Comm'r of Corr. v. Freedom of Info. Comm'n

307 Conn. 53

52 A.3d 636

COMMISSIONER OF CORRECTION

v.FREEDOM OF INFORMATION COMMISSION et al.

United States of America et al.

v.Freedom of Information Commission et al.

Nos. 18622, 18623, 18624.

Supreme Court of Connecticut.

Argued April 16, 2012.

Decided Sept. 27, 2012.^**

Grant Martinez, pro hac vice, and Sirine Shebaya, law student intern, with whom were Michael J. Wishnie, New Haven, Hope Metcalf and, on the brief, Pouneh Aravand, Bonnie Doyle, Alex Iftimie, Stephen Poellot, Sasha Post and Saurabh Sanghvi, law student interns, for the appellant in Docket No. SC 18622, the appellee and cross appellant in Docket No. SC 18623, and the appellee in Docket No. SC 18624 (defendant Rashad El Badrawi).

Steven R. Strom, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Richard Blumenthal, former attorney general, Nora R. Dannehy, deputy attorney general, and Henri Alexandre, former assistant attorney general, for the appellant and cross appellee in Docket No. SC 18623 and the appellee in Docket Nos. SC 18622 and SC 18624 (plaintiff commissioner of correction).

H. Thomas Byron III, Washington, DC, pro hac vice, with whom were John B. Hughes, chief of the civil division of the United States Attorney's Office, District of Connecticut, and Lisa E. Perkins, pro hac vice, and, on the brief, Thomas M. Bondy, pro hac vice, Tony West, pro hac vice, and David B. Fein, United States attorney, District of Connecticut, for the appellant in Docket No. SC 18624 and the appellee in Docket Nos. SC 18622 and SC 18623 (plaintiff United States of America).

Lisa Fein Siegel, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee in Docket Nos. SC 18622, SC 18623 and SC 18624 (defendant freedom of information commission).

William S. Fish, Jr., and Michael J. Pendell, Hartford, filed a brief for the Tribune Company et al. as amici curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.^*

PALMER, J.

These appeals arise from the ruling of the named defendant, the freedom of information commission (commission), that the defendant Rashad El Badrawi was entitled, under the Freedom of Information Act (act), General Statutes § 1–200 et seq., to the disclosure of a document that the plaintiff, the commissioner of correction (commissioner), obtained from a file in the National Crime Information Center (NCIC) computerized database, which is maintained by the Federal Bureau of Investigation (FBI). The commissioner and the intervenor, the United States of America (United States), appealed from the commission's ruling to the trial court, claiming that the commission improperly had ordered disclosure of the document because, for among other reasons, disclosure was barred by a federal regulation, and, therefore, the document was exempt from the act in accordance with General Statutes § 1–210(a). ¹ The trial court rendered judgments dismissing the appeals in part and sustaining them in part, and ordered that a redacted version of the document be disclosed to El Badrawi. The commissioner and the United States then filed these appeals.² We concludethat the document falls within an exemption to the act set forth in § 1–210(a) and, therefore, reverse the judgments of the trial court.

The record reveals the following undisputed facts and procedural history. El Badrawi was arrested by agents of Immigration and Customs Enforcement (ICE), ³ a federal agency, on October 29, 2004, for alleged violations of civil immigration law. Pursuant to an intergovernmental service agreement between the department of correction (department) and the United States Department of Homeland Security, El Badrawi was incarcerated at the Hartford correctional center (correctional center) from the date of his arrest through December 22, 2004. He voluntarily left the country immediately upon his release from detention.

