FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 4, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The complaint was consolidated for hearing with Docket #FIC 2006-683, Richard R. Quint v. Food Services Division, State of Connecticut, Department of Correction; and Joan Ellis, State of Connecticut, Department of Correction, Freedom of Information Administrator.  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 et al, 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed December 27, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his November 22, 2006 request for records, and denying his request for a waiver of copying fees by reason of the complainant’s alleged indigence.  The complainant requested the imposition of civil penalties against the respondents.

 

            3.  It is found that the complainant made a written request on November 22, 2006 to the respondent Fiscal Services Division for records pertaining to the model of the television he had purchased from the commissary, and any inventory of the remote controls for that television.  The reason for the request was that the complainant was unable to access certain functions of the television without the remote control, and he wanted to know what had become of it.  The complainant also requested a waiver of fees pursuant to §1-212(d)(1), G.S., asserting that he was unable to pay the copying fees because he was indigent.

 

4.  It is found that the Department of Correction (the “Department”)  acknowledged receipt of the complainant’s request on December 6, 2006.  The respondent Ellis coordinated the Department’s response to the request.

 

5.  It is found that the Department provided two pages of records responsive to the complainant’s request on or about December 22, 2006, and soon thereafter established an obligation of $0.50 against the complainant’s trust account, effectively denying the complainant’s request for a waiver of fees.

 

6.  Section 1-200(5), G.S., provides:

 

    “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  Section 1-212(a)(1), G.S., provides in relevant part:

 

    Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.   The fee for any copy provided in accordance with the Freedom of Information Act:

 

    (1)  By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page ….

 

 

8.  Additionally, §1-212(d)(1), G.S., provides:  “The public agency shall waive any fee provided for in this section when: (1)  The person requesting the records is an indigent individual ….”

 

9.  The parties stipulated that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S., and that those records were provided to the complainant.

 

            10.  The complainant contends that the records are not complete, and were not provided promptly.

 

11.  It is found that the records provided are the only records in the custody of the respondents that are responsive to the complainant’s request.

 

12.  With respect to the issue of promptness, the meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

13.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.        

 

14.  It is found that only a small number of records were requested; that one of the records was actually created for the complainant in order to answer his underlying question concerning the disposition of the remote controls;  and that the records were provided approximately 16 days after the request.

 

15.  It is concluded that the records were provided promptly within the meaning of §1-212(a), G.S.

 

16.  With respect to the issue of the complainant’s asserted indigence, and the question of appropriate remedies, paragraphs 15 through 75 of the Final Decision in Docket #FIC 2006-683, Richard R. Quint v. Food Services Division, State of Connecticut, Department of Correction; and Joan Ellis, State of Connecticut, Department of Correction, Freedom of Information Administrator are incorporated as if fully set forth herein.

 

 

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 remove the obligation of $0.50 from the complainant’s trust account.

 

2.  The Department’s policy of requiring reimbursement for copying fees paid by indigent inmates, and of denying fee waivers to all inmates, and so much of its Administrative Directives that implements such a policy, is declared void, pursuant to §1-210(a), G.S.

 

3.  Henceforth the Department shall, in determining whether inmates are eligible for fee waivers under §1-212(d)(1), G.S., apply the same standard of indigence as it currently applies to requests from the general public for fee waivers under the FOI Act.  If, for example, the Department uses the poverty guidelines updated periodically in the Federal Register by the U.S. Department of Health and Human Services under the authority of 42 U.S.C. 9902(2) to determine whether a member of the general public is indigent, the Department shall use the same guidelines to determine if an inmate is indigent.  If an inmate is found to be indigent, the inmate shall be provided copies free of charge, with no obligation of any kind established against any account of the inmate.  The Department shall not modify its standard of indigence with the effect of excluding inmates from the standard.  Under no circumstances shall the Department establish or apply a policy for determining indigence that precludes a finding that an inmate may be indigent.

                                                                                   

            4.  The Commission takes administrative notice of the fact that the Department has previously argued in Canady v. Department of Correction, above, that inmates should not receive fee waivers because the cost of incarceration exceeds federal poverty guidelines.  If the Department were to count the cost of incarceration as an asset of the inmate using the federal poverty guidelines as a standard of indigence, for example, the effect would be to deny fee waivers to all inmates, since in all cases the cost of incarceration would exceed the federal poverty guidelines.  That argument was rejected by the Commission in Canady.  Consequently, in complying with paragraph 3 of the order, above, the Department shall not, in determining an inmate’s indigence, count the cost of incarceration as an asset of the inmate.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 13, 2007.

 

________________________________

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:

 

Richard R. Quint, #123433

Garner Correctional Institution

50 Nunnawauk Road

PO Box 5500

Newtown, CT 06470-5500

 

Fiscal Services Division,

State of Connecticut,

Department of Correction; and

Joan Ellis, State of Connecticut,

Department of Correction,

Freedom of Information Administrator

c/o Sandra Sharr, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-684FD/paj/6/14/2007