DOCKET NO.

HHB-OB-4016067 S
JOHN DANAHER, ill. COMMISSIONER,
STATE OF CONNECTICUT,
DEPARTMENT OF PUBLIC SAFETY SUPERIOR COURT
V. JUDICIAL DISTRICT OF
NEW BRITAIN AT
FREEDOM OF INFORMATION
COMMISSION,
JUNTA FOR PROGRESSIVE
ACTION, INC.,
NEW BRITAIN
UNIDAD LATINA EN ACCION, AND
JEROME N. FRANK LEGAL
SERVICES ORGANIZATION MARCH 28, 2008
PLAlNTIFF'SBRIEF
INTRODUCTION
v";

c:

-0
E5

0
.-
, '"
,.""""
,-
-

-
, .
. ' .
. !:1
;::-:'
r.:.
--
c:2
/-. CQ
This is an appeal from a decision of the Freedom of Information Commis-sron concluding
that certain records are public records which must be disclosed to the defendants Junta for
Progressive Action, Inc., Unidad Latina en Accion and Jerome N. Frank Legal Services
Organi.zation (Organizational Defendants).
The Organ.izational Defendants sought records in the possession of the plaintiff regarding
a law enforcement action that took place in New Haven, Connecticut on June 6, 2007. The
records requested are specified in plaintiffs' Exhibit A. Record, p. 42. Prior to the defendant
Freedom of Infonnation Commission (Commission) fmal decision, the plaintiff provided to the
defendants all the records requested, except for one in redacted form. I All of the unredacted
records were submitted to the Commission for in camera review. The only issues before the
Commission were the appropriateness of the redactions and the refusal to disclose in total IC-
2007-416-11.
All of the records, with the exception of IC-2007-416-1 0, line 9, as to which exemptions
were claimed are documents created by the Department of Homeland Security (DHS) and
provided to the Department of Public Safety (DPS) in connection with its participation in the law
enforcement action that took place on June 6, 2007.
ARGUMENTS
It should be noted at the onset that this appeal is not about the wisdom of this country's
immigration policies. Similarly, it is not about whether state and/or local law enforcement
agencies should cooperate with federal law enforcement officials in the enforcement of
immigration Jaws. This case is simply about the disclosure of records under the state and federal
freedom of information laws.
The Commission Erred in Not Giving Effect to Federal FOIA Exemptions
The Commission erroneously found that Connecticut law does not gIve effect to
exemptions under the federal Freedom oflnfonnation Act ("FOIA"). See Decision, 24-25.
Conn. Gen. Stat. § 1-210(b)(10) clearly recognizes that federal exemptions from disclosure apply
to requests for infonnation under the Connecticut FO!. According to that provision, in
I The only record that was withheld in total from the Organizational Defendants was a list of 32 names, dates of
birth, addresses, alien numbers and country of origin of various individuals. In Camera Submission -2007-416-11.
2
the Freedom of Infonnation Act shall be construed to require disclosure of: [r Jecords, tax returns,
reports and statements exempted by federal law or state statutes or communications privileged by
the attorney-client relationship." Conn. Gen. Stat. § 1-210(b)(lO).
The Corrunission rejected the position that federal FOIA applies via Conn. Gen. Stat. § 1-
21O(a) to Cormecticut FOI requests because federal FOIA "is not a 'federal law' that provides an
exception to the disclosure requirements of § 1-210(8)." Decision, ~ 24. But this does not fully
cover or settle the legal question of whether State FOIA law gives effect to federal FOIA
exemptions. Indeed, the Conunission's decision does not speak to the language of Conn. Gen.
Stat. § 1-21 0(b)(1 0), which explicitly protects from public disclosure "records ... reports and
statements exempted by federal law .... " 1bis is a statutory mandate of the state legislature, and
the term that it features is "exempted" from disclosure. The plain language does not require, as
the Commission posits, see Decision, ~ 24, that federal law "prohibit" disclosure. In thls respect,
the Commission erroneously construed State FOIA law, and should be rejected by this court.
