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).
The record reveals the following undisputed facts and procedural history. El Badrawi was arrested by agents of Immigration and Customs Enforcement (ICE),
While El Badrawi was detained at the correctional center, the department submitted an inquiry seeking information about him from the NCIC database.
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.
The commissioner appealed from the commission's ruling to the trial court. The
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 techniques
Thereafter, the commissioner and the United States filed separate appeals from the trial court's judgments.
Because it is dispositive, we first address the claims of the commissioner and the United States that, contrary to the trial court's determination, disclosure of the NCIC printout is barred by 8 C.F.R. § 236.6 and, therefore, that the document is exempt from the act under § 1-210(a).
We agree with the United States that the interpretation of the promulgating agency, not the commission, is entitled to deference by this court. It is not the scope of § 1-210(a) that is at issue in these appeals but the meaning of 8 C.F.R. § 236.6. The commission has no special expertise in federal immigration law, in federal criminal law enforcement policies and procedures, or in questions of national security, which matters are the subject of the regulation. Moreover, the intent of our state legislators when setting policy and enacting laws regarding access to public records in this state has no bearing on the intent of the federal agency that promulgated the regulation.
We conclude, therefore, that, to the extent that there is any ambiguity in 8 C.F.R. § 236.6, we should defer to the promulgating agency's interpretation of that regulation, as long as that interpretation is not unreasonable. "[The court's] task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.... In other words, we must defer to the [agency's] interpretation unless an alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation."
With these principles in mind, we turn to the language of 8 C.F.R. § 236.6. The regulation 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 [Immigration and Naturalization Service, the predecessor to ICE and certain other branches of the United States Department of Homeland Security] (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 [Immigration and Naturalization] 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." 8 C.F.R. § 236.6 (2007).
The commission and the trial court concluded that, because the first sentence of 8 C.F.R. § 236.6 uses the present tense when it refers to any "person
Because we believe that both of these interpretations are plausible, we conclude that the language of the first sentence of 8 C.F.R. § 236.6 is ambiguous. We further conclude that the United States' interpretation is not only reasonable, it is the more reasonable one. First, contrary to El Badrawi's claims, the remaining language
The last sentence of 8 C.F.R. § 236.6 provides that "[t]his 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." According to the United States, this language makes the regulation applicable to information about a detainee who no longer is being detained and to persons who have obtained information about a detainee after the detainee is released. El Badrawi claims that the sentence is a retroactivity provision and merely provides that the regulation applies to information about current detainees who were taken into detention before the effective date of the regulation. Because the first sentence of the regulation clearly and unambiguously applies at least to all persons that currently hold detainees, however, regardless of when the person received a request for information about the detainee, El Badrawi's interpretation of the last sentence would render it superfluous. Put another way, because the application of the regulation to information about a current detainee simply would not be retroactive, even if the request for information had been submitted before the regulation was enacted, there would be no need for such a retroactivity provision if the first sentence had been intended to apply only to information about current detainees. Under the United States' interpretation, however, the last sentence would not be superfluous because it would clarify the ambiguity in the first sentence as to whether it applies to information about former detainees. "Because statutory interpretations that render language superfluous are disfavored"; Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19, 36 (2d Cir.2012); we conclude that the United States' interpretation of the last sentence is the more reasonable one.
The United States' interpretation also is consistent with the purposes of 8 C.F.R. § 236.6, as set forth in the notices in the Federal Register explaining the regulation. See generally Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities, 67 Fed.Reg. 19,508, 19,508-11 (April 22, 2002) (explaining interim rule); see also Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities, 68 Fed.Reg. 4364, 4366 (January 29, 2003) (explaining that interim rule was adopted as final rule without amendment). The regulation was intended to ensure that the disclosure of information about detainees would be subject to a uniform federal policy,
We note, moreover, that both El Badrawi and the commission conceded at oral argument before this court that, under their interpretation of 8 C.F.R. § 236.6, the regulation would not apply to information about a detainee held by a state or local entity after the detainee is transferred from the custody of that entity to federal custody. It could hardly be clearer, however, that the regulation was intended, at the very least, to address the problems caused by disclosure of information about a person who is currently detained. If the regulation, as it clearly must, precludes state and local entities from disclosing information about detainees who have been transferred from state or local custody to federal custody, even though the state or local entity itself no longer "houses, maintains, provides services to, or otherwise holds" the detainee; 8 C.F.R. § 236.6 (2007); we can perceive no reason why the regulation should permit the disclosure of such information when the detainee has been released from custody altogether. Nothing in the language of the regulation differentiates between information about detainees who have been transferred to the custody of another governmental entity and information about detainees who have been released.
