United States v. Freedom of Information Commission
CourtSupreme Court of Connecticut
Date FiledSeptember 27, 2012
DocketSC18624
JudgeRogers; Norcott; Palmer; Zarella; McLachlan; Eveleigh; Harper
StatusPublished
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Full Opinion
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COMMISSIONER OF CORRECTION v. FREEDOM
OF INFORMATION COMMISSION ET AL.
(SC 18622)
(SC 18623)
UNITED STATES OF AMERICA ET AL. v.
FREEDOM OF INFORAMTION
COMMISSION ET AL.
(SC 18624)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan,
Eveleigh and Harper, Js.*
Argued April 16—officially released September 27, 2012**
Grant Martinez, pro hac vice, and Sirine Shebaya,
law student intern, with whom were Michael J. Wish-
nie, Hope Metcalf and, on the brief, Pouneh Aravand,
Bonnie Doyle, Alex Iftimie, Stephen Poellot, Sasha Post
and Saurabh Sanghvi, law student interns, for the
appellant in Docket No. SC 18622, the appellee and
cross appellant in Docket No. SC 18623, and the appel-
lee in Docket No. SC 18624 (defendant Rashad El
Badrawi).
Steven R. Strom, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Richard Blumenthal, former attorney general,
Nora R. Dannehy, deputy attorney general, and Henri
Alexandre, former assistant attorney general, for the
appellant and cross appellee in Docket No. SC 18623
and the appellee in Docket Nos. SC 18622 and SC 18624
(plaintiff commissioner of correction).
H. Thomas Byron III, pro hac vice, with whom were
John B. Hughes, chief of the civil division of the United
States Attorney’s Office, District of Connecticut, and
Lisa E. Perkins, pro hac vice, and, on the brief, Thomas
M. Bondy, pro hac vice, Tony West, pro hac vice, and
David B. Fein, United States attorney, District of Con-
necticut, for the appellant in Docket No. SC 18624 and
the appellee in Docket Nos. SC 18622 and SC 18623
(plaintiff United States of America).
Lisa Fein Siegel, commission counsel, with whom,
on the brief, was Colleen M. Murphy, general counsel,
for the appellee in Docket Nos. SC 18622, SC 18623 and
SC 18624 (defendant freedom of information com-
mission).
William S. Fish, Jr., and Michael J. Pendell filed a
brief for the Tribune Company et al. as amici curiae.
Opinion
PALMER, J. These appeals arise from the ruling of
the named defendant, the freedom of information com-
mission (commission), that the defendant Rashad El
Badrawi was entitled, under the Freedom of Informa-
tion Act (act), General Statutes § 1-200 et seq., to the
disclosure of a document that the plaintiff, the commis-
sioner of correction (commissioner), obtained from a
file in the National Crime Information Center (NCIC)
computerized database, which is maintained by the Fed-
eral 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 improp-
erly 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 Stat-
utes § 1-210 (a).1 The trial court rendered judgments
dismissing the appeals in part and sustaining them in
part, and ordered that a redacted version of the docu-
ment be disclosed to El Badrawi. The commissioner
and the United States then filed these appeals.2 We
conclude that the document falls within an exemption
to the act set forth in § 1-210 (a) and, therefore, reverse
the judgments of the trial court.
The record reveals the following undisputed facts
and procedural history. El Badrawi was arrested by
agents of Immigration and Customs Enforcement
(ICE),3 a federal agency, on October 29, 2004, for alleged
violations of civil immigration law. Pursuant to an inter-
governmental service agreement between the depart-
ment of correction (department) and the United States
Department of Homeland Security, El Badrawi was
incarcerated at the Hartford correctional center (cor-
rectional center) from the date of his arrest through
December 22, 2004. He voluntarily left the country
immediately upon his release from detention.
While El Badrawi was detained at the correctional
center, the department submitted an inquiry seeking
information about him from the NCIC database.4 The
inquiry generated a record indicating whether El Bad-
rawi was listed in an NCIC file known as the ‘‘violent
gang and terrorist organization file’’ (violent gang and
terrorist file), and the department printed the record
and maintained the printout in its files.5
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.6 The department’s freedom of informa-
tion administrator provided some of the requested doc-
uments7 but declined to provide the printout that the
department had obtained from the NCIC database. El
Badrawi then appealed to the commission, alleging that
the department’s refusal to provide him with a copy of
the NCIC printout violated the act. The United States
submitted to the commission a statement of interest
and appeared at the hearing on El Badrawi’s appeal.