Moreover, it cannot be said that Conn. Gen. Stat. § 1-210(b)(10) is but a reiteration of
and, therefore, coextensive with § 1-21O(a). Such a reading would render as mere surplusage an
entirely independent provision of the Connecticut FOIA. And it is well established that
Connecticut courts do not interpret statutes to render meaningless words or phrases. Rather, "[ilt
is ... presumed both by this court and the Second Circuit, that the legislature did not intend to
enact useless or superfluous legislation." Szewczyk v. Dep't of Socia] Servs., 275 Conn. 464,
483-84 (2005) (citing Lutwin v. Thompson. 361 F.3d 146, 157 (2d Cir. 2004), and Hatt v.
3
Burlington Coat Factol}'. 263 Conn. 279, 309-10 (2003) C'[S]tatute must be construed, if
possible, such that no clause, sentence or word shall be superfluous, void, or insignificant"».
The Commission took a view that is too narrow to comport with natural and reasonable statutory
construction. The plain language of Conn. Gen. Stat. ~ 1-210(b)(lO) mandates the application of
federal FOIA exemptions to requests for federal documents brought under the State FOIA laws.
The Commission's decision is therefore incorrect and this Court should reverse it.
Moreover, Conn. Gen. Stat. § 1-210 (a) provides "[e]xcept as otherwise provided by any
federal law or state statute all records maintained or kept by any public agency ... shall be
public records ... " It is the plaintiffs position that the Federal Freedom of Information Act, 5
U. S. C. § 552, and the judicial interpretation of its provisions are federal law which are applicable
to federal records whether or not the federal records are maintained by a state agency.
The Commission'S Decision Jeopardizes Public Safety
The Commission failed to consider and give due weight to the serious consequences that
. may result from its decision. 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 disclose infonnation even under the State FOrA
provisions alone. The Commission's decision, however, does not even mention, let alone
discuss, the serious policy concerns implicated by an order that DPS disclose federal law
enforcement documents. The plaintiff urges this court to give due attention and consideration to
the potential harm that the Commission's decision could impose on the ability of state and local
4
law enforcement to cooperate with and. receive from the federal government vital infonnation
necessary to protect the public.
The reasoning employed in the Commission is in derogation of the Connecticut courts'
pronouncement that they "presume that the legislature intends sensible results from the statues it
enacts. . .. Therefore, we read each statute in a manner that will not thwart its intended purpose
or lead to absurd results." Fine Homebuilders. Inc. v. Perrone. 98 Conn. App. 852, 857 (Conn.
App. Ct. 2006), cert. granted 282 Conn.90l (2007) (quoting Hibner v. Bruening, 78 Conn. App.
456,459 (2003). Indeed, Connecticut courts must "keep in mind that the legislature is presumed
to have intended a reasonable, just, and constitutional result." Id; Gelinas v. West Hartford, 65
Conn. App. 265, 276 (Conn. App. Ct. 2001) (same). And while transparency in government and
furthering public awareness of its operations animate and justify disclosure laws, a federal court
of appeals has rightly noted that "the public's right to infonnation [i]s not absolute and that
disclosure of certain information 'may harm legitimate governmental or private interests[.],"
Martin v. DOJ, 488 F.3d 446,453 (D.C. Cir. 2007) (quoting Summers v. DOJ, 140 FJd 1077,
1080 (D.C. Cir. 1998».
It is apparent that the exemptions DRS has asserted in this case do not simply rest on the
mere existence of federal FOIA exemptions. For while the plaintiff firmly contends that the
federal FOIA exemptions are applicable to this case by operation of Conn. Gen. Stat. § 1-
210(b)(lO). that is not the sale basis upon which to consider their relevance to this case. With
respect to federal documents and the policy concerns they implicate, DHS's minimal redactions
5
and identified exemptions reflect the considered judgment and determinations by the federal
agency tasked with enforcing the nation's immigration laws - and which therefore is more
knowledgeable and infonned about the costs and benefits that attend to the disclosure of
infonnation generated by DHS. Deference must be given to DHS's judgment.
