COMMISSIONER, DEPARTMENT OF CORRECTION, et al. v. FREEDOM OF INFORMATION COMMISSION et al., SC 18622/18623/18624

Judicial District of New Britain

Freedom of Information; Whether Document Concerning Former Civil Immigration Detainee Contained in Violent Gang and Terrorist Organization File is Exempt from FOIA Disclosure Requirements.  Rashad El Badrawi 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 state department of correction.  El Badrawi later voluntarily departed this country.  In 2007, El Badrawi filed a complaint with the freedom of information commission (FOIC) alleging that the department of correction (DOC) violated the Freedom of Information Act (FOIA) by refusing his request for disclosure of a certain document concerning his confinement.  The document is part of the Violent Gang and Terrorist Organization File (VGTOF), which is generated by the federal bureau of investigation from the National Crime Information Center (NCIC) database to provide law enforcement personnel with identifying information about violent criminal gangs and terrorist organizations and the members of such groups.  The FOIC ordered the DOC to disclose the document.  On appeal, the DOC and the United States, which intervened in the matter, argued that the document was exempt from disclosure under General Statutes § 1-210 (b) (10) of the FOIA, which applies to records protected from public disclosure under federal law, because government entities housing immigration detainees are prohibited by 8 C.F.R. § 236.6 from disclosing information about them.  The respondents also argued that the § 1-210 (b) (10) exemption applies because of a "user agreement" governing access by state law enforcement officials to the NCIC database, which is subject to cancellation if the information from the database is disseminated outside of the receiving departments.  The trial court rejected those arguments, finding that § 236.6 does not apply to records of persons no longer housed as detainees and that the DOC may not contract away its statutory obligations under the FOIA.  The respondents also argued that the document is exempt under § 1-210 (b) (3) (D), which applies to records "compiled in connection with the detection or investigation of a crime" that involve "investigatory techniques not otherwise known to the general public."  The trial court found that although the DOC obtained the document when El Badrawi was arrested on a civil immigration warrant, the document was compiled by the FBI in the course of a criminal investigation.  The court further found, however, that because the United States admitted the existence of the document, the document, as a whole, is not exempt as a secret investigatory technique.  Noting that portions of the document might lead to the disclosure of secret investigatory techniques, the court ordered the document disclosed with those portions redacted.  El Badrawi, the DOC and the United States all appeal from the decision ordering disclosure of the document.