The commissioner and the United States contended
that, contrary to El Badrawi’s claim, the printout was
exempt from the act under § 1-210 (a) because its disclo-
sure was barred by 8 C.F.R. § 236.6 (2007)8 and 28 U.S.C.
§ 534 (b) (2006).9 In addition, the commissioner con-
tended that the printout was exempt from disclosure
under § 1-210 (b) (3) (D)10 because it would reveal an
investigatory technique not otherwise known to the
public. The commission concluded that 8 C.F.R. § 236.6
did not bar disclosure of the printout because the regu-
lation applies only to current detainees. It further con-
cluded that the printout was not exempt under § 1-210
(b) (3) (D) because there was no evidence that the
printout had been ‘‘compiled’’ in connection with the
detection or investigation of a crime. Rather, the com-
mission expressly found that ‘‘the NCIC printout was
compiled as a consequence of [El Badrawi’s] alleged
civil violation of immigration laws.’’ The commission
did not address the claim that disclosure was barred
by 28 U.S.C. § 534 (b).
The commissioner appealed from the commission’s
ruling to the trial court. The United States filed in the
trial court a statement of interest in which it requested
permission to participate in the administrative appeal,
and it submitted a brief in support of the commissioner’s
position.11 The trial court concluded that, because the
commission had not viewed the NCIC printout, there
was no basis for its conclusion that the document
related solely to a civil violation. The court also con-
cluded that the commission had given no consideration
to the commissioner’s and the United States’ claims that
the printout would reveal an investigatory technique not
otherwise known to the public for purposes of § 1-210
(b) (3) (D). Accordingly, the court remanded the matter
to the commission and directed it to review the NCIC
printout in camera and, if necessary, to allow additional
argument and to amend its findings.12
On remand, the United States filed with the commis-
sion 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 deter-
mined 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 commis-
sion again concluded that the printout did not contain
an investigatory technique unknown to the general pub-
lic 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 detain-
ees. The court also agreed with the commission’s analy-
sis 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 and
to submit the redacted document to the court for in
camera review. After the United States submitted a
redacted printout, the court issued a supplemental deci-
sion in which it ordered that the redacted document be
disclosed to El Badrawi. The court rendered judgments
dismissing the administrative appeals in part and sus-
taining them in part.13
Thereafter, the commissioner and the United States
filed separate appeals from the trial court’s judgments.14
In the commissioner’s appeal, El Badrawi filed a cross
appeal. Thereafter, the appeals and cross appeal were
consolidated with El Badrawi’s pending appeal from
the trial court’s initial remand order. See footnote 12
of this opinion. On appeal, the commissioner and the
United States renew their claims that disclosure of the
NCIC printout is barred by 28 U.S.C. § 534 (b), § 1-210
(b) (3) (D), and 8 C.F.R. § 236.6. El Badrawi disputes
these claims and contends in his cross appeal that the
trial court improperly allowed the United States unilat-
erally to determine the scope of the redactions to the
printout. In addition, El Badrawi claims that the trial
court improperly remanded the matter to the commis-
sion so that the printout could be submitted for in
camera review (1) when a remand was not authorized
by General Statutes § 4-183 (h) or (j), (2) the United
States had failed to submit the printout as evidence in
the initial proceeding before the commission, and (3)
no party had requested a remand. We conclude that the
trial court incorrectly determined that disclosure of the
NCIC printout was not barred by 8 C.F.R. § 236.6 and
that it therefore was not exempt from disclosure under
§ 1-210 (a). Accordingly, we need not address the com-
missioner’s and the United States’ claims that disclosure
was barred by 28 U.S.C. § 534 (b) and § 1-210 (b) (3)
(D). In addition, we do not address El Badrawi’s claims
in his appeal and cross appeal that the trial court
improperly remanded the matter to the commission and
ordered the redaction of the printout because these
claims are moot in light of our conclusion that the
printout is exempt from disclosure under the act.