Moreover, as a general matter, if this court upholds the Commission's decision to order
DPS to disclose federal documents that were shared with the State police in an effort to enforce
the law, the result would impede and potentially undennine future collaborative efforts between
federal and state or local law enforcement agencies. If this court countenance efforts by third
parties to obtain via State FOIA what would be protected under analogous federal statutes,
federal authorities would have every reason to refrain from sharing sensitive documents with
agencies in Connecticut. Above all, it is the public that is compromised and endangered by this
result. For this reason, while sweeping disclosure in this case may reflect an expansive approach
to public disclosure that is encouraged and welcome in most instances, an indiscriminate
application of this approach in the instant matter would be "unreasonable," Gelinas, 6S Conn.
App. at 276, and "absurd," Perrone, 98 Conn. App. at 857. This is especially so when the
Organizational defendants in this case are actively pursuing the same federal infonnation in a
federal lawsuit. In short, upholding the Commission's decision would adversely impact the
public, while the Organizational Defendants would suffer. minimal harm because a federal
avenue to the identical documents would not be foreclosed to them.
6
Identification of 32 Illegal Aliens and Their Personal Information
The United States Supreme Court has explained that "[t]he FOIA's central purpose is to
ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that
infonnation about private citizens that happens to be in the warehouse of the Government should
be so disclosed." DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774 (1989). To
be sure, this court may decline to adhere to general statements about federal FOIA made by the
Supreme Court of the United States or any other inferior federal court. But if Conn. Gen. Stat. §
1-210(b)(10) effectuates federal FOrA exemptions, as the plaintiff argues it does, then federal
interpretations of those exemptions are more than merely advisory. Nevertheless. even if this
court rejects the foregoing proffer, the plaintiff asks this court to contemplate the insights of
federal courts into disclosure laws and the balancing of public and private interests thereunder
where, as here, federal documents and data are at issue.
The Commission found that the lists of names and personal identification in IC-2007-
416-7 and IC-2007-416 are not protected from disclosure. Decision, ~ ~ 38-44. Federal law
exempts from disclosure "personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy." 5 U . ~ . C . § 5S2(b)(6).
"Exemption 6 ... bars disclosure when it would amount to an invasion of privacy that is to some
degree 'unwarranted,'" United States Dep't of Defense v. Fed. Labor Relations Auth.,.510 U.S.
487, 495 (1994), and requires a court to "balance the public interest in disclosure against the
interest Congress intended the [e]xemption to protect." ld The State FOIA exemption in § 1-
210(b)(2) resembles Exemption 6, and shields from disclosure "[p]ersonnel or medical files and
7
similar files the disclosure of which would constitute an invasion of personal privacy." Conn.
Gen. Stat. § 1-210(b)(2).
The Commission reasoned that, because there was no evidence offered about the nature
of the list of names and personal information, or the use to which they were placed, the lists do
not fall within the scope of § 1-210(b)(2). Decision, ~ 42. Based on this alone, rather than
giving any pause to the actual contents of the lists of personal infonnation to determine whether
they are "similar" to personnel· files, the Commission concluded that § 1-210(b)(2) was
inapplicable. This is puzzling and deeply troubling for at least three reasons. First, it is apparent
that the information is highly personal and is standard in personnel files. The lists reveal, among
other iliings, names, dates of birth, addresses, and alien registration numbers. But the
Commission makes no mention of ilie highly protected and sensitive nature of these kinds of
personal data. Second, disclosure of such information exposes the individuals to possible
identify theft and targeting by the public. Third, rather than taking the more cautious and
prudent route of ordering further inquiry about the nature of lists, the Commission simply found
that it would be proper to release them to the public -- thereby risking potential irreparable harm
to those individuals on the lists.
