Tennessee’s immigration enforcement division would be confidential

Editors note: This story was updated after publication with additional details. 

Tennessee is set to create an immigration enforcement division that would be exempt from the state’s Public Records Act.

In a 26-7 vote, the Senate passed an immigration measure Wednesday at President Donald Trump’s behest, containing a little-known amendment that says the Department of Safety and Homeland Security may keep any records collected or received by the division or chief immigration enforcement officer confidential. That wouldn’t be limited to sensitive or confidential information it receives from a federal, local or state entity, according to an amendment attached to the immigration enforcement bill. The House is expected to take up the measure Thursday.

Sen. Bo Watson, chairman of the finance committee, said Wednesday the Department of Safety sought confidentiality to make the immigration enforcement division “consistent” with current law in the department.

“It’s not new,” said Watson, a Hixson Republican.

The confidentiality provision was barely noticed, though, when it was attached to the main bill, which sets up a $5 million fund for immigration enforcement training and nearly $500,000 for four staff members within the Department of Safety, including an immigration czar to work with federal authorities.

Sen. Todd Gardenhire, a critic of the immigration bill and sole Republican to vote against it in the Senate, said he was unaware information within the division would be secret. The Chattanooga Republican said the measure could be amended later to specify matters that could be confidential without affecting the entire division.

“I don’t think any agency or governmental entity ought to be exempt from the open records (act) unless it specifies exactly what it is, not just open-ended,” Gardenhire said.

He added that the department might not have thought about the ramifications, “or maybe they did.”

Democratic Sen. London Lamar of Memphis said she believes the Department of Safety could be trying to conceal the identity of officers involved in immigration enforcement because they could be involved in “unethical practices in trying to execute some of the goals of this deportation office.”

Under current law, ongoing criminal investigations are exempt from the Public Records Act, along with numerous other exemptions.

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said the bill should be changed to make it more narrow, instead of giving the department full confidentiality. 

The senate’s vote in favor of the measured capped a day in which Democrats unsuccessfully fought to amend the bill to remove provisions that include making it a felony for local elected officials to support sanctuary policies for immigrants.

In addition to creating the immigration enforcement division, the bill enables local district attorneys to bring felony charges against local government officials who cast votes in support of sanctuary policies. The bill also empowers the Tennessee Attorney General to remove public officials from office for those votes. Tennessee law prohibits sanctuary cities, a situation in which local governments limit cooperation with federal agencies to enforce immigration law.

Legal experts, including the Legislature’s own legal advisors, noted that courts have concluded local elected officials have “absolute immunity” when they vote and both the state and U.S. Constitution have speech and debate clauses that protect the rights of duly elected officials performing their duties. Matthew Mundy, a legislative attorney, said the provision was “constitutionally suspect.”

“That’s incredibly concerning to me that an individual that was duly elected by the public, who was doing his job as that elected official to cast a vote, just like it’s our job to cast a vote would be charged with a felony for doing their job,” Rep. Antonio Parkinson, a Memphis Democrat said during a Wednesday immigration committee hearing. “That’s incredibly undemocratic and problematic when you have individuals that elect these individuals to say ‘yes’ or ‘no.'”

House Leader William Lamberth, a Gallatin Republican carrying the bill for the governor, responded: “the easiest way for any local official who was duly elected to avoid this is don’t vote to establish sanctuary cities in this state. Period. You can vote on anything else you want to, but that in itself is criminal. We’re not going to have sanctuary cities in this state.”

The measure also requires the state to put markings on the driver’s licenses of immigrants who don’t have citizenship status. Currently legal immigrants such as green card holders are able to obtain the same licenses as citizens. 

“The Nazi Germans did this to the Jews,” said Democratic Sen. Charlane Oliver of Nashville, referring to the Star of David sewn into clothing.

Republicans said the measure was intended to serve as an added component of election security, because distinctive ID markers would prevent immigrants from casting a vote. An amendment to alter the license requirement failed on the Senate floor.

Republican senators said the immigration plan is necessary to cope with former President Joe Biden’s border policies and to stop human trafficking and drug smuggling across the Southern border.

Before the Senate vote, debate over the measure during legislative committees attracted large audiences. A trio of women were forcibly ejected by Tennessee Highway Patrol officers during a Wednesday morning immigration committee hearing after a member of the audience interrupted a presentation on the bill Lamberth.

The three women refused to leave and were carried out of the committee room by patrol officers.

Anita Wadhwani contributed to this story.