Powell v. Mayor, City of New Haven

January 1, 2016

In June 2007, the City of New Haven, Connecticut approved the issuance of Elm City Resident Cards, which it claimed to be the first municipal identification document of its kind in the United States. The card was issued by the City of New Haven Office of New Residents, and was designed to be used as personal identification by the bearer, with no use restrictions imposed by the city. The novel and controversial aspect of the New Haven ID card program was that illegal aliens were officially permitted and encouraged to apply for and use the ID card in their daily activities.

Several concerned citizens filed multiple Freedom of Information Act (FOIA) requests under Connecticut state law in July and August 2007 seeking “any list maintained by the city of recipients of the Elm City Resident Card, including names, addresses, and photographs, as well as to documents collected by the city in support of issuance of such cards, including the application forms and related materials.” In September 2007, the New Haven Community Services Administrator provided some documents, but refused to provide the actual application records on the ground that the records were exempt from disclosure because their release would constitute an invasion of the recipients’ personal privacy.

 

IRLI represented the citizens during the early stages of the proceeding before the Freedom of Information Commission (FOIC) to force release of the records. Later in the proceeding IRLI appeared as amicus. Several illegal aliens and two Hispanic community groups were allowed by the FOIC to participate as intervenors, represented by the Yale School of Law Immigration Clinic and pro bono associates from several NYC law firms.

 

In its amicus brief (attached herebefore the FOIC, IRLI argued that the records were not subject to privacy protections under state FOIA law because they (1) were not “personnel or similar files,” (2) pertained to legitimate matters of public concern, and that their disclosure (3) would not be “highly offensive to a reasonable person” and (4) did not raise constitutional privacy claims. IRLI contended that “No [state or federal] court that has directly addressed the subject has found that aliens, and in particular illegal aliens, have a right of privacy in information about their personal identities and immigration status found in public records.” In particular, “an alien’s identity and immigration status are not liberty interests protected by the Fourteenth Amendment, because an alien has no constitutionally or statutorily-based expectation of privacy in his or her identity, immigration status, or personal immigration information maintained in official government files.”

 

IRLI further argued that the records were not subject to exemption on the ground that disclosure would create a “safety risk … to any person” under Connecticut FOIA, because that element was narrowly construed under state law to cover only risks of physical attack against security personnel, emergency response personnel and activities, or other persons located in or at a government-owned or leased institution or facility. In the case of the New Haven ID Card, the definition of risk did not extend to “speculative risks of harm to generic members of the public from future private criminal acts of unknown third parties, with no specific nexus to the safety or security of public facilities in Connecticut, or the persons working or transacting business therein.” The city’s “proposed construction of safety risk” was thus “so unreasonably expansive as to actually swallow the FOIA cornerstone presumption of the disclosure of public documents.”

 

IRLI further argued that the city had failed to follow statutory procedures under state law for complying with FOIA requests. In particular, the city had not only refused to comply with the citizens’ FOIA requests, but had forwarded them to the Connecticut Director of Emergency Management and Homeland Security (DEMHS) who, under an amendment to the state FOIA statute that took effect after the requests had been filed, determined that “shutting down the Elm City ID Card program may result in an increased safety risk for one or more individuals.”

IRLI also contended that the Commission improperly considered testimony by experts presented by the city that abusive emails received by the city from third parties angered by the ID Card program could not constitute a “threat” sufficient to overcome the FOIA presumption of disclosure on First Amendment grounds, while failing to consider testimony by IRLI experts, Jessica Vaughan of the Center for Immigration Studies, and a retired Immigration and Naturalization Service special agent, that assisting in concealing the identities of illegal aliens created a generalized risk of increased criminal activity by illegal alien cardholders.

 

The state FOIC issued its findings in June 2008, finding that the requested documents, including the names, addresses and photographs of applicants were all “municipal records” within the meaning of the Connecticut FOIA statute, that the City had failed to comply with FOIA by failing to follow certain prescribed procedures within prescribed timelines, but that testimony and evidence from the state DEMHS had established that, based on testimony from city witnesses and communications that “demonstrate a potential lethality towards the ID program and its applicants,” the requested records were exempt from disclosure under the public safety risk exemption in the FOIA law. The FOIC thus “declined to reach the merits” of the First Amendment and other claims of the citizens. Powell v. Mayor City of New Haven, FIC# 2007-498 (June 23, 2008); Dustin Gold and Community Watchdog Project v. Mayor City of New Haven, FIC# 2007-605 (July 17, 2008).

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