As stated above, it is app.arent that the information provided on the lists is precisely the
kind that is contained in personnel files, and should therefore compel a logical analogy. On that
score, disclosure of such infonnation (addresses, dates of birth, alien registration number, etc.) is
8
patently invasive of personal privacy. Indeed, with respect to federal Exemption 6, the U.S.
Supreme Court has explained:
It is true that home addresses often are publicly available through sources such as
telephone directories and voter registration lists, but in an organized society, there
are few facts that are not at one time or another divulged to another. The privacy
interest protected by Exemption 6 encompasses the individual's control of
information concerning his or her persons. An individual's interest in controlling
the dissemination of infonnation regarding personal matters does not dissolve
simply because that information may be available to the public in some fonn.
Fed. Labor Relations Auth., Sl 0 U.S. at 499 (internal brackets, citation, and quotation marks
omitted). The Court added, "We are reluctant to disparage the privacy of the home, which is
accorded special consideration in our Constitution, laws, and traditions." Fed. Labor Relations
Auth .• 510 U. S. at 501. It is clear that the Commission's decision does not acoord "special
consideration" to deeply-rooted privacy rights and interests. Such concerns do not arise
exclusively in a purely federal context, but are just as compelling to the state. Furthermore, it is
difficult to discern the public interest in the personal data of aliens, and the Commission does not
identify the nature of the public interest that is sufficiently substantial to outweigh the privacy
concerns raised by potential release of personal information.
The names, alien numbers, dates of birth, addresses and nationalities of various
individuals contained in lC-2007-416-7 and IC-2007-416-11 are protected from disclosure
because disclosure would violate the individuals' privacy rights. Such personal information is
generally not released to the general public. As the Organizational Defendants' own witness
testified. she would consider it a violation of the individuals' privacy if the information was
9
disclosed to the general public. Record pp. 387-390. It is unclear to the plaintiff why the
Organizational Defendants would want this information disclosed.
2
Conn. Gen. Stat.§ 1-210 (b) (2) provides that nothing in the Freedom ofInfonnation Act
shall be construed to require disclosure of personnel or medical files or similar files the
disclosure of which would constitute an invasion of personal privacy. The Commission's
decision concluded that IC-2001-416-7 and 2007-416-11 are not "simi1ar" files within the
meaning of § 1-210(b)(2). This conclusion, however, ignores two Connecticut Supreme Court
cases where the court found that with respect to government employees, their home addresses
and telephone numbers are "similar" files. See, Town of West Hartford v. Freedom of
Information Commission, 218 Conn. 256 (1991); Director, Retirement and Benefits Services
Division, Office of the Comptroller v. Freedom of Information Commission. 256 Conn. 764
(2001). It defies logic that this Commission could conclude that information about private
individuals, in the hands of the government, enjoys less protection from public scrutiny than
information about government employees. Moreover, The Commission relied on Perkins v.
Freedom ofInformation Commission, 228 Conn. 271 (1994) to conclude that the records are not
exempt under § 1·21 0 (b) (2). The Commission states in the decision that in determining whether
disclosure would constitute an invasion of personal privacy under the Perkins test, it must be
established that the information sought does not pertain to legitimate matters of public concern,
and second, that disclosure of such information is highly offensive to a reasonable person. In
2 The Organizational Defendants provided releases to DHS for the release of infonnation regarding a number of the
individuals identified in IC-2007. 7.
