                                                                    2017 WI 16

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2015AP1152
COMPLETE TITLE:         Voces De La Frontera, Inc. and Christine Neuman
                        Ortiz,
                                   Petitioners-Respondents,
                             v.
                        David A. Clarke, Jr.,
                                   Respondent-Petitioner-Appellant-
                        Petitioner.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:          February 24, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 3, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               David L. Borowski

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, A. W., J. dissents, joined by
                        ABRAHAMSON, J. dissent.
  NOT PARTICIPATING:    ZIEGLER, A., J. did not participate.

ATTORNEYS:


       For      the    respondent-petitioner-appellant-petitioner,        there
was    a     brief     by   Oyvind   Wistrom,    Lindner   &   Marsack,   S.C.,
Milwaukee, and oral argument by Oyvind Wistrom


       For the petitioners-respondents, there was a brief by Peter
G. Earle, and Law Office of Peter Earle, LLC., Milwaukee, and
oral argument by Peter G. Earle
                                                                           2017 WI 16
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.        2015AP1152

(L.C. No.     2015CV2800)

STATE OF WISCONSIN                              :              IN SUPREME COURT

Voces De La Frontera, Inc. and Christine Neuman
Ortiz,

               Petitioners-Respondents,
                                                                        FILED
       v.                                                          FEB 24, 2017

David A. Clarke, Jr.,                                                 Diane M. Fremgen
                                                                   Clerk of Supreme Court

               Respondent-Petitioner-Appellant-
               Petitioner.




       REVIEW of a decision of the Court of Appeals.                        Reversed;

writ of mandamus is quashed.


       ¶1      PATIENCE DRAKE ROGGENSACK, C.J.             We review a decision

of the court of appeals1 affirming an order of the circuit court2

that granted mandamus requiring Milwaukee County Sheriff David

A.    Clarke,    Jr.    (Sheriff)    to    provide    unredacted        versions       of


       1
       Voces de La Frontera, Inc. v. Clarke, 2016 WI App 39, 369
Wis. 2d 103, 880 N.W.2d 417.
       2
       The      Honorable    David    L.    Borowski      of    Milwaukee        County
presided.
                                                                           No.    2015AP1152



immigration detainer forms (I-247 forms) to Voces de la Frontera

(Voces) pursuant to its public records request.                           The I-247 forms

were       sent   to    the     Sheriff's         office     by    the    United     States

Immigrations           and     Customs     Enforcement            (ICE)     and     contain

immigration-related information about certain individuals held

at the Milwaukee County Jail.

       ¶2      Our review requires us to determine whether the I-247

forms are exempt from disclosure under Wisconsin public records

law.       Specifically, we decide whether there is a statutory or

common-law exemption to the public records law such that the

forms are exempt from disclosure.                     And, if there were no such

exemption, we would decide whether the public interest weighs in

favor of releasing or withholding the documents.

       ¶3      We conclude that I-247 forms are statutorily exempt

from       disclosure    according       to   the     terms       of    Wisconsin    public

records       law,     and    therefore,      we     need     not       reach    common-law

exemptions or the public interest balancing test.                               Stated more

fully, under Wis. Stat. §§ 19.36(1)-(2),3 any record specifically
exempted from disclosure pursuant to federal law also is exempt

from       disclosure        under    Wisconsin       law.         Federal       regulation

8 C.F.R.      § 236.6        (2013)   precludes      release       of    any    information

pertaining to individuals detained in a state or local facility

and I-247 forms contain only such information.                              Consequently,

read together, Wis. Stat. §§ 19.36(1)-(2) and 8 C.F.R. § 236.6

       3
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                              2
                                                               No.    2015AP1152



exempt I-247 forms from release under Wisconsin public records

law.        Furthermore, because I-247 forms are statutorily exempt

from        release,   the   public   interest     balancing   test    has   no

application here.

        ¶4     Accordingly, we reverse the court of appeals.

                                I.    BACKGROUND

        ¶5     On February 5, 2015, Voces submitted a public records

request to the Sheriff.           Voces requested copies of all I-247

forms4 that the Sheriff received from ICE since November 2014.

The custodian, Captain Catherine Trimboli, responded to Voces,

but indicated that she was unable to immediately provide the

requested forms.         She explained that she needed to speak with

ICE.5

        4
       I-247 forms are requests by the federal government to a
state or local entity to hold an individual for a period of time
not to exceed forty-eight hours after the individual is released
from state custody.
        5
       Captain Trimboli did not cite 8 C.F.R. § 236.6 as a reason
for non-disclosure of the forms. However, it is sufficient that
Captain Trimboli recognized that I-247 forms may contain
sensitive information and accordingly took measures to ensure
that such information was not improperly released.      We cannot
expect a records custodian to have expertise in federal
immigration law sufficient to determine the effect of federal
law on release of I-247 forms.        For this reason, a record
custodian's failure to cite a statutory exemption to the public
records law is of no consequence to our analysis. Journal Times
v. Racine Bd. of Police & Fire Com'rs, 2015 WI 56, ¶¶74-75, 362
Wis. 2d 577, 866 N.W.2d 563 (reasoning, this "court's de novo
determination   whether   certain   information  is   statutorily
exempted from disclosure is not aided by anything a custodian
might say in a denial letter, nor is it deterred by the
custodian's silence." (internal quotations omitted)).    See also
State ex rel. Blum v. Bd. of Educ., Sch. Dist. of Johnson Creek,
                                                      (continued)
                                        3
                                                                              No.    2015AP1152



      ¶6        Voces filed a petition for a writ of mandamus seeking

to compel the Sheriff to produce the I-247 forms.                                    Prior to

ruling     on    the    mandamus,       as    a       compromise,     the    circuit       court

ordered the Sheriff to produce redacted copies of all I-247

forms.      Accordingly, the Sheriff produced twelve I-247 forms,

but   redacted         the   following        information:             (1)     subject      ID;

(2) event number; (3) file number; (4) nationality; and (5) a

series of boxes pertaining to immigration status.                               On April 7,

2015, the Sheriff provided forms with the detainee's nationality

no longer redacted.

      ¶7        On June 3, 2015, the circuit court granted Voces' writ

of mandamus and ordered the Sheriff to produce all I-247 forms,

unredacted.         Conducting      a    balancing           test,    the    court    weighed

Voces'     strong      interest    in    examining           I-247    forms    against       the

Sheriff's        interest    in     protecting            the   information         contained

within     the     forms.6        The    circuit          court      concluded      that     the

balancing       test    weighed     in       favor      of   disclosure.            The    court

ordered the Sheriff to produce unredacted versions of the I-247



209 Wis. 2d 377, 387-88, 565 N.W.2d 140 (Ct. App. 1997)
(explaining, "the existence of a statute exempting certain kinds
of information from disclosure is not uniquely within the
custodian's knowledge" and therefore a custodian's "failure to
specifically cite the statutory exemption does not preclude us,
or the trial court, from determining whether the Board was
authorized to deny the request.").
      6
       On June 11, 2015, the court of appeals temporarily stayed
the circuit court's order compelling the Sheriff to provide
I-247 forms pending review.


                                                  4
                                                                  No.   2015AP1152



forms to Voces within forty-eight hours, but stayed the order

until June 12, 2015.7

     ¶8      The court of appeals affirmed the circuit court.                 The

court concluded that I-247 forms are not exempt from disclosure

under Wisconsin public records law.                  The court concluded that

"(1) no exception to disclosure under Wisconsin's open records

law applies; and (2) the Sheriff failed to meet his burden of

showing     that   the    public   interest     in    non-disclosure    outweighs

disclosure, given Wisconsin's very strong legislative intent and

public policy favoring disclosure."8

     ¶9      First,      the   court   of   appeals    rejected   the   Sheriff's

argument that I-247 forms are exempt from disclosure under Wis.

