NO. CV 08 4016692S

COMMISSIONER, DEPT. OF CORRECTION

V.

FREEDOM OF INFORMATION
COMMISSION AND RASHAD EL BADRAWI



NO. CV 09 4020945S

UNITED STATES OF AMERICA, COMM.
CT DEPT OF CORRECTIONS

V.

FREEDOM OF INFORMATION
COMMISSION AND RASHAD EL BADRAWI


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SUPERIOR COURT

JUDICIAL DISTRICT OF

NEW BRITAIN


NOVEMBER 17, 2009



SUPERIOR COURT


JUDICIAL DISTRICT OF

NEW BRITAIN


NOVEMBER 17, 2009

MEMORANDUM OF DECISION

On January 9, 2008, the defendant freedom of information commission (FOIC) ordered disclosed a one-page document1 in the custody of the plaintiff department of correction (DOC) relating to defendant Rashad El Badrawi (E1 Badrawi), the complainant to the FOIC. The DOC appealed pursuant to 4-183 (a) from the FOIC's order. On December 4, 2008, this court ordered the FOIC to review the document in camera and to amend the final decision if appropriate. On April 8, 2009, the FOIC again ordered the document disclosed as a public record. The DOC has returned this matter to the court in light of the FOIC's April 8 final decision.

On January 13, 2009, Federal District Judge Janet Hall denied El Badrawi's federal Freedom of Information Act (FOIA) suit for the same document; on July 24, 2009 she permitted discovery of the document in a civil rights suit brought by EI Badrawi, but issued a redacted version with a protective order that only allowed his counsel access. During the remanded proceedings to the FOIC, the United States was granted intervenor status. The United States has also commenced its own administrative appeal from the final decision of April 8, 2009.2

The final decision of April 8, 2009, made findings that may be set forth in part as follows:3

  1. 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.

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  1. 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.

  2. 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.

  3. 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.

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

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  1. 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.

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

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

  2. 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.

  3. 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.

  4. 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.

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  1. 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.

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  1. 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.

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  1. 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.

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  1. 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.

  2. 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.

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  1. 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.

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

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  1. 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 a crime. Second, unlike the federal exemption, Connecticut law requires that the investigatory technique be not otherwise known to the general public.

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  1. 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.

  2. 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.

  3. It is found that IC-2007-136-1 was compiled as a consequence of the complainant's alleged civil violation of immigration laws.

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  1. 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 data base. 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.

  2. 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.

  3. 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.

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

The FOIC entered the following order:

  1. The respondent shall provide the complainant with a copy of IC-2007-136-1, without charge. (Return of Record, ROR, pp. 258-68)

Both the DOC and the United States have challenged the FOIC final decision.4 The court decides the issues raised in this appeal under the limited scope of judicial review afforded by the Uniform Administrative Procedure Act. The court must decide "in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion." Lewin v. Freedom of Information Commission, 91 Conn. App. 521, 525, 881 A.2d 519, cert. denied, 276 Conn. 921, 888 A.2d 88 (2005). The test with regards to facts found is whether the FOIC's final decision is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Rocque v. Freedom of Information Commission, 255 Conn. 651,774 A.2d 957 (2001).

The first issue raised by the DOC and the United States is that 8 C.F.R. 236.6 acts as an exemption under General Statutes 1-210 (b) (10) ("Nothing in the [FOIA] shall be construed to require disclosure of . . .  records . . . exempted by federal law . . . ."). Section 236.6 provides in part that "[n]o person, including any state or local government entity . . . that houses . . . any detainee on behalf of the [U.S. Immigration Service] . . . shall disclose or otherwise permit to be made public . . . information relating to any detainee. . . . [S]uch documents shall not be a public record. 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."

The FOIC found that 236.6 did not apply to those no longer housed as detainees. (ROR, Findings 30, 33, pp. 263-64). This position is supported by the first sentence of the regulation which is in the present tense. The last sentence of the regulation (including "regardless of when such persons obtained such information") is ambiguous. It may apply only to current detainees or it may apply to former detainees. In addition, the case of American Civil Liberties Union v. County of Hudson, 352 N.J. Super. 44, 799 A.2d 629 (App. Div. 2002), rev'd, 174 N.J. 190, 803 A.2d 1162 (2002), that led to the adoption of 236.6, did not analyze the regulation in terms of former detainees.

In light of the ambiguity, the court joins in the FOIC's conclusion that 236.6 does not provide the "federal law" needed for the exemption of 1-210 (b) (1). "We note that the general rule under the Freedom of Information Act is disclosure with the exceptions to this rule being narrowly construed. The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption." New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988).

The DOC and the United States argue further that the 1-210 (b) (10) exemption for "federal law" may be derived from a "user agreement" governing access by state of Connecticut law enforcement officials to the national NCIC data base. The agreement is drawn from 28 U.S.C. 534. This agreement is "subject to cancellation if dissemination is made outside the receiving departments or related agencies." 28 U.S.C. 534 (b). On this point the court agrees with the conclusions of the FOIC. The DOC may not contract away its statutory obligations under FOIA. Lieberman v. Board of Labor Relations, 216 Conn. 253, 271, 579 A.2d 505 (1990). As in Maher v. Freedom of Information Commission, 192 Conn. 310, 318, 472 A.2d 321 (1984), nothing in the federal regulatory scheme "per se prevents a state legislature from enacting binding legislation, as part of its Freedom of Information Act or elsewhere" that is inconsistent with 28 U.S.C. 534. "Federal law thus provides no direct defense to the disclosures that the FOIC has directed."