10
Director. Retirement and Benefits Services Division, Office of the Comptroller, 256 Conn. at
775-776 the Court held:
We first clarify any confusion by reaffinning that we adhere to the two-prong standard
set forth in Perkins when detennining what constitutes an invasion of privacy. We note,
however, that although the Perkins standard controls our determinations of cases
involving privacy exemptions under the act, our decision in West Hartford addressing
the "significant steps" a person may take to maintain privacy was not merely dicta. The
trial courtls conclusion oflaw to the contrary, therefore, was improper. Our courts
repeatedly have looked to the decision in West Hartford for guidance on how to address
requests for disclosure of home addresses and other private information. See Glastonbury
Education Assn. v. Freedom of Infonnation Commission. 234 Conn. 704, 725, 663 A.2d
349 (1995) (Borden, 1., concurring and dissenting); Perkins v. Freedom ofInfonnation
Commission, supra. 228 Conn. 174; Chainnan, Board of Education v. Freedom of
Information Commission, 60 Conn. App. 584. 591. 760 A,2d 534 (2000); O'Connell v.
Freedom ofInfonnation Commission. 54 Conn. Apo. 373. 379 n.9, 735 A.2d 363(999).
The analysis employed in West Hartford is relevant to the claim that significant efforts
taken by a public employee to keep certain information private bears on the court's
detennination of whether the information constitutes a legithnate matter of public
concern and is highly offensive to a reasonable person. Under the present facts, we
conclude that the plaintiff has satisfied his burden of demonstrating that such disclosure
constitutes an invasion of privacy.
In the present case, these individuals are not government employees.
3
There is no
legitimate public interest to warrant disclosure of personal infonnation such as their names, dates
of birth, addresses, alien nwnbers and nationalities. There was testimony that disclosure can
jeopardize the personal safety of these individuals and subject them to possible harassment.
Record pp. 286-287, 366-367. For the foregoing reasons, the plaintiff asks that the court to
reverse the Commission's conclusion that the lists at issue in this proceedings are not protected
from disclosure under either or both the state and federal freedom of infonnation laws.
3 It should be noted that had the individuals who were the subject of the lists b ~ e n public employees, they would
have been given notice of the request for their information and be given an opportunity to object to disclosure of
their infonnation. See, Conn. Gen. Stat. § 1-214.
11
Identification of Federal Agents
The plaintiff argued that the names of DHS officers should be protected from disclosure,
both in the e-mails and in the Operational Plan. The Decision, however, does not appear to
address the validity of the asserted exemption of the DHS officer's name on those e-mails.
First, as previously argued, via Conn. Gen. Stat. § 1-210(b)(lO), the federal FOIA applies
to the names of federal law enforcement agents which DHS has redacted, and protects them from
disclosure. More precisely, federal FOIA Exemptions (b)(6) and (b)(7)(C), 5 U.S.C. §§
5S2(b)(6) and 552(b)(7)(C), respectively, recognizes the privacy interests that counsel
withholding of disclosure. As discussed above, Exemption (b)(6) exempts from required
disclosure "personnel ... files and similar files the disclosure of which would constitute a clearly
. unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The arguments and reasoning
with respect to Exemption (b)(6) apply with equal force to law enforcement personnel. See Baez
v. FBI, 443 F. Supp. 2d 717, 725 (E.D. Pa. 2006) ("Law enforcement personnel, like private
individuals, also have a significant interest in keeping their identities secret."). Additionally, a
second exemption, Exemption (b)(7)(C), applies specifically to law enforcement officers. This
exemption is more protective than (b)(6), as it exempts "records or information compiled for law
enforcement purposes" from disclosure if their production "could reasonably be expected to
constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
The Supreme Court has stated that "Exemption 7(C) is more protective of privacy than
Exemption 6: The f O m 1 ~ provision applies to any disclosure that 'could reasonably be expected
12
to constitute' an invasion of privacy that is 'unwarranted,' while the latter bars any disclosure
that 'would constitute' an invasion of privacy that is 'clearly unwarranted.'" Fed. Labor
Relations Auth., 510 U.S. at 497 n.6. See Marlin, 488 F.3d at 457 ("The statutory term,
'unwarranted,' which modifies the invasion of privacy prohibited under Exemption 7(C),
requires us to balance the asserted privacy interests against the potential public interest in
disclosure.") (citing Nat' I Archives & Records Admin. v. F a v i ~ 541 U.S. 157, 171 (2004).
