Comm'r of Public Safety v. Freedom of Info. Comm'n

• Decision Date: 13 August 2013
• Docket Number: No. 32381.,32381.
• Citation: 76 A.3d 185,144 Conn.App. 821
• Court: Connecticut Court of Appeals
• Parties: COMMISSIONER OF PUBLIC SAFETY v. FREEDOM OF INFORMATION COMMISSION et al.

144 Conn.App. 821

76 A.3d 185

COMMISSIONER OF PUBLIC SAFETY

v.FREEDOM OF INFORMATION COMMISSION et al.

No. 32381.

Appellate Court of Connecticut.

Argued May 16, 2013.

Decided Aug. 13, 2013.

Steven R. Strom, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Richard Blumenthal, former attorney general, Nora Dannehy, deputy attorney general, and Steven R. Sarnoski, assistant attorney general, for the appellant (plaintiff).

Victor R. Perpetua, principal attorney, for the appellee (named defendant).

GRUENDEL, BEACH and SULLIVAN, Js.

BEACH, J.

The plaintiff, the Commissioner of Public Safety (commissioner), appeals from the judgments of the trial court dismissing his appeals and concluding that the defendant, the Freedom of Information Commission (commission),¹ properly determined that the Connecticut Freedom of Information Act (act), General Statutes § 1–200 et seq., required the disclosure of printouts or “rap sheets” obtained by the Department of Public Safety (department) from the National Crime Information Center (NCIC) computerized database, which is maintained by the Federal Bureau of Investigation (FBI). The commissioner claims that the NCIC printouts were not subject to public disclosure under the act. We reverse, in part,² the judgments of the trial court.

The following facts, as found by the commission,³ and procedural history are relevant to this appeal. David Collins, a reporter for the New London Day, and Alexander Wood, a reporter for the Manchester Journal Inquirer, independently sought copies of various department records concerning a suicide that occurred at the MGM Grand Hotel at Foxwoods Resort Casino in Ledyard on June 4, 2008. The only requests made by Collins and Wood that are involved in this appeal are their requests for the disclosure of copies of the results of the department's electronic inquiry about the deceased made to the NCIC, a computerized database of criminal history information that is accessible to the department ⁴ through the National Crime Prevention and Privacy Compact (compact). The department denied the requests of Collins and Wood for the NCIC printouts. Collins and Wood appealed to the commission, alleging that the department had violated the act by failing to provide them with copies of documents including the NCIC printouts. In both Collins' and Wood's appeals, the commission concluded that the department could not lawfully avoid its obligation to disclose the NCIC printouts by “contract[ing] away” the obligation, and that the state's entering into the compact constituted such a contract. Therefore, neither General Statutes § 29–164f nor 42 U.S.C. § 14616 effectively prohibited the disclosure of the NCIC printouts.

Pursuant to General Statutes §§ 1–206 and 4–183, the commissioner appealed from the commission's rulings in both the Wood and Collins cases. The commissioner moved to consolidate the appeals, which motion was granted. The trial court agreed with the commission's conclusion that the department may not “contract away” its statutory obligations under the act. The court concluded that the department had not demonstrated that the commission acted illegally or abused its discretion in ordering it to disclose the NCIC printouts. This appeal followed.

On appeal, the commissioner argues that the court erred in finding that the commission appropriately required the department to disclose the NCIC printouts, because the NCIC printouts were not subject to public disclosure under the act. The commissioner contends that the disclosure of information from the NCIC database is governed by 28 U.S.C. § 534 and 42 U.S.C. § 14616, which preempt state laws to the contrary. The commissioner argues, alternatively, that the disclosure of the NCIC printouts are subject to exemption under the act, General Statutes § 1–210(a).⁵

We first address the commissioner's claim that 28 U.S.C. § 534 and 42 U.S.C. § 14616 preempt conflicting state law, and conclude that federal law does not preempt state law in this case but, rather, is consistent with state law. “Judicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act [General Statutes § 4–166 et seq. (UAPA) ] ... and the scope of that review is very restricted.” (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). Generally, the court's duty is to decide whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. See id., at 137, 778 A.2d 7. “Cases that present pure questions of law [however] ... invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... [W]e do not afford deference to an agency's interpretation of a statute when ... the construction of a statute previously has not been subjected to judicial scrutiny or to a governmental agency's time-tested interpretation.... Accordingly ... we exercise plenary review in accordance with our well established rules of statutory construction.” (Citation omitted; internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, 308 Conn. 359, 391, 63 A.3d 953 (2013).

