FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 12, 2011, at which time the complainant and the respondents 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.). 

 

For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2010-511, Omar J. Miller v. Rikel Lightner, State of Connecticut University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care.

 

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 on July 19, 2010, the complainant made a request to the respondents for a copy of the following:

 

a.       “All notices (to staff or inmates) in relation to MRSA;”

 

b.      “Any and all policies that mandates the UCHC to report MRSA to the CDC (Center of Disease Control) and or any agency, including itself;” and

 

c.       “Any and all policies regarding protocol when dealing with a case of MRSA in MacDougall Walker C.I.”

 

It is found that the complainant’s request included a claim that he was indigent and a request that he be provided a copy of the records free of charge.

 

3.      It is found that by letter dated July 29, 2010, the respondents informed the complainant that his request had been received and was being reviewed.  It is found that the respondents also informed the complainant that the fee for copies of records was twenty-five cents per page and that he would be informed of the estimated cost.

 

4.      It is found that by letter dated August 24, 2010, the respondents informed the complainant that the records responsive to his request had been compiled, and asked that he remit $33.50 (134 pages at $.25 per page), and informed him that upon receipt of the payment, the records would be forwarded to him.

 

5.      By letter dated August 13, 2010 and received on August 17, 2010, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act, by failing to promptly comply with his July 19, 2010 records request.

 

6.      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. 

 

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

 

8.       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.”

 

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

 

10.   It is found that, at the time of the hearing on this matter, the complainant had not remitted the $33.50 and the respondents had not provided the records to him.

 

11.   It is found that the respondents had not provided the records to the complainant because they had not found him to be indigent pursuant to their indigence standard for inmates and because the respondents chose to exercise their right pursuant to §1-212(c), G.S., to require prepayment of the fee. 

 

12.   The complainant contended at the hearing on this matter that the respondents’ use of the DOC’s indigence standard is not in compliance with the FOI Act which he contended requires that a public agency establish and apply its own standard.   He contended that therefore the respondents’ claim that he is not indigent is not valid.  The complainant further contended that the respondents should be ordered to provide the responsive records free of charge as a form of relief for their failure to promptly comply with his request.  The complainant argued that the month the respondents took to compile such a small amount of records was not justifiable and was in violation of the promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

13.   With respect to the standard of indigence used by the respondents, §1-212(d), G.S., provides in relevant part that a “… public agency shall waive any fee provided for in this section when … the person requesting the records is an indigent individual …”

 

14.   It is found that the respondents adopted and applied the same indigence standard for inmates established by the DOC in that agency’s Administrative Directive 3.10 pursuant to which an inmate is considered indigent if he/she has less than $5.00 in his/her account, or any other source, for the previous 90 days prior to the date of the request and for 90 days subsequent to the date of the request. 

 

15.   It is concluded that there is nothing in the FOI Act that precludes a public agency from adopting the same, or similar, indigence standard as that of another agency. 

 

16.   Further, 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 Haven Britain, Memorandum of Decision dated May 2, 2007 (Schuman, J.).

 

17.   It is found that the respondents reviewed the complainant’s account at the time of his request, as well as at the time the responsive records were compiled and prepared to be provided to him, and that at those times the complainant had more than $5.00 in his account.

 

18.   It is found, therefore, that the respondents determined, based on the indigence standard described in paragraph 14, above, that the complainant was not indigent and thus required that he remit the fee for the requested records. 

 

19.   It is concluded that the respondents did not violate the FOI Act in determining that the complainant was not indigent.

 

20.   With respect to the respondents right to require prepayment of the fee prior to providing the records to the complainant, §1-212(c), G.S., provides in relevant part that:

 

A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more….

 

21.   It is found that because the fee for copies of the requested records is more than ten dollars, the respondents are permitted to require prepayment of the fee.

 

22.   It is concluded, therefore, that the respondents did not violate the FOI Act in this regard. 

 

23.  With respect to the amount of time the respondents took to compile the responsive records, it is found that there is nothing in the record of this case to support the complainant’s contention that the respondents unduly delayed complying with his request and that the respondents promptly complied with the complainant’s request.

 

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 July 13, 2011.

 

 

____________________________

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:

 

Omar J. Miller #202230

MacDougall-Walker C I

1153 East Street South

Suffield, CT 06080

 

Rikel Lightner, State of Connecticut,

University of Connecticut Health

Center, Correctional Managed Health

Care; and State of Connecticut, University

of Connecticut Health Center, Correctional

Managed Health Care

C/o Donald R. Green, Esq.

Assistant Attorney General

University of CT Health Center, MC-3803

263 Farmington Avenue

Farmington, CT 06030

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-510FD/sw/7/14/2011