It should be noted that it matters not who requests disclosure of information. That is, the
Organizational Defendants' claim to have a special interest in obtruning information is not a
cognizable distinction that can act as a thumb on the scales of a disclosure detennination. As the
U.S. Supreme Court wisely observed, "[W]hether an invasion of privacy is warranted cannot
tum on the purposes for which the request for information is made." Fed. Labor Relations Auth.,
510 U.S. at 496 (ellipses in original). This is because "Congress 'clearly intended' the FOIA 'to
give any member of the public as much right to disclosure as one with a special interest [in a
particular document],' except in certain cases involving claims of privilege, 'the identity of the
requesting party has no bearing on the merits of his or her FOIA request.'" ld. (internal citations
and quotation marks omitted). With this in mind, and focusing on whether disclosure of the
identities ofDHS law enforcement agents would be available to anyone in the public, it is proper
to uphold the redactions of the agents' names.
Law enforcement personnel have an enhanced privacy interest in the context of
performing their duties. Indeed, the propriety of withholding the identities of law enforcement
13
agents and employees pursuant to federal FOIA Exemption 7(C) is well established in the case
law. Long ago, the Court of Appeals for the Fourth Circuit recognized that:
"One who serves his state or nation as a career civil servant is not thereby stripped of
every vestige of personal privacy, even with respect to the discharge of his official duties. Public
identification of any of these individuals could conceivably subject them to harassment and
annoyance in the conduct ofth.eir official duties and in their private lives." Nix v. United States,
572 F.2d 998, 1006 (4th Cir. 1978); see, e.g., Jones v. FBI, 41 FJd 238, 246 (6th Cir. 1994)
(protecting identities of FBI Special gents and other federal, state, and local law enforcement
personnel); McDonnell v. United States, 4 F.3d 1227, 1255 (3d Cir. 1993) (protecting identities
of DEA agents and nonagent personnel, and identities of local law enforcement personnel); In
the Matter of Wade, 969 F.2d 241, 246 (7th Cir. 1992) (admonishing that disclosure of agents'
names "conceivably could result in annoyance and harassment of the agents by the requesting
party." ) (internal citation omitted); Anderson v. United States Marshals Serv., 943 F. Supp. 37,
40 (D.D.C. 1996) (protecting identities of federal and state law enforcement officials, as well as
identities of other govenunent personnel).
Hence, it is unsurprising that "[w]ithout a showing of substantial public interest for
disclosure, the exemption is proper." Id There is no public interest in the disclosure of the
identities and personal infonnation of the DHS agents' names in this case that would outweigh
the robust privacy interests that militate against public disclosure. Rc:porters Comm. for
Freedom of Press. 489 U.S. at 773. Where, as is the case here, there is no genuine public interest
in the disclosure, even the slightest privacy interest will tip the balance against disclosure. See
14
Beck v. DOJ, 997 F.2d 1498, 1494 (D.C. Cir. 1993) (observing that when request implicates no
public interest at all, court "'need not linger over the balance; something ... outweighs nothing
every time"') (quoting Nat'l Ass'n of Retired Fed. Employees v. Homer, 879 F.2d 873, 879
(D.C. Cir. 1989»).
Federal law enforcement agents, to state the obvious, are not employees of the state.
Federal authorities are in a better position to assess and appreciate their duties, risks, and need
for anonymity. Clearly the federal Exemption (b)(7)(C), specifically keyed to the identities and
personal infonnation of law enforcement personnel, reflects the heightened concern Congress
had for their privacy. Not to mention that, with the very broad disclosures already provided,
there is de minimis interest in the names and personal information (including the cellular
. telephone numbers of specific federal law enforcement agents). See Baez, 443 F. Supp. 2d at
725 ("Because the investigative files have been released, disclosing names would shed little, if
any. additional light on how the FBI operates."); see a1so Kuzma v. IRS, 775 F.2d 166, 69 (2d
Cir. 1985) ("In this case. the public interest in knowing the identity of these employees is too
small to justify the serious invasion of their privacy interest .... ").
