FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                FINAL DECISION

 

Salvatore J. Presutti,

 

            Complainant

 

            against                                                                          Docket #FIC 1995-426

Chris Cooper, Freedom of Information

Officer, State of Connecticut, Department of

Housing; Richard Cianci, Commissioner,

State of Connecticut, Department of

Housing; and Paul Pernerewski, State of

Connecticut, Office of the Attorney General,

 

            Respondents                                                                 November 20, 1996

 

 

            The above-captioned matter was heard as a contested case on August 13, 1996, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondents are public agencies within the meaning of §1-18a(a), G.S.

 

2.  By letter dated October 11, 1995, the complainant requested that the respondent freedom of information officer (“FOIO”) waive the copying fee on behalf of the respondent department pursuant to §1-15(d)(1), G.S., for the complainant’s request for public records concerning a Beaver Street project.

 

            3.  By letter dated November 15, 1995, the respondent FOIO denied the complainant’s request for a fee waiver with the explanation that such denial was based on the complainant’s family circumstances.

 

            4.  By letter dated November 17, 1995, the complainant made another request to the respondent FOIO for public records and requested that the FOIO reconsider granting the complainant a waiver for copying fees pursuant to §1-15(d)(1), G.S., for which request there was no further response.

 

            5.  It is found that on November 15, 1995, the complainant reviewed a foreclosure file at the respondent attorney general’s office, at which time the respondent assistant attorney general (“AAG”) denied the complainant’s request for a waiver of copying fees, although the respondent AAG invited the complainant to take copies of the requested foreclosure documents and to dispute the assessment of the fee at a later time, which invitation the complainant declined.

 

            6.  By separate letter dated November 17, 1995, the complainant requested that the respondent AAG reconsider and grant the complainant’s request for waiver of fees that he had made previously to the attorney general’s office.

 

            7.  It is found that at no time did the FOIO and AAG grant the complainant’s repeated requests for indigency status under the provisions of §1-15(d)(1), G.S.

 

8.  By letter dated December 4, 1995, and filed with the Commission on December 5, 1995, the complainant appealed to the Commission alleging generally that the respondents violated the Freedom of Information (“FOI”) Act on the basis of “attached requests.”

 

9.  At the hearing into this matter, the complainant clarified that the sole issue for determination in this appeal is whether the respondents violated the provisions of §1-15(d)(1), G.S., by denying his requests for indigency status.  The respondents made no objection to this statement of clarification.

 

10.  Section 1-15(d)(1), G.S., in relevant part states:

 

                        The public agency shall waive any fee provided for in this

                        section when (1) the person requesting the records is an indigent

                        individual ….

 

11.  With respect to the allegations contained in paragraph 9, above, the department of housing respondents contend that they were unsure how to proceed with the complainant’s indigency request because their few prior requests for such status came from institutions representing indigent groups such as the Connecticut Civil Liberties Union.  Accordingly, they conferred with the attorney general’s office to consider permissible factors to determine indigency status for an individual.

 

            12.  The respondents claimed that they considered the following factors in determining whether to waive fees for the complainant in accordance with the provisions of §1-15(d)(1), G.S.

 

                        that the complainant’s tax returns indicated that he

                        was married but filing separately as opposed to filing a joint

                        income tax return;

 

                        that the complainant lived in a home and that he had a certain

                        dress and appearance that did not comport with the respondents’

                        conception of indigency status; and

 

                        that the complainant was generally known to have worked as a

                        real estate developer who had undertaken projects that required

                        financial backing.

 

13.  It is found that the respondents have neither established any reasonable standards for determinations of individual indigency, nor in this case, applied any reasonable test for determining indigency for purposes of §1-15(d)(1), G.S.

 

            14.  It is consequently concluded that in this case, the respondents violated §1-15(d)(1), G.S., by failing to establish and apply a reasonable test for determining indigency for purposes of that statute.

 

           

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.  The respondents shall forthwith provide the complainant with a copy of the requested records described in paragraphs 2, 4, and 5 of the findings, above, without charge.

 

            2.  This decision should not be construed as indicating any bad faith on the part of the respondents.  Rather, it shows a lack of understanding of their responsibilities under §1-15(d)(1), G.S.  In this respect, the Commission recommends that the respondents consider adopting a policy setting forth standards or a test for determining indigency for purposes of that statute.  Some reasonable standards and tests utilize the submission of copies of income tax returns showing income and expenses or provisions for completing a set form of financial affidavit detailing the requesters’ financial condition.  Of course, agency’s need not accept such forms if they discover sufficient evidence to contradict the submitted tax return or financial affidavit.  Mere suspicion without evidence, however, is insufficient to disqualify tax return or financial affidavit.  The respondents might also consider what other public agencies use as standards and tests for establishing indigency.

 

Approved by Order of the Freedom of Information Commission at its special meeting of November 20, 1996.

 

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

 

 

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Salvatore J. Presutti

5 Ridgeview Drive

Farmington, CT 06032

 

 

Chris Cooper, Freedom of Information Officer, State of Connecticut, Department of

Housing; Richard Cianci, Commissioner, State of Connecticut, Department of

Housing; and Paul Pernerewski, State of Connecticut, Office of the Attorney General

c/o  Charles Walsh, Esq.

Assistant Attorney General

55 Elm Street, 3rd Floor Annex

Hartford, CT 06141-0120

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

 

FIC 1995-426/FD/eal/120496