Pam Bucy is one of two Democratic candidates for Attorney General of the State of Montana.  Last week, we reviewed the voting record of her opponent in the primary election, Jesse Laslovich, regarding state-level enforcement of federal immigration laws.  Unlike Jesse Laslovich, who had served in the Montana Legislature for ten years, Pam Bucy has not previously served in an elected position.  Therefore, she has no voting record on immigration issues that we can analyze.At the a debate last week moderated by Marnee Banks of KXLH, I submitted a question of the candidates:  “What do you believe is the proper role of the state law enforcement in dealing with federal immigration laws?”  (The question does not appear to have been included in the video that was posted online.)  Pam Bucy stated very clearly that the Montana Highway Patrol has no role whatsoever in enforcing federal immigration laws.  Presently, there are no laws permitting the Montana Highway Patrol or any other state or local law enforcement officers to enforce federal immigration laws, but it is still happening on a routine basis.  I have had occasion to review many instances in which law enforcement officers have asked individuals about their immigration status and held them without legal cause while they call Immigration and Customs Enforcement (“ICE”) or check federal databases to determine their immigration status.  Naturally, this practices often results in racial profiling.  I took Pam Bucy’s comments to be a strong rejection of that precedent.Nevertheless, without a voting record to rely upon, it becomes more important to consider any other information that may reflect upon the relevant issues.  To that end, I will recount a professional interaction with Pam Bucy that may shed light on her interpretation of the Montana Constitution, the privacy protections provided under state law, and the role of the state in sharing information with the federal government.  As discussed below, I believe this interaction with Pam Bucy raises some concerns.In the course of a federal lawsuit I was defending, I came across documents revealing that the State of Montana Unemployment Insurance Division had been illegally disclosing confidential personal information for years.  Almost every businesses in Montana must file Quarterly Wage Reports with the State, containing employees’ names, social security numbers, and salary information.  From at least 2005 to 2007 — and likely continuing long after these dates — officers with Immigration and Customs Enforcement (“ICE”) would contact the Unemployment Insurance Division and ask for copies of the Quarterly Wage Reports for businesses that were “under investigation.”  ICE is an agency within the Department of Homeland Security, and is charged with enforcing federal immigration laws.The Unemployment Insurance Division routinely violated Montana’s Constitution and statutes by providing non-redacted copies of all of the requested Unemployment Insurance reports, without any warrant or legal basis for doing so.  In other words, they would disclose confidential information on every single employee, including their names, social security numbers, and wages, without demanding a warrant or even limiting the disclosure to specific individuals who were allegedly under investigation.This allowed ICE to engage in a “fishing expedition” and secretly investigate every employee of a business, without any individual suspicion about each particular employee’s immigration status.  ICE agents could use the names and social security numbers they received from the Unemployment Insurance Division to attempt to ascertain the immigration status of every single employee.  ICE agents used a flawed database to crosscheck their social security numbers, and in some cases they incorrectly transcribed employees’ information.  Therefore, some authorized workers who had done nothing wrong were falsely believed to have invalid social security numbers, and were improperly detained while this was sorted out.On June 28, 2010, I brought this information to the attention of Pam Bucy, then serving as Chief Legal Counsel for the Montana Department of Labor and Industry.  As I stated in my letter:

