FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Thomas J. May, | |||
| Complainants | |||
| against | Docket #FIC 2005-519 | ||
|
Theresa Lantz, Commissioner, State of Connecticut, Department of Correction, |
|||
| Respondent | June 28, 2006 | ||
The above-captioned matter was consolidated for hearing with Docket ## FIC 2005-440 and FIC 2005-474, both of which are also captioned Thomas J. May v. Theresa Lantz, Commissioner, State of Connecticut, Department of Correction. The matters were heard as contested cases on April 20, 2006, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaints. The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction. See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1)(A), G.S.
2. It is found that by letter dated October 6, 2005, the complainant reaffirmed an earlier request to the respondent for “a copy of (sic) Correctional offices contract and records of non-profit agencies the DOC [Department of Correction] runs”, and also reaffirmed a September 2, 2005 request for six enumerated categories of records (the “requested records”).
3. By letter dated October 11, 2005, the respondent acknowledged the October 6, 2005 request. By further letter dated October 13, 2005, the respondent addressed the various requests made by the complainant, including stating that the complainant was notified on May 6, 2005 that the documents responsive to numbered item 6 of the October 6, 2005 letter “were available for dissemination…[upon] [p]ayment …in the amount of $125.00.” The respondent’s October 11, 2005 letter also instructed the complainant on how to implement the procedure set forth by the Freedom of Information Commission (“Commission” or sometimes “FOIC”), which provides for an obligation to be “established on the inmate’s trust fund” in the event an inmate does not have sufficient funds “to pay for the copy fees”.
4. By letter dated and filed with the FOIC on October 26, 2005, the complainant appealed to the Commission, alleging that the respondent withheld the requested records, that he is indigent, and that the respondent illegally advised the complainant that his inmate’s account would be debited, all as part of an alleged larger pattern of violating the Freedom of Information Act (“FOIA”).
5. Section 1-210(a), G.S., states 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 (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.
6. Section 1-212, G.S., states in relevant parts:
(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
…
(c) A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more. The sales tax provided in chapter 219 shall not be imposed upon any transaction for which a fee is required or permissible under this section or section 1-227.
(d) The public agency shall waive any fee provided for in this section when:
(1) The person requesting the records is an indigent individual…
7. It is found that the respondent maintains the requested records and that such records are public records within the meaning of §1-210(a), G.S.
8. It is found that since March 2005 the complainant has made extensive records requests to the respondent. It appeared that, concerning the three matters consolidated for hearing herein, the complainant has written at least fifteen letters; Joan M. Ellis, the Freedom of Information officer for the respondent has written at least fourteen letters; and other members of the respondent’s staff have written at least an additional eleven communications.
9. However, at the hearing, the parties stipulated that the respondent is willing to provide the complainant with all of the records generally referenced at paragraph 2, above, and that the only issue remaining in the case was whether the complainant is indigent or should be required to pay approximately $250.00 for 1,000 pages of requested records.
10. The question of indigence of inmates at the Department of Correction for purposes of the FOIA has, episodically, been a contested area of law for decades. It was addressed most recently by the Commission in Kiewhon Canady v. Commissioner, State of Connecticut, Department of Correction, Docket # FIC 2004-366, which held that the respondent’s general standard for indigence was met if an inmate’s account contains less than $5.00 for more than a 90-day period. For related recent cases, see Nappi v. Chief, Police Department, City of New Haven, Docket # FIC 2005-304; Andrew Cook v. Commissioner, State of Connecticut, Department of Public Safety, Division of State Police, Docket # FIC 2004-109; and Kiewhon Canady v. Commissioner, State of Connecticut, Department of Correction, Docket # FIC 2004-370.
11. It is found that the complainant has received disability payments since 1997, now in the amount of $103 per month, which until recently were paid into a private bank account outside the Department of Correction. Indeed, when this direct deposit system at Bank of America was terminated during the four months preceding the hearing, a check payable to the complainant in the amount of $412 was sent to his parents’ residence. Recently, the complainant asked the Veterans Administration to hold the checks on his behalf. It is also found that the complainant could have had these payments deposited in his inmate account at the Department of Correction.
12. As a result of the finding at paragraph 11, it is unnecessary to make detailed findings concerning the respondent’s allegations that the complainant “gamed the system”, by not accepting requested records when he had funds in his inmate account, intentionally depleting his inmate account, and then making new requests for records. Nor does the Commission need to address herein questions the respondent has raised concerning the complainant’s decision not to participate in work or educational programs within the correctional system that would have resulted in the complainant being paid.
13. Based on the standard set forth at paragraph 10, above, and the findings at paragraph 11, above, it is concluded that the complainant was not indigent for purposes of §1-212(d)(1), G.S., at the time he made the request here in question.
14. Accordingly, it is concluded that the respondent did not violate the provisions of §§1-210(a) and 1-212, G.S., as alleged.
The following orders by the Commission are hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. As set forth generally at paragraph 8, above, the respondent has expended very substantial staff resources collecting records and clarifying the complainant’s extensive records requests. In the future, the respondent should require a prepayment of the estimated copying charges, pursuant to §1-212(c), G.S., before gathering copies of requested records.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 28, 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:
Theresa Lantz, Commissioner,
State of Connecticut,
Department of Correction
c/o Henri Alexandre, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105 and
Sandra A. Sharr, Esq.
Director of Legal Affairs
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT 06109
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-519FD/paj/7/3/2006