Opinion
No. CV HHB 08-4016067-S
September 5, 2008
MEMORANDUM OF DECISION
This action is an appeal from an administrative decision of the Freedom of Information Commission (Commission) pursuant to § 1-206(d) of the State Freedom of Information Act (State Act), Conn. Gen. Stat. § 1-200 et seq., and § 4-183(b) of the Uniform Administrative Procedure Act (UAPA), Conn. Gen. Stat. § 4-166 et seq. The plaintiff, John Danaher, Commissioner of the Department of Public Safety (DPS), seeks review of a decision of the Commission ordering the plaintiff to disclose records related to a Federal Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) Operation in the New Haven area, which occurred on June 6, 2007, and in which the Connecticut State Police provided assistance. The request for records was made by Junta for Progressive Action, Inc., Unidad Latina en Accion and the Jerome N. Frank Legal Services Organization (organizational defendants).
The plaintiff provided copies of records to the organizational defendants, with redactions. Upon order of the hearing officer, the plaintiff submitted unredacted copies of the records for in camera inspection. They are presently lodged under seal, and are identified as ICE-2007-416-1 through ICE-2007-416-21. These records consist of (a) three pages of a DPS investigation report; (b) a single-page handbill; (c) cover pages to two facsimile transmissions; (d) one page with a list of twenty-nine names and corresponding identifying information; (e) three pages containing six email messages; (f) one page with a list of thirty-two names and corresponding identifying information; and (g) ten pages of records, which the plaintiff publicly identified as the ICE "Operational Order/Plan" for the New Haven operation.
Standard of Review
"We begin by articulating the applicable standard of review in an appeal from the decision of an administrative agency. Judicial review of [an administrative agency's] action is governed by the [UAPA] . . . and the scope of that review is very restricted . . . With regard to questions of fact, it is [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency." (Citations omitted; internal quotation marks omitted.) Celentano v. Rocque, 282 Conn. 645, 652, 923 A.2d 709 (2007). With respect to questions of law, "[a] reviewing court . . . is not required to defer to an improper application of the law . . . It is the function of the courts to expound and apply governing principles of law. Questions of law [invoke] a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Jim's Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 804, 942 A.2d 305 (2008).
" Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them . . . The intent of the legislature, as [our appellate courts have] repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite statute to accomplish a particular result. That is a function of the legislature." (Internal quotation marks omitted.) Groton Police Dept. v. Freedom of Information Commission, 104 Conn.App. 150, 157, 931 A.2d 989 (2007).
Federal Act Exemptions
The plaintiff maintains that the bulk of the contested records are documents created by DHS and provided to DPS in connection with the operation that took place on June 6, 2007. Although the plaintiff does not contest the Commission's finding that the records are public records within the meaning of §§ 1-200(5) and 1-210(a) of the State Act, he strenuously argues that the federal Freedom of Information Act (Federal Act), 5 U.S.C. § 552, applies via §§ 1-210(a) and 1-210(b)(10) of the State Act. Those sections remove from mandatory disclosure any records which are excepted "by any federal law"; Section 1-210(a); or which are "exempted by federal law"; Section 1-210(b)(10).
The Commission found that the Federal Act applied only to federal agencies. This finding is supported by federal case law. "[T]he [federal act] and the Privacy Act apply only to `agencies' as that term is defined under 5 U.S.C. § 551(1) and 5 U.S.C. § 552(e). Under these definitions, `agency' does not encompass state agencies or bodies." St. Michael's Convalescent Hospital v. California, 643 F.2d 1369, 1373 (9th Cir. 1981). See also Tobin v. Doe, United States District Court, Docket No. 3:04V952 (SRU) (D.Conn. March 28, 2005) (federal act "does not apply to state agencies or state government"). Furthermore, the Commission found that the Federal Act is not a "federal law" that provides an exception to the disclosure requirements of § 1-210(a) of the State Act. Although the Commission did not expressly mention § 1-210(b)(10) of the State Act in its decision, the court concludes that the Commission's findings apply to both sections since they express the same intent.
Our Supreme Court considered the "federal law" exemption contained in § 1-210(a) of the State Act, and by implication the exemption contained in § 1-210(b)(10), in the case of Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 746 A.2d 1264 (2000). In that case, the Supreme Court considered whether the Federal Rules of Civil Procedure constitute federal law which would govern the disclosure of the documents at issue. The Supreme Court stated: "First, the phrase at issue in § 1-210(a) provides in relevant part: Except as otherwise provided by any federal law, or state statute . . . State discovery rules are governed generally by rules of the court, not by statutes. Thus, linking a total federal exemption from the disclosure provisions of the act with a parallel reference to state statutes strongly suggests that the reference to `federal law' was not intended to encompass federal litigation engendered issues of discovery [or the federal Freedom of Information Act]." It suggests, instead, a reference to federal and state laws that, by their terms, provide for confidentiality of records or some other similar shield from public disclosure.
