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