Stat. § 19.36 because a federal regulation, 8 C.F.R. § 236.6,

prevented disclosure of immigration-related information in the

possession of state or local entities.9                The court reasoned that

the regulation applied to only those individuals currently in

custody of the federal government.10             Because the individuals at

issue in the present case were not currently in federal custody,
the court of appeals reasoned, the federal regulation did not

     7
       In the interim, the Sheriff petitioned for leave to
appeal. But on June 17, 2015, the circuit court issued a final
order, and the Sheriff filed a notice of appeal. Consequently,
on June 24, 2015, the court of appeals dismissed the Sheriff's
petition for leave to appeal as moot.
     8
          Voces, 369 Wis. 2d 103, ¶18.
     9
          Id., ¶40.
     10
          Id., ¶28.


                                            5
                                                                            No.     2015AP1152



prevent the release of I-247 forms.11                    Next, the court concluded

that the public interest balancing test weighed in favor of

disclosure.12

     ¶10     We granted the Sheriff's petition for review and now

reverse.

                                    II.   DISCUSSION

                               A.     Standard of Review

     ¶11     This is a review of a writ of mandamus.                        Mandamus is a

remedy that can be used "to compel a public officer to perform a

duty of his office presently due to be performed."                                 State ex

rel. Marberry v. Macht, 2003 WI 79, ¶27, 262 Wis. 2d 720, 665

N.W.2d 155.        "In order for a writ of mandamus to be issued, four

prerequisites must be satisfied:                       '(1) a clear legal right;

(2) a     positive      and   plain    duty;      (3)    substantial        damages;       and

(4) no     other     adequate    remedy      at       law.'"        Pasko    v.     City    of

Milwaukee,       2002    WI    33,    ¶24,       252    Wis. 2d 1,      643        N.W.2d 72

(quoting     Law    Enforcement       Standards         Bd.    v.   Village       of    Lyndon

Station, 101 Wis. 2d 472, 494, 305 N.W.2d 89 (1981)).
     ¶12     Our     review     requires         us     to     interpret          and    apply

Wisconsin       public    records     law.        Statutory         interpretation         and

application        present      questions          of        law    that      we        review

independently, while benefiting from the analyses of the circuit

court and the court of appeals.                   Osborn v. Board of Regents of


     11
          Id.
     12
          Id., ¶47.


                                             6
                                                                      No.    2015AP1152



University of Wisconsin System, 2002 WI 83, ¶12, 254 Wis. 2d

266, 647 N.W.2d 158 (Nichols v. Bennett, 199 Wis. 2d 268, 273,

544 N.W.2d        428 (1996)).

      ¶13    Moreover, our review also requires us to interpret a

federal     regulation,       8    C.F.R.       § 236.6.       We    apply    general

principles of statutory interpretation when construing federal

regulations.         See   State v. Busch, 217 Wis. 2d 429, 441, 576

N.W.2d      904     (1998)     ("When      interpreting        an    administrative

regulation, we generally use the same rules of construction and

interpretation as applicable to statutes."); Village of Lyndon

Station, 101 Wis. 2d at 489 ("As a corollary to the rule that

validly enacted administrative rules are given the effect of

law, it is generally accepted that the rules and regulations of

administrative agencies are subject to the same principles of

construction as apply to the construction of statutes . . . .");

see also Bonkowski v. Oberg Indus., Inc., 787 F.3d 190, 199

(3d Cir. 2015) ("In interpreting a federal regulation, we look

to well-established principles of statutory interpretation.").
              B.    Statutory Interpretation, General Principles

      ¶14    Statutory interpretation "begins with the language of

the   statute.        If   the     meaning      of   the   statute   is     plain,   we

ordinarily stop the inquiry."               Seider v. O'Connell, 2000 WI 76,

¶43, 236 Wis. 2d 211, 612 N.W.2d 659.                      "Statutory language is

given its common, ordinary, and accepted meaning, except that

technical or specially-defined words or phrases are given their

technical or special definitional meaning."                   State ex rel. Kalal
v.    Circuit      Court     for    Dane     Cty.,     2004   WI     58,    ¶45,     271
                                            7
                                                                           No.    2015AP1152



Wis. 2d 633,        681    N.W.2d 110         (citing    Bruno    v.     Milwaukee    Cty.,

2003    WI    28,    ¶¶8,       20,     260    Wis. 2d    633,     660     N.W.2d     656).

Moreover, the "structure of the statute in which the operative

language appears" is important.                     Id., ¶46.            And, "statutory

language is interpreted in the context in which it is used; not

in isolation but as part of a whole; in relation to the language

of surrounding or closely-related statutes; and reasonably, to

avoid absurd or unreasonable results."                      Id., ¶46 (citing State

v. Delaney, 2003 WI 9, ¶13, 259 Wis. 2d 77, 658 N.W.2d 416).

       ¶15    "The test for ambiguity generally keeps the focus on

the statutory language:                a statute is ambiguous if it is capable

of being understood by reasonably well-informed persons in two

or more senses."              Id., ¶47.        And, "Wisconsin courts ordinarily

do   not     consult      extrinsic      sources    of    statutory       interpretation

unless the language of the statute is ambiguous."                                Id., ¶50.

Extrinsic sources are those "interpretative resources outside

the statutory text—typically items of legislative history."                             Id.

(citation omitted).
       ¶16    It    is    under    this       framework   that     we    review     whether

I-247      forms    are       exempt    from    disclosure       under    the    Wisconsin

public records law.

                         C.    Wisconsin Public Records Law

       ¶17    Wisconsin public records law affords the public the

right to inspect certain documents within the possession of a




                                                8
                                                                           No.    2015AP1152



state    entity.13        It    "serves      one    of     the   basic   tenets    of   our

democratic       system        by    providing        an     opportunity     for    public

oversight of the workings of government."                         Nichols, 199 Wis. 2d

268, 273 (citing Breier, 89 Wis. 2d 417, 433-34).                           To that end,

"we have a presumption of open access to public records, which

is reflected in both our statutes and our case law."                               Osborn,

254 Wis. 2d 266, ¶13; see also Wis. Stat. § 19.31 (providing "it

is . . . the public policy of this state that all persons are

entitled    to    the     greatest         possible        information   regarding      the

affairs of government and the official acts of those officers

and employees who represent them").                        "This presumption reflects

the basic principle that the people must be informed about the

workings of their government and that openness in government is

essential to maintain the strength of our democratic society."

Linzmeyer    v.    Forcey,          2002   WI   84,      ¶15,    254   Wis. 2d 306,     646

N.W.2d 811 (citing Breier, 89 Wis. 2d at 433-34).

    ¶18     Nevertheless, the public's right to access records is

not unrestricted.              See Woznicki v. Erickson, 202 Wis. 2d 178,
194, 549 N.W.2d 699 ("However, the right to public access is not

absolute.").       "The strong presumption of public access may give


    13
       The public records law applies only to "records." Record
is defined expansively:     "A 'record' subject to the Public
Records Law is 'any material on which . . . information is
recorded or preserved . . . which has been created or is being
kept by an authority.'" Hempel v. City of Baraboo, 2005 WI 120,
¶25, 284 Wis. 2d 162, 699 N.W.2d 551.     In the present case,
neither party disputes that I-247 forms are records for purposes
of Wisconsin public records law.


                                                9
                                                                                  No.   2015AP1152



way to statutory or specified common law exceptions, or if there

is an overriding public interest in keeping the public record

confidential."          Kroeplin v. Wisconsin Dep't of Nat. Res., 2006

WI   App    227,      ¶13,   297       Wis. 2d    254,       725    N.W.2d      286     (citation

omitted); see also Hathaway v. Joint Sch. Dist. No. 1, City of

Green Bay, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984) ("Thus,

the general presumption of our law is that public records shall

be   open       to    the    public      unless       there        is    a    clear     statutory

exception, unless there exists a limitation under the common

law, or unless there is an overriding public interest in keeping

the public record confidential.").                         Accordingly, there are three

ways in which a record may be exempt from disclosure:                                    (1) the

record     is    statutorily           exempt;    (2)       the    record      falls     under    a

common-law exemption; or (3) the public interest balancing test

weighs      in       favor    of       non-disclosure.                  See   Linzmeyer,      254

Wis. 2d 306, ¶¶23-24.