El Badrawi and the commission make a number of arguments in support of their claim to the contrary. First, El Badrawi contends that the regulation's structure and placement in the Code of Federal Regulations support the view that it was intended to apply only to current detainees. Specifically, El Badrawi notes that the title of both of the notices in the Federal Register explaining the interim and final rules was "Release of Information Regarding Immigration and Naturalization Service Detainees in Non-Federal Facilities," and contends that the phrase "in Non-Federal Facilities" demonstrates that the regulation applies only to information about current detainees. In addition, El Badrawi contends that the Immigration and Naturalization Service issued a press release the day after the interim rule now codified at 8 C.F.R. § 236.6 took effect, in which it stated that the regulation would "cover all ... detainees being housed temporarily at the facilities on behalf of [the Immigration and Naturalization Service]." Immigration and Naturalization Service, News Release: INS Issues Rule Governing Release of Detainee Information (April 18, 2002). This argument, however, is essentially a rehash of the argument regarding the use of the present tense in the first sentence of 8 C.F.R. § 236.6, which we already have rejected.
El Badrawi further contends that the regulation's placement in part 236 of title 8 of the Code of Federal Regulations, which is entitled "Apprehension and Detention of Inadmissible and Deportable Aliens; Removal of Aliens Ordered Removed,"
El Badrawi and the commission next contend that the historical context of the promulgation of 8 C.F.R § 236.6 demonstrates that it was intended to apply only to information about current detainees. They note that 8 C.F.R. § 236.6 was promulgated as an interim rule five days after a New Jersey trial court ordered certain
El Badrawi further claims that the Immigration and Naturalization Service had no authority to promulgate 8 C.F.R. § 236.6. In support of this claim, he relies on Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), in which the United States Supreme Court considered whether the United States Attorney General (attorney general) had the authority under the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. (2000 and Sup. V 2005), to issue an interpretive rule, having the force of law, that assisting suicide was not a legitimate medical purpose within the meaning of the Controlled Substances Act and its implementing regulations.
Gonzales does not control the present case. The authorizing statute in effect when the Immigration and Naturalization Service promulgated 8 C.F.R. § 236.6 provided that "[t]he Attorney General shall be charged with the administration and enforcement of [the] chapter [governing immigration and nationality] and all other laws relating to the immigration and naturalization of aliens...." 8 U.S.C. § 1103(a)(1) (Sup. II 2002). In addition, the attorney general was authorized to "establish such regulations ... and perform such other acts as he deems necessary for carrying out his authority under the provisions of [the] chapter [governing immigration and nationality]."
We agree with the court in American Civil Liberties Union of New Jersey, Inc. v. Hudson, supra, 352 N.J.Super. 44, 799 A.2d 629, that "we would breach faith with overarching principles of our federalism if we were to see this case as an occasion for viewing the grant of authority to the [c]ommissioner [of the Immigration and Naturalization Service] as anything but very broad. Although 8 C.F.R. § 236.6 might be primarily concerned with securing confidential information, it still relates to immigration and naturalization in several ways. We accept as not patently
We see nothing in Gonzales that would undermine this analysis. Unlike the narrow delegation of authority to the attorney general in that case, which was limited to the registration and control of controlled substances; see Gonzales v. Oregon, supra, 546 U.S. at 259, 126 S.Ct. 904; 8 U.S.C. § 1103(a)(1) (Sup. II 2002) broadly charged the attorney general "with the administration and enforcement of [the] chapter [governing immigration and nationality] and all other laws relating to the immigration and naturalization of aliens," and 8 U.S.C. § 1103(c) (2000) allowed the attorney general to delegate to the commissioner of the Immigration and Naturalization Service "any and all responsibilities and authority ... which are conferred upon the Attorney General...." Moreover, unlike the interpretive rule at issue in Gonzales, which affected an activity that historically has been subject to state regulation; see, e.g., Gonzales v. Oregon, supra, at 270, 126 S.Ct. 904 (practice of medicine generally is within power of states to regulate); 8 C.F.R. § 236.6 primarily affects matters involving immigration and national security, which are matters that are exclusively within the purview of the federal government. American Civil Liberties Union of New Jersey, Inc. v. Hudson, supra, 352 N.J.Super. at 76, 799 A.2d 629. Although we recognize that 8 C.F.R. § 236.6 may have an incidental effect on the operation of state laws and policies governing the disclosure of documents in the possession of state and local government officials, that effect is limited to cases in which the operation of state law would undermine laws and policies that are clearly federal in scope and within the authority of the promulgating agency to implement.
We also reject El Badrawi's claim that 8 C.F.R. § 236.6 does not apply to the NCIC printout in the present case because the regulation does not clearly express an intent to preempt state law.
