Communications between ICE and Mayor's Office of Public Safety

Hello,

Attached please find a completed RKT request form for the below request. Please confirm receipt and assign a tracking number, as applicable.

Thank you!

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To Whom It May Concern:

Pursuant to Pennsylvania Right to Know Act, I hereby request the following records:

Any and all emails, memoranda, and memorandums of understanding sent from and/or received by: Immigration and Customs Enforcement's national office, ICE's Philadelphia office, and Mayor Michael Nutter's Office of Public Safety.

The time frame for this request includes any and all responsive documents from 1 February 2014 up to and including the date in which this request is officially processed.

I have provided the following keywords to assist records staff in their search: "Delaware Valley Intelligence Center", "DVIC", "immigration detainers", "fusion center", "Michael Resnick", "Everett Gillison", and "Walt Smith".

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires.

Sincerely,

Dustin Slaughter

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on April 22, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on April 22, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

Office of Open Records
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, PA 17120-0225

DA Appeals Officer
Three South Penn Square
Philadelphia, PA 19107-3499

This is a formal appeal of the City of Philadelphia Office of Public Safety's denial of my Right-to-Know request originally submitted on 22 April 2014.

This request sought the following:

"Any and all emails, memoranda, and memorandums of understanding sent from and/or received by: Immigration and Customs Enforcement's national office, ICE's Philadelphia office, and Mayor Michael Nutter's Office of Public Safety.

The time frame for this request includes any and all responsive documents from 1 February 2014 up to and including the date in which this request is officially processed.

I have provided the following keywords to assist records staff in their search: "Delaware Valley Intelligence Center", "DVIC", "immigration detainers", "fusion center", "Michael Resnick", "Everett Gillison", and "Walt Smith".

First and foremost, “The objective of the Right to Know Law...is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012).

This request clearly seeks information concerning the activities of City government as it relates to communications between Immigration and Customs Enforcement and the Office of Public Safety on the matter of immigration detainers, an issue of much public debate and media coverage, including in Philadelphia.

Additionally, RTKL is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d No. 20 MAP 2011, 2013 Pa. LEXIS 1800 (Pa. Aug. 20, 2013).

As such, this request was filed in the true spirit of the statute and in the interest of the newsgathering process, as it seeks to “scrutinize the actions of public officials” in the matter of immigration detainers, and the eventual dissolution of the detainer agreement the City had with ICE, which occurred this year and was a greatly-discussed matter in the news media.

Furthermore, the documents sought are public records under the Right-to-Know Law, as they are defined by the Act because the records sought are "information...that documents...activity of an agency and that is created, received or retained...in connection with [the] activity of the agency." (67.102). Also, the documents sought are public records because they are held by a "local agency" as defined by the Act and are not exempt under section 708, exempt under Federal or State law, nor protected by privilege. (67.102)

The City cited a number of exemptions in its denial, which this appeal intends to address individually below:

Curiously, the City first parsed the language of the request to give the impression that this requester was seeking communications directly, and solely, from ICE; in so doing, this parsing enabled the City to claim that “the records are not within the City’s possession and the City has no legal obligation to obtain them”, citing Cf. Jenkins vs. Pennsylvania Department of State, AP 2009-0065 (OOR April 2, 2009). Either willfully or in error, the City failed to take the whole of the request in proper context; indeed, if the City had viewed the request in the proper context, it would have construed that the request seeks aforementioned forms of communication, i.e. email, both sent from Office of Public Safety and received by ICE regarding immigration detainers; emails, for instance, do not simply disappear from a sender once sent from a City office to ICE; furthermore, paper copies of memorandums are retained once sent to addressees, and will often be sent (cc’d) to various and related parties. This matter of context is crucial, as Askew v. Pennsylvania Office of the Governor, 65 A.3d 992 (Pa. Commw. Ct. 2013) notes.

The City then parses further by removing the portion of the request seeking “any and all emails, memoranda, and memorandums of understanding sent from and/or received by” from proper context. The City then uses this to claim insufficient specificity, therefore claiming it is unable to respond. 65 P.S. 67.703.

The City then asserts its right to deny records claiming "...the request was 'insufficiently specific' because it did not include 'subject matter for [the] request'; 'identified any agency business'; and failed to 'identify any employees of the Office of Public Safety from whom records are sought.'"

This is incorrect. The request clearly identifies subject matter and agency business, being "immigration detainers"; employees, being "Michael Resnick", "Everett Gillison", and "Delaware Valley Intelligence Center" supervisor and Philadelphia Police Department Inspector "Walt Smith". Indeed, the request specifically states: "I have provided the following keywords to assist records staff in their search."

It is a matter of public record that Deputy Mayor of Public Safety Everett Gillison and Director of Public Safety Michael Resnick are currently associated with the Office of Public Safety.

Lastly, OPS simply recites the aforementioned statutory language without any further explanation, which is obviously not sufficient under the Act. See: Signature Info. Solutions, LLC v Aston Twp., 995 A.2d 510, 513 (Pa. Commw. 2010). By failing to provide any justification in support of the claimed exceptions, including those pertaining to 67.708(b) and CHRIA, OPS has failed to meet the preponderance burden.