      ¶19       Under   this       framework,         we    first       examine    whether    the

records at issue are statutorily exempt from disclosure.14                                    The
legislature          codified      a     presumption         of     public        access.        It

follows, that the legislature is similarly free to codify which

records are subject to public inspection and which records are

statutorily exempt from inspection.                          See Wis. Stat. § 19.35(1)


      14
       Because we ultimately conclude that the I-247 forms at
issue in the present case are exempt from disclosure under a
statutory exemption, we do not address the contours of the
common-law exceptions or weigh competing interests under the
balancing test.


                                                 10
                                                                 No.     2015AP1152



("Except as otherwise provided by law, any requester has a right

to inspect any record." (emphasis added)).

       ¶20   There are statutory exemptions to the Wisconsin public

records law's presumption of access that are codified in Wis.

Stat. § 19.36.       See, e.g., Wis. Stat. § 19.36(1)-(13).               For the

types of records described in the statute, the legislature has

determined that they are categorically exempt from disclosure to

the public.

       ¶21   Exemptions detailed in Wis. Stat. §§ 19.36(1)-(2) are

of particular relevance in this case.             These sections provide:

       (1) APPLICATION OF OTHER LAWS.     Any record which is
       specifically exempted from disclosure by state or
       federal law or authorized to be exempted from
       disclosure by state law is exempt from disclosure
       under s. 19.35(1), except that any portion of that
       record which contains public information is open to
       public inspection as provided in sub. (6).

             (2) LAW ENFORCEMENT RECORDS. Except as otherwise
       provided by law, whenever federal law or regulations
       require or as a condition to receipt of aids by this
       state    require   that     any    record   relating    to
       investigative information obtained for law enforcement
       purposes be withheld from public access, then that
       information    is    exempt     from   disclosure    under
       s. 19.35(1).
Wis. Stat. §§ 19.36(1)-(2).         As the text of the statute relates,

§ 19.36(1) prevents the release of any record that is exempted

from    disclosure    under   federal      law.      Similarly,        § 19.36(2)

exempts from disclosure any record "relating to investigative

information obtained for law enforcement purposes."

       ¶22   Therefore, we examine whether federal law prohibits
disclosure    of   I-247   forms.     In   the     case   now   before    us,   it


                                      11
                                                                     No.    2015AP1152



follows     that    if   8    C.F.R.    § 236.6      prohibits       disclosure    of

information    in     I-247   forms,    they    are    exempt    from      disclosure

under Wisconsin public records law.                   At oral argument, Voces

agreed, but contended that 8 C.F.R. § 236.6 did not prohibit

disclosure of the information in I-247 forms.

                              D.   8 C.F.R. § 236.6

      ¶23    Our consideration of the text and purpose of 8 C.F.R.

§ 236.6 compels the conclusion that it applies to any detainee

for   whom    an     I-247    form     has    been    issued    by    the     federal

government.        As we explain below, to hold otherwise would flout

the language and purpose of the federal regulation.

      ¶24    We begin with an examination of the text of 8 C.F.R.

§ 236.6 to determine its meaning.                 The regulation provides as

follows:

      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 Service
      (whether by contract or otherwise), and no other
      person who by virtue of any official or contractual
      relationship with such person obtains information
      relating to any detainee, shall disclose or otherwise
      permit to be made public the name of, or other
      information   relating  to,   such  detainee.     Such
      information shall be under the control of the Service
      and shall be subject to public disclosure only
      pursuant to the provisions of applicable federal laws,
      regulations and executive orders.      Insofar as any
      documents or other records contain such information,
      such documents shall not be public records.       This
      section applies to all persons and information
      identified or described in it, regardless of when such
      persons obtained such information, and applies to all
      requests for public disclosure of such information,
      including requests that are the subject of proceedings
      pending as of April 17, 2002.
                                         12
                                                                         No.    2015AP1152



      ¶25    The court of appeals reasoned that the phrase "holds

any detainee on behalf of" the federal government required that

the individual be in federal custody at the time when I-247 form

was served in order for 8 C.F.R. § 236.6 to apply.15                            The court

of appeals reasoned that 8 C.F.R. § 236.6 applied only to those

detainees who were then subject to the forty-eight hour hold

requested by I-247 forms.16

      ¶26    In    contrast,     the    Sheriff     contends        that       the   first

sentence of 8 C.F.R. § 236.6 is definitional.                       He reasons that

the   clause      "holds   any      detainee   on      behalf      of"    the     federal

government refers to those individuals subject to an immigration

detainer insofar as the facility is or was housing, maintaining,

or servicing them prior to the federal government's potential to

obtain custody.       Under this interpretation, 8 C.F.R. § 236.6 is

not   temporally     limited;       rather,    it      explains     which       types   of

entities and individuals are subject to the regulation.                              And,

any   individual      that     is    subject      to    an   I-247        request       (an

immigration detainer request) is a detainee who has been housed,
maintained or provided services by a state or local entity,

regardless of when that occurred.

      ¶27    Both    of    these     interpretations         are    reasonable,          as

reasonably     well-informed        persons    could     interpret        the    text    of

8 C.F.R. § 236.6 as the court of appeals has and as the Sheriff


      15
           Voces, 369 Wis. 2d 103, ¶28.
      16
           Id., ¶¶28-29.


                                         13
                                                                           No.     2015AP1152



has.    The existence of two reasonable interpretations compels

the conclusion that the regulation is ambiguous.                                 See Bruno,

2003 WI 28, ¶19.

       ¶28    When     a   regulation        is     ambiguous,       we     may     consult

extrinsic sources to interpret the regulation's meaning.                                 See

State   v.        Williams,    2014    WI     64,    ¶19,    355    Wis. 2d 581,         852

N.W.2d 467 ("Finally, and most important, if the interpreting

court concludes that the statute is ambiguous, the court may

consider      extrinsic       sources       such    as     legislative       history      to

discern      the     meaning     of    the     statute."         (citing     Kalal,      271

Wis. 2d 633, ¶51)).            Consistent with this principle, we look to

extrinsic sources to assist us in determining the meaning of

8 C.F.R. § 236.6.

       ¶29    The    statement    of    purpose       of    8     C.F.R.    § 236.6      was

provided by the agency that promulgated the regulation and was

set out in the notices in the Federal Register.                            It demarcates

three   purposes       underlying       the       regulation:        (1)     to     protect

privacy      of    detainees;    (2)    to    guarantee         uniform    treatment      of
information pertaining to detainees; and (3) to prevent ongoing

investigations from being adversely impacted.                             See Comm'r of

Correction v. Freedom of Info. Com'n, 52 A.3d 636, 647-48 (Conn.

2012)     ("The      regulation       was     intended       to    ensure         that   the

disclosure of information about detainees would be subject to a

uniform federal policy, to protect the privacy of detainees,

and, most significantly, to prevent adverse impacts on ongoing

investigations and investigative methods.").


                                             14
                                                           No.   2015AP1152



    ¶30       Indeed, the privacy interests of the detainees were a

substantial concern.       This interest is evinced in the statement

of purpose of 8 C.F.R. § 236.6 as set out in the notices:

    By channeling requests for information through the
    FOIA, which contains a privacy exception, the rule
    also protects detainees' privacy.        Just as the
    government has a substantial interest in protecting
    legitimate national security, intelligence and law
    enforcement functions under the FOIA, detainees may
    have a substantial privacy interest in their names and
    the personal information connected with their status
    as detainees.17
Release of Information Regarding Immigration and Naturalization

Service Detainees in Non-Federal Facilities, 68 FR 4364-01, 4366

(January 29, 2003).        And, allowing public access to information

about    an   individual   could   have   grave   consequences   for   that


    17
         The notices of the regulation also explain:

    For example, individuals who were originally detained
    because of their possible connection to terrorism,
    have an overwhelming interest in not being connected
    with such activity.  And particularly with respect to
    those individuals cooperating with the government's
    law enforcement investigations, there are powerful
    reasons why such persons would wish to conceal their
    identities and whereabouts.       Indeed, other INS
    regulations   expressly    shield   from   disclosure
    information pertaining to or contained in an asylum
    application. See 8 CFR § 208.6(a). Contrary to some
    of the commenters' suggestions, the fact that certain
    detainees may wish to publicly identify themselves,
    which they are free to do, in no way undermines this
    assessment.

Release of Information Regarding Immigration and Naturalization
Service Detainees in Non-Federal Facilities, 68 FR 4364-01, 4366
(January 29, 2003).


