FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on October 28, 2002, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the May 14, 2003, regular meeting of the Commission, Legal Assistance Resource Center of Connecticut, Inc., requested, and was granted, intervener status.  The case caption has been amended to reflect the appropriate designation of the respondents.

 

            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 §1-200(1), G.S.

 

            2.  It is found that, by letter dated January 8, 2002, the complainants made a request to inspect and copy many records maintained and kept on file by the respondents concerning Low Income Housing Tax Credit Developments on Huntington Street in Hartford, and all analyses of Asylum Hill neighborhood demographics.  It is further found that, by such letter, the complainants requested that any fees be waived as the request was made to further the general welfare. 

 

3.  It is found that, by letter dated March 12, 2002, the complainants acknowledged the opportunity to inspect the records described in paragraph 2, above, and asked that the records which the complainants marked be copied at no fee, as the request was made on behalf of an indigent person.

 

4.  It is also found that, by separate letter dated March 12, 2002, the complainants made a request to inspect and copy many records maintained and kept on file by the respondents concerning the respondents’ administration of the federal Low Income Housing Tax Credit program.   It is further found that, by such letter, the complainants requested that any fees be waived as the request was made on behalf of an indigent person.

 

5.  It is found that, by letter dated March 14, 2002, the respondents denied the request for fee waiver described in paragraph 3, above, and assessed a copying fee of $28.50 for 57 pages of records. 

 

6.  It is found that, by letter dated March 18, 2002, the respondents acknowledged receipt of the request described in paragraph 4, above, and informed the complainants that such request was being reviewed.

 

7.  It is found that, by letter dated April 8, 2002, the complainants again asked that fees for the requests described in paragraphs 2, 3, and 4, above, be waived on the basis of indigency.

 

8.  It is found that, by letter dated April 22, 2002, the respondents assessed a copying fee of $155.50 for 310 pages of records, in response to the request described in paragraph 4, above.

 

9.  It is found that, by letter dated May 3, 2002, the complainants renewed the request described in paragraph 4, above, insofar as it encompassed certain documents specified by the complainants after their April 18, 2002, inspection of such records.  The complainants again asked that fees for such copies be waived on the basis of indigency.

 

10.  It is found that, by letter dated May 9, 2002, the respondents informed the complainants that their request for fee waiver described in paragraph 9, above, was denied, as the complainants had made no showing in regard to name of indigent client, nature of representation of client, income statement of client, and proof that such client has no means to pay Freedom of Information Act fees. 

 

11.  It is found that, by letter dated May 31, 2002, the complainants informed the respondents that they took issue with the respondents’ request for information but nevertheless supplied their client’s name, and the nature of their representation of such client.  It is also found that the complainants submitted documentation showing that their client and her family are recipients of benefits under the Connecticut Medical Assistance Program and the federal food stamps program as proof that such client has no means to pay Freedom of Information Act fees.  The complainants declined to provide an income statement for their client.

 

12.  It is found that, by letter dated June 4, 2002, the respondents denied the request for fee waiver described in paragraph 9, above, for failure to provide an income statement and failure to adequately prove inability to pay Freedom of Information Act fees.

 

13.  It is found that, by letter dated June 25, 2002, the complainants informed the respondents that the complainants assumed that the rejection of fee waiver described in paragraph 12, above, applied to the request for fee waiver described in paragraph 3, above, in addition to the request described in paragraph 9, above.  The complainants also maintained that they are not required to provide an income statement to the respondents.   By such letter, the complainants included their client’s recertification form for the Connecticut Department of Social Services Food Stamp program, as proof that such client is indigent.

 

14.  By letter dated July 3, 2002, and filed on July 5, 2002, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by refusing to waive fees for copying the records described herein, in contravention of §1-212(d)(a), G.S.

 

15.  It is found that the requested records described above, are public records within the meaning of §1-210(a), G.S.  It is further found that the respondents have allowed the complainants to inspect the records at issue.  The issue before the Commission is whether the respondents are unreasonably denying a fee waiver request based on indigency in this matter.

 

16.  Section 1-210(a), G.S., provides in relevant part:

 

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

            17.  Section 1-212, G.S., provides that public agencies may assess fees for copies of public records.  However, §1-212(d)(1), G.S., provides in relevant part that a public agency “shall waive any fee…when…[t]he person requesting the records is an indigent individual….”

 

18.  The complainants contend that the records submitted in support of their client’s claim of indigency should suffice, as such records prove that their client is of low income.  The complainants further contend that requiring further documentation is an unnecessary and inappropriate invasion of their client’s privacy.  The respondents contend that further documentation is necessary in order to determine the indigency of an individual.   

 

19.  It is found that a mere claim of indigency does not constitute proof of indigency and that an agency may reasonably inquire into a requester’s finances when a claim of indigency is made.  It is concluded that the determination of whether an individual qualifies for waiver on the basis of indigence is one which properly lies with the public agency having custody of the requested records, and that the requester cannot substitute his or her own criteria for those of the public agency in such matters.

 

20.  It is also found that the respondents’ requiring further documentation for determination of indigency as described in paragraph 10, above, is not unfair or unreasonable and that such requirement is designed to fairly assess the requester’s ability to pay for copies of public records.  It is further found that the complainants’ refusal to provide an income statement forestalled the respondents’ ability to evaluate their claim of indigency. 

 

21.  It is found that the standard for establishing one's eligibility for a waiver or reduction of the fees must be objective, fair and reasonable, and applied in a nondiscriminatory manner.  While it is found that nothing in the record suggests that the respondents acted in a subjective, unfair, unreasonable, or discriminatory manner in this case, it is also found that the respondents have not articulated a set standard for determining indigency, which the complainants must meet. 

 

22.  It is concluded, therefore, that under the facts and circumstances of this case, the respondents’ failure to articulate a set standard for determining indigency is in contravention of the Freedom of Information Act.   

 

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

 

1.  Forthwith, the respondents shall establish a standard for establishing eligibility for a waiver or reduction of copying fees that is objective, fair and reasonable, and applicable in a nondiscriminatory manner.  The respondents shall provide the complainants with a copy of such standard.

 

            2.  The complainants are advised that they may be required to submit a detailed income statement to meet the standard of eligibility established by the respondents. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

May 28, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Erin Boggs and

Connecticut Civil Liberties

Union Foundation

32 Grand Street

Hartford, CT  06106

 

President/Executive Director,

Connecticut Housing Finance Authority; and

Connecticut Housing Finance Authority

c/o Lawrence C. Pilcher, Esq.

Connecticut Housing Finance Authority

999 West Street

Rocky Hill, CT  06067-5005

 

 

THE INTERVENOR IN THIS CONTESTED CASE IS:

 

Legal Assistance Resource Center of Connecticut, Inc.

c/o Raphael Podalsky, Esq.

Legal Assistance Resource Center

of Connecticut, Inc.

80 Jefferson Street

Hartford, CT  06106

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-297FD/abg/05/29/2003