FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 7, 2007, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      By letter dated January 4, 2007 and received on January 12, 2007, the complainant made a written request of the respondent for copies of “data” compiled as a result of the “shakedown” of the complainant’s cell on December 9, 2006.

 

3.      It is found that the respondent seized several items from the complainant’s cell during the search and lodged a disciplinary report against him for possession of the alleged contraband.

 

4.      It is found that the respondent acknowledged the complainant’s January 4, 2007 request on January 12, 2007, which was the day he received the complainant’s letter.

 

5.      It is found that, on January 17, 2007, the respondent provided the complainant with two reports responsive to his January 4, 2007 request. One report is entitled “Disciplinary Report – Page 1.” The other report is entitled “Mental Health Disciplinary Review Form.”

 

6.      It is found that the respondent requested payment from the complainant of $.50 for two pages of records.

 

7.      It is found that the respondent deemed the complainant to be an “indigent inmate,” and, therefore, charged a debt of $.50 against his account, pursuant to Department of Correction administrative directives.

 

8.      By letter dated January 25, 2007 and filed February 1, 2007, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (FOI) Act by failing to provide him with copies of all of the records responsive to his request. The complainant further alleged that the respondent violated the FOI Act by charging him for copies of records, despite finding him to be indigent. The complainant asked the Commission to impose civil penalties against Department of Correction employees E. McLeod and Joan Ellis.

 

9.  Section 1-200(5) G.S., defines “public records or files” as:

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

10.  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.

 

11.   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.”

 

12.    It is found that the records requested by the complainant, if maintained by the respondent, are public records within the meaning of  §§1-200(5) and 1-210(a), G.S.

 

13.   The respondent contends that he has provided the complainant with copies of all the records that existed on the date of his request that were responsive to his request.

 

14.   The complainant contends that the respondent failed to provide him with copies of photographs of the seized items from his cell, the evidence tags attached to those items, and the chain of custody form created upon the seizure of the items from the cell.

 

15.    It is found, based on testimony by the respondent’s witness, that the respondent created neither evidence tags nor a chain of custody form for the items seized from the complainant’s cell.

 

16.   It is found, therefore, that the respondent does not maintain as public records the evidence tags and the chain of custody form, as described in paragraph 14, above.  Accordingly, it is concluded that the respondent did not violate the FOI Act by declining to provide such records to the complainant.

 

17.   With respect to the allegation that the respondent failed to provide the complainant with photographs of the items seized from his cell, it is found that the Disciplinary Report completed at the time of the search and provided to the complainant on January 17, 2007 refers to “(2) photographs of the [seized] contraband.”

 

18.   It is found that the photographs were attached to the Disciplinary Report when, within a day or two after the search, the respondent’s investigator reviewed the matter to determine whether to proceed with the disciplinary ticket against the complainant or to defer the proceedings for a period of time.

 

19.    It is found that the complainant never received copies of the two photographs.

 

20.   It is found that the respondent submitted no evidence to explain its failure to provide the complainant with the photographs when it gave the Disciplinary Report to the complainant on January 17, 2007. It is found, however, that such failure was the result of inadvertence.

 

21.   Accordingly, it is concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to provide a copy of the two photographs to the complainant when, on January 17, 2007, he provided a copy of the Disciplinary Report.

 

22.   It is found that, upon review of the complainant’s Disciplinary Report, the respondent’s investigator deferred disciplinary proceedings against the complainant for a period of time.

 

23.    It is found that the complainant successfully completed his deferral period without receiving additional disciplinary tickets.

 

24.   It is found that, upon an inmate’s successful completion of a deferral period, the respondent routinely destroys all records related to the deferred disciplinary proceedings.

 

25.   It is found that, at some point after January 17, 2007, the respondent destroyed all records compiled as a result of the search of the complainant’s cell on December 9, 2006.

 

26.    It is found that the photographs requested by the complainant no longer exist.

 

27.  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.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 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 Quint, #123433

Northern Correctional Institution

100 Bilton Road

Somers, CT 06071

 

Warden, State of Connecticut,

Department of Correction,

Garner Correctional Institution

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/2007-070FD/paj/11/5/2007