FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 8, 2007, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  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.  It is found that by request dated June 26, 2006, the complainant sought from the respondents a copy of the following records (hereinafter “requested records”):

 

a.       “The blank contract given to Dept. of Correction’s Correctional Officers to Sign;” and

 

b.      “A copy of the current contract with the Law Offices of Sydney T. Shulman, Inmates Legal Assistance Program and Connecticut Dept. of Corrections.”

 

3.  It is found that, by letter dated July 6, 2006, the respondents acknowledged receipt of the complainant’s request for the requested records and informed the complainant that, “we are in the process of reviewing your request.”  It is also found that the respondents informed the complainant that, “in the event [he does] not have sufficient funds on [his] inmate account to pay for the fees associated with the production of documents requested under the Freedom of Information Act, a debt shall be established against [his] account.”  It is further found that the respondents informed the complainant that, “all subsequent deposits made to [his inmate] account shall be put towards this debt until satisfied.”

 

4.  It is found that, by correspondence dated July 10 and October 26, 2006, the respondents informed the complainant that the records described in paragraph 2.b, above, were ready for his review.  It is also found that the respondents informed the complainant that the fee for his request for such records (thirty-one pages), totaled seven dollars and seventy-five cents ($7.75), and that upon receipt of payment in such amount, the respondents would forward such records to the complainant.  It is further found that the respondents again informed the complainant “in the event he does not have sufficient funds on his inmate account to pay for the fees associated with the production of the requested documents under the FOI Act, a debt shall be established against his account.”  The respondents’ October 26, 2006 letter also informed the complainant that no record existed responsive to his request described in paragraph 2.a, above.

 

5.  It is found that the complainant declined to pay the respondents the seven dollars and seventy-five cents ($7.75), and instead claimed his indigence by letter dated July 20, 2006, and filed on July 24, 2006 with the Commission.  By such letter, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request for records.  The complainant requested the imposition of civil penalties against the respondents.

 

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

 

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 . . . receive a copy of such records in accordance with section 1-212.

 

7.  Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.  Section 1-212(a)(1), G.S., also provides in relevant part that the fee for any copy provided in accordance with the FOI Act by a state agency “. . . shall not exceed twenty-five cents per page . . .” and §1-212(d)(1), G.S., provides in relevant part that

“. . . [t]he public agency shall waive any fee provided for in this section when . . . [t]he person requesting the records is an indigent individual. . . .”

 

9.  It is found that the respondents do not maintain the records described in paragraph 2.a, above.  Accordingly, it is concluded that the respondents did not violate the FOI Act by failing to provide such records to the complainant.

 

10.  It is also found that the respondents maintain the requested records as described in paragraph 2.b, above, and that such records are public records within the meaning of §1-210(a), G.S.

 

11.  It is found that the complainant had a balance of two dollars and thirty cents ($2.30) or less in his Department of Correction inmate account from January 1, 2006 through at least January 2, 2007. 

 

12.  The respondent Department contends that the complainant refused to sign a form permitting the Department to withdraw from each subsequent deposit made to the complainant’s inmate account, the debt associated with the production of the requested records, until the debt was satisfied under the respondents’ new standard of indigence, as reflected in its amended Administrative Directives 6.10 and 3.10, effective December 14, 2006.  The respondents also claimed that until the complainant signed such form, the requested records would not be delivered to the complainant for his review.

 

13.  With respect to the complainant’s claim of indigence under the Department’s new standard of indigence, it is found that the Department amended its rules concerning indigence in late 2005 and again in late 2006.

 

14.  In late 2005, the Department promulgated Administrative Directive 3.10.  Paragraph 8 of that directive, effective December 15, 2005[1], establishing the Department’s rules concerning photocopying to provide as follows:

 

Photocopying Expense.  Fees for photocopying shall be received by the Department prior to documents being provided to the requestor.

A.                 General Public.  The charge for duplicating material for the general public shall be twenty-five cents for each page copied.