                                     15
                                                                       No.    2015AP1152



individual.       After       all,    "allowing    such      disclosures      would    be

highly adverse to the privacy interests of a detainee who does

not wish to be identified as a possible terrorist or who, after

his    release    from      detention,     is    cooperating     with    an    ongoing

government investigation."               Comm'r of Correction, 52 A.3d at

648.

       ¶31    Another purpose of the regulation is to ensure the

uniform treatment of the information contained within the forms.

See     Release        of     Information        Regarding       Immigration          and

Naturalization         Service       Detainees    in    Non-Federal      Facilities,

67 FR 19508-01, 19509 (2002) ("The rule bars release of such

information by non-[f]ederal providers in order to preserve a

uniform policy on the release of such information.").                            I-247

forms are federal records; the state does not generate or input

information into them.               The federal government has an interest

in seeing that the information contained within the forms is

treated uniformly by all facilities.

       ¶32    A final purpose of 8 C.F.R                § 236.6 is "to prevent
adverse      impacts     on   ongoing     investigations        and    investigative

methods."      Comm'r of Correction, 52 A.2d at 648; see also Am.

Civil Liberties Union of New Jersey, Inc. v. Cty. of Hudson, 352

N.J. Super. 44, 69, 799 A.2d 629 (App. Div. 2002) ("The counties

are    not    privy      to    the     character       and    extent     of    federal

investigations in progress nor, apparently, do they possess any

independently acquired information regarding the role of the INS




                                           16
                                                    No.   2015AP1152



detainees in those investigations.").     The notices containing

the statement of purpose initially passed in 2002,18 provide:

     Release of information about a specific detainee or
     group of detainees could also have a substantial
     adverse   impact   on  ongoing   investigations  being
     conducted by federal law enforcement agencies in
     conjunction with the Service.         Even though an
     individual detainee may choose to disclose his own
     identity or some information about himself, the
     release by officials housing detainees of a list of
     detainees or other information about them could give a
     terrorist organization or other group a vital roadmap
     about the course and progress of an investigation. In
     certain instances, the detention of a specific alien
     could alert that alien's coconspirators to the extent
     of the federal investigation and the imminence of
     their own detention, thus provoking flight to avoid
     detention, prosecution and removal from the United
     States.    Premature release of the identity of or
     information relating to a specific alien in detention

     18
       The regulation was initially passed as a temporary
regulation in 2002 before being permanently enacted in 2003.
The regulation was promulgated in response to a request for
documents pertaining to individuals detained by, what was at the
time, the Immigration and Naturalization Service (INS). In that
case, "INS detainees [were] housed in the Hudson County
Correctional Center and the Passaic County Jail pursuant to
long-standing contracts between the INS and the counties." Am.
Civil Liberties Union of New Jersey, Inc. v. Cty. of Hudson, 352
N.J. Super. 44, 58, 799 A.2d 629, 637 (App. Div. 2002).      The
plaintiff requested the records of the individuals detained
pursuant to these agreements, and a trial court in New Jersey
ordered the jails to provide the records. Id. at 638. As the
Appellate Division of the New Jersey Superior court explained,
"five days after the trial court's order and judgment were
entered, the INS promulgated as an 'interim rule' a regulation
barring disclosure of the information sought here, 8 C.F.R.
§ 236.6 (2002)."    Id.   Based on the interim regulation, the
court concluded that, "[t]o the extent the State laws involved
may be viewed as requiring public disclosure of information
regarding INS detainees, they would be in conflict with 8 C.F.R.
§ 236.6." Id. at 655.


                               17
                                                                          No.    2015AP1152


       could reasonably be expected to disclose the identity
       of a confidential source and techniques or procedures
       for law enforcement investigations or prosecution.
Release of Information Regarding Immigration and Naturalization

Service       Detainees       in   Non-Federal        Facilities,    67   FR     19508-01,

19509 (April 22, 2002).

       ¶33     Our examination of the purposes underlying 8 C.F.R.

§ 236.6 removes any ambiguity as to its meaning.                            We conclude

that 8 C.F.R. § 236.6 is not temporally limited; it applies to

all information pertaining to those individuals subject to I-247
forms.         It   is   evident      after      exploring    the    purpose          of   the

regulation that "detainee" is a generalized term; it refers to

all    individuals        subject      to   an     I-247   form.19        It     would      be

inconsistent with the three main purposes of 8 C.F.R. § 236.6 to

hold that it applies only to information pertaining to those

individuals presently in federal custody.                     And, "[a]ll of these

purposes       would     be    undermined        by    allowing     state       and    local

entities to disclose information about a detainee . . . subject

only     to    their     own       policies      and    procedures."            Comm'r      of

Correction, 52 A.3d at 648.
       ¶34     The regulation must be read to protect a detainee's

information regardless of when an I-247 form was received and


       19
       The inclusion of the phrase "such detainee" at the end of
the second sentence of the regulation does not alter this
analysis. "Such detainee" merely refers back to the phrase "any
detainee" in the preceding sentence.         8 C.F.R. § 236.6.
Accordingly, the phrase "such detainee," like the phrase "any
detainee," is a categorical description and does not temporally
limit the regulation.


                                              18
                                                                No.    2015AP1152



regardless of whether a detainee is in the forty-eight hour hold

requested in I-247 in order to protect a detainee's privacy.

After all, the sensitivity of a detainee's information cannot,

and we conclude does not, depend on when the I-247 form was

received by the state or local entity.                If the documents could

be released at any time prior to the forty-eight hour period,

then the privacy protections at the heart of 8 C.F.R. § 236.6

would be illusory.20          As a consequence, the regulation must be

interpreted to cover all information contained within an I-247

form regardless of whether the individual that is the subject of

the detention request is solely in state or federal custody or

has been released.          Our conclusion that the regulation is not

temporally limited is consistent with this directive.

    ¶35     Similarly, the federal             government's interest in the

uniform     treatment       of   immigration-related       records      by   all

facilities requires that the regulation applies to all I-247

forms,     without     a    temporal    limitation.       Stated      otherwise,

8 C.F.R.     § 236.6       controls    I-247     information   pertaining     to
detainees without regard for when a facility receives that form.

State or local entities do not have discretion to decide whether

I-247 forms may be released.             A contrary interpretation would

    20
       We note that the intent of those seeking the information
does not diminish the detainee's privacy interest in the
information.   If the information can be accessed by one party,
then it can be obtained by any other organization or individual
that seeks the same information.     This, of course, includes
those individuals or organizations with potentially less noble
aspirations than Voces.



                                        19
                                                                       No.        2015AP1152



vitiate     consistency       in    treatment       of     I-247    forms         and    the

information they contain.

    ¶36     Finally, the regulation is meant to protect sensitive

information pertaining to government criminal or immigration-

related   investigations.               Surely,   such     an    important        interest

cannot succumb to the temporal limitations that an alternative

interpretation     of     8   C.F.R.      § 236.6    would      impose.       For        this

reason alone, the regulation must be interpreted to protect the

information contained within I-247 forms.

    ¶37     Accordingly,       we   conclude        that   the     court     of    appeals

inaccurately     interpreted        8    C.F.R.     § 236.6     when   it    added       the

requirement that an individual who is subject to a I-247 form

must be in the custody of the federal government for 8 C.F.R.

§ 236.6 to apply.        The regulation is not so narrow, and the word

"custody" is conspicuously absent from its text.                       Section 236.6

applies   to    any     individual        subject    to    an    I-247      immigration

detention      request.        And,        a    different       federal      regulation

discussing     detainers      distinguishes          between     "custody"         and    an
individual subject to a detainer request:

    Any authorized immigration officer may at any time
    issue a Form I–247, Immigration Detainer–Notice of
    Action, to any other Federal, State, or local law
    enforcement agency.     A detainer serves to advise
    another law enforcement agency that the Department
    seeks custody of an alien presently in the custody of
    that agency, for the purpose of arresting and removing
    the alien.
8 C.F.R. § 287.7 (2011).




