FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
FINAL DECISION |
|
|
Philip Tegeler and Connecticut Civil Liberties Union Foundation, |
|
|
|
Complainants |
|
|
|
against |
Docket #FIC 1997-081 |
|
|
Connecticut Housing Finance Authority, |
|
|
|
Respondent |
December 10, 1997 |
The
above-captioned matter was heard as a contested case on August 6, 1997, at
which time the complainants 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.
Through
a series of correspondence between the complainants and the respondent from
January 1997 through early March 1997, the complainants requested and were
provided with copies of numerous documents, primarily in connection with the
respondent’s Low Income Housing Tax Credit Qualified Allocation Plan (“LIHTC”).
3. In each of the complainants’ requests
described in paragraph 2, above, the
complainants sought a waiver of the copying fees on the ground that the request
was made to benefit the general welfare, and, in each instance the respondent denied
the complainants’ fee waiver request and charged the complainants fifty cents
per page copied. Further, in each
instance, the complainants paid the copying fees but indicated that they were
not abandoning their fee waiver request and reserved the right to appeal the
denial of their fee waiver request to the Commission.
4. By letter dated March 3, 1997 and filed
March 4, 1997, the complainants appealed the respondent’s copy charge of fifty
cents per page and its refusal to waive the fees in their entirety to the
Commission. The complainants also alleged that the respondent had failed to
provide copies of policy guidelines used by the respondent to determine whether
compliance with a records request would benefit the general welfare. For relief, the complainants requested the
return of the $41.00 copying fees they had already paid to the respondent and
the waiver of all future copying fees related to its investigation of the
LIHTC.
5. The records requested by and provided to the
complainants are public records within the meaning of §1-18a(d),
G.S.
6. Section 1-15(a), G.S., provides that:
“Any person applying
in writing shall receive, promptly upon request, a plain or certified copy of
any public record. The fee for any copy
provided in accordance with … [the FOI Act] (1) by an executive, administrative
or legislative office of the state, a state agency or a department,
institution, bureau, board, commission, authority or official of the state,
including a committee of, or created by, such an office, agency, department,
institution, bureau, board, commission, authority or official, and also
including any judicial office, official or body or committee thereof but only
in respect to its or their administrative functions, shall not exceed
twenty-five cents per page, and (2) by all other public agencies, as defined in
section 1-18a, shall not exceed fifty cents per page….”
7.
With
respect to the complainants’ claim that the respondent should have waived its
fees for the requested records, §1-15(d)
provides in relevant part:
“The public agency
shall waive any fee provided for in this section when … (3) in its judgment,
compliance with the applicant's request benefits the general welfare.”
8. The complainants claim that they are
entitled to a fee waiver because they are an advocacy group currently in the
process of investigating the respondent’s compliance with federal and state
statutes in administering the LIHTC and they have no pecuniary interest in the
outcome of their investigation.
9. The respondent maintains that its executive
director makes decisions concerning fee waivers and that he fairly exercised
his judgment, in accordance with the language of §1-15(d), G.S.,
that compliance with the complainants’ request would not benefit the general
welfare. The respondent further
maintains that if he were required to waive fees on the grounds argued by the
complainants he would have to waive the fees for all advocacy groups.
10. It is found that the respondent’s decision
not to grant the complainants’ fee waiver requests was neither arbitrary nor
capricious. Therefore, the Commission will not upset the judgment made by the
respondent’s executive director in this regard.
11. It is concluded therefore that the
respondent did not violate the provisions of §1-15(d), G.S.,
by failing to grant the complainants’ fee waiver requests.
12. With respect to the complainants’ claim that
the respondent failed to provide the complainants with a copy of its guidelines
or standards it follows when making judgments concerning fee waiver requests,
it is found that the respondent does not maintain a written policy or
guidelines and that waiver requests are reviewed by the executive director who
exercises his judgment with respect to each request.
13. It is concluded therefore, that since no
records exist that are responsive to the complainants’ request for policies or
guidelines, the respondent did not violate the provisions of §1-15(a),
G. S., with respect thereto.
14. With respect to the complainants’ alternate
claim that the respondent violated the FOI Act by charging the complainants
fifty cents per page for copies of the requested records, the respondent claims
that it is not an executive, administrative or legislative office of the state,
a state agency or a department, institution, bureau, board, commission,
authority or official of the state, including a committee of, or created by,
such an office, agency, department, institution, bureau, board, commission,
authority or official within the meaning of §1-15(a),
G.S., by the express terms of its enabling legislation, specifically §8-244,
G.S. Consequently, the respondent
claims that it is entitled, pursuant to the “all other public agencies”
language of §1-15(a),
G.S., to charge the complainants up to fifty cents per page.
15. Section 8-244(a), G.S., provides in relevant
part:
“Said [Connecticut
Housing] [A]uthority is constituted a public instrumentality and political
subdivision of this state….The Connecticut Housing Finance Authority shall not
be construed to be a department, institution or agency of this state.”
16. It is found that pursuant to §8-244(a),
G.S., the respondent is an “other public agency” within the meaning of §1-15(a),
G.S., and therefore the fees it may charge for copies of public records “shall
not exceed fifty cents per page.”
17. It is concluded therefore that the
respondent did not violate the fee provisions of §1-15(a), G.S.,
when it charged the complainants fifty cents per page for copies of the
requested records.
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
December 10, 1997.
_________________________
Doris V. Luetjen
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:
Philip Tegeler and Connecticut Civil
Liberties Union Foundation
c/o Katerina M. Rohner
32 Grand Street
Hartford, CT 06106
Connecticut Housing Finance Authority
c/o Lawrence C. Pilcher
999 West Street
Rocky Hill, CT 06067
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-081/FD/tcg/12101997