Please refer to the attached Method of Compliance with the Notification Requirements of
Conn. Gen. Stat. §1-210(c), G.S., which supersedes the orders of the Commission herein.

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Richard Stevenson,  
  Complainant  
  against   Docket #FIC 2008-683
Donna J. Micklus, Director of
Communications, State of
Connecticut, Department of
Administrative Services; and
State of Connecticut, Department
of Administrative Services,		  
  Respondents September 9, 2009
       

 

The above-captioned matter was heard as a contested case on April 23, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket # FIC 2008-705; Richard Stevenson v. Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; Andrea Baker, Freedom of Information Liaison, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; and State of Connecticut, Department of Correction.

 

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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      It is found that by letter dated October 1, 2008, the complainant submitted a request to the respondents for a copy of certain records which included records related to RFP number 023-A-10-0315-C. 

 

3.      By letter dated October 20, 2008 and filed on October 22, 2008, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request.  The complainant requested the imposition of a civil penalty against the named respondent.

 

4.      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. 

 

5.      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 . . . receive a copy of such records in accordance with section 1-212. 

 

6.      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.”

 

7.      It is found that the requested records, to the extent that they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      It is found that the complainant was provided with a copy of records responsive to his request on or about October 28, 2008. 

 

9.      At the hearing on this matter, the complainant limited his complaint to the manner in which the respondents provided the records, contending that the respondents violated §1-210(c), G.S., by relying on the Department of Correction (hereinafter “DOC”) to provide the responsive records to the complainant, which they did only after the records were reviewed by that department’s FOI Liaison.  The complainant claimed that the responsive records should have been mailed directly to him at his correctional institution and that the envelope should have been stamped “legal mail.”  The complainant contended that the respondents’ failure to do so unduly delayed compliance with his request.

 

10.   Section 1-210(c), G.S., provides in relevant part that:

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility or Whiting Forensic Division facility. [Emphasis added.]

 

11.  It is found that, by letter dated February 20, 2004, the Commissioner of DOC has prescribed that notification of an inmate’s request should include a copy of the responsive records. 

 

12.  It is found that the respondents submitted the responsive records to the Commissioner of DOC as part of their notification of the complainant’s request, pursuant to §1-210(c), G.S., but also relied on that Commissioner to forward the responsive records to the complainant.

 

13.   It is concluded that §1-210(c), G.S., requires a public agency to provide all records responsive to an inmate’s records request, for which no exemption is being claimed by that public agency, to the inmate after the public agency has notified the Commissioner of DOC of the inmate’s records request.  It is concluded that §1-210(c), G.S., does not require a public agency to consult with, or to wait for, the Commissioner of DOC to approve the disclosure of the responsive records prior to complying with the inmate’s request. 

 

14.   It is also concluded that, notwithstanding any action taken by the Commissioner of DOC to withhold such records from an inmate when the records are delivered to the inmate’s correctional institution or facility, such as that described in the DOC’s Administrative Directive 10.7[1], the respondents were required to provide the responsive records to the complainant by mailing, or otherwise delivering, the responsive records to the complainant after notifying the Commissioner of DOC of the complainant’s records request.

 

15.   It is found, therefore, that the respondents unduly delayed providing the responsive records to the complainant by waiting for, and relying on, the Commissioner of DOC to provide such records to the complainant and therefore, it is also found that the respondents failed to promptly comply with the complainant’s records request.

 

16.   It is concluded, therefore, that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to promptly comply with the complainant’s records request.

 

17.   It is found, however, that the respondents did not act in bad faith by consulting with the Commissioner of DOC but rather believed they were acting in compliance with the law.

 

18.   It is also found that this Commission has no jurisdiction to address the complainant’s alleged right to have correspondence mailed to him from the respondents stamped “legal mail.”

 

19.   Finally, the Commission declines to consider the complainant’s request for the imposition of civil penalties in this matter.

 

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

 

1.      Henceforth, the respondents shall strictly comply with the promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

2.   The respondents are hereby informed that, in the future, non-exempt records responsive to an inmate’s request must be provided to that inmate by mailing, or otherwise delivering, such records to that inmate at that inmate’s correctional institution or facility promptly after notifying the Commissioner of DOC of such request. 

 

 

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of September 9, 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:

 

Richard Stevenson #156074

MacDougall Walker C I

1153 East Street South

Suffield, CT 06080

 

Donna J. Micklus, Director of

Communications, State of

Connecticut, Department of

Administrative Services; and

State of Connecticut, Department

of Administrative Services

C/o Erin O’Brien Choquette, Esq.

Department of Administrative Services

165 Capitol Avenue, Room 491

Hartford, CT 06106

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-683FD/sw/9/15/2009

 


[1] DOC’s Administrative Directive 10.7 provides in relevant part as follows: “Incoming General Correspondence. 1. Review, Inspection and Rejection. All incoming general correspondence must list the sender’s return address on the outside of the envelope. All incoming general correspondence shall be opened and inspected for contraband and money and shall be subject to being read at the direction of the Unit Administrator, by person(s) designated by such administrator, for either a specific inmate(s) or on a random basis when the Commissioner or Unit Administrator has reason to believe that such reading is reasonably related to legitimate penological interests. All incoming general correspondence may be rejected if such review discloses correspondence or material(s) which would reasonably jeopardize legitimate penological interests, including, but not limited to, material(s) which contain or concern:

 

a. the transport of contraband in or out of the facility;

b. plans to escape;

c. plans for activities in violation of facility or Department rules;

d. plans for criminal activity;

e. violations of Sections 18-81-28 through 18-81-51, inclusive, of the Regulations of Connecticut State Agencies, this Directive or unit rules;

f. material which reasonably could cause physical or emotional injury to the inmate recipient as determined by the appropriate mental health staff;

g. letters or materials written in code;

h. threats to the safety or security of staff, other inmates, or the public, facility order or discipline, or rehabilitation;

i. sexually explicit material(s) which meet the standards and review procedures set forth in Section 4(N)(1) of this Directive; or,

j. any other general correspondence, rejection of which is reasonably related to a legitimate penological interest.

 

Incoming general correspondence containing any of the foregoing may be restricted, confiscated, returned to the sender, retained for further investigation, referred for disciplinary proceedings or forwarded to law enforcement officials. The decision to take any action provided for in this section shall be made by the Unit Administrator or designee. Such designee shall not be the same person(s) who made the initial mailroom review.