FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 23, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing in this matter, the parties stipulated that Rashad El Badrawi was the actual complainant, not his attorney.  Accordingly, the case caption has been amended. 

 

Following the hearing in this matter, the complainant requested the opportunity to present additional evidence, to which the respondent objected.  The complainant’s motion was denied at that time.

 

On January 9, 2008, the Commission adopted the final decision in this matter.  Notice of such final decision was mailed to the parties on January 17, 2008.  The respondent filed an appeal of such final decision with the Superior Court on March 4, 2008.  The United States filed a Statement of Interest, pursuant to 28 U.S.C. §517, with the Court on July 9, 2008.  On September 15, in the course of the administrative appeal, the complainant herein, Rashad El Badrawi, moved to supplement the record with three sets of publicly available documents. 

 

By order dated December 4, 2008, the Court:

 

 a)  granted the complainant’s motion to supplement the record;

 b)  approved the right of the United States to further supplement the

       record by providing updated versions of the complainant’s

       supplemental submissions; and

 c)   remanded the matter to the Commission for the purposes of taking the

       record at issue in this matter in camera, reviewing such record,

       amending the final decision, and allowing for additional oral

       argument as it deems appropriate.      

 

On December 29, 2008, the Commission: ordered the submission of the in camera record; accepted the complainant’s after-filed exhibits into the record; and informed the United States that it had the right to submit after-filed exhibits in accordance with the Court’s order, such exhibits thereby being updated versions of the complainant’s after-filed exhibits, provided the United States moved to intervene as a party in this matter.

 

The complainant’s after-filed exhibits are hereinafter marked as follows:

 

Complainant’s Exhibit C:  excerpts from minutes of meetings of the FBI Criminal Justice Information Services (CJIS) Advisory Policy Board (meetings of June 4-5, 2003, June 2-6, 2002, December 6-7, 1995), and minutes from the National Crime Information Center (NCIC) Advisory Policy Board meeting of December 2-3, 1992;

 

Complainant’s Exhibit D: excerpt from the NCIC 2000 Manual, Introduction Chapter, §1.6.1;

 

Complainant’s Exhibit E: excerpts from the CJIS Services Ad Hoc Sanctions Committee presentation of August 28, 2001. 

 

 On January 12, 2009, the United States moved to intervene in this matter.  Such motion is hereby granted.  On such date, the United States also sought to supplement the record by adding eight exhibits.  On February 23, 2009, the complainant objected to the admission of the exhibits of the intervener, the United States.  

 

The Commission accepts as an after-filed exhibit:

 

Intervener’s Exhibit 1: an updated version of complainant’s Exhibit D. 

 

            Since the following exhibits proffered by the Unites States as intervener are not updated versions of the complainant’s after-filed exhibits, such exhibits shall be marked for identification purposes only:

 

Intervener’s Exhibit 2 for identification purposes: an excerpt from the NCIC 2000: Operating Manual, Violent Gang and Terrorist Organization File (VGTOF).  The Commission notes, however, that such excerpt is an exact duplicate of the third page of Complainant’s Exhibit B, which was introduced at the evidentiary hearing in this matter.  Thus, such page is already in evidence.

 

Intervener’s Exhibit 3 for identification purposes: a January 30, 2006, CJIS Information letter.

 

Intervener’s Exhibit 4 for identification purposes: 64 Fed. Reg. 52343-52350 (September 28, 1999).

 

Intervener’s Exhibit 5 for identification purposes: a September 18, 2008 declaration of Kimberly J. Del Greco, Section Chief, Biometric Services Section, CJIS Division, FBI.

 

Intervener’s Exhibit 6 for identification purposes: a redacted October 6, 2008 declaration of Arthur M. Cummings, II, the Executive Assistant Director of the National Security Branch of the FBI.

 

Intervener’s Exhibit 7 for identification purposes: June 29, 2005 statement before Congress of Thomas E. Bush III, Assistant Director, CJIS Division, FBI.

 

Intervener’s Exhibit 8 for identification purposes: September 23, 2003, testimony before the Senate Judiciary Committee of Larry A. Mefford, Executive Assistant Director, FBI’s Counterterrorism/Counterintelligence Division.