The DOC and the United States thirdly claim that the FOIC erred in concluding that the exemption of 1-210 (b) (3) (D) was inapplicable. To meet this exemption, the DOC and the United States were required to prove first that the document under seal was "compiled in connection with the detection or investigation of a crime." The FOIC concluded in Finding 59 that the document was not so compiled. (ROR, p. 267).

The basis of this conclusion was, however, that El Badrawi was "arrested pursuant to a civil immigration warrant . . . . [He] had no federal state criminal history and was not accused of any federal or state crime." (ROR, Finding 58, p. 267). See Danaher v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket No. CV 08 4016067 (September 5, 2008, Domnarski, J. ) (deportation proceedings are civil in nature; records sought do not fall under 1-210 (b) (3) (D)).

Here, the record shows otherwise. The document under seal was compiled by the Federal Bureau of Investigation in the course of a criminal investigation. It subsequently came available when the DOC searched the NCIC data base after El Badrawi became a detainee housed in a state jail. (ROR, pp. 215-17). The court cannot agree that there is substantial evidence to support the FOIC's conclusion regarding the root compilation of the document.

The 1-210 (b) (3) (D) exemption also requires that the document represent an investigatory technique or techniques not otherwise known to the general public. The FOIC concluded that the document was merely a portion of the NCIC record, which does not represent an investigatory technique otherwise unknown to the general public. (ROR, Finding 62, p. 267).

The record sets forth the VGTOF manual (ROR, Complainant's Exhibit B, p. 48 et seq.). It is true that the manual is a public document, but the document under seal (even though it dates from five years ago) goes beyond this. It shows how the manual is applied to the specific instance of the El Badrawi investigation, including the use of codes and personal information. The codes are set forth at pages 75-76 of the record. The court rejects the FOIC conclusion that the document facially does not reveal investigatory techniques not known to the general public. The document is not the usual product of the COLLECT system or the NCIC system. Cf. Finding 62, discussing Smith v. Dept. of Public Safety, Docket # FIC 1990-477. Rather, the document resulted from a specific data base used for the detection of violent gang members and terrorists.

The fact that there is a VGTOF document at issue in this case has been admitted by the United States. Therefore, the court cannot agree with the United States that to release the document would reveal a secret investigative technique, and thus the court does not accept the argument of the United States that the entire document must be exempt as investigatory. At most, the document, if disclosed, would reveal that El Badrawi is or is not on the VGTOF list. Whether El Badrawi's status should be revealed cannot be "squeezed" into an "investigatory technique, not known to the general public," the only claimed FOIA exemption. As indicated, it is the application of the manual to El Badrawi that may well constitute an investigatory technique or techniques.5

The court concludes that the FOIC has wrongly ordered the entire document to be disclosed, but rather should have ordered that portions of the document under seal be redacted before its release. The redaction of portions of a record has been recognized from the creation of the FOIC as a partial disclosure remedy under FOIA. See Trumbull v. Freedom of Information Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 113874 (March 20, 1979, Landau, J.) (police daily activity sheets). The court notes the excellent analysis of the purposes of redaction in Farley v. Worley, 599 S.E. 2d 835 (W.Va. 2004), citing Dept. of the Air Force v. Rose; 425 U.S. 352, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976). When portions of a document are subject to an exemption, those portions are redacted, and the remainder are to be disclosed. Gordon v. Sandoval County Assessor, 28 P.3d 1114 (N.M. App. 2001).

Here it is appropriate for the court to undertake the redaction, rather than order a second remand to FOIC. See Rocque v. Freedom of Information Commission, supra, 255 Conn. 668. The court lacks the expertise to take on this role, however. It has reviewed the redaction that the District Court has imposed as part of discovery in a pending civil rights case brought by El Badrawi, but did not find it helpful. The district court redacted almost nothing, but at the same time imposed a protective order that would not make the document a public record. The court, therefore, orders the United States to provide a redaction and submit it under seal with the court, for the court's review. The court cautions that this redaction is only to eliminate from the document narrow instances, if any, where the procedure of matching the VGTOF manual to the specific El Badrawi facts would lead to the disclosure of an investigatory technique not generally known.6 So ordered.







Henry S. Cohn, Judge






1
The document, submitted in camera to the FOIC, and under seal in this court, is a photocopy print-out from a database maintained by the Federal Bureau of Investigation.


2
The court finds that both the DOC and the United States are aggrieved by the order of the FOIC to disclose the document at issue in this appeal.


3
In these findings, the complainant is EI Badrawi and DOC is the respondent.


4
The DOC submitted a brief in support of its position before the court issued its remand decision on December 4, 2008. It also filed a brief joining in the position of the United States after the FOIC issued its ruling on this court's remand. Then it purported to file an additional brief after the remand that expanded its argument by referring to Connecticut statutes not raised before the FOIC. El Badrawi objected to filing of this brief. The court sustains the objection and does not consider this brief in its opinion.


5
For this same reason, the court agrees with the ruling of the FOIC denying supplementing the record with additional exhibits 2-8. The tendered exhibits were a portion of the argument made by the United States that any confirmation that VGTOF was involved would compromise a criminal investigation.


6
Once the United States submits the suggested redactions, the court will issue a supplemental decision. The intention of the court is that the present opinion and the supplemental decision with be final for the purposes of appeal under 4-183 (j).