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 is denied, because he had ample opportunity to present the proffered evidence at the time of hearing, but did not do so.

 

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 National Crime Information Center (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 respondent’s argument is without merit.  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.   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 ….”

 

47.   The complainant contends that the record described in paragraph 5, above, was not “compiled in connection with the detection or investigation of crime,” within the meaning of §1-210(b)(3), G.S.

 

48.  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.

 

49.   It is found that the civil immigration warrant was registered on the criminal database known as the NCIC.

 

50.   It is found that there is no evidence that the NCIC record described in paragraph 5, above, was compiled in connection with the detection or investigation of crime. 

 

51.  It is found that the NCIC printout 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.)

 

52.   It is found that the record described in paragraph 5, above, was not compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3), G.S.

 

53.   The respondent contends that the NCIC printout, described in paragraph 5, above, is an investigatory technique not otherwise known to the general public, within the meaning of §1-210(b)(3)(D), G.S.

 

54.   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. 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.”)

 

55.   It is found that the respondent failed to prove that the NCIC printout described in paragraph 5, above, would reveal an investigatory technique of a law enforcement agency.

 

56.   It is found that disclosure of the NCIC printout described in paragraph 5, above, would not reveal an investigatory technique unknown to the general public, within the meaning of §1-210(b)(3)(D), G.S.

 

57.   It is concluded that §1-210(b)(3)(D), G.S., does not exempt from disclosure the record described in paragraph 5, above.

 

58.   It is concluded, therefore, that the respondent violated the FOI Act by failing to disclose the record described in paragraph 5, above.

 

 

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 the record described in paragraph 5, above. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 9, 2008.

 

 

________________________________

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

Bram Elias

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

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-136FD/paj/1/15/2008