While El Badrawi was detained at the correctional center, the department submitted an inquiry seeking information about him from the NCIC database.⁴ The inquiry generated a record indicating whether El Badrawi was listed in an NCIC file known as the “violent gang and terrorist organization file” (violent gang and terrorist file), and the department printed the record and maintained the printout in its files.⁵

After El Badrawi was released from detention, he requested from the department and the correctional center copies of all public records pertaining to his incarceration.⁶ The department's freedom of information administrator provided some of the requested documents ⁷ but declined to provide the printout that the department had obtained from the NCIC database. El Badrawi then appealed to the commission, alleging that the department's refusal to provide him with a copy of the NCIC printout violated the act. The United States submitted to the commission a statement of interest and appeared at the hearing on El Badrawi's appeal. The commissioner and the United States contended that, contrary to El Badrawi's claim, the printout was exempt from the act under § 1–210(a) because its disclosure was barred by 8 C.F.R. § 236.6 (2007) ⁸ and 28 U.S.C. § 534(b) (2006).⁹ In addition, the commissioner contended that the printout was exempt from disclosure under § 1–210(b)(3)(D)¹⁰ because it would reveal an investigatory technique not otherwise known to the public. The commission concluded that 8 C.F.R. § 236.6 did not bar disclosure of the printout because the regulation applies only to current detainees. It further concluded that the printout was not exempt under § 1–210(b)(3)(D) because there was no evidence that the printout had been “compiled” in connection with the detection or investigation of a crime. Rather, the commission expressly found that “the NCIC printout was compiled as a consequence of [El Badrawi's] alleged civil violation of immigration laws.” The commission did not address the claim that disclosure was barred by 28 U.S.C. § 534(b).

The commissioner appealed from the commission's ruling to the trial court. The United States filed in the trial court a statement of interest in which it requested permission to participate in the administrative appeal, and it submitted a brief in support of the commissioner's position. ¹¹ The trial court concluded that, because the commission had not viewed the NCIC printout, there was no basis for its conclusion that the document related solely to a civil violation. The court also concluded that the commission had given no consideration to the commissioner's and the United States' claims that the printout would reveal an investigatory technique not otherwise known to the public for purposes of § 1–210(b)(3)(D). Accordingly, the court remanded the matter to the commission and directed it to review the NCIC printout in camera and, if necessary, to allow additional argument and to amend its findings.¹²

On remand, the United States filed with the commission a motion to intervene in the matter as a party, which the commission granted. After reviewing the NCIC printout in camera and holding a second hearing, the commission issued a second decision in which it again concluded that the document must be disclosed to El Badrawi under the act. The commission determined that 8 C.F.R. § 236.6 must be narrowly construed as an exemption to the act and that, so construed, it applied only to information regarding current detainees and, therefore, did not bar disclosure of the printout under the circumstances of this case. The commission also determined that, although the FBI and the state had entered into an agreement barring the state from disclosing NCIC records, and although 28 U.S.C. § 534(b) permitted the FBI to cancel that agreement if the state breaches it, the state could not contract away its obligations under the act, and the threat of cancellation did not preclude the state from disclosing information obtained from the NCIC database. Finally, the commission again concluded that the printout did not contain an investigatory technique unknown to the general public for purposes of § 1–210(b)(3)(D).

The United States appealed from the commission's ruling to the trial court and filed a motion to consolidate its appeal with the commissioner's pending appeal, over which the trial court had retained jurisdiction. The trial court granted the motion to consolidate. The trial court ultimately concluded that the commission properly had found that, because exemptions to the act must be construed narrowly, 8 C.F.R. § 236.6 must be construed to apply only to information concerning current detainees. The court also agreed with the commission's analysis of 28 U.S.C. § 534(b). The court disagreed, however, with the commission's determination that the NCIC printout had not been compiled in connection with the investigation of a crime, concluding that the document was the result of a criminal law enforcement effort to identify members of violent gangs and terrorists. Nevertheless, the court concluded that disclosure of the document indicating whether El Badrawi was listed in the violent gang and terrorist file, in and of itself, would not reveal an investigatory technique not known to the general public, which § 1–210(b)(3)(D) requires to exempt a document from disclosure under the act. Accordingly, the court ordered the United States to redact the NCIC printout to delete information that could lead to the disclosure of any such techniquesand to submit the redacted document to the court for in camera review. After the United States submitted a redacted printout, the court issued a supplemental decision in which it ordered that the redacted document be disclosed to El Badrawi. The court rendered judgments dismissing the administrative appeals in part and sustaining them in part.¹³

Thereafter, the commissioner and the United States filed separate appeals from the trial court's judgments.¹⁴ In the commissioner's appeal, El Badrawi...