Oregon attorney general asks federal judge to dismiss Marion County’s immigration records lawsuit

By MADELEINE MOORE/Salem Reporter

The state of Oregon is asking a federal judge to dismiss a Marion County lawsuit over immigration records, saying state law is clear that the county can’t share information about men on parole for local crimes with federal immigration authorities.

Attorney General Dan Rayfield filed a motion Monday in U.S. District Court in Eugene to dismiss the lawsuit, which county officials filed Aug. 18 to seek clarity on whether they could share contact information and other details about men on parole with U.S. Immigration and Customs Enforcement.

“Because state law unequivocally prohibits Marion County from producing the requested information without a court order, and because the county will suffer no legal consequences from insisting that a court order issue before it complies, there is nothing further for this court to do,” Rayfield wrote.

The motion is the latest in an ongoing back-and-forth between Marion County, the state and federal authorities who say they are trying to locate several men in Salem who served prison time for violent crimes and should be deported.

ICE sent subpoenas to the Marion County Sheriff’s Office on Aug. 1 asking for information about five men on parole, according to the county’s lawsuit. The lawsuit named Gov. Tina Kotek, U.S. Department of Homeland Security Secretary Kristi Noem and acting ICE Director Todd Lyons.

Marion County said that a federal judge needs to resolve conflicts between Oregon’s so-called sanctuary law, state public records law and federal law. The county compiled information to respond to the ICE subpoenas but has not provided them as of Tuesday, according to Marion County counsel Steve Elzinga.

Oregon sanctuary law generally bars agencies from sharing information with immigration authorities for enforcement purposes, unless ordered to do so by a judge.

Rayfield argued that ICE does not have authority to inspect the information under the state’s public records law. The subpoenas sent to Marion County were signed by a special agent, not a judge. That means they are not to be cooperated with under Oregon law, Rayfield argued.

Rayfield said that previous court rulings have made clear that sanctuary and federal law do not conflict, and that if a judge orders to enforce subpoenas, agencies are then required to provide the information.

“And yet, when Marion County faced those exact circumstances a few months ago, it filed this lawsuit instead, seeking an advisory opinion from this court rather than following well-established processes under state and federal law – processes that have been in place for many years without the need for lawsuits or further clarification,” Rayfield wrote in the motion.

In a statement Tuesday, Marion County disputed Rayfield’s argument that there is no conflict between state and federal laws.

“The state’s assertion that there is no legal uncertainty fails a basic smell test when there is an obvious federal-state clash over subpoenas requesting public records of violent criminals and the majority of Oregon’s sheriffs and counties who are caught in the middle say that legal clarity is needed,” Elzinga said.

The U.S. Attorney’s Office separately filed a lawsuit Oct. 1 to enforce subpoenas sent to Marion, Multnomah, Washington and Clackamas counties requesting information on 10 men previously convicted of crimes in the counties. In that case, Marion County asked a judge to order it to release information to ICE, according to an Oct. 6 filing. No such order has been issued yet, federal court records show.

Twenty Oregon counties and all but two of the state’s sheriffs support Marion County’s lawsuit seeking clarification on immigration subpoenas.

In a letter sent to Rayfield and U.S. Attorney General Pam Bondi Oct. 6, counties said Marion County should ask a judge to “issue a detailed opinion that provides the type of clarity that will help all local governments ensure they are properly following federal, state and local laws.”

In its subpoenas, ICE sought personal information on five men on parole in Marion County for serious crimes, including rape, sexual abuse, kidnapping and theft. ICE later rescinded one subpoena due to “discrepancies in biographical information,” an email from the U.S. Attorney’s Office said.

Salem Reporter filed a public records request Sept. 18 for the information ICE requested in its administrative subpoenas and received the records a week later without exemptions or redactions. The news publication was not charged for the records.

The records, which include home addresses, employers and phone numbers for each of the men, were also provided to OPB and KOIN 6, according to a declaration by Elzinga.

Providing the records to news outlets underscores a key claim in Marion County’s lawsuit. The county argued that under state public records law, information about people on parole is a public record that anyone can obtain through a public records request.

Until Monday, Rayfield had not previously addressed the county’s claim about conflicts between sanctuary and public records law.

In the motion, he cited state law that says people who are allowed to inspect public records include “any natural person, corporation, partnership, firm, association or member or committee of the Legislative Assembly.”

Public bodies and the federal government are not included in Oregon’s definition of who is allowed access to public records, Rayfield said.

“Here, the administrative subpoenas issued by ICE are issued under federal government authority, not in anyone’s individual capacity, do not state that they are public records requests and do not invoke the Oregon public records law on their face,” he wrote in the motion.

The ICE special agent who signed the subpoenas could have access to the information if the information was requested on behalf of an individual, and not a public agency, according to Rayfield’s motion.

• Oregon Capital Chronicle is a nonprofit Salem-based news service that focuses its reporting on Oregon state government, politics and policy.