ICE Seeks Permission to Destroy Records of Sexual Assaults and Deaths

Immigration officials have received preliminary approval to destroy detainee records, including evidence that relates to in-custody deaths and sexual assault cases after a 20 year period.

A July 14, 2017 notice published by the National Archives and Records Administration (NARA)—the agency in charge of archiving materials created by the federal government—states that Immigration and Customs Enforcement (ICE) is seeking permission to destroy “records related to detainees, including incidents of sexual abuse and assault, escapes, deaths while in agency custody, telephone rates charged to detainees, alternatives to detention, logs and reports on status of detainees and detention facilities, and location and segregation of detainees.”

ICE was founded in 2003, which means it could begin destroying records from that year as soon as 2023. ICE’s deputy press secretary, Sarah Rodriguez, told Splinter she did not have a sense of how many documents would be destroyed should the agency’s request be fully approved.

According to the agency, ICE currently detains an average of 40,000 people a day, so the number of documents and materials the agency could destroy each year could easily reach the hundreds of thousands.

NARA has given its preliminary approval to the request, which raises questions about whose history is worthy of permanent preservation at the National Archives. It also comes during an era when ICE has abruptly stopped sharing data with researchers and limited information available to attorneys—all while the administration has increased enforcement and detained more undocumented immigrants than ever before.

The National Archives permanently archive anywhere from two to five percent of federal records generated in any given year, according to Laura Sheehan, a NARA spokesperson. NARA’s website says that the archives include “documents and materials created in the course of business conducted by the United States Federal government.” Records retained include emails from top officials, ancestry and military records, and will also include President Trump’s tweets, even the ones he deletes.

There have been 10 confirmed deaths in ICE custody during this fiscal year, which ends September 30. The records related to these in-custody death investigations are not classified as “permanent.” An additional 150 people died in ICE’s custody between 2003 and 2015, according to Homeland Security data reviewed by New York University researchers.

ICE did not respond to Splinter’s request for more information on the current retention schedule for records of in-custody ICE deaths. But for reference, NARA told Splinter that the Federal Bureau of Prisons, which incarcerates federal inmates, destroys records of in-custody deaths after five years. The U.S. Marshals Service destroys in-custody death records about two years after the investigation is concluded, according to schedules approved by NARA.

When an inmate dies in custody, ICE conducts an investigation that can result in a comprehensive file which includes investigative reports, witness statements, medical records, photographs, and autopsy reports—all of which stand to eventually be destroyed should ICE’s request be granted. The documents destroyed could also include findings of violations of ICE’s own set of detention standards, according to NARA’s evaluation of the request.

Sheehan, the NARA spokesperson, told Splinter that an appraiser recommended approving ICE’s request to destroy in-custody death records after 20 years because “these files do not meet our appraisal criteria for permanently valuable records. The legal rights of individuals documented by these records do not continue indefinitely, and the records do not document significant actions of Federal officials that are not captured elsewhere.”

Experts say the National Archives tend to place permanent historical value on materials created by federal agency heads and elected officials. A detainee’s death investigation records would only be permanently archived if the death was related to employee misconduct, Sheehan said.

Sheehan went on to say, “NARA recognizes that records not meeting our appraisal criteria for permanent preservation may nevertheless be of significant interest to the public. A lengthy retention period ensures that interested parties may request the records from the originating agency through the Freedom of Information Act (FOIA) process.”

The NARA official who reviewed ICE’s request also justified the destruction of detainee sexual abuse and assault files by noting that the information is highly sensitive and that ICE “creates annual reports on incidents of allegations of sexual abuse or assaults of individuals in ICE custody,” according to NARA documents obtained by Splinter.

But these annual reports are often summaries written by ICE officials and may not include thorough details of every reported case of sexual assault. The Department of Homeland Security’s Office of the Inspector General, which supervises independent audits and investigations of ICE, only reviews about 2.4 percent of sexual abuse reports filed by people in ICE detention, according to an immigrant rights watchdog organization that obtained data through a Freedom of Information Act request. The watchdog group, Community Initiatives for Visiting Immigrants in Confinement (CIVIC), found that only 24 complaints were investigated out of 1,016 reports of sexual abuse filed by ICE detainees between May 2014 and July 2016.

The NARA spokesperson justified the destruction of sexual assault records by citing a Freedom of Information Act exemption that protects information about an individual’s medical files. To protect the detainee’s privacy, the exemption stipulates, sexual assault records are not made available for 100 years from the date of birth of the person who filed the report. In the eyes of NARA, any “research interest in the specific cases would have diminished considerably by that time,” the spokesperson said.

There are some immigration files NARA has classified as permanent. In 2013, there were about 70 million active Alien Registration Files (A-Files) that include immigration and naturalization records for non-citizens. NARA “scheduled” these files as permanent in 2008 because they are used in genealogical and other historical research and because they serve as “the primary documentation for most of our government’s immigration processes,” according to a NARA report.

ICE’s request has largely flown under the radar. NARA has already received and reviewed the request and is accepting public comments before it makes a final decision. The public comment period will close on September 7, 2017.

Russ Kick, who runs The Memory Hole 2 website, has written about ICE’s request to destroy documents and has details on how readers can send feedback to NARA during the commenting period. (In 2004, Kick’s website made international headlines when it was the first site to publish Pentagon-banned photos of flag-draped caskets of fallen soldiers returning from Iraq and Afghanistan.)

Sarah Rodriguez, ICE’s deputy press secretary, said the request to destroy detainee documents is “routine, government record maintenance as prescribed by [NARA.]”

“[NARA] are the ultimate arbiters of how long we keep records and when they should be destroyed,” said Rodriguez, who directed further questions to NARA.

Victoria Lopez, a senior staff attorney with the ACLU’s National Prison Project, said there shouldn’t be a rule that this information is no longer relevant or important for legal purposes or public information.

“[The documents are] important for being able to tell the story of what the government agency is doing as well as to be able to make policy changes, reform the system, and be able to have adequate oversight of an agency,” Lopez told Splinter.

As the system works now, Lopez said, “it has been a real struggle for attorneys and advocates to gather information about ICE’s detention practices.”

Dr. Stacy Wood, an assistant professor in the School of Computing and Information at the University of Pittsburgh, said she was not surprised by NARA’s preliminary approval to destroy ICE records because the national archives tend to place greater historical value on agency heads and politicians.

“The implicit argument here is that NARA trusts that ICE’s reports are accurate and adequate and a replacement for the records themselves,” said Dr. Wood, whose research focuses on the ethical and legal aspects of the creation, retention, and destruction of government records.

Last week, NARA announced ICE is proposing to permanently archive its national detention center standards, the set of guidelines detention centers must abide by to maintain “consistent conditions of confinement.” But the original records from investigations that show whether they followed those rules will remain classified as “temporary.”

“There is absolutely a humongous hole in the [National Archives’] records but it’s not surprising and not unique to this situation,” Dr. Wood told Splinter. “We are past overdue in rethinking a system that privileges records from the top-down instead of privileging records as evidence of the interaction between people and the federal government.”