The warrantless disclosure of the names, social security numbers, and salaries contained in these Unemployment Insurance Reports is strictly prohibited under Montana’s Constitution and statutes.  The Montana Constitution includes a fundamental “Right to Privacy” provision, which provides that:  “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”  Mont. Const., Art. II, § 10.  In addition, the Montana legislature has made its intent clear that the names, social security numbers, and salary information contained in the state’s mandatory Unemployment Insurance reports shall be kept private and confidential.The relevant statute provides:”Information obtained from any individual under this chapter must, except to the individual claimant to the extent necessary for the proper presentation of a claim, be held confidential and may not be published or be open to public inspection, except to public employees in the performance of their public duties, in any manner revealing the individual’s or employing unit’s identity, but any claimant or the claimant’s legal representative at a hearing before the board or appeal tribunal must be supplied with information from the records to the extent necessary for the proper presentation of the claim.”   MONT. CODE ANN. § 39-51-603(3).Therefore, by statute, the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a “public employee” must inspect the information in the performance of “public duties.”  Regardless of what the Unemployment Insurance Division believed when transmitting Unemployment Insurance reports to ICE, employees of the federal government are not “public employees” as contemplated by statute.The term “public employee” refers to employees of the State of Montana, not employees of the federal government.  The relevant statute provides:“’Public employee’ means:  (a) any temporary or permanent employee of the state;  (b) any temporary or permanent employee of a local government;  (c) a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority; and  (d) a person under contract to the state.”  MONT. CODE ANN. § 2-2-102(7).Federal employees are not incorporated into this definition and are not “public employees” under Montana law.  Therefore, it is clear that the Unemployment Insurance Division could not legally transmit Unemployment Insurance reports to ICE without a warrant.  The federal government obtained no such warrant.  The complete and un-redacted reports were simply offered in response to written correspondence.It is especially troubling that the Unemployment Insurance Division released un-redacted copies of these Unemployment Insurance reports without limiting the scope of its disclosure to any specific individuals who were under investigation.  The Montana Supreme Court has held that all individuals retain a privacy interest in personal information such as their social security numbers.  Jefferson County v. Mont. Std., 318 Mont. 173, 180 (Mont. 2003) (even a public official involved in criminal activity, and therefore triggering the public’s right to know in ways not at issue in this case, “does retain a privacy interest in other types of personal information not relevant to her status as a public official, such as her social security number and driver’s license number”); see also Havre Daily News, LLC v. City of Havre, 333 Mont. 331, 341 (Mont. 2006) (acknowledging “that an individual has a protected privacy interest in her social security number and driver’s license number”).Under Montana law, “[f]ew things are more inherently private” than an individual’s social security number.  State v. Jones, No. DC 03-12, 2003 Mont. Dist. LEXIS 2304 (Mont. Dist. Ct. Nov. 20, 2003).  Accordingly, under the Montana Constitution, the federal government was required to get a warrant before obtaining any records from the State of Montana that disclosed social security numbers.  By voluntarily disclosing private information without any warrant or legal authority, the Unemployment Insurance Division violated the privacy rights of dozens of employees of Melaque Butte, LLC.Montana statutes also provide that “personal information” such as social security numbers cannot be disclosed by any state agency. MONT. CODE ANN. § 2-6-501(4)(a); 2-6-502.

I concluded my letter by noting that:

The Unemployment Insurance Division is required by law to implement procedures to prevent precisely this type of privacy violation.  Statute provides that:In order to prevent the misuse of personal and other sensitive information collected by the department in the administration of the unemployment insurance laws, the department shall adopt rules providing for confidentiality of unemployment insurance information, including the circumstances and conditions under which information may be disclosed to appropriate persons and government agencies.  MONT. CODE ANN. § 39-51-603(4).The same requirement exists in MONT. CODE ANN. § 2-6-502.  A review of the Administrative Rules of Montana reveals no such rulemaking.

On July 22, 2010, I received a response from Pam Bucy.  She argued that “the Unemployment Insurance (UI) program is a cooperative federal-state effort” and claimed that there is an exception written into federal law that would allow Unemployment Wage Reports to be sent to any agency of the federal government without a warrant.  She stated:

20 C.F.R. § 603.4 is the federal rule that requires protection of confidential UI information.  20 C.F.R. § 603.5 enumerates limited exceptions to the confidentiality requirement. Among them is an exception for public officials in performance of their official duties. “Public official” is defined in 20 C.F.R. § 603.2(d) as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law . . .”  Under the preceding authorities, the Department can transmit information to a federal executive agency for performance of their official duties without a warrant.

