FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on September 17, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

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 of complaint filed June 10, 2008, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with the Commission’s order in docket #FIC 2007-049, Angel Morales v. Health and Human Services Department, City of Hartford (“Morales I”).

 

3.   The Commission takes administrative notice of its records and files in Morales I.

 

4.  In Morales I, the Commission found that neither the respondent, nor the City of Hartford generally, had adopted any standard for determining indigence for purposes of the FOI Act generally and §1-212(d)(1), G.S., in particular, which section requires an agency to waive any copying fee when the person requesting the records is an indigent individual.  The Commission concluded that the complainant was indigent at the time he had made a January 9, 2007 request, and that the respondent violated the requirements of §1-212(d)(1), G.S., when it charged the complainant  $5.00 for copies.  The Commission ordered the respondent to adopt an indigence standard, and to forthwith refund the $5.00 copying fee to the complainant.  That order was issued on July 3, 2007.

 

5.  It is found, as both parties acknowledge, that the respondent, under the direction of its Corporation Counsel John Rose, adopted a standard for indigence after the issuance of the Commission’s order in Morales I.

 

6.  It is also found, however, that the respondent and its Corporation Counsel did not refund the $5.00 copying fee to the complainant until August 25, 2008, more than a year after the Commission’s order in Morales I.

 

7.  The complainant, both in his complaint to the Commission and at the hearing on this matter, requested that the maximum civil penalty be imposed against the respondent and its attorney, Corporation Counsel John Rose.

 

8.  It is found that the establishment of a standard for indigence and the belated refund of the complainant’s $5.00 were both done under the direction of the Corporation Counsel.

 

9.  Further, Corporation Counsel Rose, at the hearing on this matter, took responsibility for the issuance of the $5.00 refund; acknowledged that, to the extent a civil penalty was considered, that it was appropriate to consider its imposition against him; and further acknowledged that he was being given an opportunity to be heard on the issue of a civil penalty..

 

10.  It is concluded that the respondent through its Corporation Counsel failed to comply with the Commission’s order in Morales I, by failing to refund the $5.00 “forthwith.”

 

11.  With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

12.  It is found that Corporation Counsel Rose is the official directly responsible for the denial of the complainant’s right to forthwith receive his $5.00 refund as ordered by the Commission. 

 

13.  Corporation Counsel Rose was given an opportunity to be heard, and was heard, at the September 17, 2008 hearing on this matter.

 

14.  Corporation Counsel Rose contends that a civil penalty is not warranted because the complainant never asked for or demanded the refund, even though the complainant and Corporation Counsel have had numerous contacts since the issuance of the Commission’s order in July of 2007.  Corporation Counsel Rose additionally contends that a civil penalty is not warranted because he has provided other records to the complainant. 

 

15.  The complainant contends that a civil penalty is warranted because the true issue is the responsibility of the Corporation Counsel to comply with the Commission’s orders.

 

16.  The Commission agrees with the complainant.  Specifically, it is concluded as a matter of law that it is not the complainant’s obligation to ask or demand that Corporation Counsel comply with the Commission’s orders.

 

17.  Additionally, it is concluded that neither the failure of the complainant to ask or demand that Corporation Counsel comply with the Commission’s orders, nor the Corporation Counsel’s involvement in providing other records to the complainant, constitute reasonable grounds for his failure to ensure that the refund was issued to the complainant.

 

18.  The Corporation Counsel additionally contends that the respondent might have issued a check without notifying him, and that therefore he had no way to know whether the Commission’s order had been complied with.

 

19.  The Corporation Counsel acknowledged at the hearing, however, that he could have inquired as to whether the check had been issued sometime in the year following the Commission’s order, but did not do so.

 

            20.  It is therefore concluded that Corporation Counsel Rose’s denial of the complainant’s right to forthwith receive a refund of copying charges was without reasonable grounds. 

 

21.  The Commission notes that the amount of the refund was small, and may not have been considered important by either the respondent or Corporation Counsel.  The Commission notes, however, that the issue is not the size of the obligation, but the respondent’s and Corporation Counsel’s legal obligation to comply with it.  Even small parking tickets must be paid promptly, and delays often result in penalties, sometimes substantial.

 

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

 

            1.  Corporation Counsel John Rose shall forthwith remit to the Commission a civil penalty in the amount of $25.00

 

 

 

 

 

            Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 2008.

 

 

____________________________

S. Wilson

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:

 

Angel Morales

49 Margarita Drive

Hartford, CT 06106

 

Health and Human Services Department,

City of Hartford

c/o John Rose, Esq.

Corporation Counsel

550 Main Street

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-394FD/sw/10/28/2008