Neither the Commission's decision nor the Organizational Defendants have articulated a
clear and substantial public interest in learning from the state the identity of federal law
enforcement employees. Given the notorious animus directed at DHS. and ImnUgration and
Customs Enforcement officers specifically, their privacy interests are more prominent in this
case and should therefore be protected. .
15
In swn, there is little to no public interest in the release of the personal infonnation about
DHS agents here. On the other hand, because there exist significant privacy interests for all DHS
agents identified in the documents before the Commission, it would be entirely appropriate to
withhold the names and other personal information (e.g., e-mail, cellular numbers) of the DHS
law enforcement personnel contained in the documents.
The Operational Plan
The Commission erroneously concluded that the Operational Plan should be disclosed in
its entirety because it contains information that already exists in the public realm. Final
Decision, ~ ~ 35, 36. With respect to the handful of redactions in the Operational Plan, the
Commission·s decision is flawed. The argwnents as to the appropriateness of redacting the
names and personal information of law enforcement personnel have been made above. With
respect to the remaining few redactions, the plaintiff respectfully contend they are necessary and
justified for the reasons set forth below.
With respect to the redactions made pursuant to Federal FOrA Exemption (b)(7)(E), 5
U.S.C. § 552(b)(7)(E), such exemption protects from mandatory disclosure "records or
information compiled for law enforcement purposes, but only to the extent that the production of
such law enforcement records or information ... would disclose techniques and procedures for
law enforcement investigations or prosecutions." 5 U.S.C. § 552(b)(7)(E). "Exemption 7(E)
provides categorical protection to information related to law enforcement techniques." Smith v.
16
ATF, 977 F. Supp. 496, 501 (D.D.C. 1997) (citing Fisher v. USDOJ, 772 F. Supp. 7, 12 n.9
(D.D.C. 1991). To qualify for pr.otection under Exemption 7(E), however, such techniques must
be generally unknown to the public. See, e.g .. Blanton v. USDOJ, 63 F. Supp. 2d 35,49 (D.D.C.
1999).
The Commission fOWld no portion of the Operation Plan, IC-2007-l2 through IC-2007-
21) was protected because the Plan "does not reveal any detailed information that is not already
publicly available concerning the widely known 'Operation Return to Sender[,]''' Decision, , 36,
and that Conn. Gen. Stat. § 1-210(b)(3)(D) therefore did not apply to any segments of the
Operational Plan, ~ 37. The dispute over the vast majority of the Operational Plan is now moot
by virtue of the limited redactions made by the plaintiff. There is no evidence in the record that
the portions that have been redacted are in the public realm, whether on television shows, the
media, or in public communications. However, there are significant reasons to support the
sensitivity and broader informational contents of the redacted portions that show that the
Commission took an overly simplistic view of what it means for data to be publicly available.
As a general matter, disclosure of the scope and direction of the operation in this case
coupled with the information that is already in the public domain regarding the outcome of this
operation could be used to predict the scope, direction. and capabilities of law enforcement on
future similar operations. This information could expose the extent and limits of law
enforcement capabilities in this region in future similar operations. and could be used by
individuals to evade detection or challenge law enforcement efforts. It is important to note that
17
this document provided the procedures and processes DHSIICE undertook to prepare for an
operation which took place less than a year ago. The release of this infonnation would impede
and jeopardize efforts as it is likely that the information ICE seeks to withhold here will be used
in future operational plans.
