FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on September 5, 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.  It is found that, by letter dated September 10, 2006, the complainant requested that the Department of Correction (hereinafter  “DOC”) provide him with a copy of “the contract of the law offices of Sydney T. Schulman, Inmates’ legal Assistance program” (hereinafter  “the requested record”).  It is further found that, in such letter, the complainant stated that he was indigent and asked that the copying fee be waived. 

 

3.  It is found that, by letter dated September 14, 2006, to the complainant, the DOC acknowledged the request described in paragraph 2, above, and informed the complainant that if he did not have enough funds in his inmate account, a copy of the requested record would be provided to him and that his trust account would be debited for the cost of the copy. 

 

           4.  It is found that, by letter dated January 19, 2007, to the DOC, the complainant objected to his account being debited.  

 

 

 

     5.  It is found that, by letter dated February 1, 2007, the respondent stated that, pursuant to DOC policy, the complainant could receive a copy of the requested record, but that his trust account would be debited for the copying costs.  It is further found that, thereafter, the complainant and the respondent exchanged a series of letters wherein the complainant disputed the DOC policy of debiting his account and the respondent reiterated such policy.  It is found that the last such letter sent by the respondent to the complainant prior to the filing of the complaint in this matter was dated March 6, 2007. 

 

           6.  By notice of appeal dated March 13, 2007, and filed with the Commission on March 15, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for a waiver of copying fees by reason of the complainant’s alleged indigence.  Specifically, the complainant alleged that the DOC’s indigence policy is in violation of  §1-212(d)(1), G.S.  The complainant requested the imposition of civil penalties against the respondent.

 

7.  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.

 

8.  Section 1-210(a), G.S., provides 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. 

 

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

 

10.  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 ….

 

11.  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 ….”

 

12.  It is found that the requested record is a public record within the meaning of  §§1-200(5) and 1-210(a), G.S.

 

13.  It is found that, by letter dated July 19, 2007, ten months after the request described in paragraph 2, above, and four months after the complaint described in paragraph 6, above, the respondent provided the complainant with a copy of the requested record free of charge and did not debit his trust account. 

 

14.  The respondent first contends that the complaint should be dismissed for being moot.  However, the complainant has not withdrawn the complaint and the Commission still has before it the allegation of whether the respondent violated the FOI Act, as alleged in the complaint.  Accordingly, the respondent’s motion to dismiss the complaint on the ground of being moot is hereby denied.  

 

15.  The respondent next contends that the complainant does not have standing in this matter and cites to the Commission’s final decision in Docket #FIC 2006-174; Brian Niblack v. Theresa Lantz, Commissioner, State of Connecticut, Department of Correction (March 14, 2007) (hereinafter “Docket #2006-174”).  In Docket #FIC2006-174, the Commission found that the complaint in such matter did not allege a violation of the FOI Act. 

 

16.  However, the record and final decision in Docket #FIC2006-174 are not applicable to this matter.  Specifically, the allegation was not the same allegation herein, and the record indicates that the complainant therein was not indigent at the time of the request.    

 

17.  Rather, this matter is much more similar to Docket #FIC 2006-627; Brian Niblack v. Theresa Lantz, Commissioner, State of Connecticut, Department of Correction (October 24, 2007) (hereinafter “Docket #FIC2006-627”).  In Docket #2006-627, the Commission concluded that the respondent in that matter violated  §1-212(d)(1), G.S., by refusing to apply an objective, fair and reasonable standard of indigence, and by refusing to waive copying fees for any inmate, although the inmate in such matter had ultimately been provided the record at issue therein free of charge.  

 

18.  It is found that, at the time of the request described in paragraph 2, above, the complainant had a balance of one dollar and ninety-eight cents in his trust account.  It is found that the complainant was indigent at such time.  

 

19.  The lawfulness of so much of the respondent’s amended Administrative Directives 6.10 and 3.10 as relates to indigence was the subject matter of the Commission’s Final Decision in docket #FIC 2006-683, Quint v. Department of Correction.  The Commission takes administrative notice of that decision, which declared null and void the DOC’s policy of requiring reimbursement for copying fees paid by indigent inmates, and of denying fee waivers to all inmates.  The Commission in that decision ordered the DOC to implement a different standard of indigence.  That order is the subject matter of a pending administrative appeal, but a stay of the order was denied by the Court on September 28, 2007. 

 

20.  It is concluded that the respondent violated §1-212(d)(1), G.S., by refusing to apply an objective, fair and reasonable standard of indigence, and by refusing to waive copying fees for the complainant at the time of his request.  It is further concluded that the respondent violated the promptness provisions of the FOI Act by providing the requested record ten months after the request, as cited in paragraph 13, above.

 

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

 

On the basis of the record concerning the above-captioned complaint, no order by the Commission is hereby recommended.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 2008.

 

________________________________

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:

 

Michael Daly, #14102

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

           

Joan M. Ellis, Administrator, State

of Connecticut, Department of Correction,

Freedom of Information Office

c/o Nicole Anker, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-162FD/paj/2/21/2008