"Indeed, the only references in the entire legislative history of the [state] act to the language in question are consistent with the suggestion that it was intended to refer to other federal and state laws that by their terms shield specific information from disclosure." (Internal quotation marks omitted.) Id., 399. The Supreme Court included statements of Representative Martin B. Burke, which discuss the purpose and intention of § 1-210(b)(10). Id., n. 26.
As noted earlier, the Commission found that federal law provides an exception to mandatory disclosure under the State Act only when the federal law prohibits disclosure. The Commission also found that the federal act requires agencies to disclose certain records but does not prohibit disclosure of any public records. This finding is in accordance with the Supreme Court case of Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). In that case, the Court held: "By its terms, subsection (b) [the exemptions claimed by the plaintiff] demarcates the agency's obligation to disclose; it does not foreclose disclosure . . . [T]he [federal act] is exclusively a disclosure statute . . . We simply hold here that Congress did not design the [federal act] exemptions to be mandatory bars to disclosure." (Citation omitted.) Id., 292-93. The Commission's finding that the Federal Act does not allow the plaintiff to withhold or redact the contested record is not erroneous.
In its brief, the plaintiff argues that the Commission's decision jeopardizes public safety. On this point, the plaintiff states: "Evidence was presented before the Commission through the testimony of Officer Seth Mancini that release of the federal records could have an adverse impact on joint state and federal law enforcement endeavors. Such considerations surely should have entered the calculus of whether or not to disclosure information even under the State FOIA provisions alone." (Plaintiff's brief, page 4.) The plaintiff does not state the "provisions" of the State Act that he alludes to. The Commission was not bound to consider the provisions of the Federal Act and it was not at liberty to create exemptions.
Officer Mancini did testify to his belief that disclosure of the records in question would discourage cooperation, however, he failed to lay any foundation or give any reason for that belief other than speculation as to what his own reaction would be. He stated: "If it was us and we did that . . . I wouldn't see why we would continue to give it to them." (Administrative record, page 295.) The plaintiff bears the burden of proof as to the applicability of exemptions to the general rule of disclosure and "[t]his burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested." New Haven v. Freedom of Information Commission, 205 Conn. 767, 776, 535 A.2d 1297 (1988). The plaintiff has not sustained his burden on this point.
The plaintiff argued at the hearing that the names of DHS officers contained in the records should be protected from disclosure. The plaintiff does not cite any Connecticut statutes or cases which justify withholding of the names. He does direct the court to federal cases which have applied federal act exemptions and limited disclosure of the identities of law enforcement offices. See, e.g., Baez v. Federal Bureau of Investigation, 443 F.Sup.2d 717 (E.D.Pa. 2006). Although this claim was not specifically addressed in the Commission's decision, its correct finding regarding the nonapplicability of federal act exemptions provides a sufficient determination of the issue.
In arguing that the identities of the officers should not be disclosed, the plaintiff maintains that law enforcement personnel have an enhanced privacy interest in the context of performing their duties. He does not direct the court to any portions of the record which support this claim. In their brief, the organizational defendants point out that neither the officers nor any federal agencies moved to intervene in order to claim an invasion of privacy.
Lists of Names with Identifying Information
Included in the contested records are two lists of names with identifying information. Although the Commission did not detail the information on the lists in its decision, the plaintiff's brief contains the heading "Identification of 32 Illegal Aliens and Their Personal Information." The brief also states that the lists contain names, dates of birth, addresses, alien numbers, and nationalities of the individuals listed. The plaintiff maintained at the hearing that the lists were exempt from disclosure under the federal and state acts.
As noted earlier, the Commission correctly found that the Federal Act did not apply. The plaintiff claims that § 1-210(b)(2) of the State Act applies to the lists. That section permits the nondisclosure of "[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . ." The Commission found that the lists were not "similar" files within the meaning of § 1-210(b)(2). In making this finding, the Commission accurately noted that the plaintiff failed to submit any evidence concerning the nature or purpose of the information contained in the lists.
The thrust of the plaintiff's argument is that the information on the lists is the type of information contained in personnel files. That may be, but the information alone, in the absence of other evidence, does not transform identifying information into a file that is similar to a personnel file. In Connecticut Alcohol Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 41, 657 A.2d 630 (1995), the Supreme Court considered the question of when a file is "similar in nature" to personnel or medical files, and concluded: "[S]uch a determination requires a functional review of the documents at issue. Just as a `medical' file of an individual has as one of its principal purposes the furnishing of information for making medical decisions regarding that individual, a `personnel' file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved. If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is `similar' to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered `similar' to a personnel file for the purposes of § 1-19(b)(2)."
