Gallatin County Attorney clarifies no policy restricting ICE cooperation, seeks AG opinion

Gallatin County Attorney Audrey Cromwell has reiterated there is no county policy restricting cooperation with the U.S. Immigration and Customs Enforcement, and has requested a formal legal opinion from the state Attorney General on releasing confidential information for civil or administrative requests. 

Cromwell sent a letter on Monday responding to a demand by Attorney General Austin Knudsen that the county rescind an alleged policy that Knudsen said refused to acknowledge ICE as a criminal justice agency and share confidential information.

In the letter, Cromwell reiterated that there is no county policy “formal or informal” restricting cooperation with federal agents including ICE. 

“The communication referenced in your letter arose from a single, case-specific legal inquiry from the Records Department last fall regarding a request for nonpublic CCJI,” Cromwell wrote. “My civil division attorneys reviewed the inquiry, and a legal assistant relayed guidance. It addressed one discrete factual scenario, did not establish policy, and should not be construed as a directive of general applicability.”

She went on to note only the Gallatin County Commission has the authority to create county policy, not legal assistants in her office. 

In Knudsen’s demand letter last week, he referenced an October email sent by a legal assistant in Cromwell’s office which included a sentence saying the county attorney’s office, “… does not legally recognize Immigration and Customs Enforcement (ICE) as a law enforcement agency entitled to receive Confidential Criminal Justice Information.” 

Knudsen called that “policy” a “flagrant violation of state and federal law and puts the safety of Gallatin County residents at risk just to make a political statement.”

The Gallatin County Attorney’s office told the Daily Montanan the October email was not released publicly. 

The specific case from last fall was a request from ICE seeking confidential criminal justice information for a civil administrative immigration purpose, according to Cromwell, which does not fall under Montana laws which allows dissemination of confidential information to agencies conducting “administration of criminal justice.” 

“While ICE includes both civil and criminal components, this distinction is critical,” Cromwell wrote. “The request at issue was civil in nature and therefore did not fall within the statutory framework requiring dissemination of CCJI to a criminal justice agency engaged in criminal enforcement activity. Federal law likewise recognizes that immigration proceedings are civil administrative proceedings, not criminal prosecutions.”

Cromwell said the state’s constitutional and statutory framework places a “high value on individual privacy,” and her office has a legal and ethical obligation to not improperly disclose confidential criminal justice information — which can include criminal investigation information or intelligence and fingerprints. 

She also pushed back on Knudsen’s characterization of Gallatin County implementing an “illegal sanctuary policy” — an issue where Knudsen has also faced off against the City of Helena, which rescinded a formal resolution about immigration in the face of state investigations and threats of fines. 

Cromwell requested a formal legal opinion from Knudsen on whether Montana counties may lawfully disseminate non-public confidential criminal justice information to federal agencies when requested for civil or administrative purposes. 

“This request specifically asks your office to determine if such disclosures, absent the judicial balancing test under the Montana Criminal Justice Information Act, violate the fundamental right to privacy guaranteed by Article II, Section 10 of the Montana Constitution,” the request states. 

The Attorney General’s office did not respond to requests for comment about the timeline for issuing an opinion, or why Knudsen did not attempt to discuss the issue with Cromwell before making a public stance. 

In her letter, Cromwell wrote that she would have welcomed the opportunity to discuss the issue with Knudsen directly. 

“A simple phone call from you or a member of your team could have clarified the facts and avoided unnecessary public confusion,” Cromwell wrote. “Instead, this issue was advanced publicly without that professional courtesy, which is disappointing given the importance and complexity of the legal issues involved.”