The main way in which the public can access information about what the federal government is doing is through the Freedom of Information Act (FOIA). However, laws that allow the public to get state public records, also known as sunshine laws or public records laws, are different from state to state. State and local government entities often can interpret their respective state sunshine laws differently. As a result, requests for the same information can lead to records produced by an entity in one state and shielded from the public in another and, in some cases, released by one local government entity but not produced by another in the same state.
The hodgepodge of state “sunshine” laws can lead to unjustifiable gaps in transparency around immigration enforcement and detention. This is especially harmful because local law enforcement agencies have increased their role in immigration enforcement through programs like 287(g) agreements and Secure Communities, both of which rely on local law enforcement to initiate detentions that can ultimately end up in deportations. State agencies also play an important role in administering immigration detention. While immigration detention centres are often funded by the federal government, they are often managed by private prison companies that contract with local governments.
This expansive role means it is critically important to ensure transparency and oversight over state agencies. The release of state public records under state sunshine laws is key to achieving meaningful accountability. However because each state has different laws around releasing public records, this creates major challenges for those who want to get a complete picture of immigration detention and enforcement in a local community.
One example: In 2022, the American Immigration Council and the Black Alliance for Just Immigration (BAJI) filed eight nearly identical public records requests in Louisiana, Mississippi, and Texas, asking state entities to provide information about how individuals in immigration custody are treated.
The results varied widely. In Texas, Williamson County produced a trove of records—from ICE contracts to emails between county officials—about the T. Don Hutto detention facility in response to our request. On the other hand, the City of Alvarado—home to the Prairieland Detention Facility—only released the contracts it entered into with ICE to run the facility. The City asked Texas Attorney General Ken Paxton to weigh in on whether other materials were shielded from disclosure under exemptions written into Texas law. Paxton concluded that the City of Alvarado could withhold the requested records.
We also found different practices regarding the fees state entities may charge requesters for releasing public documents. Under Louisiana law, for example, custodians of public records may charge a reasonable fee to produce documents in response to a request and may waive the fee under certain circumstances. During our investigation, the Winn Parish Sheriff’s Office charged $155 to send us responsive records, at a rate of $1 per page. The Jackson Parish Sheriff’s Office, also in Louisiana, did not charge this fee.
These practices provide local entities subject to state sunshine laws with harmful tools to obscure government transparency and obstruct accountability. For immigrants, FOIA provides a reprieve by which they can access information about their cases. But to get the full picture of what happens to immigrants detained by local law enforcement agencies and transferred to ICE custody, the federal documents accessed via FOIA are no substitute to the state public records. It is only through state records that we can learn about local officers’ disciplinary actions, health records, and even the original police reports with details on the initial detentions.
Access to records should not depend on who has the resources to retain lawyers who can challenge the government’s lawyers in court. Excessive fees also can be used as a deterrent for the public to access public information. Records of particularly complex matters could amount to hundreds, if not thousands, of pages, which translates into potentially thousands of dollars in fees. Community members, and even community organizations, may not have the resources to obtain these records.
As state legislators update public records laws in their respective states, they must reject efforts to shield documents from the public. Unfortunately, in some states, this has not been the case. The good news is that the backlash to proposals seeking to deny the public access to government documents has been both fierce and bipartisan.
Ironically, in the Texas Public Information Act Handbook, AG Paxton argues for the importance of the public’s right to monitor the government’s decision-making. Local governments must do all they can to adopt policies that live up to these ideals rather than shield themselves from public scrutiny. It is easy to write this principle down on paper. It is entirely different to uphold it and put it into practice.
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