Because it is dispositive, we first address the claims
of the commissioner and the United States that, con-
trary 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).15 We begin our analysis by considering
whether the decision of the commission is entitled to
judicial deference. ‘‘Ordinarily, this court affords defer-
ence to the construction of a statute applied by the
administrative agency empowered by law to carry out
the statute’s purposes.’’ (Internal quotation marks omit-
ted.) Dept. of Public Safety v. Freedom of Information
Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). El
Badrawi contends that, because the issue before us
involves the application of an exemption to the act to
the facts of this case, we must defer to the commission’s
reasonable interpretation of the relevant statutory and
regulatory provisions. See, e.g., Rocque v. Freedom of
Information Commission, 255 Conn. 651, 659–60, 774
A.2d 957 (2001). The commissioner responds that,
because the proper interpretation of the regulation is
a pure question of law for this court to decide, this
court should not defer to the commission’s interpreta-
tion. See, e.g., Director, Retirement & Benefits Services
Division, Office of the Comptroller v. Freedom of Infor-
mation Commission, 256 Conn. 764, 771–72, 775 A.2d
981 (2001) (‘‘the construction and interpretation of a
statute is a question of law for the courts, where the
administrative decision is not entitled to special defer-
ence’’ [internal quotation marks omitted]). Finally, the
United States contends that this court should defer not
to the commission’s interpretation but to the promulgat-
ing agency’s interpretation.16 See, e.g., Thomas Jeffer-
son University v. Shalala, 512 U.S. 504, 512, 114 S. Ct.
2381, 129 L. Ed. 2d 405 (1994) (‘‘we must defer to the
[promulgating agency’s] interpretation unless an alter-
native 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’’ [internal
quotation marks omitted]).
We agree with the United States that the interpreta-
tion 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.17 If the promulgating
agency intended the federal regulation to apply to infor-
mation about former detainees, then such information
clearly falls within the ‘‘otherwise provided by any fed-
eral law’’ exemption in § 1-210 (a).
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 regula-
tion, 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 regula-
tion’s plain language or by other indications of the
[agency’s] intent at the time of the regulation’s promul-
gation.’’18 (Citation omitted; internal quotation marks
omitted.) Thomas Jefferson University v. Shalala,
supra, 512 U.S. 512.
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, main-
tains, provides services to, or otherwise holds any
detainee on behalf of the [Immigration and Naturaliza-
tion 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 relat-
ing 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 Naturaliza-
tion] 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 sec-
tion 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 ‘‘person19 . . . that
houses, maintains, provides services to, or otherwise
holds any detainee’’; (emphasis added) id.; the regula-
tion applies only to a person who currently engages in
one of the described activities, and when a person who
is subject to the regulation no longer ‘‘houses, main-
tains, provides services to, or otherwise holds’’ the
detainee; id.; the regulation no longer applies. The
United States contends that, to the contrary, the use of
the present tense ‘‘merely describes a triggering event,
not a temporal limitation with a beginning and an end.’’
In other words, the United States argues that, once a
person has engaged in one of the described activities
with respect to a detainee, the regulation then applies
to all information about the detainee in the person’s
possession, and nothing in the regulation indicates that
the obligations that the regulation imposes at that point
can be terminated by the subsequent occurrence of
any event.
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
in the regulation is either consistent with or supports
the United States’ interpretation. The third sentence of
8 C.F.R. § 236.6 provides that, ‘‘[i]nsofar as any docu-
ments or other records contain such information, such
documents shall not be public records.’’ El Badrawi
claims that ‘‘information,’’ as that term is used therein,
clearly is limited to information about current detain-
ees. That interpretation, however, merely assumes the
correctness of El Badrawi’s interpretation of the first
sentence of the regulation. Although we recognize that,
like the first sentence of the regulation, the third sen-
tence is ambiguous, its language neither independently
supports El Badrawi’s interpretation of the phrase
‘‘information relating to any detainee’’ in the first sen-
tence nor undermines the United States’ position that
that phrase includes information about detainees who
are no longer being held by the state, local or private
entity.