 

 After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondent is a public agency within the meaning of §1-200(1)(A), G. S.

 

2.      It is found that by letter sent on January 18, 2007, the complainant requested records from the respondent concerning the complainant’s confinement in the Hartford Correctional Center in 2004.

 

3.      It is found that the final communication between the parties concerning the complainant’s request, described in paragraph 2, above, occurred on February 26, 2007.

 

4.      It is found that by letter dated March 2, 2007 and filed March 5, 2007, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide copies of all of the records described in paragraph 2, above.

 

5.      It is found that the respondent provided the complainant with many records responsive to the request described in paragraph 2, above.  At the hearing in this matter, the parties stipulated that the sole issue before this Commission was the respondent’s refusal to disclose a copy of a printout from the NCIC.

 

6.      It is found that the complainant is a foreign national who was arrested in 2004 on a civil immigration warrant and detained at the Hartford Correctional Center pursuant to an agreement between the federal Department of Homeland Security and the respondent.

 

7.      It is found that the complainant was deported and no longer resides in the United States.

 

8.   Section 1-200(5), G. S., defines “public records or files” as:

 

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

 9.   Section 1-210(a), G. S., provides in relevant part that: 

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . .  receive a copy of such records in accordance with section 1-212. (Emphasis added.)

 

10.  Section 1-212(a), G. S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

11.  It is found that the NCIC record, described in paragraph 5, above, is a public record within the meaning of §§1-200(5) and 1-210(a), G. S.

 

12.  It is found that the respondent maintains the NCIC record, described in paragraph 5, above.

 

13.   The respondent contends that a federal Department of Homeland Security regulation, 8 C.F.R. §236.6, prohibits disclosure of the contested NCIC record.

 

14.    8 C.F.R. §236.6 provides:

 

No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the [United States Department of Justice Immigration and Naturalization] Service (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of the Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders. Insofar as any documents or other records contain such information, such documents shall not be public records. This section applies to all persons and information identified or described in it, regardless of when such persons obtained such information, and applies to all requests for public disclosure of such information, including requests that are the subject of proceedings pending as of April 17, 2002.

 

15.   It is found that the complainant was a detainee in a Connecticut detention facility, within the meaning of 8 C.F.R. §236.6.

 

16.   It is found that the complainant was held as a federal prisoner at the Hartford Correctional Center pursuant to a “contractual relationship,” described in paragraph 6, above, within the meaning of 8 C.F.R. §236.6.

 

17.   The respondent claims that the plain language of the regulation prohibits disclosure of the complainant’s “name … or other information relating to” any detainee who is or was held pursuant to the agreement described in paragraph 16, above. 

 

18.   The complainant, however, contends that the regulatory prohibition of 8 C.F.R. §236.6 is temporal, and applies only to prisoners who are “detainees” at the time of the request for information.  The complainant claims that because he is no longer a detainee, the regulation no longer applies to bar disclosure of his name and other information.

 

19.   Whether 8 C.F.R §236.6 operates to prohibit disclosure of records concerning immigration prisoners who are no longer detainees and no longer in the custody of DHS is an issue of first impression.

 

20.    In post-hearing briefs, the parties both cited a 2002 New Jersey appellate court decision, American Civil Liberties Union v. County of Hudson, 799 A.2d 629 (N.J. Super. 2002), which appears to be the only state or federal court decision to have interpreted 8 C.F.R. 236.6.

 

21.   It is found that, in ACLU, the ACLU sought the names of any immigration detainees in New Jersey prisons held pursuant to an intergovernmental service agreement between immigration authorities and the state of New Jersey.  It is found that the ACLU sought to provide legal representation to the detainees.  The trial court ruled in favor of the ACLU, holding that the information was a non-exempt public record under the New Jersey freedom of information laws.

 

22.   The County of Hudson appealed, but before the appellate court ruled, the Immigration and Naturalization Service (“INS”) promulgated an Interim Rule that was subsequently finalized and codified as 8 C.F.R. §236.6.