Of course, there was an obvious and substantial problem with Pam Bucy’s interpretation of the law.  On September 27, 2010, I responded to Pam Bucy’s incorrect assertions:

While I understand and appreciate the fact that you were not personally involved in the decisions made by the Department of Labor and Industry (“DOLI”) in this case, I believe your justification for their actions are not legally supportable.  Contrary to your assertions, federal laws only trump the privacy protections outlined under Montana law if authorities have a court order or subpoena.  Otherwise, federal laws do not in any way curtail the strict confidentiality provisions of MONT. CODE ANN. § 39-51-603(3).In your letter, you state that the “public official” exception contained in 20 C.F.R. § 603.5(e) allows DOLI to share confidential unemployment insurance information with federal agencies without a warrant.  However, the exceptions upon which you rely for this argument are not supported by the plain language of the regulations themselves.  The law states in pertinent part as follows:”Disclosure of confidential UC information is permissible under the exceptions in paragraphs (a) through (g) of this section only if authorized by State law and if such disclosure does not interfere with the efficient administration of the State UC law. Disclosure of confidential UC information is permissible under the exceptions in paragraphs (h) and (i) of this section without such restrictions.”  20 C.F.R. § 603.5.The “public official” exception you rely upon is in paragraph (f) of this regulation, and is therefore applicable only if the disclosure is authorized by Montana law. You have not cited to any statute or constitutional provision that allows state agencies in Montana to turn confidential unemployment insurance information over to federal agencies without a warrant.Under the plain language of MONT. CODE ANN. § 39-51-603(3), the confidential information held by the Unemployment Insurance Division may only be disclosed under two circumstances:  (1) if a claimant or representative requires such information in order to make a claim for unemployment insurance, or (2) if a Montana “public official” must inspect the information in the performance of “public duties.”  Nowhere in Montana law does it state that information can be provided to federal “public officials” without a warrant.  In fact, the disclosure of such information is in direct violation of the Montana Constitution itself.The only exceptions in 20 C.F.R. § 603 that actually trump state law are in paragraphs (h) and (i). The exception in paragraph (h) allows the disclosure of confidential information with a court order or by subpoena.  A court order was neither sought nor obtained in this case.  The exception in paragraph (i) pertains to disclosure for program oversight and audit purposes. Neither of these exceptions applies when a federal agency, such as Immigration and Customs Enforcement (“ICE”), makes a general request for information without a court order or warrant.  Accordingly, I am forced to conclude that you have not provided any authority demonstrating that such a disclosure is legal under state or federal law.

On October 15, 2010, I received another response from Pam Bucy.  In this letter, she noted that she had created new rules to address precisely this situation:

Thank you for your further comments and questions regarding the Department’s policies and procedures on disclosure of personal identifying information. Though I don’t agree with all of your legal conclusions, your argument is certainly noted. First, I wish to assure you and your client that the Department of Labor and Industry is no longer releasing any information to ICE or any other federal or state agencies with which we don’t have information sharing agreements. Though ICE agents have sought information recently, that request has been denied. ICE has been informed that no further information will be provided until the applicable rules have been finalized and that any future release of information will be done pursuant to those rules.

Pam Bucy attached a copy of the new rules, and they were ultimately enacted into law on April 15, 2011.  Initially, I viewed the new rules as protecting release of confidential information without a warrant or valid subpoena.  However, the rules that were enacted contain a very important difference from the version that was provided to me.  As I reviewed the law on the books, I discovered that it contained exceptions so broad that they would effectively destroy any privacy protections that were created.The new rules provide for three relevant exceptions to confidentiality:

The department shall bar the disclosure of personally identifying information, except as disclosure is permitted by the informed consent of the identified individual(s) or is required under federal or state law to a public official for use in the performance of official duties or pursuant to a valid subpoena or interagency cooperative agreement.

