September 03. 2013 8:00PM

Union Leader Corp. appeals illegal immigrants ruling

New Hampshire Union Leader

The Union Leader Corp. is bringing to the First Circuit Court of Appeals in Boston its claim that the federal government cannot keep from the public the names and addresses of illegal immigrants arrested in New Hampshire during a 2011 national sweep of criminally convicted unlawful aliens.

The appeal filed Aug. 28 under the Freedom of Information Act seeks to reverse a U.S. District Court for New Hampshire order that said disclosing the names and addresses of the six immigrants who were criminally convicted while illegally in the United States would invade their privacy rights.

The six were among 2,901 illegal immigrants arrested nationwide by agents of the U.S. Department of Homeland Security's Immigration and Enforcement division, commonly known as ICE. The Sept. 28, 2011 arrests were part of national sweep called "Operation Cross Check."

"The public's right to know what the government is up to is sacred to our democratic society," attorney Gregory V. Sullivan said in asking the First Circuit Court to order ICE to release the information.

"The convicted criminal aliens at issue in this case have no legitimate privacy interest regarding the disclosure of their names," Sullivan maintained in asking for a new review of the case and oral arguments to be scheduled. Sullivan is an attorney with Malloy & Sullivan law firm in Manchester and Hingham, Mass., and represents the Union Leader Corp.

The Union Leader Corp. publishes the New Hampshire Union Leader, New Hampshire Sunday News and four southern New Hampshire weekly newspapers.

The appeal relies heavily on a similar case, the New York Times Co. & Maria Sacchetti v. U.S. Dep't of Homeland Security, in which the U.S. District Court for the Southern District of New York found in favor of the New York Times and Sacchetti, a Boston Globe reporter, and ordered ICE to disclose names of convicted criminal aliens released by ICE but not deported.

In ordering ICE to release the names on June 13, the court wrote "any criminal information about the individuals — specifically their arrests, convictions and sentences — is a matter of public record, and information regarding their immigration status is routinely disclosed in those public proceedings as well."

Sullivan said the facts of the Union Leader case "strongly parallel the facts of the New York Times case. All of the information that ICE claims to be potentially stigmatizing is already in the public domain."

The Union Leader Corp. made repeated attempts, both administratively through ICE and the U.S. District Court for New Hampshire, to obtain the names and addresses of the six immigrants since 2011. ICE provided information related to the arrests and convictions of the six individuals, but redacted their names and addresses.

ICE maintained the illegal immigrants' privacy rights outweighed the public interest and were exempt from Freedom of Information Act disclosure. U.S. District Court Judge Paul Barbadoro on April 18 granted ICE's motion for summary judgment.

In asking the First Circuit Court of Appeals to reverse Barbadoro's order, Sullivan argued no one has a "reasonable expectation of privacy regarding a public arrest by the government."

Furthermore, illegal aliens do not even enjoy a "minimal privacy interest" since federal privacy law defines an individual as either a U.S. citizen or alien lawfully admitted for permanent residence.

"Clearly ... Congress never intended to protect the privacy interests of unlawful aliens," Sullivan maintained.

Any privacy interests also are clearly outweighed by the "significant public interest in shedding light on the activities and performance of ICE and other government agencies" involved in handling convicted criminal aliens, he said.

The Union Leader cannot assess how these governmental agencies handled these six individuals' cases before and after their arrests without obtaining their names, Sullivan said.

"The disclosure of the names of these criminal aliens — which are already in the public domain as part of state court records and immigration proceedings — will shed substantial and necessary light on the performance of ICE and other governmental actors," Sullivan claimed.

One of the six illegal immigrants had deportation orders dating back to Jan. 8, 1988, and was convicted of criminal trespass in 1993. Another was convicted in Texas in 2001 for illegal entry and arrested again in 2005.

"The logical question is: why was he living in New Hampshire in 2011? No fruitful inquiry can reasonably be conducted without that individual's name," Sullivan argued.

In his April 18 order, Judge Barbadoro said the Union Leader failed to argue how releasing the names "would directly reveal anything about the way in which the government is conducting Operation Cross Check."

"In this case, the Union Leader bases its public interest analysis entirely on speculation about what the public might learn," he wrote.

Khaalid H. Walls, spokesman for ICE's New England division, said ICE does not comment on pending litigation.