                                           20
                                                                       No.    2015AP1152



       ¶38    Therefore, 8 C.F.R. § 236.6 protects all information

contained within I-247 forms pertaining to detainees that are

housed,      maintained,      or    held    in   facilities     run    by    state      or

private      entities.        Stated     otherwise,     the    regulation         is   not

temporally limited and does not apply only to those individuals

in federal custody.           Rather, 8 C.F.R. § 236.6 renders the I-247

forms that Voces seeks "record[s] . . . specifically exempted

from     disclosure      by    . . .       federal    law,"    under     Wis.      Stat.

§ 19.36(1).       For similar reasons, these records also contain

information obtained for federal law enforcement investigative

purposes, and Wis. Stat. § 19.36(2) prevents their disclosure.21

       ¶39    We are not alone in our interpretation of 8 C.F.R.

§ 236.6.       The Supreme Court of Connecticut also examined the

purpose of 8 C.F.R. § 236.6 and concluded that the regulation

prohibits      disclosure          of   documents      that    pertain       to    those

individuals that are no longer in state or federal custody.

Comm'r of Correction, 52 A.3d at 649 ("Nothing in the language

of     the   regulation       differentiates         between   information         about
detainees who have been transferred to the custody of another


       21
       We note that our decision does not pass judgment on the
desirability of the Sheriff's compliance or non-compliance with
the Department of Homeland Security's immigration detention
requests. Rather, the issue in the present case "involve[s] the
nature and scope of information that must be made available to
the public concerning INS detainees.     The power to regulate
matters relating to immigration and naturalization resides
exclusively in the federal government."     Am. Civil Liberties
Union of New Jersey, Inc. v. Cty. Of Hudson, 799 A.2d 629, 654
(N.J. App. Div. 2002).


                                            21
                                                                No.     2015AP1152



governmental       entity   and    information   about   detainees     who    have

been        released.").      In     Commissioner     of     Correction,       the

Connecticut Supreme Court rejected the lower court's conclusion

that "because the first sentence of 8 C.F.R. § 236.6 uses the

present tense when it refers to any 'person . . . that houses,

maintains,       provides    services     to,    or   otherwise       holds    any

detainee'; the regulation applies only to a person who currently

engages in one of the described activities . . . ."                   Id. at 646

(internal citations omitted).            Rather, the court accepted the

federal government's reasoning and concluded that "the use of

the present tense . . . [is] not a temporal limitation with a

beginning and an end."            Id. (internal quotation marks omitted).

Accordingly, the court concluded that the regulation continues

to prevent the release of I-247 forms even after a detainee has

been released from custody.             Id. at 649.        Our interpretation,

that the regulation is not temporally limited in application, is

consistent with the Connecticut Supreme Court's holding.

       ¶40     Finally, we note that our opinion does not curb the
presumption of openness that Wisconsin public records law so

carefully protects.         An overarching purpose of 8 C.F.R. § 236.6

is to channel requests for federal records through federal law;

namely the Freedom of Information Act (FOIA).22                 See generally

       22
       The notices explaining the purpose of the regulation
state:   "Accordingly, any disclosure of such records will be
made by the Service and will be governed by the provisions of
applicable Federal law, regulations, and Executive Orders. This
rule does not address or alter in any way the Service's policies
regarding its release of information concerning detainees; these
                                                     (continued)
                                        22
                                                                        No.   2015AP1152



5 U.S.C.    § 552.       After    all,    the    federal     government       is    in   a

better     position     to   determine     whether      there     are    privacy     and

safety risks innate in releasing records that it created.

      ¶41    In   the   present       case,    the    requested    records,        I-247

forms of individuals housed in Milwaukee County Jail, fall under

the   umbrella    of    8    C.F.R.    § 236.6.        The   individuals       in    the

present case, all of whom are subject to I-247 requests, are

detainees that were housed, maintained, or serviced by a local

entity.23     Accordingly, federal law mandates that information

pertaining to these detainees contained in I-247 forms not be

released.

      ¶42    Given that a federal law prevents the release of the

information in I-247 forms, we conclude that both Wis. Stat.

§ 19.36(1) and Wis. Stat. § 19.36(2) apply to exempt I-247 forms

from disclosure under Wisconsin public records law.                       As the text

of the statute suggests, § 19.36(1) prevents the release of any

document that is exempted from disclosure under federal law.

      ¶43    Similarly,       Wis.       Stat.       § 19.36(2)     exempts         from
disclosure any record containing information that federal law

mandates not be released because it "relat[es] to investigative



policies remain unchanged."    Release of Information Regarding
Immigration and Naturalization Service Detainees in Non-Federal
Facilities, 67 FR 19508-01, 19509 (April 22, 2002).
      23
       Neither   party   disputes  that   the  Milwaukee  County
Sheriff's Department participates in ICE's detainer program, and
Voces cited the Sheriff's participation in the program as one of
the reasons it sought to obtain the requested forms.


                                          23
                                                                             No.     2015AP1152



information obtained for law enforcement purposes."                                   And, as

discussed above, 8 C.F.R. § 236.6 mandates that state or local

entities are not to release information contained within I-247

forms.     Therefore, both of these provisions exempt I-247 forms

from disclosure pursuant to the provisions of Wisconsin public

records law.          Accordingly, the Sheriff cannot be compelled to

produce them.

                                  III.     CONCLUSION

    ¶44     In     light     of   the     foregoing,          we    need    not     reach    the

common-law exemptions or balancing test because we conclude that

the I-247 forms are statutorily exempt from disclosure under

Wisconsin public records law.                       Stated more fully, under Wis.

Stat.    §§ 19.36(1)-(2),          any     record         exempted         from    disclosure

pursuant    to     federal        law     is    exempt        from        disclosure       under

Wisconsin    law.          And,    federal           regulation       8     C.F.R.     § 236.6

precludes       the    release      of         any     information          pertaining       to

individuals detained by a state or local facility and I-247

forms    contain      such   information.             Accordingly,          read     together,
Wis. Stat. §§ 19.36(1)-(2) and 8 C.F.R. § 236.6 exempt I-247

forms    from      release        under        Wisconsin          public     records        law.

Furthermore,      because     I-247       forms       are    statutorily          exempt    from

release, the public interest balancing test has no application

here.

    By     the   Court.—The        decision          of     the    court    of     appeals    is

reversed; writ of mandamus is quashed.

    ¶45     Annette Kingsland Ziegler, J., did not participate.


                                               24
                                                                       No.   2015AP1152.awb


      ¶46    ANN     WALSH    BRADLEY,    J.         (dissenting).           Wisconsin's

Public     Records    Law     "serves    one    of       the   basic    tenets     of   our

democratic     system        by    providing        an    opportunity        for   public

oversight of the workings of government."                         Majority op., ¶17

(citations omitted).              Relying on this basic tenet, Voces de la

Frontera     requests        unredacted       copies      of    federal      immigration

detainer forms issued to Milwaukee County Sheriff David Clarke

by Immigration and Customs Enforcement ("ICE").

      ¶47    The circuit court determined that Wisconsin's Public

Records Law requires the release of unredacted copies of the

detainer forms.        It explained that Voces de la Frontera made a

compelling case and that Sheriff Clarke offered no good reason

to justify any redaction.

      ¶48    The   court      of    appeals    affirmed.         Noting      uncontested

facts, it rejected Sheriff Clarke's newly raised argument that

an   obscure    federal       regulation,       8    C.F.R.      § 236.6,       precluded

release of the detainer forms.1




      1
          8 C.F.R. § 236.6 provides in relevant 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 Service
      (whether by contract or otherwise), and no other
      person who by virtue of any official or contractual
      relationship with such person obtains information
      relating to any detainee, shall disclose or otherwise
      permit to be made public the name of, or other
      information          relating        to,         such
      detainee. . . . (emphasis added).


                                          1
                                                                    No.   2015AP1152.awb


      ¶49   Sheriff     Clarke   now   contends         that   no    detainer     forms

should be released.         He asserts that the forms are statutorily

exempt    from     disclosure    and   that     his      office     erred      when    it

previously released redacted detainer forms to Voces.

      ¶50   Reneging on previously uncontested facts and relying

on a belatedly cited obscure federal regulation——never before

applied to state or local detainees——Sheriff Clarke tosses a

"hail mary" pass to the Wisconsin Supreme Court.2

      ¶51   The majority catches the pass and runs with it, but

unfortunately makes no forward progress for the people of this

state.      Instead, a majority of this court loses ground, yet

again chipping away at Wisconsin's long-standing commitment to

open government.         See, e.g., Democratic Party of Wisconsin v.