Finally, El Badrawi claims that the United States' interpretation of 8 C.F.R. § 236.6 would lead to bizarre and unduly harsh results. For example, he contends that, if an individual had been in state prison for years pursuant to a sentence imposed under state criminal law, and then served only one day as a detainee as a result of a violation of federal immigration law, the department would have no control over that individual's records. In addition, El Badrawi contends that a detainee released from a state detention facility would be unable to obtain his own medical records from that facility. Although we acknowledge that 8 C.F.R. § 236.6 places obstacles in the path of a person seeking information about immigration detainees from the persons described in the regulation, we are not convinced that the obstacles would be insuperable in every case. The regulation provides that information about detainees "shall be under the control of the [Immigration and Naturalization] Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders." 8 C.F.R. § 236.6 (2007). Thus, the regulation does not prohibit the Immigration and Naturalization Service or its successor agencies from disclosing information about a detainee, including information that is in the possession of state and local entities, although disclosure of certain information may be barred under other provisions of federal law.
For the foregoing reasons, disclosure of the NCIC printout to El Badrawi is barred by 8 C.F.R. § 236.6, and, therefore, the document falls within the exemption to the act set forth in § 1-210(a). Accordingly, the trial court improperly dismissed in part the appeals by the United States and the commissioner. Our conclusion that El Badrawi is not entitled to disclosure of the NCIC printout renders moot his challenge on appeal to the propriety of the trial court's decision to remand the matter to the commission and his claim in his cross appeal that the trial court improperly ordered disclosure of a redacted version of the NCIC printout.
The appeal in Docket No. SC 18622 and the cross appeal in Docket No. SC 18623 are dismissed; the judgments sustaining in part and dismissing in part the appeals of the United States of America and the commissioner of correction are reversed and the matter is remanded with direction to render judgments sustaining the appeals of the United States of America and the commissioner of correction.
In this opinion the other justices concurred.
"(1) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records;
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"(4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government, including the United States Sentencing Commission, 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...."
Hereinafter, all references to 28 U.S.C. § 534 are to the 2006 edition.
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"(3) 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 the 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...."
To the extent that El Badrawi claims that the United States' interpretation of 8 C.F.R. § 236.6 in the present case is inconsistent with its conduct in the case involving El Badrawi's request under the federal freedom of information laws because the United States did not assert ownership or control of the department's records concerning El Badrawi in that matter, we also are not persuaded by this contention. Even if the United States did not assert ownership or control of the department's records in the case involving El Badrawi's request under the federal freedom of information laws, that fact would appear to have little if any bearing on the question of whether 8 C.F.R. § 236.6 applies to the document at issue in the present case.
Furthermore, "[t]he significance of one item of information may frequently depend [on] knowledge of many other items of information. What may seem trivial to the uninformed... may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context. The courts ... of course are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." Id. Moreover, "[d]isclosure of a detainee's identity or information related to the detainee could deter these individuals from cooperating with the [United States] Department of Justice now or after they are released from custody for fear of retaliation by terrorist organizations against [the detainee] or [his] family members and associates." Id., at 19,510.
El Badrawi also criticizes the United States for making "sweeping claims of dire consequences that might result from the release by one state jail of one former detainee's record." The question before us, however, is not the factual question of whether the release of information about El Badrawi would have "dire consequences...." Rather, the question is whether the promulgating agency believed that the disclosure of this type of information by state and local entities could have adverse consequences and, therefore, should be barred as a matter of law. We conclude that the answer to that question is yes.
Finally, both El Badrawi and the commission contend that whether El Badrawi is listed in the violent gang and terrorist file is now a matter of public knowledge and, therefore, there is no reason to withhold the NCIC printout. Specifically, the commission contends that the very existence of a printout from the file "supports a nearly indisputable inference that the printout does indicate a positive entry." The United States, however, has consistently declined to confirm or deny whether that is the case. In any event, even if the inference that the commission has drawn were correct, that would not exempt the printout from the application of 8 C.F.R. § 236.6. Cf. Afshar v. Dept. of State, 702 F.2d 1125, 1130-31 (D.C.Cir.1983) (noting difference between effects of "[u]nofficial leaks and public surmise" and effects of "official acknowledgment" of undisclosed information).
We further note that El Badrawi has cited no authority, and we have found none, to support his claim that the presumption against preemption requires courts to construe federal laws narrowly to avoid conflicts with state laws. Rather, the presumption directs that, when federal law and state law govern the same subject matter, the state law may be given effect unless it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the federal law. (Internal quotation marks omitted.) Crosby v. National Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000).