FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

The above-captioned matter was heard as a contested case on November 7, 2005, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  Following the close of the hearing in this matter, the complainant filed a brief dated November 16, 2005, to which he attached a document, which is not a part of the record, and requested that pursuant to §1-21j-38 of the Regulations of Connecticut State Agencies, such document be admitted into the record as an exhibit.  Such request is denied.  

           

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.  By letter dated May 16, 2005, and filed with the Commission on May 17, 2005, the complainant appealed, alleging that the respondent board violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records more fully described in paragraph 3, below, without charge, based on his claim that he is an “indigent individual”, within the meaning of §1-212(d)(1), G.S. 

 

3.  It is found that, by letter dated April 20, 2005, the complainant requested that the respondents provide him with a copy of the following records, for which he requested that the fee be waived based on a claim of indigence (hereinafter “requested records”):

 

i)                    all impartial hearing board decisions from September 2000 until present;

ii)                   all stipulations relating to expulsions from September 2000 until present;

iii)                 all minutes from expulsion hearings from September 2000 until present;

iv)                 all payments to hearing officers presiding over expulsion hearings from September 2000 until present;

v)                  all payments made to Post Reporting regarding expulsion hearings from September 2000 until present;

vi)                 any other expenses, settlements paid because of an expulsion proceeding from September 2000 until present;

vii)               the complete conduct report for all incidents at West Haven High School from September 2000 until present;

viii)              all state reports of any disciplinary actions, expulsions, or suspensions from September 2000 until present;

ix)                 all legal bills paid to any law firm from September 2000 until present;

x)                  all settlements paid from September 2000 until present;

xi)                 the complete general ledger including all accounts both Balance Sheet and Revenue and Express from July1, 2003 to June 30, 2004;

xii)               the complete trial balance including all accounts from July 1, 2003 to June 30, 2004;

xiii)              the Chart of Accounts including all accounts from July 1, 2003 to June 30, 2004; and

xiv)             a copy of both the Superintendent’s and Assistant Superintendent’s contracts with all signatures present.  

 

4.  It is found that, by letter dated April 20, 2005 the respondent superintendent informed the complainant that, “we will be processing any information we have pertaining to your request as soon as possible”.

 

5.  It is found that, by letter dated April 29, 2005 the respondent superintendent requested that the complainant provide him with the following information in a signed financial statement under oath before the respondents would address the complainant’s request further:

 

i)                    a detailed listing of your revenues and expenses;

ii)                   a statement as to whether you are a dependent of your parents, specifically whether they provide you with room and board and whether they claim you as a dependent for purposes of federal income taxes;

iii)                 an explanation and proof of the indebtedness to your father along with any documentation thereof evidencing the indebtedness and the repayment schedule; and

iv)                 statement previously submitted needs to be sworn and notarized on the bottom. 

 

6.  It is found that, by letter dated May 5, 2005, the complainant provided the respondents with a sworn, notarized statement as requested by the respondents and described in paragraph 5iv, above, and informed the respondents that their attorneys Berchem, Moses and Devlin, were already in possession of the other information described in paragraph 5i through 5iii, above.[1]  The complainant also requested in his May 5, 2005 letter that the respondents provide him with a copy of the “District’s Indigence Policy”.      

 

 7.  It is found that, by letter dated May 16, 2005, counsel for the respondents informed the complainant that the In Forma Pauperis status granted to the complainant by the court in connection with the complainant’s federal lawsuit was not determinative as to his indigency status for purposes of the complainant’s FOI Act request at issue herein.  The respondents, in their May 16, 2005 letter also requested that the complainant, since he uses the same address as his parents, provide the information requested by the respondents, and described in paragraph 5i, 5ii and 5iii, above, with one modification, that the complainant provide “only the portion of your parents’ tax return(s) which list dependents”.

 

8.  It is also found that by letter dated May 16, 2005, the respondents further informed the complainant that the district does not have a policy on indigence.

 

9.  Thereafter, the complainant filed this appeal.

 

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

 

Except 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 … (3) receive a copy of such records in accordance with section 1-212.  [Emphasis added].

 

11.  Section 1-212(a), G.S., provides that: “[A]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record”.

 

12.  Section 1-212(a), G.S., further provides that a municipal agency may charge a fee not exceeding fifty cents per page for copies of public records.

  

13.  Section 1-212(c), G.S., further provides that: “[A] public agency may require the prepayment of any fee required or permitted under the … [FOI] Act if such fee is estimated to be ten dollars or more”.

 

14.  Section 1-212(d)(1), G.S., further provides that:“[T]he public agency shall waive any fee provided for in this section when…the person requesting the records is an indigent individual”.

 

15.  It is found that the respondents maintain records responsive to the complainant’s request, as described in paragraph 2, above, and such records are public records within the meaning of §§1-210(a) and 1-212(a), G.S.

 

16.  It is also found that there is no dispute between the parties with respect to any exemptions that may apply to the requested records.

 

17.  It is also found that the records at issue are voluminous, and reasonably estimated to be in the region of thousands of pages.[2]

 

18.  The complainant contends that he is an indigent individual, and relies on the fact that the court granted him “Leave to Proceed In Forma Pauperis” in the federal lawsuit described in footnote 1.[3] 

 

19.  The respondents, on the other hand, contend that the court’s decision to waive certain fees and expenses in connection with the federal lawsuit is not dispositive of whether the complainant is “an indigent individual” for purposes of a fee waiver pursuant to §1-212(d)(1), G.S.  The Commission agrees.      

