FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

By a decision dated April 30, 2007 (Thomas J. May v. Freedom of Information Commission, HHB CV 06-4011456), the Superior Court remanded the above-captioned matter to the Freedom of Information Commission (“Commission” or sometimes “FOIC”) “for further proceedings to determine whether the [Department of Correction’s] policy on copying costs meets the commission’s test and whether the department properly applied the policy in the plaintiff’s case” (id. at p. 12). The Superior Court ruled that the administrative directive of the Department of Correction (“DOC”), which was effective December 15, 2005, should be retroactively applied to a request by the complainant dated October 6, 2005 (id. at pp. 1 and 11). The Superior Court ordered “further proceedings consistent with this opinion.” (id. at p. 12).

 

After the record was closed that was the basis for the Superior Court’s consideration of the Commission’s final decision in the above-captioned matter, the DOC further amended its administrative directives and the Commission has already determined that the DOC’s policy on copying costs does not meet the Commission’s test. 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, Docket #FIC 2006-683 (“Quint”). Applying the Superior Court’s order that the Commission’s further proceedings be consistent with the Superior Court’s opinion, the DOC policy that is currently in effect at the time of this adjudication must now be retroactively applied in this case.    

 

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 Correctional offices contract [sic] and records of non-profit agencies the DOC runs,” and also reaffirmed a September 2, 2005 request for six numbered 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 category six of the October 6, 2005 letter “were available for dissemination…[upon] [p]ayment …in the amount of $125.00.” The respondent’s October 13, 2005 letter also instructed the complainant on how to implement the procedure that provides for an obligation to be “established on the inmate’s trust fund” in the event that 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 1-200(5), G.S., states: 

 

“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.

 

6.  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. 

 

 

 

7.  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…

 

            8.  It is found that the respondent maintains the requested records and that such records are public records within the meaning of §§1-200(5), 1-210(a) and 1-212, G.S.

 

9.  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.

 

            10.  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 copying fee should be waived because the complainant was “an indigent individual.” 

 

11.  In Quint, which was dated June 13, 2007, it was found that in late 2006, the Department amended Administrative Directive 6.10 and Administrative Directive 3.10, both amendments effective December 14, 2006, to provide, respectively:

 

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.

 

….

                               

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.

 

Paragraphs 24 and 25.

 

12.  In Quint, it was also found that amended Administrative Directive 6.10 and Administrative Directive 3.10 “contain no standards or criteria for establishing indigence” (paragraph 39). Quint further held that because these administrative directives discriminate between inmates and all other persons, they are not permissible under §1-212(d)(1), G.S. (paragraph 56).

          

13.  In the absence of standards set by the respondent, it is concluded, based on the findings at paragraph 12, above, that the complainant was indigent at the time he made his request on October 6, 2005. See Angel Morales v. Health and Human Services Department, City of Hartford, Docket #FIC 2007-049; and Nappi v. New Haven Police Department, Docket #FIC 2005-304.

 

            14.  Accordingly, it is concluded that the respondent did violate the provisions of §§1-210(a) and 1-212, G.S., when she failed to waive the copying charges for “an indigent individual” and provide the complainant with the requested records.   

 

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

 

1.  Forthwith, the respondent shall provide the complainant with copies of the requested records described in paragraph 2, above, free of charge. 

 

2.  The respondent 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 July 25, 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:

 

Thomas J. May, #96118

Maine State Prison

807 Cushing Road

Warren, ME 04864-4600

 

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.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2005-519FD/paj/7/30/2007