"We must make sure that Coloradans trust that they can seek assistance from the State without making undue sacrifices related to data privacy," Polis wrote. "The intention of this guidance is to strike a balance between an individual’s right to privacy and the need to collect data to deliver high quality government services to Coloradans."
That guidance was requested by immigrant-rights advocates and state lawmakers from Denver, who had hoped to see legislation passed during the last session of the Colorado Legislature to address concerns about state data-sharing with federal immigration authorities. When the COVID pandemic upended that session, they pushed the governor to provide a placeholder.
Now Democratic lawmakers in the legislature plan to introduce a measure in the next session that would officially limit information-sharing between the state and federal agencies, especially in matters involving immigration.
"There's definitely a need for more protections," says Representative Serena Gonzales-Gutierrez, a Democrat who represents parts of west Denver. "It's about protecting information of undocumented folks, of immigrants, [and ensuring] that our state agencies are not sharing that information inappropriately with ICE and other types of entities."
To determine how many requests the feds had made, Westword obtained the State of Colorado reports generated in relation to Polis's guidance memo from June 20 through October 15 of the past year.
According to these reports, during that period the Department of Homeland Security and Immigration and Customs Enforcement sent 66 requests for personally identifying information, mainly to the Colorado Department of Labor and Employment’s Unemployment Insurance Fraud Unit and the Colorado Department of Revenue’s Motor Vehicle Investigation Unit, in addition to a handful of other state agencies. Of those 66 requests for information, 33 were granted.
ICE officials say that these requests are a routine part of their immigration enforcement work.
But those who fight ICE in the courtroom argue that this routine work can have devastating consequences in the relationship between immigrants and government agencies.
"The records show us that ICE is trawling agencies for state information," says Hans Meyer of the Meyer Law Office. "What the records also tell us is that if we want to make sure that immigrant communities can trust government, we need to pass a law."
In his guidance memo, Polis noted that state agencies should not hand over personal identifying information, such as an individual's work history, if ICE is solely seeking that information for immigration enforcement purposes. However, state agencies can share information when there's a court-authorized warrant or subpoena, an active criminal investigation or a possible crime in progress.
The documents provided by the state show clear instances of ICE employees attempting to get information solely for immigration purposes, only to have that request denied.
And then there are other instances in which staffers from ICE's Homeland Security Investigations, a branch that often focuses on human-trafficking cases involving foreign nationals, seek personal information such as wage history for individuals linked to a criminal investigation. Some of these requests were granted, while others were denied.
Advocates say that protective legislation is needed because some undocumented immigrants are reluctant to give information to state employees for fear it could somehow be used against them.
"The immigrant community has been traumatized for years under Trump, and we need the state to proactively rebuild that trust," says Siena Mann of the Colorado Immigrant Rights Coalition. "They are afraid and are living in a climate of fear. People are afraid of accessing services, of sharing their information across the board, whether that's accessing a driver’s license or accessing nutrition programs or medical care."
By codifying the guidance issued by Polis, Mann notes, state lawmakers would ensure that policies regarding information-sharing with federal agencies couldn't be altered by a future governor.
"The guidance is the start, but the guidance isn't enough," says Meyer. "We need clear, definitive, black-letter state law that protects people's information."
Attorney Arash Jahanian, who works with Meyer and recently testified about immigration issues before Aurora City Council, agrees: "The exception that ICE can and will try to drive a truck through is this criminal investigation exception," he explains. "The better policy is to back that up with something that's embedded in the judicial process, and you've seen this exception spelled out in other states where they ask for a warrant, a subpoena or another judicial order so that it has that level of independent review so that ICE can't make a claim that's not backed up."
In other words, the attorneys say, the state shouldn't take federal immigration authorities at their word when it comes to criminal investigations. In fact, Meyer and Jahanian want any law following up on Polis's guidance to include a provision that requires a warrant or a subpoena signed by a judge before a state employee hands over any personal identifying information.
"I completely agree," says Gonzales-Guiterrez. "We’ve got to close those loopholes."
But ICE strongly opposes the type of legislation being proposed by Gonzales-Gutierrez, Meyer and Jahanian.
“Stifling cooperation between U.S. Immigration and Customs Enforcement and law enforcement agencies puts the public at great risk," says John Fabbricatore, Denver field office director of ICE Enforcement and Removal Operations. "Efforts to tie the hands of law enforcement and prevent them from doing what every law enforcement agency is trained to do — work together, share information and uphold public safety — means we are less effective and our ability to protect our nation and all who live here is greatly diminished. ICE strictly conducts targeted enforcement actions and continues to focus its limited resources first and foremost on those who pose the greatest threat to public safety and national security.”