In the present case, the plaintiff did not provide any evidence to the Commission which would support a finding that the documents contain information which "would be pertinent to traditional personnel decisions . . ." Id. Notably, there was no evidence which explained the meaning, purpose or significance of an alien number. General information which identifies an individual is not per se exempt from disclosure. See Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 609 A.2d 998 (1992) (name, address, date of birth, occupation, and sex of pistol permit holders ordered disclosed).
The plaintiff also argues that release of the information contained in the two lists would violate the privacy rights of the individuals named. "[A]nalysis of what constitutes an invasion of privacy is controlled by Perkins v. Freedom of Information Commission, [ 228 Conn. 158, 635 A.2d 783 (1993)]. In Perkins, [our Supreme Court] enunciated the standard for determining whether a disclosure constitutes an invasion of personal privacy under § 1-210(b)(2) . . . [T]he invasion of personal privacy exception . . . precludes disclosure . . . only when [1] the information sought by a request does not pertain to legitimate matters of public concern and [2] is highly offensive to a reasonable person . . . [The two-prong standard] has been accepted as the touchstone for subsequent cases addressing this element of § [1-210](b)(2) . . . A party seeking to invoke the exemption under § [1-210](b)(2) must meet each of these burdens of proof independently." (Citations omitted; internal quotation marks omitted.) Director, Retirement Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 774, 775 A.2d 981 (2001).
In its brief, the Commission accurately notes that there was a lack of evidence regarding invasion of privacy. The organizational defendants remind the court that the plaintiff may not claim privacy rights on behalf of nonparties. Our Supreme Court has "uniformly resisted the efforts of litigants to assert constitutional claims of others not in a direct adversarial posture before the court . . . Under long established principles, a party is precluded from asserting the constitutional rights of another." (Citations omitted; internal quotation marks omitted.) Superintendent of Police v. Freedom of Information Commission, supra, 222 Conn. 630. The organizational defendants emphasize that none of the individuals on the lists have intervened in this action to assert privacy rights. The Commission's determination that the exemption provided in § 1-210(b)(2) did not apply is supported by law and the record.
Operational Order/Plan and Redacted Emails
The plaintiff maintains that the operational order/plan and a portion of one of the emails is exempt from disclosure pursuant to § 1-210(b)(3)(D) of the State Act, which provides in relevant part: "Nothing in the [state act] shall be construed to require disclosure of . . . [r]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . investigatory techniques not otherwise known to the general public . . ."
The Commission found that the records were not compiled in connection with the detection or investigation of a crime, and even if they were, it found that the records do not reveal investigatory techniques that are otherwise unknown to the general public. Both of these findings are supported by law and the record. As stated earlier, almost all of the records were provided by ICE to the Connecticut State Police in connection with an enforcement action designed to locate and arrest people in the New Haven area for various immigration violations. The role of the state police was to assist in the operation. There were no arrests for federal or state criminal laws.
The Commission found that ICE compiled the records in anticipation of the service of administrative warrants regarding suspected violations of civil immigration laws. This finding is supported by the record. In a letter to Senator Christopher Dodd, Michael Chertoff, Secretary of DHS, stated: "A warrant of removal is administrative in nature and does not grant the same authority to enter dwellings as a judicially approved search or arrest warrant." (Administrative record, page 74.) The Supreme Court has held that immigration deportation proceedings are civil in nature. See Immigration Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). Since the documents were not compiled in connection with detection or investigation of crime, the Commission correctly found that § 1-210(b)(3) of the State Act did not apply.
The Commission considered the plaintiff's contention that disclosure of the records would reveal investigatory techniques not otherwise known to the general public within the meaning of § 1-210(b)(3)(D) of the State Act. The Commission found that the operational order/plan contains broad-based operating procedures which are not unknown to the general public. In making this finding, the Commission noted the following documents in the record: (a) secretary Chertoff's letter to Senator Dodd, mentioned earlier; and (b) a report from the DHS Office of Inspector General entitled "An Assessment of United States Immigration and Customs Enforcement's Fugitive Operations Teams." Both of these documents discuss the planning and execution of the operations. The court has reviewed the unredacted operational order/plan and cannot find the Commission's determination to be erroneous.
The Commission did find that one portion of one of the emails did reveal an investigator technique of the Connecticut State Police. With regard to this technique, the Commission found that the technique is not at a level beyond what the public perceives through television or other media, nor is it so detailed as to reveal unknown aspects of otherwise known techniques. The court has reviewed an unredacted copy of the subject email and does not find the Commission's findings regarding the investigatory technique to be erroneous.
For the foregoing reasons, the appeal is dismissed.