As always, thank you for your time and consideration. I look forward to your final determination.

Sincerely,
Dustin Slaughter

As per your last communication, find the Final Response attached.

Please disregard the previous communication sent June 28th. I sent it erroneously to your office.

Respectfully,
Dustin Slaughter

Please include the Office of Public Safety's original denial of this request, dated May 29, and send to:

DA Appeals Officer
Three South Penn Square
Philadelphia, PA 19107-3499

Thank you.

Office of Open Records
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, PA 17120-0225

DA Appeals Officer
Three South Penn Square
Philadelphia, PA 19107-3499

This is a formal appeal of the City of Philadelphia Office of Public Safety's denial of my Right-to-Know request originally submitted on 22 April 2014.

This request sought the following:

"Any and all emails, memoranda, and memorandums of understanding sent from and/or received by: Immigration and Customs Enforcement's national office, ICE's Philadelphia office, and Mayor Michael Nutter's Office of Public Safety.

The time frame for this request includes any and all responsive documents from 1 February 2014 up to and including the date in which this request is officially processed.

I have provided the following keywords to assist records staff in their search: "Delaware Valley Intelligence Center", "DVIC", "immigration detainers", "fusion center", "Michael Resnick", "Everett Gillison", and "Walt Smith".

First and foremost, “The objective of the Right to Know Law...is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012).

This request clearly seeks information concerning the activities of City government as it relates to communications between Immigration and Customs Enforcement and the Office of Public Safety on the matter of immigration detainers, an issue of much public debate and media coverage, including in Philadelphia.

Additionally, RTKL is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d No. 20 MAP 2011, 2013 Pa. LEXIS 1800 (Pa. Aug. 20, 2013).

As such, this request was filed in the true spirit of the statute and in the interest of the newsgathering process, as it seeks to “scrutinize the actions of public officials” in the matter of immigration detainers, and the eventual dissolution of the detainer agreement the City had with ICE, which occurred this year and was a greatly-discussed matter in the news media.

Furthermore, the documents sought are public records under the Right-to-Know Law, as they are defined by the Act because the records sought are "information...that documents...activity of an agency and that is created, received or retained...in connection with [the] activity of the agency." (67.102). Also, the documents sought are public records because they are held by a "local agency" as defined by the Act and are not exempt under section 708, exempt under Federal or State law, nor protected by privilege. (67.102)

The City cited a number of exemptions in its denial, which this appeal intends to address individually below:

Curiously, the City first parsed the language of the request to give the impression that this requester was seeking communications directly, and solely, from ICE; in so doing, this parsing enabled the City to claim that “the records are not within the City’s possession and the City has no legal obligation to obtain them”, citing Cf. Jenkins vs. Pennsylvania Department of State, AP 2009-0065 (OOR April 2, 2009). Either willfully or in error, the City failed to take the whole of the request in proper context; indeed, if the City had viewed the request in the proper context, it would have construed that the request seeks aforementioned forms of communication, i.e. email, both sent from Office of Public Safety and received by ICE regarding immigration detainers; emails, for instance, do not simply disappear from a sender once sent from a City office to ICE; furthermore, paper copies of memorandums are retained once sent to addressees, and will often be sent (cc’d) to various and related parties. This matter of context is crucial, as Askew v. Pennsylvania Office of the Governor, 65 A.3d 992 (Pa. Commw. Ct. 2013) notes.

The City then parses further by removing the portion of the request seeking “any and all emails, memoranda, and memorandums of understanding sent from and/or received by” from proper context. The City then uses this to claim insufficient specificity, therefore claiming it is unable to respond. 65 P.S. 67.703.

The City then asserts its right to deny records claiming "...the request was 'insufficiently specific' because it did not include 'subject matter for [the] request'; 'identified any agency business'; and failed to 'identify any employees of the Office of Public Safety from whom records are sought.'"

This is incorrect. The request clearly identifies subject matter and agency business, being "immigration detainers"; employees, being "Michael Resnick", "Everett Gillison", and "Delaware Valley Intelligence Center" supervisor and Philadelphia Police Department Inspector "Walt Smith". Indeed, the request specifically states: "I have provided the following keywords to assist records staff in their search."

It is a matter of public record that Deputy Mayor of Public Safety Everett Gillison and Director of Public Safety Michael Resnick are currently associated with the Office of Public Safety.

Lastly, OPS simply recites the aforementioned statutory language without any further explanation, which is obviously not sufficient under the Act. See: Signature Info. Solutions, LLC v Aston Twp., 995 A.2d 510, 513 (Pa. Commw. 2010). By failing to provide any justification in support of the claimed exceptions, including those pertaining to 67.708(b) and CHRIA, OPS has failed to meet the preponderance burden.

As always, thank you for your time and consideration. I look forward to your final determination.

Sincerely,
Dustin Slaughter

The appeal has been resent with the original denial and should reach your office soon.

Thank you.