Fairfax County — Nine months ago, Fairfax County adopted a Trust Policy to “ensure that the County is not a source of personal information that those outside the County can exploit for their own purposes.” This privacy right applies to all residents, but is especially critical for immigrant residents who fear information the County has could end up in the hands of Immigration and Customs Enforcement (ICE).
The Fairfax County Police Department (FCPD), the agency with the biggest trust deficit in Fairfax, is simply ignoring the policy. FCPD’s website allows the public to download a yearly arrest list that includes the full name, home address and date of birth of all persons arrested and charged. Over 19,000 charges are linked to identifiable individuals. FCPD is considering limiting disclosure to names, but that only reduces the privacy risk without eliminating it. It doesn’t matter whether a person is charged with a minor misdemeanor or serious violent felony. Nor does it matter whether the charge is dismissed or the person is found innocent. The list of shame is not updated.
FCPD’s publication constitutes an unwarranted invasion of privacy and undermines the presumption of innocence to which we all are entitled. Most newspapers, including the Washington Post and The Connection, don’t publish the names of people arrested for routine offenses. Neither does Arlington County, Richmond or Virginia Beach. But “progressive” Fairfax does.
Imagine you are arrested for being drunk in public. FCPD lets your neighbors and boss know, subjecting you to public humiliation at a minimum. If you have a foreign sounding name, the consequences are worse. Such publication has a disproportionate impact and increases hate crimes against those of Latinx, Asian, Middle Eastern and African descent.
If you are undocumented, the consequences are draconian. Public dissemination can thrust you into the deportation pipeline. Someone’s name and general location (they are arrested in Fairfax) gives ICE a roadmap to find them. ICE already has a vast database of people it suspects (often incorrectly) of being undocumented. ICE end-runs federal and state privacy laws by hiring powerful private data brokers including LexusNexus, Thomson Reuters and Palantir, to cross check this list against public or quasi-public data that can be used to track someone down.
Immigrant-haters help the process along as well. We can’t prove that ICE uses the online list. But the publication of thousands of foreign sounding names certainly provides locator information that ICE covets.
One thing is clear: the risk to undocumented immigrants in Fairfax is getting worse. In 2018, Fairfax was found to be an unfortunate “national leader” in the proportion of residents in deportation proceedings, with 12,000 people facing removal. The number has increased by over 4,000 since then, according to Syracuse University’s Transactional Records Access Clearinghouse. The percentage of Fairfax Latinx population in deportation is now 8.5%, up from 6.5% in 2018.
Of course, it is not “just” the residents being deported who are affected. There are over 370,000 immigrants residing in Fairfax. Most families are a mix of citizens, authorized and unauthorized immigrants. Deportation of one member affects them all.
We helped Fairfax County craft a robust Trust Policy to prevent this very problem. It is designed to make sure Fairfax doesn’t provide fodder for ICE’s civil immigration enforcement, directly or indirectly, unless disclosure is “required by law” or essential to fulfilling an agency’s mission. FCPD argues disclosure of arrestees’ identity is required by Virginia’s Freedom of Information Act (FOIA). Other Virginia jurisdictions disagree, saying they are prohibited from disclosing any identifiers without a court order. Whatever the law actually means, we know what it does not mean: FOIA does not require online publication; nor does it require FCPD to give out 19,000 names when a single name will do. FCPD also says publication is a matter of administrative convenience because many people ask for this information. It cites “defense attorneys” as a prime example, because they use this information to look for clients.
These excuses are indeed shameful.
Despite Fairfax’s commitment to “do everything we can to help people, protect them from association with ICE,” FCPD continues to facilitate the deportation pipeline, sow distrust and separate immigrant families. We call on FCPD to enforce the Trust Policy.
Take down the list of shame.
About the authors: Ms. Alejandro and Mr. Aguilar co-led the years-long advocacy campaign for adoption of the Trust Policy and were architects of the model provisions submitted to the County and adopted by Fairfax in all major respects. Ms. Alejandro is a social justice attorney with over 20 years’ experience and the Lead Advocate for ACLU People Power Fairfax. Mr. Aguilar is the Virginia Executive Director of CASA, the largest immigrant advocacy group in the Mid-Atlantic, with over 115,000 lifetime members.