 

23.   It is found, based on the summary and supplemental information in the Federal Register promulgation, that the INS drafted 8 C.F.R. §236.6 expressly to counter the ruling in ACLU and to abrogate state open records laws. 68 Federal Register 4364-5 (2003).

 

24.  The appellate court of New Jersey ultimately reversed the trial court ruling. The court held that the new federal regulation, 8 C.F.R. §236.6, pre-empted state right-to-know laws “bearing upon its subject matter.” ACLU, 799 A.2d at 655.

 

25.   ACLU, however, did not address whether the “subject matter” of 8 C.F.R. §236.6 included individuals, such as the complainant, who are no longer detainees and no longer in the custody of immigration authorities.

 

26.   The complainant points to the use of the present tense in the regulation’s first sentence to support his claim that 8 C.F.R. §236.6 applies only to bar release of records of individuals who are currently detained.  That sentence provides, “No person … that houses, maintains, provides services to, or otherwise holds any detainee … shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee.”  

 

27.   The respondent, however, argues that the regulation’s final sentence, limiting “[t]his section …  to all persons and information identified or described in it, regardless of when such person obtained such information, and applies to all requests for public disclosure of such information…,” indicates an intent to apply the prohibition to all prisoners who ever were detained for violation of immigration laws. 

 

28.   It is found that the word “persons” in the language cited in paragraph 27, above, refers not to the prisoners but to the facilities and employees who detain the prisoners. 

 

29.   It is found, moreover, that the language cited in paragraph 27, above, is part of the concluding sentence of the regulation, which clearly indicates an intent to counteract the holding in ACLU.  It is found that the logical interpretation of the concluding sentence of the regulation is that it indicates an intent to apply the prohibition retroactively.  It is found that the final sentence’s purpose is to bring within the jurisdiction of the regulation even those requests for information that pre-dated the ACLU decision.

 

30.   It is concluded that the language cited by the respondent does not support her contention that 8 C.F.R. §236.6 applies to bar disclosure of information about persons who are no longer immigration detainees.

 

31.   The complainant also points to the context of 8 C.F.R. §236.6 within the umbrella regulation of 8 C.F.R. §236 to support his claim that it is limited to current detainees.  It is found that 8 C.F.R. §236 addresses detention procedures and conditions of confinement of immigration detainees.  The complainant observes in his brief:

 

 “Section 236.1 governs, inter alia, custody conditions.  Section 236.2 and §236.3 govern when mentally incompetent aliens and juvenile aliens should be held in detention facilities and when they should be removed to hospitals or the care of family members, respectively.  Section 236.5 governs the process of fingerprinting and photographing immigration detainees.  In this context, it is clear that §236 is a comprehensive regulation governing the treatment of detainees, and §236.6 is merely the subpart dealing with dissemination of information about current detainees.”

 

32.   In addition, the complainant contends that the summary and supplemental information in the Federal Register promulgation indicates an intent to apply the regulation only to current detainees:  “This final rule governs the public disclosure by any state or local government entity … of the name and other information relating to any immigration detainee being housed or otherwise maintained or provided service on behalf of the Service.”  68 Federal Register 4364-5 (2003).

 

33.  It is found that the context of 8 C.F.R. §236.6 within the umbrella regulation of 8 C.F.R. §236, and the summary and supplemental information in the Federal Register support the complainant’s claim that 8 C.F.R. §236.6 applies only to current detainees.

 

34.   It is well established that the FOI Act carries a presumption of disclosure of public records, and any exception to the general rule of openness must be narrowly construed.

 

35.   It is found that the respondent has failed to meet her burden of proving that 8 C.F.R. §236.6, narrowly construed, prohibits the disclosure of the record described in paragraph 5, above.

 

36.   Accordingly, it is concluded that 8 C.F.R. §236.6 does not exempt the record described in paragraph 5, above, from disclosure under the FOI Act.

 

37.   The respondent also contends that a federal statute, 28 U.S.C. §534(a)(4) and (b), exempts the record described in paragraph 5, above, from disclosure pursuant to §1-210, G.S., of the FOI Act.

