FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was consolidated for hearing with Docket #FIC 2008-631; Lamberto Lucarelli v. Chief, Police Department, Town of Old Saybrook; and Police Department, Town of Old Saybrook. Both matters were heard as contested cases on April 14, 2009, at which time the complainant and the respondents appeared 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  It is found that by a letter dated October 5, 2008, two separate letters dated October 7, 2008, and a letter dated October 10, 2008, all addressed to the respondent Police Department or the respondent Town Counsel, the complainant requested a substantial quantity of records concerning: a) lawsuits against the respondent Police Department; b) information concerning incidents of harassment reported to the respondent Police Department; c) the personnel files of various members of the respondent Police Department; d) records maintained by the Town Counsel concerning the complainant; and e) the personnel files of various members of the Town of Old Saybrook Department of Public Works (the “requested records”).

 

3.  By letter dated October 16, 2008, the Town Counsel stated that he had provided the complainant with all records that he maintained concerning the complainant (excepting letters from the complainant to him or from the complainant to other agencies of the Town of Old Saybook). With reference to the balance of the requested records, the Town Counsel noted that the complainant had not paid an earlier copying charge of $39.00; estimated that the new records request would entail approximately 300 pages; and requested that the complainant send $150 before the respondents initiated copying the records.    

 

4.  By letter dated October 2, 2008 and filed with the Freedom of Information Commission (“FOIC” or sometimes the “Commission”) on November 4, 2008, the complainant appealed to the Commission, alleging that the respondents failed to provide the requested records without a copying charge, which, because the complainant was indigent, was in violation of the Freedom of Information Act (“FOIA”).

 

5.  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. 

 

6.  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. 

 

….

 

(d) The public agency shall waive any fee provided for in this section when:

 

(1) The person requesting the records is an indigent individual; (emphasis added)

 

7.  It is concluded that the requested records described in paragraph 2, above, are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.  

 

8.  It is found that the respondents have not adopted any standard for determining indigence for purposes of §1-212(d)(1), G.S. The Commission takes administrative notice that claims of indigence in the Town of Old Saybrook are relatively uncommon as compared with the volume of such claims in the large cities of Connecticut.

 

9.  It is found that the complainant is the caregiver for his elderly mother, who owns a home, a car and several bank accounts. The complainant lives with his mother and assists his brother in his brother’s business. The complainant does not file an income tax return, as he has not received an IRS 1099 form since the middle of the 1990s. The complainant has a B.A. degree from the University of Connecticut.

 

10.  At the hearing, the respondents stipulated that they would provide the requested records to the complainant if he paid the copying charges. The parties also agreed to meet (in Old Saybrook, without the hearing officer) to see if the requests could be narrowed and to determine where inspection would be an adequate substitute for receiving copies. The parties stipulated that this contested case should be confined to the issue of indigence.   

 

11.  Also at the hearing, the complainant argued that he was indigent, presenting an affidavit essentially showing that he had no income or assets. The respondents cited the definition of indigence set forth in Black’s Law Dictionary and argued that the complainant was poor, but not indigent, in the commonly approved usage of the term. The respondents argued that the complainant does not get a job because he does not need a job.

 

12.  In its post-hearing brief, the respondents argued that: “[t]here is no reason why any public agency should not be able to determine ‘indigency’ on a case by case basis when a fee waiver was made by an individual.”    

 

13.  Black’s Law Dictionary, 5^th   Edition, defines “indigent” as follows:

 

In a general sense, one who is needy and poor, or one who has not sufficient property to furnish him a living nor anyone able to support him to whom he is entitled to look for support.  Term commonly used to refer to one’s financial ability, and ordinarily indicates one who is destitute of means of comfortable subsistence so as to be in want. (emphasis added)

 

14.  It is concluded that the standard for establishing indigence, and therefore waiver of copying fees, is wholly within the discretion of the custodial public agency, as long as the standard is objective, fair and reasonable, and applied in a nondiscriminatory manner. Thomas May v. Freedom of Information Commission, Docket No. HHB CV 06-4011456, Superior Court, J.D. of New Britain, Memorandum of Decision dated April 30, 2007, p. 9 (Schuman, J.). This court decision approved the position that the FOIC has maintained since 1992 to the same effect. Kulick v. West Hartford Town Manager, Docket # FIC 91-356. See also the Endnote hereto, detailing different standards of indigence and various fact circumstances of FOIC cases claiming and/or finding indigence.   

 

15.  It is concluded that the principle of an objective standard applied in a nondiscriminatory manner precludes case by case determinations of indigence, performed without any objective standard of indigence. Therefore, it is concluded that the respondents violated the requirements of §1-212(d)(1), G.S., as interpreted by relevant case law, when they failed to adopt a standard in order to determine who is indigent for purposes of the FOIA.       

 

16.  It is also concluded, based upon the specific facts and circumstances of this case, that, because the respondents do not have any standard for determining indigence for purposes of §1-212(d)(1), G.S., no legal conclusions concerning the complainant’s indigence can be reached.  

 

             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, adopt an objective, fair and reasonable standard for establishing indigence for purposes of §1-212(d)(1), G.S., and henceforth, shall apply such criteria in a nondiscriminatory manner. The FOIC decisions stating various standards of indigence in the Endnote hereto can serve as an aid to the respondents in their selection of standards.          

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 22, 2009.

 

____________________________

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:

 

Lamberto Lucarelli  

21 Howard Street

Old Saybrook, CT 06475

 

Chief, Police Department, Town of

Old Saybrook; Police Department,

Town of Old Saybrook; and Town

Counsel, Town of Old Saybrook

C/o Michael E. Cronin, Jr., Esq.

201 Main Street

Old Saybrook, CT 06475

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-701FD/sw/7/27/2009

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                ENDNOTE

 

 

Docket #FIC 2007-049, Angel Morales v. Health and Human Services Department, City of Hartford (complainant recently released from a halfway house following incarceration held indigent in the absence of a standard for the City of Hartford); Docket #FIC 2005-304, Thomas Nappi v. Chief, Police Department, City of New Haven (where respondent chief, Police Department, City of New Haven failed to appear at the FOIC hearing, failure to prove that complainant did not meet standard for indigency); 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 FOIA 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 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 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).