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 Bad-
rawi claims that the sentence is a retroactivity provision
and merely provides that the regulation applies to infor-
mation 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 cur-
rently hold detainees, however, regardless of when the
person received a request for information about the
detainee, El Badrawi’s interpretation of the last sen-
tence would render it superfluous. Put another way,
because the application of the regulation to information
about a current detainee simply would not be retroac-
tive, even if the request for information had been sub-
mitted 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’ inter-
pretation, 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 interpreta-
tions 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 reason-
able 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 regula-
tion. 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 Nat-
uralization 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,20 to protect
the privacy of detainees,21 and, most significantly, to
prevent adverse impacts on ongoing investigations and
investigative methods.22 All of these purposes would
be undermined by allowing state and local entities to
disclose information about a detainee after the detainee
has been released from custody, subject only to their
own policies and procedures. Specifically, allowing
such disclosures would be highly adverse to the privacy
interests of a detainee who does not wish to be identi-
fied as a possible terrorist or who, after his release from
detention, is cooperating with an ongoing government
investigation. In addition, disclosure of such informa-
tion could interfere with the investigation itself, both by
discouraging the detainee from continuing to cooperate
with the government and by disclosing potentially valu-
able information about investigative activities that
already have occurred. See Release of Information
Regarding Immigration and Naturalization Service
Detainees in Non-Federal Facilities, supra, 67 Fed. Reg.
19,510 (‘‘[d]isclosure of a detainee’s identity or informa-
tion 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’’
[emphasis added]); id., 19,509 (‘‘[w]hat 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’’); see also El Badrawi v. Dept. of Homeland
Security, 258 F.R.D. 198, 205 (D. Conn. 2009) (disclo-
sure of fact that detainee is listed in violent gang and
terrorist file gives rise to ‘‘a danger that an individual
could deduce that a confidential informant has infil-
trated a particular terrorist cell,’’ and ‘‘[t]his knowledge
could result in, at worst, the death of the informant,
or, at best, the compromise of an ongoing terrorist
investigation’’); El Badrawi v. Dept. of Homeland Secu-
rity, 596 F. Sup. 2d 389, 396 (D. Conn. 2009) (‘‘significant
harm . . . would result if members of terrorist organi-
zations were able to confirm whether [individuals] are
listed in [the violent gang and terrorist file]’’). These
concerns have no less force merely because the
detainee is no longer in detention.
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.23
We conclude, therefore, that the commission incor-
rectly determined that 8 C.F.R. § 236.6 does not bar
the disclosure of the NCIC printout. Accordingly, we
conclude that the printout falls within the ‘‘[e]xcept as
otherwise provided by any federal law’’ exemption set
forth in § 1-210 (a).
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 struc-
ture 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 con-
tends that the phrase ‘‘in Non-Federal Facilities’’ dem-
onstrates that the regulation applies only to information
about current detainees. In addition, El Badrawi con-
tends 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 Informa-
tion (April 18, 2002). This argument, however, is essen-
tially 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,’’24 rather than in
part 103 of title 8, which is entitled ‘‘Powers and Duties;
Availability of Records,’’ indicates that 8 C.F.R. § 236.6
deals primarily with the treatment of detained aliens,
not with public access to records. In the context of the
interpretative issue presented, this argument is unper-
suasive. Although the title of a statute or regulation and
its placement within a group of statutes or regulations
may provide some evidence of its meaning; see Burke
v. Fleet National Bank, 252 Conn. 1, 13, 742 A.2d 293
(1999); such considerations cannot trump an interpreta-
tion that is based on an analysis of the statutory or
regulatory language and purpose.
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
detention facilities in New Jersey to disclose informa-
tion about alien detainees.25 See American Civil Liber-
ties Union of New Jersey, Inc. v. Hudson, 352 N.J.
Super. 44, 56, 799 A.2d 629 (App. Div.) (trial court
ordered disclosure of records pertaining to detainees
on April 12, 2002), cert. denied, 174 N.J. 190, 803 A.2d
1162 (2002). The plaintiffs in Hudson had sought infor-
mation about ‘‘persons [then] confined in the Hudson
County [j]ail and in the Passaic County [j]ail . . . .’’
(Internal quotation marks omitted.) Id. Their primary
complaint apparently was that ‘‘secret detention is
anathema to the civilized nations of the international
community.’’26 Id., 63. El Badrawi and the commission
contend that the fact that the regulation was promul-
gated in response to the New Jersey court order indi-
cates that the only problems that 8 C.F.R. § 236.6 was
intended to address were those attendant to the disclo-
sure of information about current detainees. As we have
explained, however, such a narrow reading of the regu-
lation would undermine the regulatory purposes that
the promulgating agency expressly identified in the
notices in the Federal Register. The fact that the plain-
tiffs’ request for information in Hudson may have trig-
gered the need for the regulation does not compel the
conclusion that the promulgating agency narrowly tai-
lored the regulation to address only the problems
resulting from that specific request, without giving any
thought to other problems that the disclosure of infor-
mation about detainees, both those currently detained
and those released from detention, might produce. See,
e.g., Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)
(‘‘statutory prohibitions often go beyond the principal
evil to cover reasonably comparable evils’’).
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.27 Gonzales v. Oregon, supra, 249. The court
noted that, under the Controlled Substances Act, the
attorney general was authorized only to ‘‘ ‘promulgate
rules and regulations and to charge reasonable fees
relating to the registration and control of . . . con-
trolled substances . . . .’ ’’28 Id., 259, quoting 21 U.S.C.
§ 821 (Sup. V 2005). The court concluded that the inter-
pretive rule went beyond the attorney general’s powers
of registration and control of controlled substances;
see Gonzales v. Oregon, supra, 259–63; and that he
lacked the medical expertise to determine whether
assisted suicide was a ‘‘legitimate medical purpose’’
under the Controlled Substances Act. (Internal quota-
tion marks omitted.) Id., 267. Accordingly, the court
concluded that the Controlled Substances Act ‘‘does
not give the [a]ttorney [g]eneral authority to issue the
[i]nterpretive [r]ule as a statement with the force of
law.’’ Id., 268.
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 pro-
vided 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 ‘‘estab-
lish such regulations . . . and perform such other acts
as he deems necessary for carrying out his authority
under the provisions of [the] chapter [governing immi-
gration and nationality].’’29 8 U.S.C. § 1103 (a) (3) (2000).
Under 8 U.S.C. § 1226 (a) (2000), ‘‘[o]n a warrant issued
by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to
be removed from the United States. . . . [T]he Attor-
ney General . . . (1) may continue to detain the
arrested alien . . . .’’ Finally, 8 U.S.C. § 1103 (c) (2000)
provided in relevant part that the commissioner of the
Immigration and Naturalization Service ‘‘shall be
charged with any and all responsibilities and authority
in the administration of the [Immigration and Natural-
ization] Service and of [the] chapter [governing immi-
gration and nationality] which are conferred upon the
Attorney General . . . .’’
We agree with the court in American Civil Liberties
Union of New Jersey, Inc. v. Hudson, supra, 352 N.J.
Super. 44, 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 con-
fidential information, it still relates to immigration and
naturalization in several ways. We accept as not pat-
ently unrealistic the government’s assertion that the
regulation bears [on] the privacy interests of those
detainees who may not want to have their names made
public and that it tends to affect the safety of the detain-
ees and their families as well as others involved in
the detention scheme. The further assertion that the
regulation affects ongoing investigations into violations
of the immigration laws is also not so far-fetched as to
invite disbelief.’’ Id., 78. In addition, ‘‘there can be no
question that the government of the United States has a
compelling interest in securing the safety of the nation’s
citizens against terrorist attack.’’ Id. ‘‘Thus . . . [8
C.F.R. § 236.6] falls within the authority delegated to the
[c]ommissioner [of the Immigration and Naturalization
Service] by Congress through the [a]ttorney [g]en-
eral.’’ Id.
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. 259; 8 U.S.C.
§ 1103 (a) (1) (Sup. II 2002) broadly charged the attor-
ney general ‘‘with the administration and enforcement
of [the] chapter [governing immigration and nationality]
and all other laws relating to the immigration and natu-
ralization of aliens,’’ and 8 U.S.C. § 1103 (c) (2000)
allowed the attorney general to delegate to the commis-
sioner of the Immigration and Naturalization Service
‘‘any and all responsibilities and authority . . . which
are conferred upon the Attorney General . . . .’’ More-
over, 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, 270 (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. 76. 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 govern-
ment 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.30 As the United States
notes, however, preemption is not an issue in this case
because the act is the only state law under which El
Badrawi has sought disclosure of the NCIC printout,
and § 1-210 (a) expressly exempts from the act any
information that is protected from disclosure under
federal law.31 Because our legislature clearly has
expressed in the act its willingness to defer to federal
laws barring disclosure of otherwise disclosable infor-
mation, at least when disclosure of the information is
not expressly mandated by an independent provision
of state law, there is no conflict between 8 C.F.R. § 236.6
and the act.
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 informa-
tion about immigration detainees from the persons
described in the