The records of a new Tennessee centralized immigration enforcement division will largely be secret from the public under an exemption added to a bill in its lightening-speed path to its approval.

Two broad exemptions to the Tennessee Public Records Act in the bill say:

  • “The department may maintain any information or records collected or received by the division or chief immigration enforcement officer confidentially, including, but not limited to, sensitive or confidential information collected or received from a federal, local, or state department or agency.”
  • “The department of safety may maintain any information or records collected pursuant to the grant program confidentially, including, but not limited to, sensitive or confidential law enforcement information.”

Combined, the exemptions make records of the new division, including records collected on the grant program, exempt from the Tennessee Public Records Act. The agency would be allowed to release records it wanted to release, but the public would not have a right to request to see any of these records under the public records law.

The new immigration enforcement division will be part of the Department of Safety and Homeland Security, which oversees the Tennessee Highway Patrol and driver’s licenses. The Senate approved the bill yesterday, and the House is set to take a vote this morning. The bill is part of seven bills with appropriations of close to $1 billion that are part of a special session called by the governor. The short session opened on Monday and is expected to be finished by Thursday morning. The bill filed on Monday did not have a confidentiality provision, but an amendment was added Wednesday morning in House and Senate committees.

Sen. Bo Watson described the amendment before it was added in the Senate Finance Ways and Means Committee in a much more limited way: “It also extends — and this is an important component for Safety — the confidentiality protections for law enforcement records already held by Department of Safety to also apply to documents maintained by the newly established immigration enforcement division.”

But the actual language of the bill is not limited to records that the department receives from law enforcement, nor is it limited to records that are already confidential in the hands of law enforcement. For example, it allows a new set of records to be withheld that are deemed by someone as “sensitive.” It is not clear who would make that determination or what factors would be used. It could be the chief of the new immigration division.

New division will administer grants for local law enforcement

Some of the responsibilities of the new division are to coordinate with the federal government on enforcing immigration laws and handling a new grant program for local law enforcement and government who are helping the federal government.

The most common way local sheriffs or police departments help the federal government is through the 287(g) program, which allows the U.S. Immigration and Customs Enforcement agency to delegate to state and local law enforcement the authority to identify and process “removable aliens” or serve and execute warrants on aliens in their jails. In Tennessee, the Knox County Sheriff’s Department and Greene County Sheriff’s Department participate in the program.

The Trump administration — as part of an increased effort to deport immigrants who are in the country illegally — has encouraged states to help with the effort. The new Tennessee division provides a state-run pathway to do this rather than leaving it to individual law enforcement agencies, such as sheriff or police departments.

Records related to immigration enforcement can be withheld from public

Under the new state program, however, the records related to the new immigration enforcement effort will be largely confidential, including records about the grant program.

Watson told The Tennessee Lookout that the Department of Safety sought confidentiality to make the immigration enforcement division “consistent” with current law in the department. He said the provision is not new.

However, the Department of Safety does not have a similar provision of confidentiality on grant programs nor on records the department deems “sensitive.”

The main public records exemptions for the Department of Safety are for law enforcement investigations,  information on driver’s licenses, and some information related to accidents.

Most exemptions for state agencies have traditionally been narrow and more defined. However, in recent years, the administration for Gov. Bill Lee has sought broader exemptions that allow departments for themselves to decide what records to release and what records to withhold, such as last year’s exemption for the state tourism department.