 

20.  The term “indigent individual” is not defined in the FOI Act.  However, the Commission has previously reviewed the issue of indigence in the context of §1-212(d)(1), G.S., and made clear that: “the standard for establishing one's eligibility for a waiver or reduction of the fees charged for copies of public records, is wholly within the discretion of the custodial public agency, as long as the standard is objective, fair and reasonable, and applied in a nondiscriminatory manner”.  Kulick v. West Hartford, contested case docket #FIC 1991-356 (October 14, 1992).

 

21.  Therefore, the issue presented before the Commission is not whether the complainant is an indigent individual for purposes of §1-212(d)(1), G.S., but rather whether the respondents have established a standard for determining an indigent individual, and whether such standard is objective, fair and reasonable, and applied in a nondiscriminatory manner.

 

22.  It is found that the respondents did not have a standard regarding the determination of an “indigent individual” for purposes of §1-212(d)(1), G.S., prior to their receipt of the complainant’s records request now at issue.

 

23.  It is found that upon receipt of the complainant’s very voluminous records request, and in part because the respondents had prior dealings with the complainant’s mother, who had previously made a number of FOI Act requests to the respondents, and filed several FOI complaints against the respondents, the respondents decided to inquire into the complainant’s claim of indigence.

 

24.  In this regard, the respondents requested that the complainant provide the respondents with the information described in paragraph 5, above.

 

25.  It is found that the respondents are now utilizing Black’s Law Dictionary’s definition of indigent for purposes of determining if it should waive the fees in connection with the complainant’s request.

 

26.   Black’s Law Dictionary, 5^th   Edition, defines “indigent” as follows:

 

In a general sense, one who is needy and poor, or one who has not sufficient property to furnish him a living nor anyone able to support him to whom he is entitled to look for support.  Term commonly used to refer to one’s financial ability, and ordinarily indicates one who is destitute of means of comfortable subsistence so as to be in want.

 

 27.  In addition, it is found that the respondents have looked to the definition of “indigent person” set forth in §17a-495, G.S., for guidance in determining indigence.  Such provision provides that:

 

"indigent person" means any person who has an estate insufficient, in the judgment of the Court of Probate, to provide for his or her support and has no person or persons legally liable who are able to support him or her.

 

 28.  It is found that prior to the hearing in this matter the complainant did not furnish the respondents with all of the information they requested, as described in paragraph 5, above.[4]

 

 29.  It is found that the complainant’s parents claimed him as a “dependent” on their state and federal tax returns for the years 2003 and 2004, and have claimed him as such since his birth.  It is found that the complainant is twenty years old and a full-time college student who attends Albertus Magnus College.  It is found that the complainant’s parents pay approximately $2000 per year towards his college costs, the remainder of which is financed through scholarships, student loans and the complainant’s earnings.  It is found that the complainant earns approximately $400 gross per week   It is found that the complainant pays his parents $300 per month for rent.

 

30.  The complainant contends that the respondent is treating him in a discriminatory manner with respect to his claim of indigence.  Specifically, the complainant contends, and it is found that in the past (specifically, during September 2003, and again on the day of the hearing in this matter), the respondents provided another individual with copies of public records, and waived the fee in both instances.  It is found that in 2003, the respondents received from the individual described herein, a financial affidavit, indicating that such individual fell below the federal poverty guidelines with respect to income.  It is found that the respondents accepted the financial affidavit and did not require that the individual submit the items described in paragraph 5, above, prior to waiving such individual’s copy fees.  It is found that the individual received between 100-150 pages of records without paying a fee to the respondents.   It is also found that the individual’s mother was the respondent superintendent’s former secretary, and the respondent superintendent testified at the hearing in this matter that based upon his personal knowledge of the individual and the individual’s mother, he did not doubt such individual’s indigence and determined that the individual was unable to pay fees.

 

31.  It is found that while the respondents’ stated test for determining indigence based on the definition set forth in Black’s Law Dictionary and §17a-495, G.S., is on its face objective, fair and reasonable, it is also found that the respondents have not applied such test in an objective and nondiscriminatory manner, within the meaning of Kulick, supra. 

 

32.  Rather, it is found that the respondents have applied two different levels of scrutiny, each with different criteria apparently developed based upon the subjective judgment of the respondent superintendent, with respect to determining the indigence of the individual described in paragraph, 30, above, and the complainant. 

 

33.  Based upon the facts and circumstances of this case, it is therefore, concluded that the respondents violated §1-212(d)(1), G.S., by applying different standards for establishing an individual’s eligibility for a waiver of the fees charged for copies of public records, and thereby treated the complainant in a discriminatory manner.

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, select and utilize one set of criteria for establishing indigence for purposes of §1-212(d)(1), G.S., and henceforth, apply such criteria across the board in a nondiscriminatory manner.

 

2.  The respondents shall forthwith, provide the complainant with 200 pages of the requested records, without charge.

 

3.  In connection with paragraph 2 of the order, the complainant shall forthwith inform the respondent superintendent which records, among the ones he requested and described in paragraph 3 of the findings, above, he is selecting for which there will be no charge.      

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 2006.

 

________________________________

Petrea A. Jones

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:

 

Stephen Rossi

12 Robin Road

West Haven, CT 06516

 

Superintendent of Schools, West

Haven Public Schools; and Board

of Education, West Haven Public

Schools

c/o Floyd J. Dugas, Esq.

Berchem, Moses & Devlin, PC

75 Broad Street

Milford, CT 06460

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-219FD/paj/4/27/2006