(CN) – In oral arguments Thursday, the American Civil Liberties Union urged a Ninth Circuit panel to order the Department of Homeland Security to reveal the names of agents accused of abusing immigrant children in custody.
Without the identities of the agents, ACLU attorney Mitra Ebadolahi argued, no one can adequately assess how Homeland Security is investigating and punishing abuse or whether any agents are involved in multiple allegations.
But the government has argued releasing the names could put the agents at risk, and the ACLU doesn’t need them to piece together the information they seek.
The case reaches back to 2014, when – after identifying allegations of abuse through interviews with children who had been in custody – the ACLU and other nonprofits filed a broad request under the Freedom of Information Act for data relating to the children’s treatment. The government didn’t respond.
In 2015, the ACLU of Arizona and ACLU of San Diego and Imperial Counties sued, eventually getting roughly 30,000 redacted documents relating to handling of migrants. But the documents do not include the names of agents accused of abuse – something the ACLU argues it needs to assess the investigation process.
Last year, U.S. District Judge John Tuchi in Arizona ruled the government must reveal the names, and the government appealed.
“Given the substantial amount of information that’s both available in the records here and generally to the public, the public interest in overseeing the quality of investigations would not be appreciably furthered by knowing the names of specific individual agents,” Justice Department attorney Laura Myron told the panel Thursday.
In similar cases, courts have sided with the government, Myron said.
“Where there are allegations of the kind at issue here, that the government has not been investigating claims properly, the court has said that the significant privacy interests of the individuals who are named in those investigative documents outweighs any public interest,” she said.
“But the district court came to a different conclusion here, and here you are,” said U.S. Circuit Judge Morgan Christen, a Barack Obama appointee.
The ACLU is trying to piece together how Homeland Security investigates allegations of abuse and determine if some agents are implicated multiple times, Ebadolahi said.
Senior U.S. Circuit Judge John C. Wallace, a Richard Nixon appointee, pointed out both sides would win if they could find a way to identify individuals without names, such as by assigning a number to each named individual.
“We would gladly accept some alternative other than the names of these officials, if that would allow us to trace the information,” Ebadolahi said. “We tried to raise this issue with counsel prior to summary judgment briefing and they refused to engage, unfortunately. We’re not seeking the names for the sake of the names, we’re trying to make sense of the records.”
The government argued the ACLU could get the information it needs with another request.
“A lot of the concerns that opposing counsel has raised with regard to the information that they are missing could be filled in by filing a new FOIA request looking for more specific information. To my knowledge they have not done that,” Myron said.
The case stems from an ACLU investigation which included interviews with more than 1,000 children who had been in Homeland Security custody. That probe uncovered 116 allegations of abuse, including physical, emotional and sexual abuse, and poor holding conditions.
“One quarter of these children reported physical abuse, including sexual assault, beatings, and the use of stress positions by Border Patrol agents, and more than half reported various forms of verbal abuse, including death threats,” the lawsuit states. “Many reported being denied blankets and bedding and attempting to sleep on the floors of unsanitary, overcrowded, and frigid cells.” U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, rounded out the panel, which took the case under submission.