FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Sydney M. Libby,

 

                        Complainant

 

            against              Docket #FIC 93-354

 

Anthony Sbona, Middletown Town Clerk and Chairman, Middletown

High School Renovation Committee,

 

                        Respondent                  August 10, 1994

 

            The above-captioned matter was heard as a contested case on March 4, 1994, 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 1-18a(a), G.S.

 

            2.  By letter of complaint dated and filed with the Commission on December 30, 1993, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by denying him access to copies of records, free of charge, although the complainant is indigent.  The complainant requested that the Commission issue civil penalties against the respondent.

 

            3.  It is found that on December 3, 1993, the complainant visited the respondent's office and at that time requested access to copies of five pages of records (hereinafter "requested records"), free of charge.

 

            4.  It is found that on December 3, 1993, the respondent provided the complainant with access to inspect the requested records, but refused to provide him with free copies on the basis that the complainant was not indigent.

 

            5.  It is found that the complainant then offered the respondent a signed affidavit summarizing his income, assets and expenses and attesting, under oath, to be indigent.

 

Docket #FIC 93-354                           Page 2

 

            6.  It is found that the requested records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

            7.  Section 1-15(d), G.S., provides that "[t]he public agency shall waive any fee provided for in this section when (1) the person requesting the records is an indigent individual...."

 

            8.  It is found that at the time of the complainant's records request the respondent's office had no documented criteria for determining indigence.

 

            9.  However, the respondent contends that although his office had no documented criteria for determining indigence, his own personal assessment that the complainant is not indigent is reasonable, because it is based on information he gained through researching the definition of indigent in Black's Law Dictionary, information he received about the complainant from the Welfare and Tax Assessor's Departments and his own personal knowledge regarding the complainant's lifestyle.

 

            10.  The complainant on the other hand, maintains that the respondent's decision that he is not indigent is a purely subjective one, and based entirely on the respondent's personal dislike for, and general hostility toward him.  The complainant contends further that he has on prior occasions been declared indigent by other public officials.

 

            11.  It is concluded that the determination of whether an individual qualifies for indigency status for the purpose of having fees waived by a particular public agency, is a determination which properly lies with the public agency having custody of the requested records.

 

            12.  It is found that at the hearing in this matter, no evidence was offered by the complainant to support a finding that the respondent's determination that the complainant is not indigent resulted from improper motivations or bad faith.

 

            13.  It is therefore concluded that the respondent's determination that the complainant does not qualify as indigent is reasonable.

 

            14.  It is further concluded that the respondent did not violate any of the complainant's rights under the FOI Act and therefore, the request for civil penalties is denied.

 

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

 

Docket #FIC 93-354                           Page 3

 

            1.  The complaint is hereby dismissed.

 

            2.  The Commission takes this opportunity to remind the respondent that the criteria used by a public agency to determine indigence must be uniformly applied to all persons requesting a waiver of fees.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 10, 1994.

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission

 

Docket #FIC 93-354                           Page 4

 

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:

SYDNEY M. LIBBY

c/o Maria M. Holzberg, Esq.

46 Washington Street

Middletown, CT 06457

 

ANTHONY SBONA, MIDDLETOWN TOWN CLERK AND

CHAIRMAN, MIDDLETOWN HIGH SCHOOL RENOVATION COMMITTEE

c/o Trina A. Solecki, Esq.

City Attorney

245 DeKoven Drive

P.O. Box 1300

Middletown, CT 06457

 

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission