With Few Precedents, Outcome Of FOIC Case Uncertain

This story was written by Aaron Bray, Yale Daily News
An appeal filed last week against the Freedom of Information Commission challenging its conclusion that the identities of New Haven ID cardholders should remain private presents the Connecticut State Superior Court with a highly unusual and heated months-long case that could end up making its way to the state Supreme Court.

The limited scope of the appeal journalist Chris Powell and anti-illegal-immigrant activist Dustin Gold will question the commissions understanding of the Freedom of Information Act, as well as bring up what they see as procedural deficiencies could make it harder for the plaintiffs to prevail. And, to make things more complicated for the plaintiffs, state courts have generally been less receptive to requests for information than the FOIC. In those cases in which the appeal is filed by the city or state, decisions available on the Freedom of Information Commission Web site show that the courts tend to uphold the original FOIC holding much more often than not.

But the unusual nature of the case has added a degree of uncertainty: In most freedom-of-information cases the appellants are the municipal or state departments, seeking to overturn a FOIC decision to release documents, rather than outside parties seeking the release of information, according to former Freedom of Information Commissioner Mitchell Pearlman. This time, Pearlman said, the plaintiffs could also be hampered by court rules disallowing appeals that question whether the commission exercised sound judgment in deciding whether to admit evidence.

In July, the FOIC commission voted 3-1 in favor of a proposed decision issued a month earlier by Sherman London, the officer who presided over the months-long hearing. In essence, that decision reached the same conclusion as city and state officials with the Department of Emergency Management and Homeland Security: Releasing the identities of card holders would put the individuals in danger and would pose an unacceptable public-safety risk because of the possibility of reprisals from angry opponents of citys policies on illegal immigration.

The decision was reached after lengthy testimony from, among others, New Haven police and municipal administrators, as well as consideration of a mountain of submissions by the citys lawyers that included documentation of anonymous death threats directed at both city officials and immigrants themselves.

The legal findings were based in large part on Section 1-210(b)(19) of the Connecticut Freedom of Information Act, which states, in part, that nothing in the FOIA law shall be construed to require disclosure when such disclosure may lead to the risk of harm to any person or government institution.

But Gold and Powells appeal argues that the commission misinterpreted the relevant portions of the public-safety exemption to disclosure, and that the hearings themselves were rife with procedural problems, including improper admission of City Hall documents into evidence.

The commission handled this case terribly, Powell said. It relies entirely on hearsay and on material that was never formerly entered into evidence. The submission from the city was a big packet of documents, and these documents were never tested, never subject to cross-examination.

As an example of improperly admitted hearsay evidence, Powell pointed to the remarks of talk-show host Hal Turner, which he said should not have been considered by London in the ruling because he claimed it was not entered correctly and because he did not have an opportunity to refute it.

I would laugh if a slew of patriots got in their cars, drove up to the New Haven Municipal building and opened fire on the lines of illegal aliens standing there, Turner said, on live radio, not long after th ID-card program went into effect, according to the citation in Londons decision. The illegal aliens deserve to be killed and so does the mayor and the City Council.

Moreover, Gold said, the public-safety exemption should never have been considered in the first place, because the ID does not qualify as, nor is it akin to, one of nine specified records to which the exemption applies.

Those nine records include security manuals, engineering and architectural drawings and security audits, among other items. But London, and ultimately the majority of the commission, agreed with the citys argument, and found that the security exemptions included the specified nine but were not limited to [them].

Still, Gold and Powell had a chance to contest the relevance of some of the supposed hearsay during the proceedings.

In one example, James Johnston, a former Immigrations and Customs Enforcement officer, was called by them as an expert witness. In his testimony, he addressed the anonymous threats, including the talk-show remarks.

I dont consider those as really credible threats, Johnston said, the New Haven Independent reported after the hearing in early April.

Hearsay evidence is admissible in FOIC hearings, as they are administrative and not criminal proceedings.

The hearsay, it has to be entered, but the [appeals] court shouldnt look back, Pearlman said. Its up to the finder of facts [the hearing officer] to determine whether to admit it despite its weakened credibility.

Andrew OKeefe , the FOIC chairman, voted against the commissions final decision, aligning himself with Powell and Golds view that the anonymous threats were not substantial enough to warrant restricting the information a fact both Powell and Gold said indicated that their appeal had merit.

Be that as it may, Pearlman said, it is unlikely to help Powell and Gold in their appeal, as FOIC rulings can only be reversed if a higher court rules the Commission understood the law improperly. But, he added, the court may indeed reach the conclusion that FOIC misapplied the law.

One of the things, Pearlman noted, is that the appeal process is a limited one. Theres a limited basis for reversing a decision: that the FOIC erred in its interpretation of the law, rather than in its judgment on the facts.

Meanwhile, there is still no word from the city on what the extent of its involvement in the appeal will be.

Since the suit names the FOIC as the defendant, the commissions in-house lawyers will be responsible for defending the decision. However, the city can choose to seek standing to participate in the appeals process.

We have not yet made a decision as to how we will respond, if we will take any action, said City Hall spokeswoman Jessica Mayorga, who has been in communication with Kathleen Foster, the city attorney who handled the original case.
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