“The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution.⁶ ... [S]tate law is pre-empted to the extent that it actually conflicts with federal law.” ⁷ (Citations omitted; internal quotation marks omitted.) Rodriguez v. Testa, 296 Conn. 1, 8–9, 993 A.2d 955 (2010). “[W]hen a federal law and a state law conflict and compliance with both laws is impossible, the federal law will preempt the state law.” Pictometry International Corp. v. Freedom of Information Commission, 307 Conn. 648, 672, 59 A.3d 172 (2013), citing Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–73, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000).

By way of § 29–164f,⁸ our legislature entered into the compact, which established the NCIC. Section 29–164f, as well as 42 U.S.C. § 14616, set forth the terms of the compact. Although the compact does not contain an express prohibition on disclosure, the compact provides that the NCIC database is to be used for limited purposes authorized by law, such as background checks, and that NCIC records may only be used for official purposes.

Section 29–164f(a) of the overview of the compact provides in relevant part: “[t]his Compact organizes an electronic information sharing system among the federal government and the states to exchange criminal history records for non-criminal justice purposes authorized by federal or state law, such as background checks for government licensing and employment.” Section 29–164f, art. II(5) of the compact provides that one of the purposes of the compact is to “[r]equire the FBI and each party state to adhere to ... standards concerning record dissemination and use....” Section 29–164f, art. IV(c), concerningauthorized record disclosures, provides in relevant part: “Any record obtained under the Compact may be used only for the official purposes for which the record was requested. Each Compact officer shall establish procedures ... which procedures shall protect the ... privacy of the records, and shall: (1) Ensure that records obtained under this Compact are used only by authorized officials for authorized purposes....”

Furthermore, 28 U.S.C. § 534 makes clear that, under the compact, NCIC information is not to be disseminated outside the receiving department or related agencies: “(a) the Attorney General shall ... (4) exchange such records and information with, and for the official use of, authorized officials of the Federal Government ... 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....” A narrow exception in domestic violence and stalking cases is carved out in 28 U.S.C. § 534(f)(1): “Information from national crime information databases consisting of identification records, criminal history records, protection orders, and wanted person records may be disseminated to civil and criminal courts for use in domestic violence or stalking cases. Nothing in this subsection shall be construed to permit access to such records for any other purpose.” Subsection (f)(1) clearly demonstrates that access to NCIC records for any purpose not contained within the compact is not permitted.

In Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 68–74, 52 A.3d 636 (2012), our Supreme Court determined that a copy of an NCIC printout was exempt from disclosure under § 1–210(a) because disclosure was barred by 8 C.F.R. § 236.6 (2007). Although the court did not decide the issue of whether the disclosure of NCIC documents was barred by 28 U.S.C. § 534, Commissioner of Correction v. Freedom of Information Commission, supra, at 53, 52 A.3d 636 nonetheless is instructive. Copies of NCIC documents have been held to be exempt from disclosure under § 1–210(a) because our legislature authorized participation in the compact.

Section 534 of title 28 of the United States Code was discussed, moreover, by the United States Supreme Court in United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). That case involved requests made by news media for the disclosure of the FBI “rap sheets” of four members of a family whose business reportedly was dominated by organized crime figures. Id., at 757, 109 S.Ct. 1468. In holding that the disclosure of the contents of the particular requested FBI “rap sheets” was prohibited by the federal Freedom of Information Act, the Supreme...