Wisconsin Dep't of Justice, 2016 WI 100, 372 Wis. 2d 460, 888

N.W.2d 584.

      ¶52   Once     more   a    majority     of        this   court      reverses      a

unanimous court of appeals decision affirming a circuit court

order requiring the release of records to the public, further
undermining the principle that Wisconsin Public Records Law be

construed    "in    every   instance    with    a       presumption       of   complete

public access."        Wis. Stat. § 19.31.

      ¶53   This time the majority rewrites a federal regulation

by   deleting    the    phrase   "on   behalf      of    the   Service"        from   the


      2
       A "hail mary" is "a long forward pass in football,
especially as a last-ditch attempt at the end of a game, where
completion is considered unlikely."    Random House Unabridged
Dictionary 859 (2d ed. 1993).


                                        2
                                                                  No.   2015AP1152.awb


regulatory language in order to reach its conclusion that yet

another public records request must fail.                    Given the cumulative

effect of the majority's approach, one wonders if a day will

come when we awake to find that this continuous "chipping away"

has     substantially        gutted    Wisconsin's        commitment          to    open

government.

      ¶54   Contrary to the majority, I agree with the circuit

court that Clark offers no good reason to counter the strong

presumption of open access to these public records.                       I likewise

agree    with   the    unanimous      court     of   appeals    that    the    federal

regulation      does   not    statutorily        exempt      immigration      detainer

forms from release under Wisconsin's Public Records Law.                            Both

the     plain    language      of     the       federal   regulation          and   its

promulgation history establish that it applies only to detainees

in the custody of the federal government.

      ¶55   Accordingly, I respectfully dissent.

                                            I

      ¶56   I   begin    by    setting      forth     more     complete    facts      to
provide the necessary context.                   After new federal guidelines

were released, Voces de la Frontera ("Voces") submitted a public

records request seeking copies of immigration detainer forms (I-

247) issued by ICE to Sheriff Clarke's office.                          Following a

delay without a response, Voces filed an action seeking the

issuance of a writ of mandamus to compel the release of the

detainer forms under Wisconsin's Public Records Law.

      ¶57   Sheriff Clarke eventually released redacted versions
of the requested detainer forms.                  In reaching a determination

                                            3
                                                                             No.    2015AP1152.awb


about     what       information        to   redact,         Sheriff         Clarke's     record

custodian explained that she consulted with ICE, and redacted

certain information based primarily on ICE's advice.

       ¶58     Voces    sought     release            of   unredacted     versions       of     the

detainer forms.           The circuit court ordered Sheriff Clarke to

produce      unredacted        copies,          concluding         that       Voces      made    a

compelling case that it had a strong interest in ensuring its

government was complying with federal guidelines.                                    It further

observed that "there was never a very good reason given as to

why [] information should be redacted other than ICE [] believes

it should be redacted."

       ¶59     Sheriff Clarke appealed, raising a new argument before

the    court     of    appeals     that      an       obscure     federal      regulation,       8

C.F.R. § 236.6, precludes release of the redacted portions of

the detainer forms.            Relying on undisputed facts, the court of

appeals several times observed that Sheriff Clarke "does not

dispute the fact that the prisoners in question here were held

on state charges which had not expired."                           Voces De La Frontera,
Inc.    v.   Clarke,      2016     WI    App      39,      ¶28,   369     Wis. 2d 103,          880

N.W.2d 417; see also id., ¶¶25, 36.

       ¶60     The    court   of     appeals          rejected     Sheriff         Clarke's     new

argument,      concluding        that     the     plain      language        of    the   federal

regulation       applies      only      to   detainees          held    on    behalf     of     the

federal government.            Id., ¶28.              Applying the balancing test, it

further determined that Sheriff Clarke failed to meet his burden

to overcome the strong presumption in favor of release of the
unredacted detainer forms.               Id., ¶47.

                                                  4
                                                     No.   2015AP1152.awb


     ¶61    Having been unsuccessful in both the circuit court and

the court of appeals, Sheriff Clarke now turns to this court.

At issue is whether the detainer forms are statutorily exempt

from disclosure pursuant to Wis. Stat. § 19.36(1)-(2).

                                  II

     ¶62    The parties agree and the majority acknowledges that

the requested I-247 forms are public records as defined by Wis.

Stat. § 19.32(2).     Majority Op., ¶17 n.13.       Consequently, any

analysis must begin with a strong presumption favoring release

of the requested records.      See Linzmeyer v. Forcey, 2002 WI 84,

¶15, 254 Wis. 2d 306, 646 N.W.2d 811.

     ¶63    The majority contends that read together Wis. Stat.

§ 19.36(1)-(2) and the federal regulation statutorily preclude

release of the I-247 forms.3    Majority op., ¶3.    It posits that 8

C.F.R. § 236.6 prohibits release of any information pertaining

to individuals detained in a state or local facility, despite



     3
         Wisconsin Stat. § 19.36(1)-(2) (2013-14) provide:

     (1)    Any record which is specifically exempted from
            disclosure by state or federal law or authorized
            to be exempted from disclosure by state law is
            exempt from disclosure under s. 19.35(1), except
            that any portion of that record which contains
            public information is open to public inspection
            as provided in sub. (6).

     (2)    Except as otherwise provided by law, whenever
            federal law or regulations require . . . that any
            record relating to investigative information
            obtained for law enforcement purposes be withheld
            from public access, then that information is
            exempt from disclosure . . . .


                                  5
                                                                  No.    2015AP1152.awb


the fact that this obscure federal regulation has never before

been applied to state or local detainees.4                 See id.

     ¶64       However, the majority's non-textual interpretation is

trumped    by    the    regulation's        plain    language    and    the    agency's

intent    at    the    time     of   the    regulation's    promulgation.             See

Gardebring v. Jenkins, 485 U.S. 415, 429–30 (1988).                           The plain

language of 8 C.F.R. § 236.6 provides:

     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
     Service . . . shall disclose or otherwise permit to be
     made public the name of, or other information relating
     to, such detainee. . . . (emphasis added).
"Service"      refers    to    the   federal      government's    Immigration         and

Naturalization Service ("INS").5                  The phrase "on behalf of the

Service"    indicates         that   that   the     regulation   applies       only   to




     4
       Neither the majority nor the parties cite to any case that
has previously applied 8 C.F.R. § 236 to detainees in state or
local custody. Additional research yielded no such case.
     5
       The INS promulgated 8 C.F.R. § 236.6 as an interim rule in
April 2002, and adopted it as a final rule without change in
January 2003. Release of Information Regarding Immigration and
Naturalization Service Detainees in Non-Federal Facilities, 67
Fed. Reg. 19508-11 (Apr. 22, 2002); 68 Fed. Reg. 4364-67 (Jan.
29, 2003). In March 2003, pursuant to the Homeland Security Act
of 2002, INS was disbanded and replaced with three new federal
agencies, one of which is ICE. U.S. Citizenship and Immigration
Services,     Overview    of     INS    History     11    (2012),
https://www.uscis.gov/sites/default/files/USCIS/History%20and%20
Genealogy/Our%20History/INS%20History/INSHistory.pdf. Therefore,
in the context of this discussion of 8 C.F.R. § 236.6,
references to the INS and ICE are used interchangeably.


                                             6
                                                                   No.   2015AP1152.awb


detainees     being      held   on     behalf       of        federal    immigration

authorities.6

     ¶65    Likewise, the supplementary information published in

the Federal Register in connection with the promulgation of 8

C.F.R. § 236.6 consistently makes clear that the regulation is

limited to detainees held "on behalf of" federal immigration

authorities.     Release of Information Regarding Immigration and

Naturalization Service Detainees in Non-Federal Facilities, 68

Fed. Reg. 4364 (Jan. 29, 2003) ("This final rule governs the

public      disclosure     by    any        state        or     local      government

entity . . . of . . . information            relating         to   any   immigration

detainee being house or otherwise maintained . . . on behalf of

the Immigration and Naturalization Service (INS or Service)");

67 Fed. Reg. 19508 (Apr. 22, 2002) ("This rule will establish a


     6
       Receipt of an I-247 form by a state or local law
enforcement agency does not convert a state or local detainee
into a federal detainee in the custody of ICE. The language of
the I-247 form explains that it is simply a request from ICE to
a state or local agency: "IT IS REQUESTED THAT YOU: Maintain
custody of the subject for a period not to exceed 48
hours . . . beyond the time when the subject would have
otherwise been released from your custody to allow DHS to take
custody of the subject" (emphasis in the original).