 

38.   28 U.S.C. §534 provides in relevant part:

 

(a)     The Attorney General shall (1) acquire, collect, classify, and preserve identification, criminal identification, crime and other records; … (4) exchange such records and information with, and for the official use of, authorized officials of … the States, cities, and penal and other institutions.

 

(b)    The exchange of records and information authorized by subsection (a)(4) of this section is subject to cancellation if dissemination is made outside the receiving departments or related agencies.

 

39.  It is found that the FBI and the State of Connecticut entered into a User Agreement governing access to and use of information contained in the NCIC database compiled pursuant to 28 U.S.C. §534(a).

 

40.  The respondent claims that such User Agreement bars her from disclosing the record described in paragraph 5, above. 

 

41.   It is found, however, that a public agency may not contract away its statutory obligations under the FOI Act. Lieberman v. Board of Labor Relations, 216 Conn. 253 (1990).

 

42.  While 28 U.S.C. §534 permits the FBI to cancel its agreement with the State of Connecticut governing access to and use of information contained in the NCIC database, the possibility of such cancellation in the event of dissemination is not itself a prohibition against disclosure pursuant to §1-210(a), G.S.  See, Maher v. FOI Commission, 192 Conn. 310, 317 (1984) (Threat of loss of federal funding in the event of disclosure of information does not supersede the disclosure requirements of §1-210(a), G.S., because participation in the federal program is voluntary.)

 

43.   It is found that no federal law or state statute expressly prohibits the disclosure of the records maintained by the Attorney General pursuant to 28 U.S.C. §534.

 

44.   It is concluded, therefore, that the User Agreement between the State of Connecticut and the U.S. Department of Justice does not prohibit the release of the record described in paragraph 5, above.

 

45.  With respect to the record described in paragraph 5, above, the respondent contends that §1-210(b)(3)(D), G. S., exempts its disclosure under the FOI Act.

 

46.   Pursuant to the December 4, 2008, order of the court, the Commission has viewed the record in camera.  Such record shall hereinafter be identified as IC-2007-136-1.

 

47.   In its December 4, 2008 order, the Court cites to Gordon v. FBI, 388 F. Supp. 2d 1028, 1037 (N.D. Cal 2005) and Catledge v. Mueller, United State District Court, N.D. Illinois, Eastern Division, Docket No. 07 C 2116 (September 10, 2008, Guzman, J.), two federal cases in which the courts therein considered the federal investigatory exemption.   

 

48.  The federal exemption, 5 U.S.C. §552(b)(7)(E), exempts from mandatory disclosure:

 

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information…(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

 

49.  The standard employed by both federal courts requires that in order to meet the parameters of the exemption, the federal agency must demonstrate (1) the information was compiled for law enforcement purposes and (2) its release could reasonably be expected to risk circumvention of the law.  Blanton v. U.S. Department of Justice, 63 F. Supp. 2d 35, 49 (D.D.C. 1999).  Under federal law, an agency “need establish only a ‘rational nexus’” between its law enforcement duties and the purportedly exempt information to satisfy the first requirement of exemption 7(E).  Binion v. U.S. Department of Justice, 695 F.2d 1189, 1194 (9th Cir. 1983).  Under federal law, under certain circumstances, even investigatory techniques known to the public may meet the second requirement for exemption under 7(E).  Catledge, page 5.       

 

50.   The records at issue in Gordon were (1) watch list selection criteria; (2) procedures for dissemination of watch lists; (3) procedures for handling potential/actual name matches; (4) raising/addressing perceived problems in security measure; and (5) compilation of watch lists (involving such things as the adding or removing of names). 

 

51.   The Gordon court found that all but two of the records at issue therein were exempt by virtue of 5 U.S.C. §552(b)(7)(E), concluding that under federal law, “law enforcement purposes” does not necessarily mean matters relating to a criminal investigation. 

 

52.   The records at issue in Catledge were various National Security Letters issued pursuant to the Patriot Act.  The Catledge court likewise concluded that “law enforcement purposes” does not necessarily mean matters relating to criminal investigations.   In addition, since federal case law allows for a “Glomar”[1] response with respect to certain federal freedom of information requests, the court found that neither confirming nor denying the existence of the National Security letters was appropriate. 