Disclosure of the staffing assigrunents to operations as well as the itemized list of
equipment to be used in a particular type of operation not only exposes the resources available
to, and capabilities of law enforcement agents engaged in the operation, but it also exposes
which e.quipment and resources are not available to such law enforcement personnel. That is,
although the itemized list of equipment used in this operation may be publicly known, the extent
of equipment not utilize.d by law enforcement agents is not public1y known, and the release of
this infonnation could lessen its effectiveness in future similar operations. Knowledge of the
equipment available to law enforcement agents would provide guidance to persons seeking to
challenge law enforcement as to the types of equipment necessary to overcome law enforcement
efforts. If such efforts were successful, the lives and personal safety of both law enforcement
officers, targets of investigation, and members of the public would be imperiled and this risk is
not warranted by the public's interest in this type of information. See Judicial Watch, Inc. v.
U.S. Dep't of Commerce, 337 F. Supp. 2d 146, 1&1-82 (D.D.C. 2004) (approving withholding of
"fireann specifications" and "radio frequencies" used by agents protecting Secretary of
Commerce).
18
In addition, disclosure of the specific means of communications to be utilized by law
enforcement personnel in this type of operation would greatly assist persons seeking to disrupt
such communications in any future operation of a similar type. Persons seeking to disrupt the
operation would be aware of the specific actions needed to be taken to interrupt such
communications. The resulting inability of law enforcement personnel to communicate among
themselves would not only disrupt the operation, but could place such personnel in danger.
It is clear that a proper analysis of whether the details of an operation disclose publicly-
known information must be conducted on a broader scale than merely referencing the media or
claims to superficial knowledge by members of the public. The redactions in the Operational
Plan asserted under Exemption 7(E) are restricted to those that DHS has determined to be critical
concern based on specialized and comprehensive knowledge and expertise. In conclusion, the
redactions in the Operational Plan are warranted under Exemption 7(£).
The Operational Plan is also exempt from disclosure pursuant to Conn. Gen. Stat. § 1-
21O(b)(3)(D). An independent detennination was made by the plaintiff that the Operational Plan
is exempt from disclosure. Conn. Gen. Stat. § 1-210(b) (3) (D) exempts from disclosure
"[r]ecords oflaw 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 pubHc interest because it would result in the disclosure of . . .
investigatory techniques not otherwise known to the general public". Trooper Mancini testified
that the Respondent made an independent determination, aside from the DHS, that the operations
19 .
plan came within the § 1-210(b) (3) CD) exemption. He testified that disclosure of the operations
plan would disclose investigatory techniques not otherwise known to the general public and that
it would not be in the public interest to disc]ose such techniques because it would hamper future
law enforcement actions. This detennination was made by experienced DPS officials. The
Commission should not second-guess determinations made by experienced professional
particularly in areas where the Commission has no expertise. See State of Connecticut
Department of Correction v. Freedom of Information Commission, 2007 Conn. Super. Lexis
1742 (2007).
CONCLUSION
The plaintiff requests, for the foregoing reasons, that this appeal from the Commission's
decision be sustained.
20
PLAINTIFF
JOHN DANAHER, III,
COMMISSIONER,
STATE OF CONNECTICUT
DEPARTMENT OF PUBLIC SAFETY
ruCHARDBLUMENTHAL
ATTORNEY GENERAL
~ · i U
Henn Alexandre
Assistant Attorney General
110 Shennan Street
Hartford, CT 06105
Tel: (860) 808-5450
Juris No. 85042
E-Mail: HenrLalexandre@po.state.ct.us
CERTIFICATION
I hereby certify that a copy of the f o r e g o i ~ g was mailed to the following on this 28th day
of March 2008:
Lisa Fein Siegel, Esq.
Freedom of Information Commission
18-20Trinity Street
Hartford, CT 06106
Robert Solomon, Esq.
Christopher Lasch, Esq.
The Jerome N. Frank Legal Services Organization
P.O. Box 209090
New Haven, CT 06520-9090
Henri Alexandre
Assistant Attorney General
21

Sign up to vote on this title
UsefulNot useful