B.                 Inmates.  An inmate shall be charged twenty-five cents for each page copied.  The funds shall be deducted from the inmate’s trust account prior to providing the inmate with the documents.  In the event that an inmate does not have sufficient funds in his/her trust account to pay for the fees associated with the production of documents requested, an obligation to pay shall be established on the inmate’s trust fund.  Subsequent funds shall be fully credited against the obligation until satisfied.

 

15.  A year later, in late 2006, the Department promulgated Administrative Directive 6.10, effective December 14, 2006, amending the respondents’ definition of “indigent inmate” to create two standards, one for property and one for services, and establishing a more generous schedule at which the inmate’s account would be debited until the obligation for copying fees was satisfied:

In matters related to property an inmate shall be considered indigent when: (1) the inmate’s account balance has not exceed five dollars ($5.00) for the previous 90 days and (2) the inmate has less than five dollars ($5.00) in another known source.  In matters related to services, including but not limited to copying fees and filing fees, the service shall be provided to the inmate and the inmate’s account shall be encumbered for payment of the fees associated with the specific service provided.  Twenty percent (20%) of all subsequent funds received by the inmate shall be credited against the obligation until the obligation is satisfied.

 

16.  Also in late 2006, the Department amended Administrative Directive 3.10, effective December 14, 2006, to correspondingly provide, with respect to the schedule of reimbursement for photocopies:

 

An inmate shall be charged twenty-five cents for each page copied.  The funds shall be deducted from the inmate’s trust account prior to providing the inmate with the documents.  In the event that an inmate does not have sufficient funds in his/her trust account to pay for the fees associated with the production of documents requested, the documents shall be provided to the inmate and an obligation to pay shall be established on the inmate’s trust fund.  Twenty percent (20%) of all subsequent funds received by the inmate shall be credited against the obligation until the obligation is satisfied.

 

17.  It is found that the Department’s December 2005 Administrative Directive 3.10, requiring the accounts of otherwise indigent inmates to be encumbered for photocopies of records, was in effect when the complainant made his June 26, 2006 request to the respondents.

 

18.  It is therefore concluded that the Commission should address the indigence standard actually in effect at the time of the request and complaint in this case.

 

19.  Since 1992, the Commission has taken the position that the term “indigent individual” in §1-212(d)(1), G.S., allows each public agency “to set its own standard of indigence, provided the standard is objective, fair and reasonable, and applied in a nondiscriminatory manner.” Thomas May v. FOIC, Docket No. HHB CV 06-4011456, Superior Court, J.D. of New Britain, Memorandum of Decision dated May 2, 2007 (Schuman, J.); see also docket #FIC 91-356, Kulick v. West Hartford Town Manager.

 

20.  The American Heritage Dictionary (2^nd College Ed. 1982) defines “standard” in relevant part to mean: “2.a. An acknowledged measure of comparison for quantitative or qualitative value; criterion ….”  Webster’s Third International Dictionary Unabridged (1993) defines “standard” in relevant part to mean: “3.a: something that is established by authority, custom, or general consent as a model or example to be followed : criterion, test ….”

 