     Additionally, a federal regulation explains that a detainer
serves to advise another law enforcement agency that the federal
government seeks custody of a detainee presently in the custody
of a state or local agency.      8 C.F.R. § 287.7(a); see also
Galarza v. Szalczyk, 745 F.3d 634, 642 (3rd Cir. 2014)
("[D]etainers are not mandatory."); Milwaukee County Board of
Supervisors,     Resolution     12-135    (June     4,     2012),
https://milwaukeecounty.legistar.com/LegislationDetail.aspx?ID=1
124069&GUID=3D583485-4F01-4B43-B892-D6FFE5D327BF    ("[D]etainers
are not mandatory but are considered 'requests'").


                                        7
                                                                      No.    2015AP1152.awb


uniform policy on the public release of information on Service

detainees") (emphasis added).

      ¶66     Despite the plain language of 8 C.F.R. § 236.6 and the

clear indications in the Federal Register reiterating that the

application of the regulation is limited to detainees in federal

custody, the majority concludes otherwise.                     By positing that the

regulation is not limited to detainees in federal custody, i.e.

"8   C.F.R.    § 236.6       is    not    temporally       limited,"        the   majority

impermissibly rewrites the regulation, deleting words from it.

See Majority op., ¶33.

      ¶67     The   majority        concedes       as    reasonable     the       court   of

appeals' conclusion that a detainee must be in federal custody

at the time the detainer form was served in order for 8 C.F.R.

§ 236.6 to apply.            Majority op., ¶¶25, 27.                  Nevertheless, it

deletes     words     from        the    federal        regulation    to     embrace      an

alternative interpretation.               Majority op., ¶¶33-34.

      ¶68     The majority embraces a conclusion of ambiguity, as it

must, in order to be free to borrow from extrinsic sources to
support its contention that the federal regulation applies to

any detainee with a federal immigration detainer——even those in

state or local custody.                  Majority op., ¶¶27-28.              By deleting

words from the regulation to render it ambiguous, the majority

undermines      the      principle        that     statutory         exceptions       under

Wisconsin's Public Records Law must be clear and explicit.

      ¶69     As this court explained, "the general presumption of

our law is that public records shall be open to the public
unless    there     is   a   clear       statutory       exception . . . Exceptions

                                             8
                                                                  No.   2015AP1152.awb


should be recognized for what they are, instances in derogation

of the general legislative intent, and should, therefore, be

narrowly construed; and unless the exception is explicit and

unequivocal, it will not be held to be an exception."                         Hathaway

v. Joint Sch. Dist. No. 1, City of Green Bay, 116 Wis. 2d 388,

397,       342   N.W.2d 682     (1984)    (emphasis     added).         If,   as   the

majority contends, 8 C.F.R. § 236.6 is ambiguous and subject to

alternative        reasonable    interpretations,       it   follows       that    the

regulation         does   not   present    a   "clear    statutory       exception"

precluding release of the record to the public.                   See id.

       ¶70       Further evincing that 8 C.F.R. § 236.6 does not apply

here is the fact that neither ICE nor Sheriff Clarke cited 8

C.F.R. § 236.6 as a justification for denying Voces'                           public

records request until this case was on appeal.7                         Such a void

       7
       At oral arguments, counsel revealed that Sheriff Clark's
office consulted with two different ICE representatives and the
ICE representatives did not cite 8 C.F.R. § 236.6 as
justification for denying the release of the requested I-247
forms:

       The Court:   [D]id ICE tell the Sheriff's office you
       cannot release any information or these records
       pursuant to 8 C.F.R. § 236.6?

       Counsel for Sheriff Clarke:     They were not provided
       with that advice, no. The advice they received was
       certain specific information on these forms should be
       redacted and here are the reasons why under federal
       law under FOIA (Freedom of Information Act) ICE
       believed the information should be protected.

       The Court:     Then it doesn't appear that ICE was
       applying § 236.6 to these forms because they oked the
       release of the names among other arguably personal
       identifiable information.

                                                                         (continued)
                                           9
                                                                       No.     2015AP1152.awb


highlights that this relatively obscure federal regulation was

never intended to apply to detainees in state or local custody.

Apparently     both    were    unfamiliar         with      this     obscure    regulation

upon which Clark and the majority now rely.

      ¶71   It    is   not    surprising         that       neither    ICE   nor    Sheriff

Clarke   was     familiar     with    8    C.F.R.       §    236.6    in    this    context.

After all, this relatively obscure regulation was promulgated to

protect information about individuals detained by the federal

government on suspicion of terrorism following the attacks of

September      11,   2001.      See       Am.    Civil      Liberties       Union    of    New

Jersey, Inc. v. Cty. of Hudson, 799 A.2d 629, 648 (N.J. App.

Div. 2002) ("the real focus of the regulation, as evidenced by

the rationale presented in its preamble, may be seen to be on

the   facilitation      of    law    enforcement            efforts    in    the    wake    of

September 11.").

      ¶72   Indeed, the drafting records of 8 C.F.R. § 236.6 are

replete with references to federal 9/11 detainees.                             Absent from

the Federal Register is any mention of the need to prevent the


      Counsel for Sheriff Clarke:    It appears that way.
      236.6 is a relatively obscure provision and why it
      wasn't relied upon at the trial court level I am not
      sure. But I think it clearly applies to the facts of
      this case.

      The Court: But not just at the trial court level, ICE
      itself was not applying 236, or were they?

       . . .

      Counsel for Sheriff Clarke:   At the time of the open
      records request ICE did not tell Milwaukee County
      don't produce them because 236 applies.


                                            10
                                                           No.   2015AP1152.awb


release of information about detainees in state or local custody

who may later be transferred to federal custody.8

      ¶73   In sum, I conclude that the plain language of 8 C.F.R.

§ 236.6 indicates that its application is limited to federal

immigration    detainees.      This   conclusion   is    supported    by   the

promulgation history of the regulation and the fact that neither

ICE   nor   Sheriff   Clarke   referred    to   this    relatively    obscure

regulation until this case was on appeal.              Accordingly, unlike

the majority, I determine that Wis. Stat. § 19.36(1)-(2) when

read in conjunction with the entire text of 8 C.F.R. § 236.6 do

not statutorily exempt the detainer forms from disclosure.9


      8
       See e.g., Release of Information Regarding Immigration and
Naturalization Service Detainees in Non-Federal Facilities, 67
Fed. Reg. 19510 (Apr. 22, 2002) ("Disclosure could reveal
important information about the direction, progress, focus and
scope of investigations arising out of the attack on September
11, 2001, and thereby assist terrorist organizations in
counteracting    investigative     efforts    of    the    United
States. . . . In light of the national emergency declared by the
President . . . with respect to the terrorist attacks of
September 11, 2001, and the continuing threat by terrorists to
the security of the United States, and the need immediately to
control identifying or other information pertaining to Service
detainees . . . ."); see also 68 Fed. Reg. 4366 (Jan. 29, 2003).
      9
       The majority further missteps by concluding that the
requested I-247 forms are exempt in their entirety without
analysis of the possibility of redaction. Majority op., ¶3. In
so doing, the majority disregards the statutory requirement that
when a record contains some information subject to disclosure
and other information that is not, the record custodian "shall
provide the information that is subject to disclosure and delete
the information that is not subject to disclosure from the
record before release."     Wis. Stat. § 19.36(6).    Thus, once
again, a majority of this court "renders meaningless the
statutory direction to redact."   Democratic Party of Wisconsin,
372 Wis. 2d 460, ¶121 (Abrahamson, J., dissenting).