 

53.   Upon careful review of IC-2007-136-1, it is found that such record is neither a National Security Letter, nor a watch list. 

 

54.  Section 1-210(b)(3)(D), G. S., provides in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of … records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if disclosure of said records would not be in the public interest because it would result in the disclosure of … (D) investigatory

techniques not otherwise known to the general public ….”

 

55.  The Connecticut exemption differs significantly from the federal exemption.  First, unlike the federal exemption, Connecticut law requires that the record at issue be compiled in the connection with the detection or investigation of crime.  Second, unlike the federal exemption, Connecticut law requires that the investigatory technique be not otherwise known to the general public.

 

56.   Connecticut law requires that a public agency seeking to withhold a requested record bears the burden of proving the applicability of an exemption.  Wilson v. Freedom of Information Commission, 181 Conn. 324, 340-341 (1980).   In order to successfully claim exemption under §1-210(b)(3), G. S., all elements of the exemption must be established.  Department of Public Safety, Division of State Police v. Freedom of information Commission,  51 Conn. App. 100, 104-105 (1998).    

 

57.   The complainant contends that IC-2007-136-1 was not “compiled in connection with the detection or investigation of crime,” within the meaning of §1-210(b)(3), G. S.

 

58.   It is found the complainant was arrested pursuant to a civil immigration warrant.  It is further found that the complainant had no federal or state criminal history and was not accused of any federal or state crime.

 

59.    Upon careful review of IC-2007-136-1, it is found that such document was not compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3), G. S.

 

60.    It is found that IC-2007-136-1 was compiled as a consequence of the complainant’s alleged civil violation of immigration laws.  See, Tracey Thomas and The Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety, Docket #FIC1996-153 (Internal Affairs report, which contained an NCIC computer printout, was not exempt, because it was “an investigation into alleged violations of administrative regulations, and was not compiled in connection with the detection or investigation of crime. (Emphasis in original.)

 

61.   The respondent contends that IC-2007-136-1 is an investigatory technique not otherwise known to the general public, within the meaning of §1-210(b)(3)(D), G. S.

 

62.   It is found that the NCIC is a computerized index of criminal justice information.  It is found that the equivalent system in Connecticut is the COLLECT database.  It is found that COLLECT accesses NCIC records.  It is found that this Commission has determined that records maintained as part of the COLLECT system are not exempt from disclosure pursuant to §1-210(b)(3)(D), G. S., absent specific proof that disclosure would reveal a secret investigatory technique.  Smith v. State of Connecticut, Department of Public Safety, Docket #FIC1990-477 (“[T]he respondent and the intervenor failed to prove that disclosure of the specific information at issue … would reveal an investigatory technique unknown to the general public.  Indeed, the complainant’s request [for the criminal history log maintained by the COLLECT system] belies the intervenor’s unsubstantiated claim that disclosure would reveal an unknown investigatory technique.”)

 

63.  Upon careful review of IC-2007-136-1, it is found that such document does not constitute an investigatory technique of a law enforcement agency not otherwise known to the general public.

 

64.   Based on the facts and circumstances of this case, it is concluded that §1-210(b)(3)(D), G. S., does not exempt IC-2007-136-1 from disclosure.  As described in paragraph 5, above, such document is not current and dates from several years ago.  

 

65.   It is concluded, therefore, that the respondent violated the FOI Act by failing to disclose IC-2007-136-1 to the complainant.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.       The respondent shall provide the complainant with a copy of IC-2007-136-1, without charge.    

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 8, 2009.

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Rashad El Badrawi

c/o Michael Wishnie, Esq. and

Hope Metcalf, Esq.

Lowenstein International Human

Rights Clinic

National Litigation Project

Yale Law School

127 Wall Street

New Haven, CT 06511

           

Commissioner, State of Connecticut,

Department of Correction

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105-2294

 

United States

c/o Marcia Sowles, Esq.

U.S. Department of Justice

Civil Division

20 Massachusetts Avenue, NW

Washington, DC 20530

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-136FDonRemand/paj/4/15/2009