the language “by statute or regulation” and “by statute or court rule.” That it did not do so in FOIA’s language was dispositive of the issue, the Court concluded. Thus the Court of Appeals’ decision was reversed and overruled. See: ACLU of Mich. v. Calhoun Cty. Sheriff’s Office, 2022 Mich. LEXIS 348.
A motion for rehearing was denied on March 23, 2022. See: ACLU of Mich. v. Calhoun Cty. Sheriff’s Office, 2022 Mich. LEXIS 539.
When Ramos-Gomez was arrested for trespassing on a hospital helipad on November 23, 2018, responding officers from the Grand Rapids Police Department (GRPD) saw from his U.S. passport that he was born in Michigan. But after off-duty GRPD Cpt. Curt VanderKooi saw a news report of the incident, he contacted ICE to refer Ramos-Gomez for an immigration violation, apparently based on physical his appearance or name. On December 14, 2018, Ramos-Gomez was transferred from the Kent County Jail to ICE custody at CCSO, where he remained three more days until he was released.
GRPD disciplined VanderKooi, 63, with a 20-hour suspension and required him to take additional training. The city also settled a civil rights complaint with Ramos-Gomez the following November for $190,000. A new GRPD policy inaugurated in August 2019 says immigration status checks will not be performed unless relevant to the case at hand and then must be approved by the chief’s office.
ICE has still not admitted any wrongdoing in the case. In fact, new Director Ed Gonzalez testified to the U.S. Senate Homeland Security and Governmental Affairs Committee in July 2021 that he intended to keep using agreements under § 287(g) of the Immigration and Nationality Act, 8 U.S.C. ch.12, which deputize local police to make immigration arrests in addition to allowing ICE access to local jails.
Additional sources: Michigan Radio, Roll Call
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Related legal case
ACLU of Mich. v. Calhoun Cty. Sheriff’s Office,
|2022 Mich. LEXIS 348
|State Supreme Court