                                      11
                                                                               No.    2015AP1152.awb


       ¶74     Having concluded that the distinction between whether

a    detainee       is    in    federal      versus       state     or    local        custody      is

dispositive,          I     normally         would       turn     next         to     apply        that

distinction to this case.                   But not here.

       ¶75     Before this case reached this court it was undisputed

that the detainees in question were in state custody.                                    The court

of     appeals       repeatedly        explained,          "[i]t     is        undisputed          that

Sheriff Clarke held the jail prisoners in state custody and that

custody       had    not       expired      at     the     time    of     the        open    records

requests."          Voces De La Frontera, 369 Wis. 2d 103, ¶25; see also

id.,    ¶28    ("The       Sheriff       does      not    dispute        the    fact        that    the

prisoners in question here were held on state charges which had

not expired. . . . Here it is undisputed that the state custody

had not ended.");               id.,   ¶36 ("Here the twelve detainees were

still in custody on their state charges . . . ").

       ¶76     However,         during       oral        argument       before        this     court

Sheriff Clarke reneged on the previously uncontested facts.                                         He

now    asserts       that      some    of    the    detainees       in     question          were    in
federal custody at the time Voces submitted this request.

       ¶77     Sheriff         Clarke's attempt to              reconstruct the              factual

record at oral arguments is unavailing.                             He is not requesting,

pursuant to Wis. Stat. § 809.15(3), that this court supplement

or correct the record because it does not accurately reflect

what occurred in the circuit court.                         Rather, it appears he now

wants to create a different factual record.                              Sheriff Clarke had

the burden before the circuit court to present sufficient facts
and legal arguments to overcome the presumption favoring release

                                                   12
                                                        No.   2015AP1152.awb


of the requested records.           See Fox v. Bock, 149 Wis. 2d 403,

416, 438 N.W.2d 589       (1989).      As explained further       below, he

failed to meet his burden.       The time to develop a factual record

is before the circuit court, not at oral arguments before this

court.

                                      III

       ¶78   Having determined that 8 C.F.R. § 236.6 pertains to

detainees in the custody of only the federal government and that

no statutory exemptions precluding release apply here, I examine

next whether the records should be released.          See Linzmeyer, 254

Wis. 2d 306, ¶24.

       ¶79   This court applies "a balancing test on a case-by-case

basis to determine whether permitting inspection of the records

would result in harm to a public interest which outweighs the

public interest in opening the records to inspection."             Id., ¶25

(citation omitted).      As the party seeking nondisclosure, Sheriff

Clarke has the burden of overcoming the presumption in favor of

releasing the requested I-247 forms.          See Fox, 149 Wis. 2d at
416.

       ¶80   The balancing test is first applied by the records

custodian.     Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279

N.W.2d 179    (1979).     "If   the   custodian   decides   not   to   allow

inspection, he must state specific public-policy reasons for the

refusal.     These reasons provide a basis for review in the event

of court action."       Id. (citations omitted); Fox, 149 Wis. 2d at

416-17.



                                      13
                                                                    No.    2015AP1152.awb


       ¶81    Here,      the     records   custodian           explained     that    her

decision to redact information from the I-247 forms was made

pursuant to guidance provided by ICE.                        She stated, "[w]e work

with other law enforcement agencies and if they tell me one of

their numbers . . . is law enforcement sensitive, yes, I believe

them."       The records custodian did not cite 8 C.F.R. § 236.6 or

another public policy reason as justification for her decision

to not fully comply with Voces' public records request.

       ¶82    Nevertheless, the majority declares, "it is sufficient

that [the records custodian] recognized that I-247 forms may

contain sensitive information and accordingly took measures to

ensure       that     such   information        was    not    improperly      released"

because       "[w]e     cannot    expect    a     records       custodian      to   have

expertise in federal immigration law . . . ."                      Majority op., ¶5

n.5.

       ¶83    On appeal, Sheriff Clarke argues that "[t]he balancing

test     requires       consideration      of     Wisconsin's       presumption       of

privacy with respect to law enforcement records and personally
identifiable information . . . ."                     He also cites several FOIA

factors generally supporting these two public policies.

       ¶84    The need to protect privacy of law enforcement records

is a valid public policy concern.                     Linzmeyer, 254 Wis. 2d 306,

¶30 (explaining that records of law enforcement investigations

can be particularly sensitive and "are generally more likely

than most types of public records to have an adverse effect on

other public interests if they are released.").                           Additionally,
as the Linzmeyer court explained, if the release of a police

                                           14
                                                                          No.   2015AP1152.awb


record      would     interfere         with      an      on-going        prosecution      or

investigation, the general presumption of openness will likely

be overcome.        Id.

      ¶85    Here,     however,         Sheriff      Clarke      provides       no   details

about how the information contained in the I-247 forms would

actually affect the privacy concerns for law enforcement records

or   interfere      with    an    on-going        prosecution        or     investigation.

Unlike a police report which contains details about a specific

crime    under        investigation,            the       detainer        forms      contain

generalized information, much of which Sheriff Clarke already

disclosed on his website.

      ¶86    For example, evidence introduced in the circuit court

revealed     that    during      the    course       of   this    litigation,        Sheriff

Clarke's     office        posted       on     its     website     information         about

detainees in his custody.                Four separate posts were introduced

with each containing the name of a detainee, his photograph and

other personally identifying information.                        In bold letters above

each photograph appeared the word "Hold."                        Below the photograph
appeared information that indicated that it was an immigration

or ICE hold.        This evidence undermines Clark's purported privacy

concerns about ICE holds.

      ¶87    Sheriff Clarke further argues that the strong public

interest     in     protecting      a     detainee's        privacy       and     reputation

precludes release of the records.                    Yet, Sheriff Clarke's concern

about the detainees' privacy interests rings hollow considering

the disclosures he made on his website of some of the very



                                             15
                                                                   No.    2015AP1152.awb


information he now seeks to withhold from Voces.                            Before the

circuit court Voces questioned:

     [I]s it accurate to say that the only difference
     between what Sheriff Clarke sua sponte on his own
     behalf publishes on his website about the immigration
     status of individuals in his custody and what is on
     the form and what has been redacted by Sheriff Clarke
     on this form under the pretext of a concern for
     individual privacy is that Voces' ability to monitor
     and surveil compliance with administrative priorities
     is impaired . . . ?
     ¶88    On    the   other   side     of    the    balancing      test      is   Voces

attempt    to    provide   public       oversight     of    law    enforcement         and

immigration      law    implementation,         specifically       to    ensure       that

Sheriff Clarke's office is complying with federal and state law.

Before    the    circuit   court,       Voces    explained        that    it    has    an

interest    in    monitoring      and    collecting        data    to    ensure      that

Sheriff Clarke's office is complying with federal immigration

guidelines.       Voces also expressed concern that non-compliance

with federal guidelines would hinder law enforcement abilities

by   eroding      public     trust       and     collaboration           between       law

enforcement and immigrant communities.                 The circuit court found

these interests to be "compelling."               I agree.

     ¶89    Further weighing in favor of disclosure is the fact

that Voces seeks information about the actions of an elected

official.       See Democratic Party of Wisconsin, 372 Wis. 2d 460,

¶18 (citing Linzmeyer, 254 Wis. 2d 306, ¶29). Additionally, "the

process of police investigation is one where public oversight is

important."      Linzmeyer, 254 Wis. 2d 306, ¶27.
     ¶90    Sheriff      Clarke      points      to    the        important         public

interests of the need to protect "privacy with respect to law
                                          16
                                                                 No.    2015AP1152.awb


enforcement     records    and    personally       identifiable        information."

Nevertheless, on balance, I conclude that he has failed to meet

his burden.      Sheriff Clarke has not established that the release

of the I-247 forms would result in harm to the public interest

outweighing      the    strong    public       interest    in   providing     public

oversight   of    an    elected     official      to   ensure    compliance      with

federal and state law.           Accordingly, I would affirm the court of

appeals decision ordering the unredacted release of the I-247

forms.

    ¶91     For the foregoing reasons, I respectfully dissent.

    ¶92     I   am     authorized    to    state    that    Justice      SHIRLEY   S.

ABRAHAMSON joins this dissent.




                                          17
    No.   2015AP1152.awb




1