The first problem with the new rule is that it expands the definition of a “public official” to allow for the release of confidential information to federal officers.  Previously, the law stated that only state employees were public officials.  However, the new regulations changed the definition to include:  “an official, agency, or public entity within the executive branch of federal, state, or local government with responsibility for administering or enforcing the law.”There is also a critical difference between the version of the law that was enacted and the version that was sent to me.  In statutory interpretation, whole meanings of the law can depend upon single words.  In this case, the change amounts to the deletion of the word “or,” but this minor change could have significant consequences.  The version that was provided to me stated that:

The department shall bar the disclosure of personally identifying information, except as disclosure is . . . required under federal or state law to a public official for use in the performance of official duties pursuant to a valid subpoena or interagency cooperative agreement.

In legalese, this version would have only allowed public officials to obtain information only pursuant to a valid subpoena.  But in the version that was enacted, there is an “or” placed in front of the clause stating “pursuant to a valid subpoena.”  In statutory interpretation, this would allow release of confidential information to a public officer even without a valid subpoena.  This is a critical difference, and one that violates Montana’s Constitution and statutes.  I have confirmed that this is not just a typo on the Administrative Rules of Montana website — it also appears in the print version.  If this is simply an error, then I hope it will be quickly corrected in print and online.[Update:  I have confirmed that the change is not an error; although the draft rule provided to me required a “public official” to obtain a subpoena, the change was made sometime between October 2010 and February 2012.  The notice of rule making included the omission.  I have done a compare and merge of the two versions, and this was the only substantive change in the two versions.]The second major problem with the new law is that it would allow the release of confidential information through an “interagency cooperative agreement.”  The new rules do not provide any clarification on the requirements to enter into such an agreement, stating simply:

“[I]nteragency cooperative agreement” means a written data-sharing agreement between the department and a public official.

On October 15, 2010, I wrote seeking clarification about how the Department of Labor and Industry would go about ensuring confidentiality of information released pursuant to an “interagency cooperative agreement.”  I never received any response.The Montana Constitution and statutes protect the release of confidential Unemployment Insurance information, so it is not clear how or why a simple written agreement can trump these privacy protections.On January 16, 2012, Pam Bucy informed me in a conversation that Immigration and Customs Enforcement (“ICE”) officers have not entered into an “interagency cooperative agreement” to obtain confidential Unemployment Insurance information.  However, she also stated that she was somewhat surprised that they never took this step.  To me, this revealed that she never truly intended to prevent the conduct I went to her to address.I believe that the manner in which Pam Bucy handled this situation calls into question her interpretation of the privacy protections of the Montana Constitution, and her willingness to share confidential information with the federal government.  These are issues that are important to those who oppose state-level enforcement of immigration laws, but are also important to Montana in many other respects.  For instance, this may be of interest to those who are advocating for Montana’s medical marijuana laws.In summary, I believe that Pam Bucy took conduct that was a very clear violation of the law, wrote new rules to seemingly prohibit the illegal conduct, but also created significant loopholes that would purport to legalize this very same conduct.In the end, I view this as actually making our confidentiality protections worse — not better.  In the interest of bureaucratic administration, I believe Pam Bucy has set aside important privacy considerations under Montana law.  As Attorney General, Pam Bucy would often be called upon to deal with conflicts between state and federal laws, and I believe that Montanans expect our Attorney General to enforce our laws and privacy protections despite warrantless requests from the federal government.  To the extent that Pam Bucy’s conduct reflects the manner in which she will handle such issues as Attorney General of the State of Montana, I have serious concerns.I will continue to monitor what “interagency cooperative agreements” the Unemployment Insurance division enters into to release confidential information to the federal government, and determine if legal action needs to be taken to challenge the administrative rules that Pam Bucy helped create.If you are an employee or business owner who has concerns about your private information being secretly released to the federal government without a warrant, I encourage you to complain to the Governor’s office.