21.  In every case in which the Commission has approved a standard of indigence, agencies have compared, or sought to compare, economic information about the individual against objective criteria, and no standard has precluded the possibility of finding an individual to be indigent.  See, e.g., docket #FIC 2005-219, Rossi v. West Haven (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); docket #2005-134, Fuller v. Department of Correction (standard is met if an inmate’s account contains less than $5.00 and no more than $5.00 for a period of ninety days); docket #2002-297, Connecticut Civil Liberties Union Foundation v. Connecticut Housing Finance Authority (not unfair or unreasonable to require documentation of income statement of client, and proof that such client has no means to pay Freedom of Information Act fees); docket #FIC 1999-094, Levine v. Norwich (approves application of Black’s Law Dictionary definition of indigence and the poverty level criteria utilized by the NDSS); docket #FIC 1996-431, Legal Aid Society of Hartford County v. West Hartford Housing Authority (inappropriate for the Commission to overturn the respondents’ determination to deny a fee waiver to individuals who never submitted income information); docket #FIC 1993-354, Libby v. Middletown (approving criteria based on the definition of indigent in Black's Law Dictionary, information received from the Welfare and Tax Assessor's Departments and the agency’s knowledge regarding the complainant's lifestyle); docket #FIC 1991-356, Kulick v. West Hartford (reliance upon the federal government's established poverty levels for guidance in establishing a working definition of indigence not shown to be subjective, unfair or unreasonable); docket #FIC 1987-264, Cooper v. East Hartford Police Department (evidence that requestor has received donations of approximately $2,000 from former co-workers to assist in the payment of legal fees connected with the suspension of his employment, that requestor also owns a car, maintains an apartment and has approximately $8,000 in a savings account, sufficient for agency to establish lack of indigence);  compare: docket #FIC 1995-105, Dietzko v. Plainville (failure by agency to show that it used objective criteria, guidelines or standards to determine indigence, or that such an indigence standard was in fact applied to the complainant); docket #FIC 1995-426, Presutti v. Department of Housing (no reasonable standard or application of standard when the agency relies on tax returns indicating only that requestor was married but filing separately as opposed to filing a joint income tax return, that requestor lived in a home and that he had a certain dress and appearance that did not comport with the agency’s conception of indigence status, and that the requestor was generally known to have worked as a real estate developer who had undertaken projects that required financial backing); docket #FIC 2005-304, Nappi v. New Haven Police Department (concludes fee must be waived when agency failed to establish that it had  a documented criteria for determining indigence and that the complainant did not meet that criteria).

 

22.  It is concluded that any reasonable and fair standard for establishing indigence must contain, at a minimum, objective criteria for determining whether an individual is in fact indigent.  The application of such a standard must permit economic facts about the individual requesting indigent status to be measured against those criteria, and the application of such a standard must not preclude any possibility of finding the individual to be indigent.

 

23.  Unlike the cases described in paragraph 21, above, it is found that the respondents’ Administrative Directives 6.10 and 3.10.8.B cannot establish anyone’s eligibility for a waiver of fees under §1-212(d)(1), G.S.  Indeed, those Administrative Directives contain no standards or criteria for establishing indigence.  The respondents’ “standard” for indigence with respect to services (including FOI Act copying fees) fails to contain any criteria, objective or otherwise.  Rather, it rests on the irrebuttable presumption, albeit unstated, that no inmate will be considered indigent under §1-212(d)(1), G.S.

 

24.  The unreasonableness of the respondents’ so-called “standard” for the waiver of fees under §1-212(d)(1), G.S., is demonstrated by the fact that it results in no fees ever being waived under Administrative Directives 6.10 and 3.10.8.B, both of which, rather than establishing standards under which fees may be waived, instead establish indebtedness for fees that cannot be paid at the time the copies are provided to the inmate.  A directive imposing a future obligation to pay is not a “standard” for establishing indigence. 

 

25.  It is found that the condition that an obligation is established against the complainant’s trust accounts sets a “standard” of indigence, that is not objective, fair and reasonable, nor is it applied in a nondiscriminatory manner. 

 

26.  The Commission sees no reason at present to deviate from its policy of deferring to agency standards of indigence that are objective, fair and reasonable, and applied in a nondiscriminatory manner.  But a “standard” of indigence that, like the respondents’, contains no standards and precludes any possibility of a finding of indigence is neither objective, fair nor reasonable.  Nor is a standard applied in a nondiscriminatory manner when it is applied only to one class of persons requesting records.

 

27. Accordingly, it is concluded that the respondents violated §1-212(d)(1), G.S., by failing to waive the fees for copying records for the complainant.

 

28.  The Commission declines to consider the imposition of a civil penalty in this matter.

 

            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, at no charge, the complainant with a copy of the records, as described in paragraph 2.b of the findings, above.

 

            2.  The respondents shall not encumber the trust account of the complainant as a result of the provision of the copies described in paragraph 1 of the order.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 27, 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 Stevenson,  #156074

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

 

Michelle Clayton, Fiscal Administrative

Manager, State of Connecticut, Department of

Correction; and State of Connecticut,

Department of Correction

c/o Sandra A. Sharr, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-375FD/paj/6/29/2007