FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on December 21, 2010, at which time the complainant and 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 2010-238; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; Docket # FIC 2010-359; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; and Docket # FIC 2010-387; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety.  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 July 13, 2010 (“July 13^th request”), the complainant requested from the respondents the following records “for the time period from April 1, 2006 through April 27, 2007, in the vicinity of New Haven Road RT 69 from Radio Tower Road to the Bethany Town Line:” 

 

[a] All requested reports, documents, and/or material pertain to Prospect Resident State Trooper Nelson Abarzua and Trooper Fitzgibbon;

 

[b] Complete accident reports, phone call records and recordings of said calls; and

 

[c] All complaints made of kids on bicycles and/or skateboards, with phone records and recording of said calls.

 

3.      By letter dated July 21, 2010, and filed on July 22, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records, described in paragraph 2, above. 

 

4.      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, 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 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 (1) inspect such records promptly during regular office or business hours . . . (3) receive a copy of such records in accordance with section 1-212.

 

6.      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.”

 

7.      It is found that the records requested by the complainant, to the extent that they exist, are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S.   

 

8.      It is found that, on or about May 5, 2010, prior to the complainant’s request at issue in this matter, the respondents had already provided the complainant with copies of the complete report for an incident identified as CFS#0700161350, which are responsive to the requests described in paragraph 2.a and 2.b, above.  It is also found that the respondents subsequently informed the complainant that a second incident report identified as CFS #0600223476 appeared to be responsive to such requests, and would be searched for upon receipt of a $16.00 payment. 

 

9.      It is further found that on or about August 23, 2010, the respondents informed the complainant that there are 1026 incidents referencing bicycles and/or skateboards statewide, listed on a twenty-six page printout, responsive to his request described in paragraph 2.c, above, which the complainant could obtain for $6.50.

 

10.  It is found that, by letters dated September 14, 2010, and October 14, 2010, the complainant requested from the respondents a waiver of copying fees for any records responsive to the requests described in paragraph 2, above, and submitted documentation (including, income/assets and expenses) in support of his alleged indigency.

 

11.  It is found that, by letter dated November 2, 2010, the respondents, once again, informed the complainant that upon prepayment of the search/copy fee for any report associated with CFS # 0600223476, described in paragraph 8, above, and the copying fees for the print-out of the 1026 incidents, described in paragraph 9, above, the respondents would search and copy such documents.  It is further found that the respondents denied the complainant’s requests for fee waivers, described in paragraph 10, above.

 

12.  The complainant contends that he is indigent, and therefore, the respondents improperly denied him the requested records, including the records described in paragraphs 8, 9 and 11, above.  The complainant also testified that the respondents had granted him indigency status in May 2010, with respect to a prior records request submitted in March 2010,[1] and that his financial status had not changed since that time.

 

13.  The respondents claim that the complainant was not indigent under the Department of Public Safety’s indigence standard, as reflected in its policy entitled “Department of Public Safety Policy Regarding FOIA Indigency Determinations” (“DPS indigency policy”), at the time of his July 13^th request.  At the hearing, the respondents testified that in evaluating whether the complainant was indigent they took into account the DPS indigency policy, financial statements and documentation submitted by the complainant in support of his indigency status, and information received from the Department of Corrections with respect to the basic living needs that are supplied to inmates, and then objectively determined that the complainant was not indigent. 

 

14.  The Commission has previously found that the respondents’ policy for establishing one’s eligibility for a fee waiver on the ground of indigency is objective, fair and reasonable.  Docket # FIC 2006-239; Scott Palmenta v. Commissioner, State of Connecticut, Department of Public Safety.

 

15.  It is found that there is no evidence in this case that the DPS indigency policy was applied in a discriminatory manner.  It is further found that in this case, the complainant did not provide documentation supporting his request for a waiver of copying fees by reason of his alleged indigence.

 

16.  Accordingly, it is concluded that the respondents did not violate §§1-210(a) and 1-212, G.S., by failing to provide the complainant with copies of the requested records without prepayment of the copying fees.

 

 

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

                                                                       

1.      The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

David Weaving #161065

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT  06080

 

Commissioner, State of Connecticut, Department of Public Safety; and

State of Connecticut, Department of Public Safety

c/o Stephen R. Sarnoski, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-460/FD/cac/3/28/2011